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THE SUPREME COURT OF WESTERN AUSTRALIA
CIV: 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
6/4/10 1
(s&c)
HEENAN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 6 APRIL 2010, AT 10.30 AM
The applicant appeared in person.
6/4/10 2
THE ASSOCIATE: In the Supreme Court of Western Australia, CIV 1019 of 2010, Chin.
HEENAN J: Yes, Mr Chin?
CHIN, MR: Your Honour, may I humbly beg your Honour to grant me - this Honourable court to grant me the indulgence just in case I have said something that might seem not very proper or I have hurt or injured anyone who is a judicial officer. Secondly, your Honour, I wish also to ask for the grant of indulgence because my affidavit - in the course of preparation of my affidavit in this matter I might have repeated some facts or law which was caused by my being in a state of shock and trauma, your Honour.
HEENAN J: Well, I will take those matters into consideration, Mr Chin.
CHIN, MR: Thank you, your Honour. Before I begin with my oral presentation of the cases that I've put into my list of authorities, I would like to give a preview of what has transpired in this case.
HEENAN J: Well, Mr Chin, it seems that there has been a long history to the matters that you are concerned about.
CHIN, MR: Yes, your Honour.
HEENAN J: And am I right in concluding that there has been a series of applications before the State Administrative Tribunal?
CHIN, MR: Yes, your Honour.
HEENAN J: And before that, the Legal Practice Board?
CHIN, MR: Yes, your Honour.
HEENAN J: And after the State Administrative Tribunal, proceedings in this court?
CHIN, MR: In the Court of Appeal, your Honour, not in this court.
HEENAN J: Was that an appeal from the decision of - - -
CHIN, MR: From Chaney J's decision.
HEENAN J: Yes.
CHIN, MR: And then there were two appeals. One was from Judge Eckert's decision. That was aborted because of a consent judgment.
HEENAN J: Well, just let me get this right. Legal Practice Board is where it all started?
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CHIN, MR: Yes. It all started with the Professional Affairs Committee that received a complaint from Mr Pino Monaco, who was a former president of the Law Society of WA, and Mr Pino Monaco improperly influenced the PAC to instigate an improper investigation.
HEENAN J: Well, at any event there was a complaint to the Legal Practice Committee
CHIN, MR: Yes, and instead of the Legal Practitioners Complaints Committee, the complaint was made to the Professional Affairs Committee where - - -
HEENAN J: And then they initiated proceedings in the State Administrative Tribunal.
CHIN, MR: And they initiated the proceedings and they decided to impose conditions on me, and I made an application against that decision to impose conditions on me for the nebulose deficiency of my professional knowledge.
HEENAN J: And was that also heard in the State Administrative Tribunal?
CHIN, MR: It was heard before Judge Eckert in VR 137 of 2006 and was decided on 12 September 2006. That becomes the subject of my appeal in CACV 43 of 2007.
HEENAN J: So that was an appeal to?
CHIN, MR: The Court of Appeal.
HEENAN J: Well, how did it get before Judge Chaney in the State Administrative Tribunal?
CHIN, MR: When the appeal CACV 43 was aborted on the grounds of the existence of the pseudo full board, the Legal Practice Board decided to enter into a consent judgment with me, and I asked for the terms of the settlement, the consent judgment, to be included but I was defrauded of the term of my consent judgment, and the Legal Practice Board through another pseudo board started again an inquiry panel. That inquiry panel again did not have the majority consent - - -
HEENAN J: Well, just tell me what happened. Did they make some decision adverse to you?
CHIN, MR: They made the decision to impose - to re‑impose the condition on me. Then the only thing that they wanted to do is to unreasonably curb my independent legal practice.
HEENAN J: Well, let me see if I have got this correct. There were proceedings before the Legal Practice Board
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before her Honour Judge Eckert - I'm sorry, proceedings before the State Administrative Tribunal instituted by the Legal Practice Board and heard by her Honour Judge Eckert.
CHIN, MR: Instituted by me, your Honour, please.
HEENAN J: And from Judge Eckert's decision, there was an appeal to the Court of Appeal. Is that right?
CHIN, MR: Yes, your Honour.
HEENAN J: And what happened with that appeal?
CHIN, MR: We achieved a consent judgment through his Honour Steytler J on 26 September 2007.
HEENAN J: And what did that judgment order?
CHIN, MR: That the respective parties come to a settlement. The Legal Practice Board knew that it was in a quandary.
HEENAN J: Well, in any event the matter went back to the Legal Practice Board. Is that right?
CHIN, MR: Yes, the matter - after the consent judgment was achieved, the conditions of my settlement - I want to be able to have my independent practice again - was not granted to me because another pseudo board came into existence and it became an inquiry panel. The inquiry panel was established under section 41 of the former LP Act and that - - -
HEENAN J: What were they inquiring into?
CHIN, MR: They wanted to inquire into some nebulose deficiency of my professional knowledge, with no prospect of ever - - -
HEENAN J: Did that hearing go to a conclusion?
CHIN, MR: Did that hearing - sir?
HEENAN J: Proceed towards a conclusion.
CHIN, MR: That hearing proceeded towards a conclusion but that hearing was not able to validate its authority. That inquiry panel did not have the authority.
HEENAN J: Well, that's your submission.
CHIN, MR: It is an admission from the Legal Practice Board, your Honour, on two occasions.
HEENAN J: Well, what happened as a result of that?
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CHIN, MR: The result is I made an application to review the decision of the inquiry panel to his Honour Chaney J. It was before the former president, his Honour Barker J, but Chaney J came into the process as the vice‑president and then Chaney J heard it through, but I plead with Chaney J that I want an objective decision.
HEENAN J: And what happened?
CHIN, MR: And Chaney J still make the decision that a condition be imposed on my practice certificate so that I cannot practise independently, although he found that I was not guilty of any professional misconduct, and his rationale is that section 39 and section 40 can be divested from each other, that is - - -
HEENAN J: Well, the decision was that certain restrictions on your right to practice should remain. Is that it?
CHIN, MR: Yes, your Honour.
HEENAN J: So you appealed from that to the Court of Appeal?
CHIN, MR: I appealed from that to the Court of Appeal in CACV 105 of 2008.
HEENAN J: So that's the second appeal to the Court of Appeal?
CHIN, MR: Yes.
HEENAN J: And what happened?
CHIN, MR: The Court of Appeal, through his Honour Pullin J, first tell me to put in my grounds of decision everything which Chaney J - - -
HEENAN J: Yes, but has the appeal been heard?
CHIN, MR: The appeal has been heard and leave has not been granted to appeal, your Honour, on the ground that it is unlikely to succeed.
HEENAN J: So you couldn't take that any further?
CHIN, MR: I took it to the High Court.
HEENAN J: And?
CHIN, MR: The High Court decided on 10 March 2010 to dismiss my application on the ground that the credibility of Chaney J still stands, and my contention - - -
6/4/10 CHIN, MR 6
HEENAN J: So you have challenged this decision of Chaney J by an application for leave to appeal in the Court of Appeal and you have been refused leave, and from that refusal you have applied to the High Court of Australia for special leave to appeal and you have been refused special leave to appeal?
CHIN, MR: Yes, your Honour, but I see - I can see that the High Court decision is good because the High Court decision dismiss it on the ground of the credibility - -
HEENAN J: Well, what are these proceedings about?
CHIN, MR: This proceeding, your Honour, has got a two‑pronged objective. (1) - - -
HEENAN J: Don't tell me what the objective is. Tell me what it is that you want to obtain. What kind of orders do you want?
CHIN, MR: I want to obtain a certiorari order to be made nisi - a certiorari order nisi to be made absolute in terms of Chaney J's res judicata point decision that was delivered on 4 November 2009, which I term as an ambush decision.
HEENAN J: But is this not part of the decision which Chaney J made confirming the imposition of conditions which you took to the Court of Appeal and to the High Court?
CHIN, MR: No. On 30 June - - -
HEENAN J: Why isn't it?
CHIN, MR: On 30 June 2009 the Legal Practitioners Complaints Committee - the Legal Profession Complaints Committee, being emboldened by my unsuccessful application for leave to appeal in the Court of Appeal, started to commence a proceeding called VR 87 of 2009. That is what I call res judicata proceedings because - - -
HEENAN J: Is this a third set of proceedings?
CHIN, MR: Yes, it is, your Honour.
HEENAN J: You have been telling me about proceedings in the Legal Practice Board which led to a decision of her Honour Judge Eckert.
CHIN, MR: Yes.
HEENAN J: And then you have been telling me about subsequent proceedings in the Legal Practice Board which led to a decision of his Honour Chaney J.
CHIN, MR: Yes.
6/4/10 CHIN, MR 7
HEENAN J: Now, is this a third set of proceedings?
CHIN, MR: This is a third set of proceedings.
HEENAN J: And what are they?
CHIN, MR: It is VR 87 of 2009. It is based on the same facts and law that were already decided and were already litigated - - -
HEENAN J: But what are they trying to - what orders are they wanting?
CHIN, MR: They want professional misconduct this time in the res judicata proceedings. They have forgotten - or rather they could not find the reason for professional misconduct, and they are saying, "We begin a new proceeding against you on the same facts and law - on the same issues of facts and law, and we are going to get you for professional misconduct."
HEENAN J: And are the papers relating to that application somewhere here in your affidavit?
CHIN, MR: Yes. The papers that I have made are - is being amended, your Honour. I would like to go through - - -
HEENAN J: No, just a moment. I want to see, if I can, what are the most recent proceedings in the Legal Practice Board. Are they referred to in these papers of yours? There's such a large volume of papers, it's difficult to work out what has been happening.
CHIN, MR: Yes, your Honour. The latest is the insistence and the continuance of the Legal Profession Complaints Committee to further prosecute me on professional misconduct, which Chaney J is taking an active part to be involved.
HEENAN J: Well, I have just looked at your supplementary affidavit of 28 March.
CHIN, MR: Yes, your Honour.
HEENAN J: And at page 114 there's a letter to you from the Legal Profession Complaints Committee saying that there's a trial listed on 18, 19 and 20 May.
CHIN, MR: That is correct, your Honour.
HEENAN J: What trial is that?
CHIN, MR: The trial is the further prosecution for professional misconduct, which I term as the res judicata proceedings.
6/4/10 CHIN, MR 8
HEENAN J: Yes, but what I'm asking you is to tell me what exactly are the allegations which are made by the Legal Practice Board.
CHIN, MR: Those allegations are contained in the two books that I put in in CIV 1019.
HEENAN J: And there has also been a decision by Martin CJ shortly before Christmas.
CHIN, MR: Yes. I want to say that there has been some misunderstanding between me and the chief justice, and I'm not blaming the chief justice because at that time I was in a state of shock and trauma.
HEENAN J: Well, never mind about all that. I just want to find out what the current proceedings are.
CHIN, MR: The current proceedings are Chaney J has decided that the matter - what I term as the malicious and res judicata proceedings - that has been instituted by the LPCC on 30 June 2009 is to be continued and to be heard on 18 May 2010.
HEENAN J: So where do I find the allegations by the Legal Practice Complaints Committee of June 2009? Are they in these papers?
CHIN, MR: Yes, they are.
HEENAN J: Can you tell me where?
CHIN, MR: Page 306 to 388, your Honour.
HEENAN J: Of what?
CHIN, MR: Of the blue - of the two volumes of this book, beginning with 306.
HEENAN J: 306, did you say?
CHIN, MR: 306, your Honour.
HEENAN J: Well, that seems to me to be a response from you.
CHIN, MR: That's my response, but prior to that is the - at page 274, your Honour, is the application made by the Legal Profession Complaints Committee that is dated 30 June 2009.
HEENAN J: Page 274?
CHIN, MR: Yes, your Honour.
6/4/10 CHIN, MR 9
HEENAN J: Well, just a moment, please. Well, there are a whole series of allegations against you.
CHIN, MR: Yes, your Honour. All those - - -
HEENAN J: Are you still practising?
CHIN, MR: I cannot practise, your Honour, because I am being imposed a condition not to have independent practice and I cannot get any employment to be supervised by any lawyer in Western Australia, neither in another state, because everyone is afraid of the repercussion from the regulator of the legal profession. I'm being black‑marked because some erring members of the legal profession have been pillaging, plundering and robbing innocent members of the public, and I have proven that it has happened and I have got decisions that have been made against those people.
HEENAN J: Well, Mr Chin, I now have this application by the Legal Practice Complaints Committee which is to be heard in the State Administrative Tribunal in May. Now, what has happened since then? You have put in an answer.
CHIN, MR: Yes. I have asked for the res judicata proceedings in the State Administrative Tribunal to be aborted because I have made this application for certiorari orders to have - - -
HEENAN J: Just a moment. Why can't you go to the Legal Practice Board and make the defence that - - -
CHIN, MR: Your Honour - your Honour, I answer that, please.
HEENAN J: Well, just a moment. And raise any defence that you want to. I notice at page 421 that Judge Chaney on 22 September last year ordered that the question of whether the Legal Profession Complaints Committee is barred from bringing the present proceedings by reason of res judicata is to be determined on the papers and that that was adjourned further. Now, has that been determined?
CHIN, MR: There was a res judicata point judgment that was determined on 4 November.
HEENAN J: 4 November.
CHIN, MR: And that decision, your Honour, was made in my absence and I was ambushed by that decision - - -
HEENAN J: Well, it was - - -
CHIN, MR: - - - because, your Honour - - -
6/4/10 CHIN, MR 10
HEENAN J: Just a moment. The order of Chaney J on 22 September was that it was to be decided on the papers.
CHIN, MR: Yes.
HEENAN J: And here at page 428 appears to be the decision.
CHIN, MR: And he arranged for it to be heard on 10 November, but without informing me, he heard it in my absence on 4 November and made his decision on that day, which I did not have an opportunity to object to until 10 November when I was given such opportunity and I told him that I would appeal that decision. That is why I say that is an ambush decision, your Honour, and there are correspondence which record the fact that Chaney J has gone down and descended into the arena of conflict and was blinded by the dust of conflict.
HEENAN J: Well, you could appeal from the decision of Chaney J on this point to the Court of Appeal. Either you could apply for leave to appeal now or you could appeal from any eventual decision in the case.
CHIN, MR: My purpose, your Honour, in making an application for certiorari orders is the best solution for me because a single justice can have the matter reviewed. It is not an appeal, it is a review, and it is a prerogative order that entitles me - - -
HEENAN J: Yes. Well, one of the reasons why the court might refuse to order certiorari is that your rights are adequately protected by other rights of appeal.
CHIN, MR: My rights is not adequately protected by the Court of Appeal decision so far because the certiorari order that I'm asking is based on very cogent grounds.
HEENAN J: Very?
CHIN, MR: On very cogent grounds, your Honour.
HEENAN J: Cogent, yes.
CHIN, MR: Ground number 1 is that Chaney J made two decisions. The first decision
HEENAN J: Well, Mr Chin, it's very unusual for a court to grant a prerogative order by a certiorari or prohibition when there are proceedings committed in a court of competent jurisdiction that are pending and where there are rights of appeal.
CHIN, MR: Your Honour, there is no longer any proceedings pending. The Court of Appeal has dismissed my application - - -
6/4/10 CHIN, MR 11
HEENAN J: No, no. The proceedings before the State Administrative Tribunal are pending.
CHIN, MR: Yes.
HEENAN J: And they're going to trial in May.
CHIN, MR: Your Honour, I give you very cogent reason why the proceedings in the State Administrative Tribunal cannot be proceeded with.
HEENAN J: Well, Mr Chin, I - - -
CHIN, MR: Sir, can I please - can I please - - -
HEENAN J: Just a moment. I find it difficult to get a reliable account of all that has happened. Is there some reason why you have not served these papers on the Legal Practice Board or Legal Practitioners Complaints Committee?
CHIN, MR: All these papers are already in their purview, except for the - - -
HEENAN J: I'm sorry, I didn't quite hear.
CHIN, MR: Are already in their purview, your Honour.
HEENAN J: Already in the?
CHIN, MR: I have only one paper - - -
HEENAN J: I'm sorry, I still didn't catch what you said.
CHIN, MR: All those papers that I serve you are already with the Legal Practice Board. There's only - - -
HEENAN J: What, this application?
CHIN, MR: There's only this application that is not with the board, but once you have gone - we have gone through it, then when you order it, I will serve it. Your Honour, the State Administrative Tribunal proceedings, called VR 87 of 2009, is without jurisdiction. It is without jurisdiction because Henderson v Henderson - that is the law which says that you cannot - the Legal Practice Board cannot have a further remedy.
HEENAN J: Chaney J has decided against you on that ground.
CHIN, MR: Say that again, your Honour.
HEENAN J: Chaney J decided against you on that point.
6/4/10 CHIN, MR 12
CHIN, MR: That point was not included at that point of time, and I think Chaney J is now convinced that he has got no right to continue with the proceedings.
HEENAN J: Mr Chin, I am very reluctant to deal with this matter in the absence of submissions from the Legal Practice Complaints Committee.
CHIN, MR: Yes, your Honour.
HEENAN J: I am inclined to think that the proper course would be to adjourn this morning's application and order you to file a copy of all these papers on the Legal Complaints Committee and give them an opportunity to make submissions and then, if you want to, to hear it afresh when they have an opportunity to make countervailing submissions. Do you understand?
CHIN, MR: I would agree to that, your Honour, but before that happens, your Honour, please let me explain my point very clearly.
HEENAN J: Well, I think I understand your point. Your point is that for reasons which are long and complicated you were deprived of the proper opportunity to make submissions in relation to your res judicata point and the decision on that res judicata point, dismissing it, shouldn't be allowed to stand.
CHIN, MR: Yes.
HEENAN J: Isn't that what you want to say?
CHIN, MR: Yes. The law on res judicata says that - - -
HEENAN J: Yes, I think I understand what the law says, but your point is that you shouldn't have to go through this hearing on the Legal Practice Board because you've got a res judicata point.
CHIN, MR: Yes.
HEENAN J: And although the State Administrative Tribunal, by the decision of Chaney J, decided against you on the res judicata point, that decision shouldn't be allowed to stand because you say that for various reasons it was reached wrongly and without you being given a sufficient opportunity to contest it.
CHIN, MR: Yes.
HEENAN J: And consequently you want that decision set aside and you want the proceedings before the State Administrative Tribunal to be quashed.
CHIN, MR: Yes. Your Honour - - -
6/4/10 CHIN, MR 13
HEENAN J: Am I right in understanding that?
CHIN, MR: Yes, but what I'm trying - - -
HEENAN J: Well, I can understand that, Mr Chin, but the point is that all this has had a very long history and the proceedings are advanced. A lot of judicial officers have, rightly or wrongly, concluded that your case is not strong enough to justify intervention, and before I would make an order which would have the effect of holding up all those proceedings, I think I should hear the other side of the story from the Legal Practice Complaints Committee. It's only fair that the other side of the story should be heard.
CHIN, MR: Yes. Your Honour, the writ for certiorari orders does not require the other side - - -
HEENAN J: I know it doesn't require it to be made on notice, but at any time if the court thinks that it is desirable to be made on notice, it can be ordered to be made on notice.
CHIN, MR: Your Honour, I'm ready to comply with the order but I just want the court to understand clearly that the complaints committee has got no right for further remedy of professional misconduct.
HEENAN J: Well, that's the point that has to be decided.
CHIN, MR: That is a point that is clearly in the law, and then all those things -
HEENAN J: Mr Chin, you say it's clearly in the law but there is a - - -
CHIN, MR: Exception to it.
HEENAN J: There is a considered decision of the State Administrative Tribunal by his Honour Chaney J which has dismissed that application. You say that it's wrong, but I should give it at least some credit and certainly enough credit to require you to give the Legal Complaints Committee an opportunity to be heard, because if Chaney J's decision is correct, and one starts off by assuming that such decisions are correct, then you would not be entitled to this relief.
CHIN, MR: Yes, your Honour. Chaney J has a change of mind, I believe, after I forward to him my submission on the case of Henderson v Henderson, which relates to the further remedy.
HEENAN J: Well, Mr Chin, I don't need to hear you go into all this now because the more you tell me about this, the more I feel it is necessary to give the Legal Practitioners Complaints Committee an opportunity to be heard. I think
6/4/10 CHIN, MR 14
what I should do is adjourn these proceedings for 14 days and order that you serve a copy of all the papers upon the authorised officer of the Legal Practitioners Complaints Committee and give the Legal Practitioners Complaints Committee an opportunity to file any affidavit or affidavits in opposition to the application and to file written submissions before the next hearing.
CHIN, MR: Yes, your Honour, I agree to that, but just one point I want to raise is that when the matter was - - -
HEENAN J: Well, why is it necessary to raise any other points?
CHIN, MR: Your Honour, when the matter was heard before Chaney J, Chaney J does not require the opposing counsel to make any submission, and as a result Chaney J was misled by the omission of the opposing counsel.
HEENAN J: Well, I have already indicated to you that I propose to order that not only should the papers be served on the Legal Practitioners Complaints Committee but that it should file any affidavit or affidavits relating to the matter within the next - - -
CHIN, MR: 14 days.
HEENAN J: - - - 14 days and serve copies upon you, and also to file written submissions, so you will have an opportunity to see them.
CHIN, MR: Yes.
HEENAN J: And they can be considered when the matter comes on again in 14 days' time. If for any reason there is insufficient time for all that to be done within the 14 days, well, then anybody can ask for an extension of time.
CHIN, MR: Okay, your Honour, I agree to that.
HEENAN J: All right. Well, Mr Chin, the orders will be that the application is adjourned for 14 days, secondly, that you shall serve copies of all the papers which are presently before me upon the authorised officer of the Legal Practitioners Complaints Committee within two days - can you do it within two days?
CHIN, MR: Yes.
HEENAN J: Within two days. Next, there will be an order for the Legal Practitioners Complaints Committee, if it chooses to do so, to enter an appearance, to file any affidavit or affidavits in opposition to the application and to file written submissions within 10 days of the date of service.
6/4/10 CHIN, MR 15
CHIN, MR: Thank you, your Honour.
HEENAN J: And there will be liberty to apply generally and for an extension of any of the time limits imposed. Otherwise the matter will come on for hearing on notice on Tuesday fortnight.
CHIN, MR: Yes. Just one last point, your Honour. The last point is that my application for certiorari orders is for the scrapping of Chaney J's first judgment on the ground that his reasons for decision is deficient because Chaney J refused to touch on the live issue. The live issue is that I have always been confronted not with the real authority of the Legal Practice Board but with a pseudo board and that was assumed by any four members, and they have admitted on two occasions through my barrister that they do not have the real authority of the regulator of the legal profession either through section 10 and section 11 pertaining to the delegation of authorities under the former LP Act and through regulations 15 and 17 of the Legal Practice Board rules.
HEENAN J: Well, that's something that I can ask counsel for the Legal Practice Complaints Committee about if and when he appears.
CHIN, MR: Yes.
HEENAN J: All right. Well, those will be the orders and the court will adjourn.
AT 11.07 AM THE MATTER WAS ADJOURNED ACCORDINGLY
6/4/10 CHIN, MR 16
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