Wednesday, June 30, 2010

HIGH COURT DECISION IN P36 OF 2009 DID NOT LITIGATE THE ISSUE OF PSEUDO BOARD - CREDIBILITY OF JUSTICE CHANEY ...

________________________________________
From: Matthew Grey [mailto:mgrey@hcourt.gov.au]
Sent: Tuesday, 23 March 2010 5:59 AM
To: Nicholas N Chin
Subject: RE: Your application for special leave to appeal in matter number P36/2009
Dear Mr Chin
I have nothing further to add.
Regards
Matt Grey
Deputy Registrar
23/3/10
From: "Nicholas N Chin"
To: "'Matthew Grey'"
Cc:
Date: 22/03/2010 09:53 PM
Subject: RE: Your application for special leave to appeal in matter number P36/2009
________________________________________
Dear Mr Grey
The High Court decision to dismiss my Application for Special Leave to Appeal hinges on the credibility of the learned Justice Chaney of the State Administrative Tribunal of Western Australia in VR 107 of 208 delivered on 25.10.2008. However, Justice Chaney was then reasonably found to have been actively involved in re-persecuting me on the same issues and facts in VR87 of 2008 for the further remedy of Professional Misconduct which the Legal Profession Complaints Committee did not do on the last occasion.
My letter of the 15th day of March, 2009 to SAT which has been posted to you since the 18.3.2010 explains why the principle of the rule of law already accepted by the High Court of Australia does not permit this matter to be re-litigated on the ground of res judicata and yet this is happening. Under these circumstances, do you still say that I do not have a chance for review?
Yours faithfully
NICHOLAS N CHIN
________________________________________
From: Matthew Grey [mailto:mgrey@hcourt.gov.au]
Sent: Monday, 22 March 2010 9:50 AM
To: nnchin09@tpg.com.au
Subject: Your application for special leave to appeal in matter number P36/2009
Dear Mr Chin
I refer to your letter to Ms Cheetham dated 18/3/10.
I advise that the decision of the High Court in dismissing your application for special leave to appeal was final. There is therefore no right of review of that decision.
Regards
Matt Grey
Deputy Registrar
22/3/10

RESPONSE FROM THE ELECTORATE OFFICER OF MEMBER OF PARLIAMENT HELEN MORTON MLC

--------------------------------------------------------------------------------
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Wednesday, June 30, 2010 4:37 PM
To: 'Morton, Helen'
Subject: RE: CIV 1604 FO 2010: PRINCIPLE OF LAW DOES NOT EXIST IN WESTERN AUSTRALIA
Mary-Anne Reid
The office of Hon Helen Morton MLC
Member for East Metropolitan Region
Parliamentary Secretary to the Premier; Treasurer; Minister for State Development
and to the Minister for Water; Mental Health
Dear Ms. Reid
The decision below is by the High Court which states that my case depends on the credibility of the trial judge His Honour Justice Chaney. If Justice Chaney, Justice Heenan and Justice Le Miere refused to make a legal determination on the single issue of the Usurpation by the Pseudo Board, there will be no solution to my problem. The only solution is then left for the Parliament of Western Australia to compel the judges to do justice in accordance with the law and with their respective oaths of office. There cannot exist cronyism in Western Australia to the extent that its citizen is being tortured against the United Nations Convention of Torture. If the WA government does not do something about the criminality of this torture, then nothing will happen.
Cheers
NICHOLAS N CHIN

Chin v Legal Practice Board of Western Australia [2010] HCASL 4 (10 March 2010)
Last Updated: 12 March 2010
NI KOK (NICHOLAS) CHIN v LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
[2010] HCASL 4 P36/2009
1. The respondent imposed conditions on the applicant's practising certificate, pursuant to s 40(3) of the Legal Practice Act 2003 (WA), requiring that he practise only as an employed solicitor and that his work be closely supervised. The State Administrative Tribunal (Chaney J, Ms M Jordan and Mr B Hunt) conducted a de novo hearing and affirmed the decision of the respondent. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Western Australia (Pullin and Newnes JJA) dismissing the applicant's appeal against orders of the Tribunal.
2. 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.
3. The Court of Appeal refused leave to appeal and dismissed the appeal on the basis, inter alia, that no ground of appeal had a reasonable prospect of success. The proposed grounds were prolix, contained vexatious and offensive material and did not raise any doubt about the correctness of the Tribunal's decision, nor any other basis for granting leave in the interest of justice.
4. Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
5. The applicant's written submissions raise no arguable ground for the grant of special leave. We see no reason to doubt the correctness of the conclusions reached by the Court of Appeal and any appeal would have insufficient prospects of success.
6. The application is brought out of time and the applicant seeks an order under r 41.02.2 of the High Court Rules 2004 dispensing with the requirement to comply with the time limit in r 41.02.1. That order should be refused for the reason that even if it were granted, it is inevitable that the application for special leave to appeal would be dismissed.
7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
K.M. Hayne
10 March 2010
S.M. Crennan
--------------------------------------------------------------------------------
From: Reid, MaryAnne [mailto:MaryAnne.Reid@mp.wa.gov.au] On Behalf Of Morton, Helen
Sent: Wednesday, June 30, 2010 12:24 AM
To: Nicholas N Chin
Cc: Morton, Helen
Subject: RE: CIV 1604 FO 2010: PRINCIPLE OF LAW DOES NOT EXIST IN WESTERN AUSTRALIA
Dear Mr Chin
After contact with our office in 2009, Mrs Morton sent the attached letter.
Mrs Morton has been made aware that your opportunities for review have been utilised – with the decision of the Legal Practice Board being upheld by the State Administrative Tribunal in October 2008, and the Supreme Court (Court of Appeal) refusing to grant leave to appeal in June 2009. As such, two separate bodies have provided an independent review of original decision made by the Legal Practice Board, and effectively upheld the conditions placed on your Practice Certificate.
As per the letter from this office dated 23 October 2009, the office of Attorney General is best place to comment on this matter.
Kind regards,
Mary-Anne Reid
The office of Hon Helen Morton MLC
Member for East Metropolitan Region
Parliamentary Secretary to the Premier; Treasurer; Minister for State Development
and to the Minister for Water; Mental Health
Suite 2, 201-205 Burslem Drive Maddington, Western Australia 6109
T: 61 8 9452 8311 F: 61 8 9452 8366 E: maryanne.reid@mp.wa.gov.au

Response by the Hon Helen Morton MLC Member for East Metropolitan Region

Mr Nicholas N Chin
387 Alexander Drive
Dianella WA 6059
23 October 2009
Dear Mr Chin
Legal Practice Board: Restriction on Independent Legal Practice
Thank you for your email dated 21 October 2009, outlining your concerns about the conduct of the Legal Practice Board of Western Australia and their decision to place restrictions on your Practice Certificate, thereby restricting your ability to practice as an independent barrister and solicitor.
Please be assured that my staff have provided me with a detailed examination of the issues you have raised. I have also been made aware that your opportunities for review have been utilised – with the decision of the Legal Practice Board being upheld by the State Administrative Tribunal in October 2008, and the Supreme Court (Court of Appeal) refusing to grant leave to appeal in June 2009. As such, two separate bodies have provided an independent review of original decision made by the Legal Practice Board, and effectively upheld the conditions placed on your Practice Certificate.
I have forwarded your concerns to the office of the Attorney-General, who is best placed to deal with any further concerns you may wish to raise. Thank you for taking the time to contact my office.
Yours sincerely
Hon Helen Morton MLC
Member for East Metropolitan Region

Tuesday, June 29, 2010

AFFIDAVIT OF NICHOLAS N CHIN CALLING FOR RECUSSAL OF JUSTICE KEN MARTIN IN CIV 1981 OF 2010

IN THE SUPREME COURT OF WESTERN AUSTRALIA OM NO: …… OF 2010
HELD AT PERTH
In the matter of the apprehended bias of the Learned Justice
Kenneth Martin and his jurisdictional errors in dealing with
CIV 1903 of 2008 and CIV 1112 of 2007 through his refusal
to take into account relevant matters and in taking into account
irrelevant matters; just as though His Honour was reasonably
seen to descending into the arena of conflict by taking sides
with the opposite party and was thus blinded by the dust of
conflict; he consequently denied the Applicant, his natural
justice.



EX PARTE: NICHOLAS NI KOK CHIN

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AFFIDAVIT OF NICHOLAS NI KOK CHIN IN SUPPORT OF HIS NOTICE OF ORIGINATING MOTION CALLING FOR THE RECUSAL OF JUSTICE KENNETH MARTIN DATED 28TH DAY OF JUNE, 2010.


Case Manager: The Hon Justice Kenneth Martin
Date of Document: 28th May, 2010
Filed on behalf of: The Plaintiff
Date of Filing: 26 May, 2010

Prepared by:
Nicholas Ni Kok Chin
387, Alexander Drive
DIANELLA WA 6059
Phone: 08 927567440
Mobile: 0421642735
Email: nnchin@msn.com


Annexure Description Page No.
AF Affidavit of Applicant sworn 29.06.2010 in support of Notice of Originating Motion. 1-11
NNC-1 Transcript of proceedings before Justice Kenneth Martin (the Second Judge) dated 30.4.2010 in CIV 1112 of 2007 and CIV 1903 of 2008 in 15 pages from pages 1 to 15. 12-27
NNC-2 Transcript of proceedings before the Second Judge dated 17.6.2010 in CIV 1903 of 2007 -20 pgs from pages 16 to 36. 28-47
NNC-3 Transcript of proceedings before the Second Judge dated 13.5.2010 in CIV 1112 of 2007 in 16 pages from pages 25-31. 48-53
NNC-4 Transcript of proceedings before the Second Judge dated 13.5.2010 in CIV 1903 of 2008 in 14 pages from pages 52-66. 54-68
NNC-5 Transcript of proceedings in both CIV1112 of 2007 of 2008 dated 13.5.2010 in 8 pages from pages 16 to 24 sent to me by post after my complaint that the transcript had been tampered with, from the Court Technology Officer of the Supreme Court of WA with cover letter dated 19.5.2010.
69-74
NNC-6 My email letter to the Associate of the Second Judge dated 13.5.2010 requesting for a copy of the transcript and the Varied Orders of Justice Kenneth Martin to Justice Hasluck Orders in both cases. 75
NNC-7-1 to NNC-7-3 My email letter to the Associate of the Second Judge dated 17.5.2010 complaining about the incomplete transcript was responded to by Leon Firios dated 18.5.2010 indicating that my complaint was misconceived. 76-78
NNC-8-1 to NNC-8-2. The Associate Civil Record of the Associate of the Second Judge dated 13.5.2010 in CIV 1903 of 2008. 79-80
NNC-9-1 to NNC-9-6 The judgment of the Second Judge that did not take into account of the written submissions of the Applicant in CIV 1903 of 2008 and that of his son the Second Defendant in CIV 1112 of 2007 which is effectively a prejudgment of the whole issue of denying the Applicant of his natural justice. 81-86
NNC-10-1 to NNC-10-6 The First Defendant’s Outline of Written Submission dated 10.6.2010 in relation to his Chamber Summons dated 12.5.2010 requesting for Security of Costs which has not been decided yet by Justice Kenneth Martin as at the date of filing of this Affidavit in 6 pages. 87-92
NNC-11-1 to NNC-11-2 Letter from the Applicant to the Principal Registrar of the Supreme Court of Western Australia copied to the Associate of the Second Judge dated 28.5.2010 requesting for His Honour to recuse himself from further hearing CIV 1903 of 2008 on the ground of apprehended bias. 93-94
NNC-12-1 to NNC-12-18 Written Outline of Submissions by the Applicant dated 24.6.2010 in response to the Written Submission of the First Defendant’s submissions dated 10.6.2010 as indicated above in 18 pages. 95-112
NNC-13-1 to NNC-15 My response letter to the LPCC regarding the Complaint of the First Department in respect of my ability to represent my son the Second Defendant in these proceedings including the CIV112 of 2010 dated 29.10.2010. 113-127

INDEX PAGE NUMBERS
SECOND STAGE - THE SUBS.36(4) MCA PROCEEDINGS: 3
APPREHENDED BIAS OF THE SECOND JUDGE 4
DAMAGES FOR WRONGFUL CAVEAT 4
REFERENCE TO CAVEAT NOT HAVING BEEN REMOVED ON 1.5.2008: 5
PLAINTIFF BE MADE DEFENDANT IN THE CAVEAT CASE 5
IMPROPER MOTIVE FOR THE SECURITY COSTS APPLICATION 5
THE PRE-JUDGMENT OF THE SECOND JUDGE 5
REASONS FOR APPLICANT TO BE MADE DEFENDANT IN THE CAVEAT CASE 5
MISCONCEPTION OF CAVEATABLE INTERESTS: 5
ZERO SUM DEBT FALSE CLAIM IS THE HANDMAID OF THE DURESS GUN CAVEAT CASE WIELDED BY FIRST DEFENDANT TO ACHIEVE AN IMPROPER PURPOSE 5
REASON FOR APPREHENDED BIAS OF SECOND JUDGE 5
PAUL UNDER UNDUE INFLUENCE OF HIS FATHER TO SIGN THE AGREEMENT: 5
FIRST DEFENDANT RETAINER TERMINATED BY APPLICANT 5
PAUL TERMINATED RETAINER OF FIRST DEFENDANT 5
APPLICANT - NO PUBLIC ROLE AS SOLICITOR - SOLE ACTOR FOR HIMSELF AND INACTIVE SON 5

I, Nicholas Ni Kok Chin of No. 387, Alexander Drive, DIANELLA, WA 6059, Western Australia, Barrister & Solicitor (currently not certificated), being duly sworn make oath and say as follows:
1. I am the Plaintiff in the above entitled proceedings and I swear this Affidavit in support of my Application for my Mandamus and Certiorari Orders Nisi, inter-alia for His Honour Justice Kenneth Martin (the Second Judge) to recuse himself from further hearing the second part of the subs.36(4) Magistrates Court Act, 2004 (MCA) proceedings in CIV 1903 of 2008.
2. The facts herein are true and correct, to the best of my knowledge, information and belief. Where I identify the source of facts stated as other than from my own personal knowledge, I believe such facts to be true and correct.
3. The s.36 MCA proceedings for reviews of the non-jurisdictional decisions of the Duress-vitiated Registrar Wilde Involuntary Consent Judgment in FR417 of 2007, of Magistrates Musk in FR944 of 2008, of Commissioner Herron’s in DC Appeal No.6 of 2008 of Musk and of Magistrates Michelides in the appeal of the Registrar Wilde Consent Judgment, have been completed by the Justice Hasluck pursuant to subs. 36(1) of the MCA (The First Judge).

SECOND STAGE - THE SUBS.36(4) MCA PROCEEDINGS:

4. The second stage or the subs. 36(4) MCA proceedings is currently before the learned Justice Kenneth Martin (the Second Judge) which came for directions hearing on the 30.4.2010, 13.5.2010 and 17.6.2010. The extent of these proceedings conducted by the Second Judge is recorded in the transcripts enumerated above in the Annexed documents from NNC1 to NNC-5. I as the Applicant in these proceedings am not happy at the manner they are being conducted. I have consequently called for the Second Judge to recuse himself without success.
5. I believe that the apprehended bias of the Second Judge is apparent from the transcript of the proceedings as indicated above and the contents of my letter to the Principal Registrar dated 28.5.2010 in Annexure: NNC-11 which explains my 12-point argument as to why there should be that recusal.

APPREHENDED BIAS OF THE SECOND JUDGE

6. In addition, some further points of apprehended bias of the Second Judge can be obtained from my 18 page Outline of Written Submission referred to Annexure: NNC-12-1 to NNC-12-18 and also in my Affidavit containing 140 pages sworn dated and filed 26.5.2010 which crossed his Honour’s decision to bar me from being heard in the Caveat case of CIV 1112 of 2007 despite the fact that I was granted by the First Judge permission to appear for and on behalf of my son, the Second Defendant whilst my son remained inactive on the ground that he was never voluntary in his solicitor client-relationship with the First Defendant from the start and also with the consent of the First Defendant’s barrister Mr. Scott Ellis who must not now reneged that that consent was granted only for the mediation process which went sour. Once it is granted and let no one approbate and reprobate.

DAMAGES FOR WRONGFUL CAVEAT

7. I also seek to amend my proposed order 5 found at page 17 of NNC-12 at the concluding part of my submissions which I want this Court to consider to the effect that the damages for the wrongful caveat be amended to $100.00 per day to be calculated as from the day the unlawful caveat was lodged on the 11.12.2006 until the 16.6.2010. The unlawful Caveat lasted for 1283 days when it was finally removed at the suggestion of the Second Judge. On 21.6.2010 I made an inquiry at the front counter desk of the Midland Office of the Registrar of Titles and I was informed that the unlawful Caveat of the First Defendant was no longer there. The special damages for the wrongful caveat is from the day the First Defendant caused the unlawful caveat K17968 to be lodged upon the home property of my son whilst he the First Defendant was without a caveatable interests to do so, until the day when it was lawfully removed on the 16th day of June, 2010 as a result of the insistence of the Second Judge in these proceedings after the First Defendant had been notified of the quantified damages he was causing the Second Defendant by wrongfully clogging up his asset. The total quantified special damages liability of the First Defendant is therefore calculated to be in the sum of one hundred and twenty thousand three hundred and eighty dollars ($128,300.00) .

REFERENCE TO CAVEAT NOT HAVING BEEN REMOVED ON 1.5.2008:

8. At page 30 of NNC-3 there is a reference by the Second Judge to Order 42 r.8 of the RSC which implicates the Learned Master Sanderson refusal to release the wrongful caveat in the proceedings in CIV1112 of 2008 when the Second Defendant was physically present as a Defendant litigant in person before the learned Master. I do not understand the reasoning of the Second Judge as I was present when my son was present on the 1.5.2008 before the learned Master as my son appeared in person. Mr. Dean Elek-Roser, the solicitor who appeared on behalf of the First Defendant was then telling Master Sanderson that the caveat could not be removed on account of an ongoing dispute with the Applicant. So I need to put the records straight on this point.

PLAINTIFF BE MADE DEFENDANT IN THE CAVEAT CASE

9. I was troubled by the Second Judge’s unreasoning conduct in refusing me to be heard regarding the issues affecting my son’s Caveat Case in CIV 1112 of 2007 under circumstances when my son was never involved voluntarily in those proceedings as it was I who had caused him to be entangled by the First Defendant. See Annexure NNC-13. As a result of this unjustified barring me from me from being heard in my own case, purportedly on the excuse that it was my son’s case which had led me to have some trouble in obtaining the relevant transcript from the Associate of the learned Justice Kenneth Martin. See Annexure: NNC-6 and NNC-7.
10. My protestations have led to the current proceedings being stagnated with the decision as to the Security of Costs Order being reserved. I believe this to be a frivolous and vexatious Application for Security Costs by the First Defendant dated 12.5.2010 made before the Second Judge. See the outline of written submissions in Annexure: NNC-10 by the First Defendant for which I have made my submissions in response in Annexure NNC-12.

IMPROPER MOTIVE FOR THE SECURITY COSTS APPLICATION

11. This Security Cost Application has a hidden motive to stop the Learned Second Judge from doing his duties or to exercise his discretion correctly pursuant to the principle of the common law that is being enunciated by His Honour Justice Beech in the West Australian case of Re An Application Under The Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151 at para.58 . It was an unfair step in the proceedings taken by the First Defendant for no justifying circumstances to that prevents His Honour from exercising the correct discretion in the current subs. 36(4) MCA proceedings. This unfair motive is reasonably apparent in that the Application is seeking for the security of some Null Costs Orders of Commissioner Herron, Magistrate Musk and Michelides that emanates from jurisdictional errors. They are therefore unenforceable in our courts system.
12. I have explained my position with regard to the shady dealing of the Application for Security Costs by the First Defendant in my Response Outline of Written Submission in 18 pages in Annexure: NNC-12 and it is indeed I who should be seeking security of costs order for the Second Defendant instead of him seeking it from me.

THE PRE-JUDGMENT OF THE SECOND JUDGE

13. The barring of my being heard in my own case in the Caveat Case by the Second Judge culminated in the written judgment of the Second Judge heard and delivered on 13.5.2010 and published on 25.5.2010 in Annexure NNC-9 in 6 pages. I would term this as a prejudgment of the Second Judge because it crossed my 140 page Affidavit filed and sworn and served 26.5.2010 as it also did not take into considerations the respective written submissions of the Second Defendant and the Applicant. If it did take the relevant considerations into account and not take the irrelevant considerations into account or it was guided by the relevant considerations in those two written submissions, it would not have been called a pre-judgement with due respect to His Honour the Second Judge.
14. At paragraph 5 of my 26th May 2010 Affidavit, I adopted the contents of the Affidavit of the Second Defendant of 60 pages into my Affidavit in respect of CIV1112 of 2007 which was not accepted by the Second Judge although it was signed by Paul in his own case as a litigant in person. It is to be noted that the Summons in Chambers in the Caveat Case was subsequently altered into the Second Defendant’s name as a litigant in person and yet it was unreasonably rejected by the Second Judge thus denying the Second Defendant his natural justice. It was a neither here nor there situation, Paul was not allowed to be a litigant in person and I was not allowed to help him as a McKenzie friend. This is an anomalous situation arising from the apprehended bias of the Second Judge.

REASONS FOR APPLICANT TO BE MADE DEFENDANT IN THE CAVEAT CASE

15. Paragraphs 22 and 23 of the 26th May, 2010 Affidavit explain to the Second Judge the reasons why I should be included as the Second Defendant in CIV1112 of 2007 in exchange for my son the Second Defendant to be included as the Second Defendant in CIV1903 of 2008.
16. Paragraphs 24 with 20 sub-paragraphs explains the reasons as to why my son the Second Defendant was never the party involved in the ZERO DEBT false claim of the First Defendant on the ground that he was an involuntary person who came into the picture because he was under my undue influence. Therefore, I am liable to my son for getting him into the picture and similarly, I should also be the person liable for pulling him out of the picture. Hence, the reasons why the two cases i.e. CIV 1903 of 2008 and CIV 1112 of 2007 should be consolidated to achieve the purpose of quieting all claims arising from one transaction or event in accordance with Order 83 of the RSC.
17. The Second Judge is not quite correct in his reasoning that that the two cases cannot be consolidated because they are different, one dealing with the ZERO SUM DEBT CLAIM and the other dealing with the caveat of the First Defendant who has an arguable interests in land. His Honour misconceived this issue as the two cases are about quelling all claims arising arising from the ZERO SUM DEBT.

MISCONCEPTION OF CAVEATABLE INTERESTS:

18. The Second Judge misconceived the fact that was quoted in his pre-judgment at para. 10 at page 5 of that Prejudgment in Annexure NNC-9 concerning the judgment of the case of Bashford v Bashford [2008] WASC 138 by His Honour Beech J who was referring to an “arguable caveatable interests” which the Second Judge mistook as “an arguable interests in land”.

ZERO SUM DEBT FALSE CLAIM IS THE HANDMAID OF THE DURESS “GUN” CAVEAT CASE WIELDED BY FIRST DEFENDANT TO ACHIEVE AN IMPROPER PURPOSE

19. Therefore it is clear that the two cases should be consolidated because it revolves around the single issue of a ZERO SUM DEBT CLAIM to which the First Defendant was at all material times using the Caveat Case of CIV1112 of 2007 as a “gun” of duress which resulted in his achieving the Registrar Wilde Involuntary Consent Judgment in FR417 of 2007 and causing the First Defendant to be paid the duress-vitiated compromise sum of $11,500.00 which is the subject of the current dispute in these proceedings.
20. The Second Judge is now stating that if I am not happy with his decision in barring me from the Caveat Case and his not consolidating the two cases into one cases, I am free to appeal. I understand that this is a jurisdictional error of the Second Judge and therefore I am making this application for Certiorari, mandamus and prohibitions orders nisi before another Justice of the Supreme Court.

REASON FOR APPREHENDED BIAS OF SECOND JUDGE

21. The Second Judge is biased on the grounds of his seeming interests in the First Defendant’s case, his conduct at closing all doors and avenues of justice to the Applicant by denying him from being heard in the Caveat Case and giving unreasonable reasons as to why the two cases cannot be consolidated, the reasonable presumption that his attitude is being shaped by extraneous information that is not grasped from the court records and perhaps they had influenced his mind from external sources and his general leanings towards the First Defendant’s case. All these reasonably perceived biased are being exacerbated by the Second Judge proclivity not to fully understand the Applicant’s case including the special circumstance that he had made a written prejudgment in this case on 13.5.2010. This is further coupled by his referring to the bona fides of the belief of the Second Defendant that he has a genuine claim for unmet legal fees leading to his wanting the First Defendant to be cross-examined on irrelevant matters when the crux of the issue is solely about a ZERO SUM DEBT FALSE CLAIM in FR417 of 2007 case pursuing a NON-CONSENSUAL VARIED COSTS SOLICITORS AGREEMENT and aided by the duress “GUN” of the Caveat case in CIV1112 of 2007 which should be consolidated into one case in the current subs.36(4) proceedings in CIV 1903 of 2008 for the purpose of quieting all claims that arose from one single event or transaction i.e. the ZERO SUM FALSE DEBT FALSE CLAIM. Further, the Second Judge is reasonably perceived to have been advocating for the First Defendant and defending his perceived rights of the First Defendant against the evidence available before him when he ought to have generally favoured the Applicant by adopting the normally under circumstances where there are no justifying circumstances advanced by the First Defendant.
22. I do not agree that there should be a cross-examination at all or if there is a cross-examination, it should not drag into itself into other irrelevant issues as the incontrovertible evidence are already available before His Honour in the Affidavit material of the First Defendant filed on 7.10.2009 (the Thies Affidavit).
23. There is only one issue i.e. there was the NON-CONSENSUAL VARIED SOLICITORS COSTS AGREEMENT (THE AGREEMENT) entered into by the Applicant with the First Defendant on the 3.11.2004. The First Defendant was happy to receive a $500.00 deposit upon the signing of THE AGREEMENT and he pretended that there was consensus ad idem under circumstances where there was none.
24. The First Defendant does not deny the existence of the pre-contractual terms as contained in the Applicant’s email dated 25.10.2010 which is found at page 93 of the Thies Affidavit (the pre-contractual terms). At page 94 of same, on 27.10.2004 he again agreed to the finer terms of the pre-contractual terms.
25. On 31.10.2004, he again pretended to agree to the pre-contractual terms at page 95. He did this again on 1.11.2004, when he confirmed his agreement to those pre-contractual terms at page 96. He repeated his agreement on 3.11.2004 when he pretended signed a receipt for the $500.00 which he wanted very much to receive as deposit from the Applicant. As an officer of the court, the question is why he was not honest enough to say he did not agree before he received the $500.00 deposit? He misled the Applicant to think that there was consensus ad idem from him when he signed the receipt on 3.11.2004 and also signed an additional clause that he will not be paid for any work unless the Applicant agrees to pay him and he agrees that the work he is going to do is going to be worth its payment and as directed by the Applicant. He agreed that the Applicant is to approve all billings and time-costing and he confirm it many times in his email correspondence with the Applicant. These pre-contractual terms he knows very well will vary his Solicitor Costs Agreement, without which, he will not be paid for his future work is found at page 97. So, in pages 98 to 101 we find that he had prepared his Varied Solicitor Costs Agreement dated 3.11.2004 which the Applicant signed. Email correspondence between Applicant and First Defendant on 3.11.2004 and 4.11.2004 at pages 102 and 103 do not indicate that he had disagreed with the THE AGREEMENT he voluntarily entered into. At pages 104 and 105, he sent a bill for $657.00 and therefore there was therefore a debt of $157.00 owed the Applicant because he breached THE AGREEMENT. At page 106, he acknowledges that the Applicant retains his right to approve his billing and time costing as he agreed that there was no money to be paid to him until trial. So the sum of $157.00 is mutually agreed to be paid to him only at the trial of the case and he did intend to bring it trial. But he did not bring it to trial and he wanted more and more monies and he wanted to continue breaching the terms of the AGREEMENT.
26. At page 108 at paragraph 8, the Second Defendant, my son Paul told the First Defendant the truth that the First Defendant was dealing with me and the effect of his conversation which Paul had with him had caused Paul to be drawn involuntarily to into an unconscionable deal with the First Defendant, having regard to Paul’s mental health background which Mr. Thies knows as they are contained within the briefs.
27. Paul was told to see Mr. Thies and he was told to sign a mirror agreement which is THE AGREEMENT but he did it involuntarily and only signed it after he was told by me that it is okay to sign and that Mr. Thies would not be able to caveat his home property because there was no specific mention of that property in THE AGREEMENT to enable him to have a caveatable interests in that caveat property.
28. At pages 104 & 105 on 4.11.2010 Mr. Thies reneged on his agreement that there was no more to pay until trial and asked for an additional sum of $157.00 in Invoice 5022 on top of the deposit of $500.00 already paid to him. He agreed that this sum shall only be paid on the trial day as there was no more to pay in accordance with the terms of the pre-contractual agreement dated 25.10.2004 at item (i) at page 93.
29. He confirmed this arrangement and acknowledged the existence of the pre-contractual arrangement at page 106. At pages 107 to 115 he manipulated the mind of my son Paul the Second Defendant on the pretext of obtaining instructions from him on how to deal with the case but instead he was asking him for more monies.

PAUL UNDER UNDUE INFLUENCE OF HIS FATHER TO SIGN THE AGREEMENT:

30. As stated earlier, Paul replied to the First Defendant to the effect that he was an involuntary participant in the Varied Solicitors Costs Agreement at page 108 at paragraph 8 when he said that it was “my father actually dealing with it.”
31. At page 116 and 117, he reneged his pre-contractual terms by presenting invoice 5023 by asking for another $243.00 for which Paul agreed to pay him $50.00 at the meeting with him at his home when Paul signed the AGREEMENT under undue influence by his father.
32. At page 118, it was clear to the Applicant and Mr. Thies that there was no consensus ad-idem achieved in the THE AGREEMENT and that Mr. Thies had tricked him to get the $500.00 deposit from him and is having other tricks in his sleeve to ask for more monies.
33. So the Applicant told him in no uncertain terms that at that time, it was not late for him to go away and not to bother about doing the work anymore at page 118 on 10.11.2004.
34. At page 119 the situation became clearer as Mr. Thies had not reached any consensual agreement with the Applicant. At page 181, Mr.Thies was told to go away if he is reneging on the deal and the last offer to him was $1,000.00 and he could take it or leave it. He was also told that he would be paid $300.00 per day for each day of trial and this was not made contingent on the outcome of the case.
35. So any work done by him was expressly forbidden to be done by him and without instructions by the Applicant for the fictitious invoices 5024, 5025 etc as they were created for the purpose of defrauding the Applicant.

FIRST DEFENDANT RETAINER TERMINATED BY APPLICANT

36. At page 182 on 4.3.2005 at 6.52 pm, he was told to return all original documents and files that was handed over to him but he refused to do so resulting in the Applicant giving up his and his son litigation with the Defendants in DC2065 of 2004 and settled the matter with the Defendants through their solicitors Hotz & Co for $1,000.00 only. The Applicant and his son therefore lost some $23,000.00 which was the claim that the Applicant and his son expected from the Defendants if Mr. Thies were to do his job correctly and in accordance with the terms of THE AGREEMENT.
37. The Applicant and his son were not willing to throw good money after bad monies and were prepared to accept the offer of settlement through Hotz & Co as solicitors for the Defendants. So, the Applicant and his son lost the subject matter of the litigation just to avoid having any more trouble with the First Defendant.
38. Because the First Defendant did not accept the last offer his retainer was terminated as on that date by the Applicant. Any work that Mr. Thies did after 10.11.2004 was at his own peril because he was told that he would not be paid in accordance with the terms of the Agreement.
39. At page 183 to 199, he did not go away but breached the terms of the agreement by contacting Paul instead of the Applicant. There was no agreement between Paul and him as Paul was involuntary and was under the undue influence of his father. He knew of Paul’s weakness and was manipulating him at all material times.

PAUL TERMINATED RETAINER OF FIRST DEFENDANT

40. Paul terminated Mr. Thies’ retainer on 21.2.2005 at page 35 of Affidavit of the Applicant sworn filed and dated 23.7.2008 in CIV1903 of 208 for the subs. 36(1) MCA part of the proceedings.
41. At no time did the Applicant and the Second Defendant try to use the First Defendant without paying him according him just terms for just work as it is difficult to find an honest lawyer to find an honest job. There was no champertous terms as this issue had been dealt with by the LPCC at the complaint of the First Defendant.

APPLICANT NEVER PLAYED THE PUBLIC ROLE OF SOLICITOR AS HE IS THE SOLE ACTOR ACTING FOR HIMSELF AND HIS INACTIVE SON AT ALL MATERIAL TIMES

42. There is no issue of the Applicant having acted as a solicitor his son pro bono as he is mere helper or McKenzie friend and is in the role of a litigant in person and it was necessary for him to reveal his status as a qualified solicitor but not currently certificated and this does not mean that he is playing the public role of a solicitor when makings deals for his son and helping him in his daily tasks as he is equipped with legal knowledge. So there is no question of the father acting in conflict of interests against his own son’s interests as they are the same interests of the Chin family and there is no public role interests which could prevent me from being unbiased and I have no need for that capacity if I am helping my own son.
43. I refer to Annexure NNC-13 to NNC-13-15 in which I informed the LPCC that I was given the mandate to represent my son, the Second Defendant in these proceedings and in CIV 1112 of 2007 not as a solicitor for my son but as his helper or his amicus curiae which I am entitled to do because I do not play the public role of a solicitor although I have used my title with a disclaimer at all material times.




SWORN by the Deponent at Perth ]
In the State of Western Australia ]
This 26th day of May, 2010 ]……………………………………………..
Before me:
…………………………..
Justice of Peace/ Commissioner of the Supreme Court for Taking Affidavit

NOTICE OF ORIGINATING MOTION CIV1981OF2010- CALLING FOR RECUSAL OF JUSTICE KENNETH MARTIN

IN THE SUPREME COURT OF WESTERN AUSTRALIA CIV NO:1981 OF 2010
HELD AT PERTH
In the matter of the apprehended bias of the Learned Justice
Kenneth Martin and his jurisdictional errors in dealing with
CIV 1903 of 2008 and CIV 1112 of 2007 through his refusal
to take into account relevant matters and in taking into account
irrelevant matters; just as though His Honour was reasonably
seen to descending into the arena of conflict by taking sides
with the opposite party and was thus blinded by the dust of
conflict; he consequently denied the Applicant, his natural
justice.


EX PARTE: NICHOLAS NI KOK CHIN
----------------------------------------------------------------------------------
Date of document: 28th June, 2010
Date of filing: 28th June, 2010
Filed on behalf of: The Ex parte Applicant
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059 Emails: nnchin@msn.com; nnchin09@tpg.com.au


NOTICE OF ORIGINATING MOTION FOR LEAVE TO APPEAL PURSUANT TO ORDER 67 R.5 OF THE RSC

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

TAKE notice that the Supreme Court will be moved at [Perth] on Wednesday the 4th day
of August2010 at the hour of 11.00 in the fore noon, or so soon thereafter as counsel can be heard, by counsel on behalf of NICHOLAS NI KOK for Orders Nisi to be made absolute, in terms of the following:

a) Mandamus or Prohibition Orders Nisi in the subs. 36(4) of the Magistrates Court Act, 2004 (the MCA) proceedings, against the Justice Kenneth Martin (the Second Judge), in terms of the following:

a.1) The Applicant (the father) who is the Plaintiff of the Former case (CIV 1903 of 2008) be joined as the Second Defendant in the Caveat case (CIV 1112 of 2007) on a tit for tat basis: Reason - Since the First Defendant of the Former case being himself the Plaintiff of the Caveat case had been granted by the First Judge (Justice Hasluck) in the prior subs.36(1) of the MCA proceedings the favour of making the Paul CK Chin (the son) as the Second Defendant in the Former Case, the Second Judge (Justice Kenneth Martin) now in the current subs.36(4) MCA proceedings, should now return this favour to the Applicant by granting his request for the Applicant himself to be made the Second Defendant in the Caveat case to achieve the purpose of quieting all claims arising from one transaction in the ZERO SUM DEBT false claim of the First Defendant in FR417 of 2007 (ZERO SUM CLAIM).
a.2) The Caveat case be consolidated into the Former case such that only the Former case exist pursuant to Order 83 of the RSC. Reason – This consolidation is necessary for the purpose of quieting all claims that arise from one event or transaction that emanated from the ZERO SUM CLAIM.
a.3) The Second Judge do adopt the normal approach by exercising his discretion in favour of the Applicant, pursuant to the common law principle as enunciated in the case of Re An Application Under The Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151 at para.58 because there are no justifying factors which could warrant a departure from that approach.
a.4) The Second Judge do seek from the First Defendant the reason for his failure to seek an extension of time based on the First Defendant’s failure to comply in a timely manner with the First Judge Orders in the prior subs. 36(1) MCA proceedings such that our justice system in WA is not seen to be favouring the First Defendant whilst at the same time discriminating the Applicant as he, the Applicant was already dissimilarly treated by His Honour Magistrate Michelides after he had explained the reason for his delay in his application for extension of time to appeal the involuntary Registrar Wilde Consent Judgment in the ZERO SUM CLAIM..
a.5) The Second Judge do abdicate himself from further hearing the subs.36(4) MCA proceedings on the grounds of his apprehended bias which had already been explained to him repeatedly by the Applicant on the ground of his interests, conduct, association, extraneous information, or the circumstance that he already made a prejudgment in his decision in Thies v Chin [2010] WASC 111 heard 13.5.2010 delivered the same day without taking into account the written submissions of both the Applicant and the Second Defendant dated 10.5.2010 ;

b) Certiorari Orders Nisi to review and quash the Second Judge’s jurisdictional errors under circumstances where His Honour took into consideration irrelevant matters and had refused to take into consideration relevant matters, thereby denying the Applicant his natural justice in the subs.36(4) proceedings, in the following terms:

b.1) he refused to allow the Applicant to be heard in the Caveat case under unfair circumstances, knowing that the Applicant had inadvertently exerted undue influence upon his son to cause him to enter into an involuntary and non-consensual Varied Solicitor Costs Agreement with the First Defendant who subsequently used the Caveat case as his weapon of duress against both father and son in conjunction with his ZERO SUM CLAIM to achieve the duress-vitiated Registrar Wilde involuntary Consent Judgment;
b.2) he refused to consolidate the Caveat case into the Former case under Order 83 of the RSC which has the force of law on the ground in that the consolidation is necessary to quiet all claims because the two cases came into being from one event or one transaction i.e. the single event of the ZERO SUM CLAIM;
b.3) he refused to recognise the fact and the law that the First Defendant never had any caveatable interests in the home property of the son at No.29 O’Dell Street, Thornlie (the Caveat Property) in the Caveat case pursuant to the common law interpretation of s.137 of the Transfer of Land Act, 1893 (WA) (the TL Act).
b.4) he refused to recognise the fact that the First Defendant had persistently, consistently and recalcitrantly refused to remove his unlawful caveat on the Caveat Property although he was so notified of the quantified damages of his liability for damages to the son pursuant to s.140 of the TL Act in the sum of $100.00 per day from the date when the unlawful caveat came into existence on 26.12.2006 until it was removed on the 16.6.2010.
b.4) he refused to recognise the fact that the First Defendant is guilty of blatant and consistent unsatisfactory conduct resulting in professional misconduct in accordance with ss. 402, 403 and 404 of the Legal Profession Act, 2008 (WA) because he was and is currently advancing his own personal interests instead of his own client’s (i.e. the son’s) interests by exploiting the son’s vulnerabilities and to the detriment of the father and the son;
b.6) he refused to accord the Applicant his natural justice to be heard as a father for his son first, rather than as a solicitor second, by implying that a father who by virtue of his being qualified as a solicitor is barred from and cannot ever help his son, in whatever circumstances.
b.7) he refused to recognise the fact that the Applicant did not play the public role of a solicitor for the son at all material times but was rather defending his own case in his own right as a solicitor litigant in person, even though his title as barrister and solicitor has been inadvertently displayed with a disclaimer.
b.8) he refused to recognise the fact that both the interests of the Applicant as the father and the interests of the son, being the Chin’s family interests are not in conflict with each other when the father is helping the son unless the father is found to be doing things which damages the son’s property interests in these proceedings.
b.9) he refused to recognise the fact that both the father’s and son’s interests being the Chin family interests are in conflict with the interests of the First Defendant who is playing the public role of a court officer for them as their former solicitor and who has a duty to protect them both but was not found not to be doing so when he was reasonably found to be advancing his own personal interests against the Chin’s family interests.
b.10) he refused to recognise the fact that the father can only be acting pro bono and as a solicitor litigant in person in accordance with the provisions of s.12 of the LP Act, 2008 under circumstances of adversity on the ground that the father is liable to the son for being the protoganist and the initiator of appointing a solicitor which turn out to be a trap set by the First Defendant which is the result of the subterfuge of the ZERO SUM CLAIM.

c) Costs of this Application and any other relief deem fit.

And Further take Notice, that the grounds of this application are:

1) The Applicant is made the Plaintiff in the former case by the First Judge (the learned Justice Hasluck) when His Honour granted the review Orders pursuant to the subs. 36(1) proceedings against Mr. Timothy Robin Thies.
2) Mr. Thies is consequently made the First Defendant by the First Judge in the former case. The First Defendant wanted to continue to exploit the vulnerabilities of the son of the Applicant who he claims to be his former client but the son is an unwilling and involuntary client caused by the undue influence of his father. The father seeks to retrieve the son’s untenable position by seeking to help his son out of the clutches of the First Defendant in these proceedings. The First Defendant successfully sought the First Judge’s permission to make the son the Second Defendant in the Former Case.
3) The Former Case came into existence as the result of the Applicant having sought prerogative reliefs under the s.36 proceedings of the MCA.
4) The s.36 proceedings is for the prerogative reliefs from the jurisdictional errors of four judicial offers in the courts below, as follows:
a. Registrar Wilde of the Fremantle Magistrates Court who entered into a involuntary consent judgment in the ZERO SUM DEBT false claim initiated by the First Defendant at the importunate promptings of the Applicant (the Involuntary Registrar Wilde Null Consent Order).
b. Magistrate Musk decision in FR944 of 2008 which is a Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 initiated by the Application to claim his own portion of the ZERO SUM DEBT false claim that is $6,000.00 which is part of the duress-vitiated Consent Judgment payment received by the First Defendant on 12.4.2007 of $11,500.00. Magistrate Musk dismissed this claim based on the Involuntary Registrar Wilde Null Cost Order (Magistrate Musk Null Order).
c. Commissioner Herron decision in DC Appeal No.6 of 2008 dismissed the Applicant’s Appeal against Magistrate Musk Null Order based on the irrationality that the learned Commissioner admitted that he had no jurisdiction to deal with Magistrate Musk Decision and yet he dismissed that Appeal and made a null order (Commissioner Herron’s Null Order).
d. The Applicant obtained the cue from Commissioner Herron and went down again to appeal the Registrar Wilde Null Cost Order to Magistrates Michelides in the ZERO SUM CLAIM of the First Defendant in FR 417 of 2007. Magistrate Michelides refused an extension of time although there was a reasonable explanation for the delay in that appeal (Magistrate Michelides Null Order).
5) The Second Judge, His Honour Justice Kenneth Martin in the subs.36(4) proceedings erred on the ground of his apprehended bias, his refusal to consolidate the former case and the Caveat case into one case for the purpose of quieting all claims which originate from one event or one transaction, his refusal to join the Applicant as the Second Defendant in the Caveat Case, his refusal to hear the Applicant in his own case in the Caveat case as the son has for good reasons been allowed to remain inactive by the First Judge and this was consented to by the First Defendant and his counsel barrister Mr. Scott Ellis.
6) The reason why the Applicant need to be heard in the Caveat Case is because the First Defendant had abused his powers as an officer of the court by using the ZERO SUM CLAIM together with the Caveat Case as his weapon of duress in order to obtain for himself the duress-vitiated Registrar Wilde Involuntary Consent Judgment which secured for him the payment of $11,500.00 made by the Applicant under duress to him. In the aftermath, he had recalcitrantly refused to remove his unlawful caveat and he has been using it as a weapon of duress for more monies but he was stopped by the Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 (the MCCPA).
7) The Second Judge erred by being irrational in his reasoning for stopping the Applicant from being heard in the Caveat Case. This should not be so on the ground that the Applicant is never the solicitor for his son but merely the son’s free agent and there is no justifying conflict of interests which can prevent him from so helping his own son as he has no public role as a solicitor even though he is a qualified solicitor in the circumstances.
8) The First Defendant had been unwittingly granted by Justice Templeman in the Caveat Case the right to sue the son for what he thought was unmet legal fees but the First Defendant abused his powers by what turned out to be the ZERO SUM CLAIM;
9) The Second Judge mistook an arguable interest in land to be an arguable caveatable interest in land but two concepts are different. For the latter to exist there must be either proprietary or equitable interests. Consensus ad idem between the debtor and creditor is a pre-requisite for the acquisition of equitable interests in the debtors land. Without that property being identified and specified in writing, the creditor cannot have equitable interests in the caveat land. Proprietary interests can be acquired if the creditor contributes to the upgrade of the value of the caveat property. If the creditor clogged up the caveat property, he has to pay for the damages as provided for under s.140 of the Transfer of Land Act, 1893 WA.
10) The Second Judge had refused to disqualify himself from hearing the subs.36(4) proceedings on the ground of his apprehended bias even after he was given the reason as to why he is found to be biased.
11) The Second Judge irrationally decided that the Applicant be barred from representing the son in the caveat case although it is clear that he did not play the public role of a solicitor but was acting as a litigant in person to pursue justice and to prevent his own son from being exploited by the plundering activities of the First Defendant.
12) The Second Judge refused to recognise the existence of a non-consensual varied solicitor costs agreement but is desirous of wasting the court resources by having the First Defendant cross-examined for two days when the unassailable evidence of the ZERO DEBT false claim is before it.
13) The Second Judge refused to deal with the subs.36(4) proceedings with the normal approach sans the ability of the First Defendant to show cause why this should not be so.
14) The First Defendant commenced frivolous and vexatious proceedings in a Zero Sum False Debt claim in FR417 of 2007 and used a duress “gun” in the Caveat CIV1112 of 2007 to facilitate the escalation of the ZERO debt to more than $24,000.00 so as to coerce the Applicant to settle it for $11,500.00.
15) The FR944 of 2006 that was dismissed by both Magistrate Musk and Commissioner Herron has come back through the institution by the Application of the s.36 MCA review which was granted by the First Judge pursuant to subs.36(1) of the MCA. The second stage in subs. 36(4) MCA proceedings under the direction of the Second Judge, the Learned Justice Kenneth Martin should proceed on the common law principle of the normal approach absent the justifying factors, but the trend of events as directed by the Second Judge is now veering off its projected course as set by the First Judge.
16) This Application for prerogative writs orders is to set the ship of these proceedings on an even keel so that justice is seen to be done.

DATED the 29th day of June, 2010.


………………………………………………………….
(Signed)

Applicant, as the solicitor litigant in person.

This NOTICE was taken out by the Applicant as the solicitor litigant in person and whose address for service is as indicated above.
FOOTNOTE:
RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 heard 19.8.2008; delivered 7.11.2008 per Justice Hasluck. The delay in the filing of the Affidavit by the First Defendant from 17.6.2009 when directions hearing Order was made till the 7.10.2009 is 13 weeks.
Id at para. 144 where Justice Hasluck said:
There is therefore an explanation for delay before Magistrate Michelides sufficient to justify an extension of time.
Id at para.56 where Justice Hasluck said:
….the consent documentation was signed in April 2007 but the judgment was not entered until 7 June 2007, being a breathing space or period of delay within which remedial action could have been taken, if thought to be necessary.
See Annexure NNC2A and NNC2B at pages 82 to 107 of the Affidavit of the Applicant filed, sworn and served and dated 26.5.2010 in 140 pages that crossed that pre-judgment. I also wrote a letter to the Principal Registrar dated 28.5.2010 called for Justice Kenneth Martin recusal which was never responded to.

RE: CIV 1604 OF 2010: PRINCIPLE OF LAW DOES NOT EXIST IN WESTERN AUSTRALIA

________________________________________
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Tuesday, June 29, 2010 4:34 PM
To: 'Minister.Hames@dpc.wa.gov.au'; 'alyssa.hayden@mp.wa.gov.au'; 'helen.morton@mp.wa.gov.au'; 'Minister.Faragher@dpc.wa.gov.au'; 'melanie.archer@mp.wa.gov.au'; 'linda.savage@mp.wa.gov.au'; 'alison.xamon@mp.wa.gov.au'
Subject: RE: CIV 1604 OF 2010: PRINCIPLE OF LAW DOES NOT EXIST IN WESTERN AUSTRALIA

NICHOLAS N CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: 08 921757440
Mobile: 0421642735
Email: nnchin@msn.com
Nnchin09@tpg.com.au

Tuesday, June 29, 2010


Hon. Dr Kim Desmond Hames MLA
Deputy Premier; Minister for Health; Indigenous Affairs
Ministerial Office:
28th Floor
Governor Stirling Tower
197 St Georges Terrace
Perth WA 6000
Ph: 9222 8788
Fax: 9222 8799
Email: Minister.Hames@dpc.wa.gov.au

Hon. Alyssa Kathleen Hayden MLC
Electorate: East Metropolitan Region
Electorate Office:
Unit 34, 6 Keane Street
MIDLAND WA 6056
Ph: (08) 9274 8484
Fax: (08) 9274 7874
Email: alyssa.hayden@mp.wa.gov.au

Hon. Helen Margaret Morton MLC
Parliamentary Secretary to the Treasurer; Commerce; Science and Innovation; Housing and Works; Water; Mental Health
Electorate Office:
Unit 2, 201-205 Burslem Drive
MADDINGTON WA 6109
Ph: (08) 9452 8311
Fax: (08) 9452 8366
Email: helen.morton@mp.wa.gov.au
Hon. Donna Evelyn Mary Faragher MLC
Minister for the Environment; Youth
Electorate: East Metropolitan Region
Party: LIB
Ministerial Office :
10th Floor, Dumas House
2 Havelock Street
WEST PERTH WA WA 6005
Ph: (08) 9213 7250
Fax: (08) 9213 7255
Email: Minister.Faragher@dpc.wa.gov.au

Hon. Ljiljanna Maria Ravlich MLC
Shadow Minister for Commerce and Small Business; Government Accountability; Tourism; Training
Electorate: East Metropolitan Region
Party: ALP
Electorate Office:
Unit 3, 263 Walter Road
Morley WA 6062
Ph: (08) 9275 7000
Fax: (08) 9275 7333
Email: melanie.archer@mp.wa.gov.au

Hon. Linda Rosemary Savage MLC
Electorate: East Metropolitan Region
Party: ALP
Electorate Office:
Unit 1, 398 Great Eastern Highway
ASCOT W.A. WA 6104
Ph: (08) 9477 3855
Fax: (08) 9477 4099
Email: linda.savage@mp.wa.gov.au

Hon. Alison Marie Xamon MLC
Electorate: East Metropolitan Region
Party: GWA
Electorate Office:
62 Eighth Avenue
MAYLANDS WA WA 6051
PO Box 104
MAYLANDS WA 6931
(Please direct all mail to the above postal address)
Ph: (08) 9272 1718
Fax: (08) 9272 1719
Email: alison.xamon@mp.wa.gov.au

Dear Sirs

RE: CIV 1604 OF 2010: PRINCIPLE OF RULE OF LAW DOES NOT EXIST IN WESTERN AUSTRALIA

I refer to my longstanding grievance with the Legal Practice Board of Western Australia which allowed the Pseudo Board to usurp the lawful function of the regulator of the legal profession to take away my human right to practice as an independent lawyer in Western Australia. I am tortured as a result against the United Nations Conventions against Torture by the Government of Western Australia. Please do something about this issue. I have addressed this issue in my previous emails to all Parliamentarians of Western Australia.

I appeared before His Honour Justice Le Miere in the above case this morning in which I had made an Application for Mandamus Orders to compel Justice Heenan and Justice Chaney to make a legal determination on one single issue of the legality of the usurping authority of the Pseudo Board which had admitted on many occasions that it is responsible for unreasonably curbing my independent legal practice so that erring lawyers could get away with pillaging and plundering of innocent members of the public with impunity. I went before Justice Heenan in CIV 1019 of 2010 for the ancient prerogative relief of the Writ of Certiorari to review Justice Chaney’s decision and this was denied to me through the jurisdictional of Justice Heenan. I went before Justice Le Miere in CIV 1604 of 2010 for the Mandamus Orders to compel both Justices to do their duties in accordance with their respective Oaths of Office but I was denied justice this morning. If I was denied justice, I must have an explanation and in this case there are no proper explanations of the law and the reasons for his decisions. At best I can say that the reasons he gave is deficient.

The trial judge Justice Chaney as the President of SAT in VR 107 of 2008 had refused to litigate this issue of the Pseudo Board. I sought leave to go to the Court of Appeal to appeal the decision of Justice Chaney in CACV 105 of 2008 but I was unsuccessful. I then went to the High Court of Australia in P1 of 2010 to obtain special leave to appeal the decision of the Court of Appeal in CACV 105 of 2008 but the High Court could only dismiss it because the credibility of Justice Chaney has never been litigated. The credibility of Justice Chaney depends on his willingness to make a legal determination of the interference of the Pseudo Board but he had refused to do so. As long as this issue of the Pseudo Board is never litigated, this issue will not go away and is not res judicata.

I am therefore appealing to all the Members of Parliament in the East Metropolitan Electorate where I live in Dianella to help me to ensure that our justice system does uphold the principle of the rule of law. This means that our justice system must do its duties to make a legal determination of the issue of the Pseudo Board and that it cannot refuse to look at it. If it refused to look at it, it must give sufficient reasons in accordance with the law. Otherwise, members of the public can be plundered and pillaged without conscience and lawyers can get away with their crimes. Our parliament must legislate the necessary law in order to ensure that the public interests is being protected at all costs from lawyers who are advancing their own personal interests ahead of their client’s interests and get away with it, otherwise this principle of law is only being paid lip service to by our regulator of the legal profession.

Please look at my blogspot in order to read more about my case by Googling my name: NICHOLASNCHIN at: http://nicholasnchin.blogspot.com/

Yours faithfully

NICHOLAS N CHIN

Thursday, June 24, 2010

“CORRUPTION”Speech by Y.B.M. Tengku Razaleigh Hamzah at the launching of the book “The Shafee Yahaya Story – Estate Boy to ACA Chief” written by Dati

“CORRUPTION”Speech by Y.B.M. Tengku Razaleigh Hamzah
at the launching of the book “The Shafee Yahaya Story –
Estate Boy to ACA Chief” written by Datin Kalsom Taib
on Saturday, 19.6.2010 at 4.00 pm
at Kelab Golf Perkhidmatan Awam Malaysia, Bukit Kiara, Kala Lumpur


I consider this a special privilege to have been asked to associate myself with the launching of the book written by Datin Kalsom Taib about the life and career of her beloved husband, Dato Shafee Yahaya, “The Shafee Yahaya Story – Estate Boy to ACA Chief”. I find that she has written this book with great feelings and definitely from her heart and the writing style of the book makes it easy reading and I commend it to everyone.

2. This book, I am sure, is written also because she was provoked by what has been said about her husband when he was Director of Anti-Corruption Agency. In this connection, I am also taking the liberty to speak to you on the subject of “Corruption”.

CORRUPTION

3. The word “corruption” comes from a Latin word meaning “to break” or “to destroy”. Corruption is a cancer that steals from the poor, eats away at governance and moral fibre, and destroys trust. Although corruption exists in both the private and public sector, the corruption of the public sector is a more fundamental evil. This is because the public sector is the enforcer and arbiter of the rules that hold us together, the custodians of our common resources.

Corruption is the abuse of public office for personal gain.

• Corruption exacts a huge toll on our economy

o In a survey of more than 150 high ranking public officials and top citizens from over 60 developing nations, these officials ranked corruption as the biggest obstacle to development and growth in their countries.

o Corruption empties out the public purse, causes massive misallocation of resources, dampens trade and scares away investors

o The World Bank estimates that corruption can reduce a country's growth rate by 0.5 to 1 percentage points per year. Where there is a lack of transparency and a weak court system, investors stay away.

• Corruption is a form of theft. But it is a form of theft that also damages what is not stolen. This is because corruption involves the capture of decisions involving public funds. Corrupt decisions mis-allocate public resources and cause tremendous waste in the expenditure of public money. Public money is poured down the drain when projects are selected not because of the value they deliver to the public but because of what can be skimmed from them.

• But corruption is more than an economic cost. It is a curse that attacks the root of the tree. Corruption destroys trust, which is nothing less than the glue holding a society and its institutions together. When it becomes rampant and is conducted with impunity, it also demoralizes even those public servants not involved in it. The common people’s experience with government breeds the expectation that they need to pay before things will move. Small businesses suffer as city hall officials come on their rounds to collect mandatory “donations.”

4. It is time we recognise corruption as the single biggest threat to our nation. In our economy, corruption is the root of our inability to make the economic leap that we know we are capable of. There is no other reason why a country so blessed with natural resources, a favourable climate and such immense talent should not have done a lot better than we have.

5. In our political system, corruption is the real reason why our political parties refuse to reform. Some people say the party I belong to has debased a once noble nationalism and a concern with the welfare of marginalised people into a rush for the gravy train. They also said that the economic development we must bring our people is reduced to nothing more than patronage, and patronage is inflated into a right.

6. Therefore, it appears that the root cause is in our political parties. It is an open secret that tender inflation is standard operating procedure. Within the parties and among politicians, it is already an understood matter that party followers must be ‘fed’. Politics is an expensive business, after all. Where else are we to get the funds? Thus theft of public goods is normalised and socialised among an entire community, and what we had planned to attain by capability is seen by some as something to be attained through politics.

7. Politicians are the villains in this piece, but they themselves are the villains but they themselves are also trapped. The leadership is trapped because they are beholden to political followers who demand that they are looked after. They demand patronage, and turn the party’s struggle for the welfare of a community into their sense of entitlement to that patronage. So they take their slice of the project. By the time they and each person down the line all the way down to the contractor takes a lot and there is not enough left to do a decent job, bridges collapse, highways crack, stadiums collapse, hospitals run out of medicine, schoolchildren are cheated in their textbooks. Corruption may look to its perpetrators like a crime without victims, but it leaves a trail of destruction.

8. No domain seems safe. Some say that the humble school canteen is the domain of party branch chiefs. The golf course becomes a favoured way to pass the cash over. We can place bets for RM5000 a hole. For some reason one party keeps losing. And there are 18 holes. Money thus obtained is legal. It can be banked.

9. We spend billions on the refurbishment of defence equipment; on fighter jets, frigates and submarines. When a supplier lays on an exorbitant commission to some shadowy middleman, that commission is built into the price the government pays. That money comes from the ordinary Malaysian.

10. Military toys are very expensive. I remember from my time in the Ministry of Finance. Even then, patrol craft cost about RM280mil each.

11. We loved Exocet missiles. As Minister, I had to sign each time the military fired an Exocet missile for testing. Every time we test fired one of them, RM2mil literally went out with a bang. When the UK went to war against Argentina, the UK Government tried to borrow them from us because outside of the UK we had the most of them in the world. We must have been under some extraordinary military threat which I did not understand.

12. The list is long: procurement of food and clothing for the military, medicine for hospitals and so on. In all these things the Government has been extraordinarily generous. And paid extraordinarily high prices.

13. Government servants have to face pressure from politicians who expect to be given these contracts because they need money for politics. This corruption is justified because the party’s struggle is sacred. The civil servants can either join the game or be bypassed.

14. For every government job big or small that goes down, someone feels entitled to a slice of the pie, not because they can do the job, not because they have some special talent or service to offer, but because it is their right. They do not realise that what they demand is the abuse of power for the sake of personal gain, or party gain. They elect those leaders among themselves who are most capable of playing this game. So we get as our leaders people who have distinguished themselves not by their ability to serve the public but at their long proven ability to be party warlords, which is to say, distributors of patronage. And that is a euphemistic way of saying that because of corruption the old, stupid and the criminal are elevated to positions of power while young, talented and honest individuals are frozen out. Corruption destroys national wealth, erodes institutions and undermines character. And it also destroys the process by which a community finds its leaders.

15. The consequence of this is that the majority are marginalized. Government contracts circulate among a small group of people. Despite all attempts at control and brainwashing, the majority soon catch up to the game.

16. This game cannot last forever. The longer it is played the more people hate the government and the governing class. They vote against the government, not for the Opposition. They resent the government of the day. In 2008 we saw how the Malaysian people feel about the abuse of power and incompetence caused by corruption.

17. Since party funding has become the excuse and the vehicle for wholesale corruption, any measure we take to fight it must include the reform of political funding.

18. It is time we enact a law regulating donations to political parties. Donations must be capped. No donor is to give more than a specified limit, on pain of prosecution. This is to prevent special interests from dominating parties. Such money is source of corruption.

19. Let us limit political donations by law. On top of that let the government set up a fund to provide funding to registered political parties for their legitimate operational needs. This money can be distributed based on objective criteria and governed by an independent panel. This would close off the excuse that the parties need to raise political funding through government contracts.

20. Another idea is that we should freeze the bank accounts of people who are being investigated for corruption. Public servants and politicians are by law required to be able to demonstrate the sources of their assets. Those with suspiciously ample asssets should have these assets frozen until they can come up with evidence that they have accumulated them legally.

21. This may sound harsh, but only because we live in a country in which almost no one ever gets nabbed for corruption. In China, those found guilty are shot.

22. In Malaysia we read about MACC investigating this and that but there are no convictions. No one has been punished. We are the nation with no consequences. The MACC finds no fault. The courts do not convict. And our newspapers do not have the independence and vigour to follow up.

23. We have an MACC with no results. It was a good idea to model our anti-corruption agency after one of the most successful in the world, Hong Kong’s ICAC. However we have taken just bits and pieces of that model. So really this will be no more than PR exercise unless we adopt the model wholesale.

24. We should repeal the OSA so that people can go to the MACC and the authorities with documentary information on corrupt practice. As things stand, any document which might be incriminating to corrupt public officials is stamped an Offical Secret. A whistleblower risks 7 yrs jail for being in possession of such documents.

25. We need to identify rot eating through our roots as a nation. It is corruption. We cannot expect the corrupt to embrace reform. It is time for our citizens to stand up and call corruption by its name, and demand reform.

Tuesday, June 22, 2010

TRANSCRIPT OF PROCEEDINGS IN CIV 1112 OF 2007 ON 17.6.2010 BEFORE JUSTICE KENNETH MARTIN

Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written 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
1112 of 2007
TIMOTHY ROBIN THIES
and
PAUL CHUNG KIONG CHIN
and
REGISTRAR OF TITLES

KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 17 JUNE 2010, AT 9.17 AM
(In Chambers)
Continued from 13/5/10
MR D.S. ELLIS appeared for the plaintiff.
17/6/10 25
(s&c)
THE ASSOCIATE: CIV 1112 of 2007, Thies v Chin.
KENNETH MARTIN J: Yes, Mr Ellis?
ELLIS, MR: May it please the court, I appear on behalf of the plaintiff in this matter. I wonder if I might address the court from this side of the bar table as I expect I'll be back here soon.
KENNETH MARTIN J: Yes, by all means. Mr Chin, you're seeking to appear on this matter. Is that right?
CHIN, MR: Yes, your Honour. Say that again, please. I cannot hear well.
KENNETH MARTIN J: You are seeking to appear in this matter, which is the matter concerning your son?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Have you read my reasons for decision that were published in this matter?
CHIN, MR: Yes, sir. Your decision - I'm disputing that because - - -
KENNETH MARTIN J: Well, this isn't the place to dispute it, Mr Chin.
CHIN, MR: I've already explained, sir, that I am never the solicitor for my son. I'm only his father and I have got a moral and legal obligation to protect my son.
KENNETH MARTIN J: This is ancient history, Mr Chin. We've dealt with this. If you don't like my decision, you know where to go.
CHIN, MR: No, but, sir - - -
KENNETH MARTIN J: I'm not giving you leave to appear on this matter, full stop.
CHIN, MR: Please, please. Your decision does not have any orders, so I cannot appeal against that decision, and I asked you to review the decision and that you did not - your reason for judgment is deficient in that you did not address all the issues that is in the submission and therefore - - -
KENNETH MARTIN J: Well, there's a place to deal with that, Mr Chin, and that's not here. Just take a seat. I want to hear from Mr Ellis. Yes, Mr Ellis?
ELLIS, MR: I think - - -
KENNETH MARTIN J: Sit down, Mr Chin.
17/6/10 CHIN, MR 26
ELLIS, MR: When this matter was before you last, we indicated we would be back before you today for general directions.
KENNETH MARTIN J: Yes.
ELLIS, MR: The issue which your Honour raised on the last occasion was, I suppose, the continued need for the caveat over the land of the first defendant.
KENNETH MARTIN J: Yes.
ELLIS, MR: I've taken some further instructions. The circumstances which occurred were that a memorandum of consent orders was prepared and signed by the parties, as was a form of withdrawal of caveat. My instructions are that that withdrawal of caveat having been prepared and considered by Mr Thies, he was entitled to payment of the sum of $650.
KENNETH MARTIN J: Under the deed, I think.
ELLIS, MR: Under the deed, and that sum not having been paid, he was entitled to maintain the caveat.
KENNETH MARTIN J: Now, this was back in 2008, I think.
ELLIS, MR: What happened was that the caveat - sorry, the withdrawal of caveat was sent to the registrar. I'm instructed that that was in error. Mr Thies then instructed the registrar not to process the caveat.
KENNETH MARTIN J: The withdrawal of caveat?
ELLIS, MR: Yes. I'm sorry, your Honour.
KENNETH MARTIN J: That's all right.
ELLIS, MR: And that was the situation until yesterday. Although Mr Thies maintains that he is entitled to have the caveat remain on foot and he is entitled to payment of $650, he has taken the step of instructing the registrar to proceed with withdrawal of the caveat and has forwarded instructions to the registrar to that effect.
In the circumstances what we would seek to have occur in the matter now is for an order to be made in terms of the memorandum of consent order, which is on the file. There's a copy of it in Mr Chin's affidavit of 26 May in CIV 1903 of 2008. That's a convenient place to find - - -
KENNETH MARTIN J: Let me see if I can locate the original. I did find it at one point in my review of the file, Mr Ellis, so I'm familiar with the document. What's its date?
17/6/10 ELLIS, MR 27
ELLIS, MR: It was delivered to the Supreme Court on 1 May 2008 by Mr Chin senior. It's dated 1 May 2008.
KENNETH MARTIN J: 1 May 2008. All right, I've got it.
ELLIS, MR: And so we would seek orders but in terms of the memorandum.
KENNETH MARTIN J: Yes.
ELLIS, MR: I have a copy of Mr Thies's fax to the registrar of titles, if that would assist.
17/6/10 ELLIS, MR 28

KENNETH MARTIN J: Yes. I will receive that, Mr Ellis. Thank you.
ELLIS, MR: The other documents are, I think, the background correspondence.
KENNETH MARTIN J: So who is actually paying the fee associated with the withdrawal of caveat?
ELLIS, MR: I don't have instructions about that point, your Honour.
KENNETH MARTIN J: Would I be right in thinking by reference to how bureaucracies operate that if the fee is not paid then it won't be processed?
ELLIS, MR: That’s might be right but I wouldn't be surprised if the fee has already been paid since the withdrawal of caveat is in the hands of the registrar.
KENNETH MARTIN J: Yes.
ELLIS, MR: I don't know how much it is, your Honour.
KENNETH MARTIN J: I seem to recall a figure of about $600 being mentioned at some point.
ELLIS, MR: The price of bureaucracy has gone up.
KENNETH MARTIN J: All right. I don't have any difficulty as a matter of principle with the withdrawal of caveat being processed by the registrar. The orders of course of Templeman J back in February 2007 were that the caveat K17968 be extended until further order and what I speculated about with you last time was that the court had the capacity under order 1 of Templeman J's orders to essentially bring that extension to an end.
ELLIS, MR: Yes.
KENNETH MARTIN J: If that is not necessary then of course the withdrawal of caveat can operate on its own terms and I am very happy to see that done. The other components of the orders though, as were proposed by the consent that was submitted back in May 2008, were that the action be dismissed and that there be no order as to costs.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: Now, although I am not hearing from Mr Chin because it seems to me that he can't appear and be heard today that's not to say that someone at some later point, properly instructed, who doesn't have a conflict might wish to say something about that on behalf of Paul Chin.
17/6/10 ELLIS, MR 29
9.23
ELLIS, MR: Your Honour, we say that the consent orders are made pursuant to an agreement between the parties but I take your point.

KENNETH MARTIN J: The difficulty is that - let me just assess this document. There was a deficiency - it was submitted to Master Sanderson for approval. The master could not approve it because there was an issue about noncompliance with order 42 rule 8, the difficulty being that I think the plaintiff in person was one thing, he being a solicitor. The first defendant, Paul Chin, appears to have signed it. The difficulty
ELLIS, MR: In the circumstances perhaps the appropriate thing might be simply to adjourn CIV1112 sine die.
KENNETH MARTIN J: Yes.
ELLIS, MR: I mean, so that there is an obligation on Mr Paul Chin to do all things necessary to procure orders in those terms but that's not the matter that we are in a position to pursue today.
KENNETH MARTIN J: No, that's true. All right. I think what I am minded to do then is to see what happens with the progression of the withdrawal of caveat that has been lodged in accordance with the instruction of Mr Thies of yesterday. I will adjourn the matter and if of course the caveat is in fact withdrawn pursuant to that withdrawal then there is probably very little left in that action. I am not minded at the moment to completely dismiss it bearing in mind the consideration that I mentioned, Mr Ellis, which is that at some point somebody properly instructed, without a conflict, might wish to make a submission to me about that issue.
So I will receive the facsimile of 16 June and I will make no orders other than to adjourn CIV1112 of 2007. I think I should adjourn that to a review date so it doesn't fall into a black hole. I will adjourn it to my CMC list on Thursday, 5 August.
CHIN, MR: Can I be away, sir, if I - I want to be away maybe for July and August.
KENNETH MARTIN J: Mr Chin, you are not appearing on this matter so it doesn't concern you.
CHIN, MR: Okay.
KENNETH MARTIN J: So I will bring the matter back at 9.15 on 5/8/2010 just to review what has occurred in respect of the withdrawal of the caveat, Mr Ellis.
17/6/10 ELLIS, MR 30
ELLIS, MR: Thank you.
AT 9.30 AM THE MATTER WAS ADJOURNED UNTIL
THURSDAY, 5 AUGUST 2010
17/6/10 ELLIS, MR 31

TRANSCRIPT OF PROCEEDINGS IN CIV 1903 OF 2008 ON 17.6.2010 BEFORE JSUTICE KENNETH MARTIN

Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written 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: 1903 of 2008

NICHOLAS NIK KOK CHIN
and
TIMOTHY ROBIN THIES and
PAUL CHUNG KIONG CHIN

KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 17 JUNE 2010, AT 9.36 AM (In Chambers)
Continued from 13/5/10
The plaintiff appeared in person.
MR D.S. ELLIS appeared for the first defendant.17/6/10 16 s&c)

THE ASSOCIATE: CIV 1903 of 2008, Chin.
KENNETH MARTIN J: Yes, you appear on this matter, Mr Chin?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Mr Ellis?
ELLIS, MR: I appear on behalf of Mr Thies.
KENNETH MARTIN J: All right. Now, did you want to say something, Mr Chin?
CHIN, MR: Yes, sir. I have faxed in an 18-page written submission.
KENNETH MARTIN J: Dated?
CHIN, MR: Dated 24 June.
KENNETH MARTIN J: Yes, I have that.
CHIN, MR: And I have addressed the question of consolidating the two cases in accordance with order 83 of the Rules of the Supreme Court.
KENNETH MARTIN J: I can't do that, Mr Chin.
CHIN, MR: The Rules of the Supreme Court, your Honour, has got the force of law and although the parties named may not be exactly the same but they arise from one transaction or event and in the interests of justice and the conservation of resources of all parties concerned that they need to be consolidated, your Honour, please.
KENNETH MARTIN J: No. That won't be done. The reason I am not consolidating the actions is that they are totally different. The first caveat action is an action in respect of legal costs and a proprietary interest in land arguable enough to sustain a caveat. You might have heard from the discourse with counsel on that matter that a withdrawal of caveat has been lodged yesterday in respect of that matter. Therefore there is very little life left in it but more importantly that matter, 1112 of 2007, proceeded subject to the orders of Templeman J on the basis that the actual merits in terms of the legal fees which were in dispute were to be resolved elsewhere and that in fact led to the Magistrates Court proceedings.
On that basis it would be completely misconceived to consolidate the caveat extension action with the action that you have commenced in 2008 seeking prerogative relief against two magistrates and a District Court judge.
17/6/10 CHIN, MR 17
CHIN, MR: Your Honour, the matter in originating summons in CIV1112 of 2007 need not be resolved through that case. It can be resolved in CIV1903 of 2008.
KENNETH MARTIN J: No, it can't.
CHIN, MR: I put in the law there. I have put in the law there for you to decide on.
KENNETH MARTIN J: All right. You have made a submission about consolidation that I reject so what is your next submission?
CHIN, MR: That in CIV1903 the issue of the caveat cannot be determined from here and not from there which means that I am still entitled to make my submission in CIV1903 to effect those matters in CIV1112 of 2007 although you ruled that I am not allowed to advocate on behalf of my son.
KENNETH MARTIN J: I have.
CHIN, MR: The point is that I have - I fail to understand your Honour's reasoning.
KENNETH MARTIN J: That's not the point. It's not for you to understand my reasoning. You make a submission, I deal with the submission. If you don't like my ruling you appeal it.
CHIN, MR: Yes, but your Honour, the ruling - the point is that I was never acting in conflict with the interests of my son.
KENNETH MARTIN J: Ancient history. I don't want to hear that, Mr Chin.
CHIN, MR: That never happens, your Honour. It never happen.
KENNETH MARTIN J: Mr Chin, you would help me greatly this morning if you deal with the issue that we are here to address which is the question of security for costs in respect of action 1903 of 2008.
CHIN, MR: Yes, your Honour, but that point about my acting in conflict of interest has never been decided by your Honour. Your Honour is acting without jurisdiction or out of jurisdiction in making that decision. Please reconsider that point because
KENNETH MARTIN J: Mr Chin, you have got the most obvious conflict of interest imaginable in circumstances where you and your son held a joint liability for legal costs. You compromised by payment of $11,000 that amount and you seek to recover $6000 of that amount and your son as to the other contribution to that amount is not the subject of the
17/6/10 CHIN, MR 18
proceedings that you have commenced for recovery which are bound up in 1903 of 2008. It's an appalling conflict of interest. That's why even if you were a legal practitioner with a practice certificate, who was allowed to practice by yourself no sensible legal practitioner would ever seek to act in those circumstances. Now, I have ruled upon that. That's ancient history. It's water under the bridge. We are not going back there.
CHIN, MR: My contention is that in the first place I never acted as solicitor for my son. If I ever did I have received moneys from him. The section 12 and the antecedent provisions say that if you have never received any money, any legal fees, from a client you are not acting for him even though you may be script writer for him.
17/6/10 CHIN, MR 19
I have never acted for my son because he is my son and I have got a legal obligation and moral obligation under the law that I protect him because he is unwell. Any father would protect his own son. That is the natural thing for a man to do, your Honour. I never - because I'm never a public officer, a lawyer. If I am a public officer or a lawyer for my son, then I have interest conflicting against the interests of my own son.
KENNETH MARTIN J: Mr Chin, this is water under the bridge. It's ancient history. I have made my ruling. If you don't like it, appeal it.
CHIN, MR: But, your Honour, when - - -

KENNETH MARTIN J: Can we deal with the question of security for costs in action 1903 of 2008?
CHIN, MR: Yes, your Honour. The point is the common law says that if you make a wrong ruling, and I have objected to you immediately - - -
KENNETH MARTIN J: Well, it's offensive for you to submit to me that my ruling is wrong. If you want to challenge that ruling, you go and do so to the Court of Appeal.
CHIN, MR: But I need proper reasons to be given by you addressing those issues.
KENNETH MARTIN J: You have my reasons, Mr Chin.
CHIN, MR: You have not addressed those issues. Those issues are res judicata. It can come back again. So it's wasting the court's time. You have not given proper reasons, your Honour.
KENNETH MARTIN J: Mr Chin, I've told you three times now. I'm not going to tell you again.
CHIN, MR: Yes, the reason about the conflict of interest. You are mentioning about conflict of interest but you never go down to the nitty gritty of addressing rationally why I am not - I'm acting in conflict of interest. I have never acted in conflict of interest and I give you my reason and I give you the case law.
KENNETH MARTIN J: Well, I have decided that you are in a gross conflict of interest. So that being the case, if you don't like that decision, do something about it, but this is not the place to deal with it. Now, how many times do I have to say that, Mr Chin, before it sinks in?
CHIN, MR: Sir, I want to be as polite to you as far as possible. I humbly beg you to be rational with me
because - - -
17/6/10 CHIN, MR 20
9.36
KENNETH MARTIN J: The rationality problem is at your end of the bar table, Mr Chin.
CHIN, MR: You mean I am not - I am irrational, your Honour?
KENNETH MARTIN J: Your submissions are not making any sense at all, Mr Chin.
CHIN, MR: Yes, but my submission is that point of law, your Honour, by the principles of law that you refuse to accept. I said I am not in the role of a lawyer, therefore I do not have a public interest role, therefore my - - -
KENNETH MARTIN J: Perhaps you shouldn't describe yourself as barrister and solicitor on documents that you file with the court.
CHIN, MR: I am entitled to use my name, barrister and solicitor, at all relevant times because I have never been guilty of any professional misconduct.
KENNETH MARTIN J: But that's not the point.
CHIN, MR: And I have never been removed from the solicitor's role of the Supreme Court. My name is there and I'm entitled to make an application for - - -
KENNETH MARTIN J: Mr Chin, I'm going to try for the last time to focus you on the issue at hand. The issue at hand is whether there should be an order for security for costs against you in proceedings 1903 of 2008. Now, have you got anything to say about that? If so, say it quickly.
CHIN, MR: Yes. The order for security of costs is under the three reasons given in the Supreme Court Rules, order 25 rule 3, I think, and that order 25 and the Cable case refer specifically to the three issues, and I do not come under the three issues and that has been addressed in my written submission. There is no reason why there should be an order for security for costs because I do not come under any of those grounds and that Mr Thies has introduced a red herring by introducing a case which does not support his reasons.
KENNETH MARTIN J: Am I right in thinking that at the end of the day this is an argument about $6000 that you want recovered?
CHIN, MR: Sir, it's not about $6000. It's the public interest.
KENNETH MARTIN J: No. How much is it about?
CHIN, MR: It is the public interest that is important.
17/6/10 CHIN, MR 21
KENNETH MARTIN J: Put a number on it.
CHIN, MR: I'm not worried about the money. It is the public interest that a lawyer should not advance his own public interest ahead of the interests of his own client.
KENNETH MARTIN J: Mr Chin, disputes about the amount of costs happen every day of the week. There was a dispute that arose in 2007 and 2008 in respect of some fees that Mr Thies charged in respect of a dispute in the District Court about a lunch bar that your son acquired an interest in. Now, after a long, long period of time an account of Mr Thies was settled by a payment of $11,500. Correct or not correct?
CHIN, MR: Sir, you have not - apparently you have not read my written submission and apparently you are not aware of - - -
KENNETH MARTIN J: I have actually looked at your written submissions. They are long, they are prolix, in many places they're offensive in terms of the way they're constructed, but I have endeavoured to extract out of them the essence of your position, which essentially is that you but not your son seek to extract back a component of the $11,500 settlement.
17/6/10 CHIN, MR 22
CHIN, MR: Sir, the first thing is I have addressed the issue of why you have not come to this case with an impartial mind and because you do not come to the case with an impartial mind I have asked you to recluse yourself from hearing this matter. I have written a letter to you asking you to address

KENNETH MARTIN J: It's not for you to write letters to me, Mr Chin. It's a matter for you to make a submission to the court in the proper way.
CHIN, MR: Yes, to the court and to the administrative officer of the court that I want your Honour, Kenneth Martin J, to recce yourself because
KENNETH MARTIN J: You have made that application before. I have refused that application and you make it again. You seem to make it about every fourth paragraph of your submissions.
CHIN, MR: Yes.
KENNETH MARTIN J: There is no merit in it and I propose to dismiss it once again.
CHIN, MR: Yes, your Honour, and I am finding it very, very difficult to be addressing you because you do not seem to see my position at all. For you to say that, your Honour, you are acting without jurisdiction and may I read to you what the High Court say
KENNETH MARTIN J: No, you may not.
CHIN, MR: about lack of jurisdiction of a judge, please?
KENNETH MARTIN J: No, you may not.
CHIN, MR: Can I?
KENNETH MARTIN J: I've refused your application to make reference to irrelevant material. What you can do is make a submission about security for costs. If you stick to the point on that we might actually get somewhere.
CHIN, MR: If you have refused, your Honour, this case must not be heard by you because I am going to be the aggrieved party if you continue to hear it.
KENNETH MARTIN J: Because you are going to what?
CHIN, MR: I am going to be the aggrieved party if you continue to hear it.
17/6/10 CHIN, MR 23
9.42
KENNETH MARTIN J: You are going to be the aggrieved party?
CHIN, MR: Yes.
KENNETH MARTIN J: I think you are the plaintiff, actually. The plaintiff usually is the aggrieved party.
CHIN, MR: No. If you refuse to recce yourself I will refuse to let you hear it. I will refuse to allow you
KENNETH MARTIN J: It's not a matter for you to decide who hears your cases, Mr Chin. This case has been allocated to me to determine. I am trying to get to the heart of it. The heart of it - and you will not answer this question but I will give you an opportunity again - is a dispute about your attempt to recover $6000, isn't it?
CHIN, MR: Yes.
KENNETH MARTIN J: Thank you.
CHIN, MR: $6000, it can be a dollar. It does not mean that if someone with a zero sum debt claimed from you $6000 what would your Honour do? It doesn't matter how much money is at stake. It's a matter of that person, Mr This, has got a zero sum debt and he's claimed from me $11,500 and he exploited the vulnerability's of my son. Your Honour, it is not the money that is important here. It is the public interest, that you must not allow a solicitor to exploit the vulnerability's of his client to perpetuate this wrong.
KENNETH MARTIN J: Mr Chin, what happened back in 2007, 2008 is that there was a dispute about Mr These's bill which was settled for the payment of $11,500 - $5500 by your son and $6000 by you. That's right, isn't it?
CHIN, MR: Your Honour, I make it very clear to the decision-maker, Registrar Eldred. I made it very clear to her. She is/was being constantly appraised of the duress situation. When she is
KENNETH MARTIN J: You were represented by a solicitor at the time the matter was
CHIN, MR: No.
KENNETH MARTIN J: You being a solicitor yourself you also had an independent solicitor who acted for you and advised you.
CHIN, MR: Yes. Nobody can stop me from being a litigant in person. I employ Mr Thies and what happen to me? I employ a lawyer and what happen to me? So why should I
17/6/10 CHIN, MR 24

employ a lawyer when I can do it myself, your Honour?
KENNETH MARTIN J: You then employed another lawyer.
CHIN, MR: I have employed another and another and another. All they want is to get money from me and I have no money to give to them. I am prepared to give them money in my own terms. If they do not agree then they do not have to accept my brief. There is no law in this country or anywhere in the world that a litigant person, who is knowledgable in the law cannot represent himself.
The point is Registrar Eldred - Registrar Wild, she was constantly being appraised of the duress situation. She knows that we are not willing to pay and we are only willing to pay because a gun was levelled at out head by Mr Thies.
17/6/10 CHIN, MR 25

KENNETH MARTIN J: Are you using a metaphor there?
CHIN, MR: Say that again.
KENNETH MARTIN J: There was no gun used at all.
CHIN, MR: It is not gun. It's - - -
KENNETH MARTIN J: There was a negotiation over an amount of money.
CHIN, MR: Your Honour, it's a metaphorical gun. It's a metaphorical gun, your Honour. I'm not saying it is a physical gun. It's a metaphorical gun. The gun was aimed at my head, at my son's head, at my wife's head, at my other son's head.
KENNETH MARTIN J: Just deal with the facts. What were the facts? The facts were that there was a demand for over $20,000 by Mr Thies and there was a compromise of 11,500. It was a commercial negotiation and a compromise.
CHIN, MR: Sir, the fact is - as Hasluck J has found out and has written in his judgment, the fact is why is there ever - why is there ever an escalation of costs when his retainer has been terminated? Why? We terminate him and yet he come with the costs. Why does he continue working when we stop his work? Why does he not observe the precontractual obligations - the precontractual terms of the agreement that we entered into?
KENNETH MARTIN J: Well, if you didn't think you owed that amount of money, you didn't have to pay that amount of money, but you did.
CHIN, MR: We didn't pay him, your Honour. We - - -
KENNETH MARTIN J: You paid $11,500.
CHIN, MR: $11,500 because the thing was never - because he said the next moment, "We'll increase it by $2000, and you delay it by another week, we'll increase by another $2000," and from zero sum it becomes 25,000, and, your Honour, if you are me, would you do the same thing as I did?
KENNETH MARTIN J: What do you mean? Would I compromise? I probably would compromise if I was sensibly advised.
CHIN, MR: I have a right to compromise, but the compromise - the gun was levelled at my head. Of course I agree. Of course I appeared to agree. That is what Hasluck J say. I appeared to agree and my son appeared to agree, and that's what the psychiatrist said - he appeared to agree. Appearance to agree and real agreement is a
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9.48
different thing altogether. Your Honour would have realised that. Your Honour must take away that biasness. I have enumerated - - -
KENNETH MARTIN J: That's offensive, Mr Chin. Don't say that again.
CHIN, MR: Sir, I have enumerated more than 10 - 12 instances of your Honour being biased. I am sorry to say that, your Honour. I am very - - -
KENNETH MARTIN J: Well, you're being offensive, Mr Chin. Just try and confine yourself to the submissions.
CHIN, MR: I am very, very, very sorry. I'm really very, very sorry.
KENNETH MARTIN J: I don't come here to be insulted by you.
CHIN, MR: Sir, I have no intention of insulting you. Sir, I apologise.
KENNETH MARTIN J: Continue.
CHIN, MR: Yes, sir. There is one more point - one important point, that is, the Ex parte Brecker case in footnote number 26 which relates to section 36 of the Magistrates Court Act 2004. Section 36(1) has been completed by Hasluck J. Section 36(4) is now due to be completed by you, your Honour. The normal approach, as in the Carey case, is quoted in Ex parte Brecker, and that is what our CJ said - our CJ Martin - - -
KENNETH MARTIN J: Chief Justice Martin of Western Australia.
CHIN, MR: Yes, Martin CJ. That is what he said in the Ex parte Brecker and that is what Malcolm CJ said in the other case, in the Carey case. It all relates to one point. The normal approach, your Honour, is for the second judge when dealing with section 36(4)(c) to agree with the first judge who has dealt with 36(1).
KENNETH MARTIN J: To agree?
CHIN, MR: Unless Mr Thies is able to show - to persuade this court otherwise with cogent reasons and with cogent facts.
KENNETH MARTIN J: Mr Chin, as I understand the position in terms of your challenge under the Magistrates Court Act section 36, you contend for a jurisdictional error by one or both of the magistrates below?
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CHIN, MR: No. All three, plus Registrar Wild has made a jurisdictional error because she involuntarily entered into the consent judgment.
KENNETH MARTIN J: Because she accepted a consent judgment signed by you; a document consenting to the settlement.
CHIN, MR: Yes, I consent to it. That is without dispute. Physically I consent to it. But I appeared - - -
KENNETH MARTIN J: And you now want to resile from that?
CHIN, MR: I appeared to consent to it and that is without - that is without a doubt, because I have apprised him before I consent to it of the situation why I have no choice.
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I was under duress to consent and Registrar Wild agree with me that I was under duress. That is why she refused to enter into the consent judgment from the
KENNETH MARTIN J: All right. I am just trying to get a handle on what you say is the jurisdictional error.
CHIN, MR: That's why I want to read to you
KENNETH MARTIN J: What you are really saying is that you want to challenge the bona fide compromise of the debt
CHIN, MR: Yes, that is what I have been saying.
KENNETH MARTIN J: on the basis of unconscionability.
CHIN, MR: Duress.
KENNETH MARTIN J: Yes; and what you say is that there was no bona fide demand for over $20,000 by Mr Thies. You want to challenge the bona fides of that whole transaction.
CHIN, MR: That transaction is zero dollars. The evidence is before the court. Why is the court not looking into it. There was never any debt owing to Mr Thies. It was a zero sum debt owing to him.
KENNETH MARTIN J: All right.
CHIN, MR: At no time did we owe him any money because every time we owe him any money we pay him.
KENNETH MARTIN J: All right. So what I take it you would want to do in pursuing your section 36 application as a matter of challenge against Mr Thies would be to cross examine Mr Thies at some length about the bona fides of what occurred in 2007, 2008 and 2009 in respect of the compromise that was obtained in the Magistrates Court. Is that right?
CHIN, MR: It can be one way.
KENNETH MARTIN J: I just want to know how long the proceedings are going to go.
CHIN, MR: Your Honour, the fact is that Mr Thies make his own admission in his own writing that he agree to the termination of the agreement and that he admitted on 25 October he received that email from me and that 25 October 2004 email sets out all the conditions for his acting for me.
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9.54
KENNETH MARTIN J: It sounds like at least it is a two-day hearing to challenge all the matters that you say are relevant in Mr Thies' long affidavit of 2009. Is that right or not?
CHIN, MR: Your Honour, if you are willing to be fair to me I am willing to allow you to hear
KENNETH MARTIN J: Mr Thies (sic), it's not for you to allow me to do anything. Get that straight. I make the rulings in this case.
CHIN, MR: Yes, your Honour, but I
KENNETH MARTIN J: It's not for you to allow me to do anything. It's not a negotiation, Mr Thies (sic). I make the orders and you obey them.
CHIN, MR: I humbly apologise, your Honour.
KENNETH MARTIN J: Apology accepted, now move on.
CHIN, MR: What I want to do is Mr - there are no other issues involved. The only single issue is that there is a zero sum debt and that we
KENNETH MARTIN J: You have to establish that.
CHIN, MR: We have not established that?
KENNETH MARTIN J: You have to - the burden of establishing that lies upon you in terms of setting aside the consent judgment of the Magistrates Court in the amount of $11,500 which has been paid for some years now.
CHIN, MR: Yes.
KENNETH MARTIN J: And in respect of part of which, namely $6000 paid by you, you wish to resile from.
CHIN, MR: Yes.
KENNETH MARTIN J: Yes. Now, it sounds to me like you, are facing a two-day hearing in terms of you challenging Mr Thies.
CHIN, MR: A two-day hearing or a 10-day hearing, it does not matter. It does not matter because
KENNETH MARTIN J: It matters a lot in terms of how much it is going to cost.
CHIN, MR: Listen, your Honour, please. The section - even if there is a dispute about the three thousand five that is actually owing to him, because he admitted that we owe him three thousand five, that comes under the minor
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claims provision.
KENNETH MARTIN J: 6500?
CHIN, MR: Three thousand five. He admitted to three thousand five being owed to him, all right, finally on 10 March 2005. Now, once he admitted that that is the basis of a minor claim provision. All right? The minor claim provisions of the Magistrates Court Civil Proceedings Act provides that he shall at the end of the day be entitled to only out of pocket expenses and court fees and if it is going to take 10 days the cost is going to be his because, your Honour, before the minor case provision
KENNETH MARTIN J: How long is it going to take, Mr Chin? Just tell me honestly how long do you think it is going to take. Possibly 10 days?
CHIN, MR: No, your Honour. Just one day. I think just one day. Your Honour, just before I finish that point the legislative intent of parliament when enacting the minor cases provision, that is in rule 25(5) and that rule say if anybody takes any matter to any court for a minor claim and he put it as a general procedure claim then he is entitled - he is not entitled to disadvantage the other party. I am the party who he has caused disadvantage and therefore at the end of the day there will be no costs orders against me, your Honour.
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KENNETH MARTIN J: Well, why wouldn't there be costs orders against you, Mr Chin, if you fail in this court?
CHIN, MR: Because the - - -
KENNETH MARTIN J: Assuming you fail, there will be costs orders against you in the normal course.
CHIN, MR: In the normal course - in the normal course it will be.
KENNETH MARTIN J: Yes.
CHIN, MR: But the case of Latoudis which I explain there, if you link another person to a litigation when you do not have a proper claim, the costs is going to be on you.
KENNETH MARTIN J: Well, what you're saying I think, if I understand you, is that you think you will succeed and therefore you won't have to pay any costs of the application.
CHIN, MR: Yes. Even if I lose, your Honour, I don't have to pay him costs. I only need to pay him what the minor case provisions say, and the minor case provisions
say - - -
KENNETH MARTIN J: Well, there will be the costs of the application before the Supreme Court to be borne by someone.
CHIN, MR: Yes. He will have to pay because he led me into it and I have put this in my objection to Herron C's - Registrar Hewitt's assessment of the tax. The law is there. You can't run away from it. And also there's another case where Registrar Hewitt make an about turn and go against the presiding judge's decision to order costs, where Registrar Hewitt gave a zero order costs, and he contradict the judge, who is above him, to order the costs because the law says it is so that a taxing officer can do that.
KENNETH MARTIN J: All right, Mr Chin. I think I'll hear from Mr Ellis now in terms of the security for costs application. Thank you. Mr Ellis?
ELLIS, MR: Thank you, your Honour. I don't wish to add substantially to the written submissions that have been prepared. Just some short points.
KENNETH MARTIN J: These are the ones of 10 June?
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: Thank you.
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10.00

ELLIS, MR: Just some minor points. Your Honour, there's no evidence that I'm aware of that Registrar Wild was informed of the duress situation. We have the suggestion that Registrar Wild effectively knowingly - - -
KENNETH MARTIN J: Administratively processed the consent form.
ELLIS, MR: Yes, is the submission without any basis and it should be rejected. Mr Chin referred to the $2000 increasing and increasing. That was - well, clause 1 of the deed of settlement provided a mechanism whereby if the Chins deferred agreeing to the settlement, the price of the settlement increased. That was a mechanism to induce early action. I'm instructed that my client was getting frustrated about being unable to reach a compromise. We would say that that's not increasing the amount of the debt, it's just a complicated offer, and in any event the Chins accepted or endeavoured to accept the cheapest of the alternatives at $11,500.
I have referred in the submissions to various matters which suggest that the plaintiff's case is weak. I didn't refer your Honour to the terms of the memorandum of consent order to which I drew your attention earlier. That's a document that was filed on - the orderly filed on 1 May 2008, which was some time after the deed of settlement was entered into, more than a year, and it was delivered to the court by Mr Chin senior. We would say that that strongly undermines the argument that the settlement was induced by consent. In terms of the - - -
KENNETH MARTIN J: By a flawed consent based on duress, yes.
ELLIS, MR: Yes. In terms of the length of the hearing, it's hard to estimate.
KENNETH MARTIN J: Well, in terms of what the hearing would be about in a jurisdictional sense, bearing in mind it's not an appeal de novo, it's not an appeal from Herron C in terms of his decision, it sounds to me, based upon the one point that concerned Hasluck J on the ex parte application to show cause, that he, based on the material before him which was one side of the case, had a concern about the elevated level of the disputed legal fees prior to them being compromised at the level of $11,500. Now, as I understand the law, as long as the assertion of the amount is a bona fide assertion of right, that's a sufficient basis for its legitimacy.
ELLIS, MR: Yes, your Honour.
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KENNETH MARTIN J: What would then come into play, assuming that issue were to be challenged, is the assertion answered by Mr Thies' lengthy affidavit of 6 October 2009 in terms of his bona fide assertion of right as to that amount.
CHIN, MR: Yes.
KENNETH MARTIN J: So even if he was wrong about the amount as long as he was bona fide as to his belief in a legitimate entitlement to it it forms a solid platform for a negotiation to proceed.
CHIN, MR: Yes.
KENNETH MARTIN J: Now, he has dealt with that at some length. Hasluck J didn't have that on the ex parte review application. It is now before the court. The question is what's left in the order to review? IT could only possibly be an attempt, I think, by cross-examination to try and undermine the bona fides of your client in terms of the amount at which the negotiation started, that is, the $23,000.
Now, as to that I haven't formed any final views at all but that, it seems to me, is all that is left in terms of a potential jurisdictional challenge and I'm not even sure if it rises to the level of the jurisdictional challenge, to be frank.
CHIN, MR: Yes. Yes. A day, maybe two.
KENNETH MARTIN J: What would then emerge from that is presumably the cross-examination of Mr Thies on his affidavit, framed with a view to establishing that there weren't bona fides in the level of the amount that was asked for. Now, that seems to me potentially to occupy a hearing in the order of about two days, I would imagine.
CHIN, MR: Your Honour, may I say something?
KENNETH MARTIN J: Yes.
CHIN, MR: The only relevant issue is whether there has been a consensual agreement reached between him and my and my son. It is actually between him and me, not my son. My son was involuntarily
KENNETH MARTIN J: All three of you are parties to the agreement.
CHIN, MR: Yes, but my son came in later, on the 7 November, whereas I came in on (indistinct) November and I forced my son into it. Therefore my son is involuntary.
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10.06

KENNETH MARTIN J: It sounds like a pretty bad conflict to me, Mr Chin.
CHIN, MR: Yes. Because I was never the solicitor there is no conflict, your Honour.
KENNETH MARTIN J: Yes. Just take a seat. I will continue to hear Mr Ellis.
CHIN, MR: Just - I haven't finished that point. That point - we only need to concentrate on the agreement, the costs agreement whether it is valid or not, at the time of termination. All the other things is not relevant and will not be examined.
KENNETH MARTIN J: All that you can examine is, under section 36, a jurisdictional challenge. Now, it’s not an appeal against any of those decisions that have all universally been made against you. It's the one question that disturbed Hasluck J when he heard your ex parte application and that is - and I think you quote it in your submissions most recently to me - his concern about the level of the demand by Mr Thies for his fees of over $23,000.
CHIN, MR: Yes; but if that
KENNETH MARTIN J: Now, the law on that is very straightforward.
CHIN, MR: If that contract is not valid or nonconsensual and the nonconsensual contract has been terminated there is only the very little things that need to be examined. The other things are all waste of resources because they never come into the picture at all. If he insist on doing work for me when he has been terminated why should we look into it at all?
KENNETH MARTIN J: Well, there are factual issues about that, Mr Chin. There are factual issues about when the work was done that are the subject of the lengthy affidavit filed by Mr Thies on 6 October.
CHIN, MR: After he has been terminated why is he working? That's the question. Why does he work after he has been
KENNETH MARTIN J: That's in dispute.
CHIN, MR: After he has accepted that his services have been terminated why must he continue to incur costs?
KENNETH MARTIN J: It is in dispute, Mr Chin. It is in dispute factually.
CHIN, MR: No, because he agreed to it.
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KENNETH MARTIN J: It sounds to me the only point of this is for me to try and get a handle on how long the hearing of this substantive matter is.
CHIN, MR: It's only that small part and it only takes one day. That's all.
KENNETH MARTIN J: Two days. All right. Take a seat. Mr Ellis?
ELLIS, MR: There is really nothing further I wish to say, your Honour.
KENNETH MARTIN J: Thanks, Mr Ellis. All right. I propose to reserve my decision in relation to the question of security for costs in this matter which I will deliver at a time that the parties will be notified about. So I reserve my decision. The court will now adjourn.
AT 10.11 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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