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THE SUPREME COURT OF
WESTERN AUSTRALIA
1019 of 2010
IN THE MATTER OF AN APPLICATION FOR CERTIORARI ORDERS NISI TO REVIEW AND QUASH THE DECISION OF THE LEARNED PRESIDENT JUSTICE CHANEY OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA (SAT), IN BOTH HIS JUDGMENTS IN VR 107 OF 2008 and VR 87 OF 2009; THE INSUFFICIENCY OF THE REASONS FOR JUDGMENT IMPINGING ON THE PRESIDENT'S CREDIBILITY AND HIS LACK OF INDEPENDENCE AS A JUDGE WARRANTS A REVIEW OF THE FORMER DECISION AND A STRIKING OFF OF THE LATTER ACTION AS AN ABUSE OF THE PROCESS OF THE COURT
and
IN THE MATTER OF AN APPLICATION UNDER ORDER 67 RULE 5 OF THE RSC, 1971 (WA) FOR LEAVE TO RE-FILE THE AMENDED PAPERS OF THE ORIGINAL APPLICATION THAT WERE ORIGINALLY RIGHTLY CONSIDERED AND RIGHTLY REFUSED BY THE LEARNED MARTIN CJ ON 14.12.2009 IN CIV 3068 OF 2009 ON GROUNDS THAT THE NOTICE OF ORIGINATING MOTION WERE THEN FOUND TO BE "INCOMPREHENSIBLE, PROLIX AND REPLETE WITH DEROGATORY HYPERBOLE AND DOES NOT APPEAR TO BE JUSTIFIED BY THE FACTS IDENTIFIED IN THE AFFIDAVIT" BUT IT IS NOW NO LONGER DEEMED TO BE SO
ex parte
NICHOLAS NI KOK CHIN
21/4/10 1
(s&c)
HEENAN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 21 APRIL 2010, AT 10.40 AM
Continued from 6/4/10
The applicant appeared in person.
2
HEENAN J: Please call the matter.
THE ASSOCIATE: In the Supreme Court of Western Australia, CIV 1019 of 2010, Chin.
HEENAN J: Yes, Mr Chin? Mr Chin, when this matter was last before me, I adjourned the proceedings and ordered that you filed copies of the papers on the Legal Practitioners Complaints Committee or the Legal Practice Board. Has that been done?
CHIN, MR: Yes, it has been done, sir.
HEENAN J: Yes. I should inform you that the court was notified yesterday that the Legal Practice Board or Committee does not intend to appear on the application.
CHIN, MR: Thank you very much, sir.
HEENAN J: That being the case, I have heard all your submissions on the last occasion and I am ready to proceed to deal with the matter. Is there anything further which has arisen since the last hearing that you wish to advance?
CHIN, MR: Yes. Ordinarily, sir, this is an application for certiorari.
HEENAN J: Yes, I know what the application is about and I heard you fully on the last occasion. What I want to know is, is there anything new which has happened since then? I have not received any further papers from you.
CHIN, MR: I have, sir, most recently sent by email to your associate Mr Stephen Somerville a copy of the chronology.
HEENAN J: Yes, I do have that.
CHIN, MR: Which details everything that has happened in this case and until most recently I have not heard anything from the LPCC at all. The LPCC was allowed 10 days to respond and they did not respond by the 17th day of April.
HEENAN J: Mr Chin, I'm not sure if you understood what I said earlier. The court has been notified
CHIN, MR: Yes.
HEENAN J: - that the Legal Practice Complaints Committee has received these papers but does not wish to appear, attend or be heard on your application.
CHIN, MR: Yes, sir. There is a presumption in law that if the LPCC did not respond to the specific allegations as contained in my document, they are admitting them to be the
21/4/10 CHIN, MR 3
truth.
HEENAN J: I'm not sure that I can draw any such inference in this case.
CHIN, MR: And, sir, I will be presenting excerpts from the asterisked list of authorities.
HEENAN J: I don't think there is any need or occasion for you to present anything which is already before the court because I haven't had an opportunity to hear you when you made the application originally and I have since re examined all the papers.
CHIN, MR: And, sir, those particular asterisked cases, there were certain words from those charges which I think I should bring to your attention.
HEENAN J: No, there's no need for that, Mr Chin. I heard you when you first made this application on 6 April.
CHIN, MR: Yes.
HEENAN J: And I have since then re-examined the papers, so unless there is something new, I am ready to proceed to deal with the application.
HIS HONOUR: Sir, for the purposes of the record, can I please hand this copy to you so that you will have a chance to read it.
HEENAN J: What is it, Mr Chin?
CHIN, MR: It is about those case law and the chronology that I referred to.
HEENAN J: The time for filing papers has expired. If it is just a matter of chronology, I have the chronology. If it is a reference to cited cases, then these are cases which are already identified in the materials which you have filed. Is that not correct?
CHIN, MR: It is correct, sir. It's only that those particular words that requires your particular attention, that if you hadn't
HEENAN J: Let me see the document and I will decide whether or not
CHIN, MR: Thank you, sir.
HIS HONOUR: Just hand it to the usher. This is the chronology. I already have the chronology.
CHIN, MR: Yes, sir.
HEENAN J: Mr Chin, this seems to me to be a repetition of much of the content and perhaps a recapitulation of the content of your affidavits and submissions. I will receive the document but I am familiar with the substance of what is referred to in here.
CHIN, MR: Thank you very much, sir.
HEENAN J: Does that complete your application?
CHIN, MR: Yes, sir. I would just like to say something. I have time again referred to some members of the judiciary. If I have said anythikng that is offensive, sir, please forgive me because it was never my intention to do so. I am here to do justice to myself. I need to be able to work in the profession that I have chosen.
HEENAN J: Yes; well, there are proceedings pending before you in the Legal Practice Complaints Committee and that is the authority appointed by law and act of parliament to consider allegations against legal practitioners. There is a role for the determination of those proceedings by the State Administrative Tribunal and there are rights of appeal from any such determinations. If you are concerned about your professional interersts and career and you wish to respond and make explanation to allegations against you, then those are the bodies established by law to deal with those matters.
CHIN, MR: Sir, I have been through the State Administrative Tribunal.
HEENAN J: Yes, I know that, and it has made certain decisions.
CHIN, MR: And I have not received justice twice already and if I were to proceed with it, there is already likelihood or real likelihood of bias against me and I'm unlikely to succeed.
HEENAN J: All right. I have heard all this, Mr Chin, and it's in the papers. I am familiar with your contentions.
CHIN, MR: And I believe, sir, the only way that I can get justice is through the retrial prorogative orders through the inherent jurisdiction of this honourable court.
HEENAN J: Yes, very well. You may be seated.
CHIN, MR: Thank you, sir.
(Judgment delivered)
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