WRITTEN SUBMISSION FOR JUSTICE KENNETH MARTIN RECUSAL RE: CIV1903 OF 2008 AND CIV 1112 OF 2007

IN THE SUPREME COURT CIV 1903 OF 2008
OF WESTERN AUSTRALIA

BETWEEN

NICHOLAS NI KOK CHIN PLAINTIFF

AND

TIMOTHY ROBIN THIES FIRST DEFENDANT

AND

PAUL CHUNG KIONG CHIN SECOND DEFENDANT

OUTLINE OF WRITTEN SUBMISSIONS FILED BY PLAINTIFF IN CIV 1903 OF 2008 FOR FURTHER DIRECTIONS HEARING SCHEDULED ON 13.5.2010. IT IS FILED PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 RE HIS HONOUR’S DENIAL OF PLAINTIFF’S CAPACITY TO ACT AS FREE AGENT FOR HIS SON PAUL IN THE CAVEATS CASE OF CIV 1112 OF 2007. THIS DENIAL IS CONTRARY TO THE AGREEMENT REACHED BETWEEN THE PARTIES ON 17.6.2009 BEFORE JUSTICE HASLUCK.
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Date of Document: 10th May, 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
NICHOLAS NI KOK CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com


TABLE OF CONTENTS PAGE NUMBERS

A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 4
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 5
PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010 6
CONCLUSION: 11

Your Honour
A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON
1. I refer to the Directions Hearing in both the Review Order Case (of CIV 1903 of 2008 cited as RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 made by me in accordance with my Application pursuant to s.36 of the Magistrates Court Act, 2004) and the Caveat Case in CIV 1112 of 2007, both cases coming before Your Honour on 30.4.2010. Whence both parties were persuaded by Your Honour to study the transcript of that directions hearing before re-appearing for another directions hearing on 13.5.2010.
2. After serious consideration of the events that have transpired in that proceedings, I have today reached the irrefutable conclusion that it is a fact that Your Honour will need to recuse yourself from hearing both the Review Order Case and the Caveat Case in the interests of justice. Your Honour should reach Your Honour’s own decisions with respect to recusal without calling on counsel to consent because a consent request of this nature would be "fraught with potential coercive elements which make this practice undesirable ."
3. This is based on the ground that having regard to the circumstances which I will take pains to outline below, there remains the fact that it would be impossible for Your Honour to bring an impartial mind to the proceedings of these two cases as a judge.
4. As Your Honour should know that I am being made the Plaintiff of the further proceedings of the Review Order Case by His Honour Justice Hasluck on 17.6.2009 for obvious reasons; the fact that I have been appearing in this matter as a litigant in person for my own affairs with my son Paul C K Chin remaining in the background, right from the start. There was never any requirement imposed upon me as an officer of the court to be impartial in these proceedings . If there was, I would indeed be disqualified, just as any judge would be disqualified if he is indeed less than impartial.
5. I am the protagonist in this matter by virtue of my own rights as a litigant in person having a personal claim against the Respondent. Consequently there are no issues of my being “hopelessly conflicted ” at all material times as I am my own boss looking after my own personal affairs as a litigant in person with my son appearing as the boss in legal terms remaining in the background under legally permissible circumstances.
6. At all material times, the interests of my son Paul as the legal owner coincides with my own interests as the equitable owner of his interests, just as any father would undoubtedly have equitable ownership over his son’s property. I have never been my son’s solicitor although I am his solicitor father but I am entitled to use my label “barrister & solicitor” to indicate my social status although I have not applied for a current practice certificate, which I am entitled to with conditions imposed.
7. I have all the characteristics of a solicitor but at all material times, I am the father of Paul and have the natural inclinations just as any other natural father would have, to protect the interests of his own son.
8. This Honourable Court must divest my personality as a solicitor serving the interests of a member of a public who happens to chose me as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind. The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense.
9. The only criteria for the concept of conflict of interests to exist is to prevent the father from becoming impartial in the execution of his duties as an officer of the court when advocating for his son. Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.

PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
10. It is implicit in the subsequent proceedings in the Review Order Case that neither Mr. Thies nor his counsel should be seen anymore to be exploiting the vulnerabilities of my son Paul who happens to have a thin skull. The motive for Mr. Thies to get my son Paul to become the second defendant in the Review Order Case is to seek to harass and intimidate him but in a more refined manner than it was done by him previously, which caused Paul to be subject to and to succumb to Mr. Thies’ duress. Let it be forewarned, that Mr. Thies should no longer seeks to torture Paul any further as it is a criminal offence for him to do so .
11. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that Paul’s name be entered as the Second Defendant on condition that Paul were to remain inactive and that Paul will not be liable for any costs consequences.
12. However, it is an index of the learned Justice Kenneth Martin’s mind on 30.4.2010 in the directions hearing before me and Mr. Thies, and as such the learned Justice’s mind is reasonably apprehended to be biased against me and favouring Mr. Thies. This is because the learned Justice excluded me from advocating for my son Paul in the Caveat Case not in my capacity as my Paul’s solicitor or counsel which I never intended to do but merely as a self-represented litigant.
13. I say this on the ground that both the Caveat Case and the Review Order Case should be merged or amalgamated into one case as they involved the same issues of facts and law as it is in the interests of conserving the limited resources of this Honourable Court.
14. Further, when the issues of fact and law affecting the caveatable interests of Mr. Thies are clear i.e. it points to the irrefutable conclusion that Mr. Thies has no basis for lodging that unlawful caveat, an order for the removal of the Caveat need not be determined on an Originating Summon in the Caveat Case but only in the Review Case.


NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
15. There is no professional relationship of client and solicitor between myself as the father and Paul as my son and it has always been so in all our mutual dealings except for our relationship with Mr. Thies who is our common solicitor. There is therefore no conflict of interests existing between me and my son Paul because I do not play the public role of a solicitor between a father and a son but only the private role of safeguarding my son’s own interests just as though it was my own interests .
16. My own interests as a father of Paul merged into the interests of my son Paul in our common capacity as the owner, his being legal and mine being equitable of Paul’s own home at 29, O’Dell Street, Thornlie in the State of Western Australia which is the caveat property being the subject of Mr. Thies’ unlawful caveat. His unlawful caveat is devoid of any caveatable interests with its concomitant equitable interests . To qualify for an equitable interests in the Caveat Property, Mr. Thies no doubt has to be able to prove that we are ad idem with him in so far as the Caveat Property has been properly identified in the disputed costs agreement we had both entered into with him for his legal services which came to an abrupt stop as soon as he was seen to be reneging on the terms of that contract .
17. The evidentiary materials are before this Court is that Mr. Thies had been engaged in unconscionable conduct against me and my son by abusing his powers as a fiduciary to exploit the vulnerabilities of Paul and to threaten us with fantastic costs escalation procedures, yet unheard of for the purpose of intimidating fear into our hearts such that we both did succumb to his duress; they were unconscionably inflicted upon Paul on account of his ignorance and myself on account of my fear that my son might suffer illness of a specified kind as a result of stress. These fears are real as they had occurred in the past caused by Mr. Thies and were and are still likely to recur.

PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010
18.0. At page 4 and 5 of the transcript, the learned Justice referred to the Affidavit filed by me appearing as solicitor for my son Paul in the Caveat Case. My name appear as the Barrister and solicitor and that is my title in social life which I am entitled to use as my name is still on the Roll of the Supreme Court of WA. I am indeed the free agent and the McKenzie friend of my son fulfilling the condition promised to me by Mr. Thies that Paul shall not be an active participant in these and other related proceedings.
19.0. I am capable of holding a practice certificate with the conditions imposed but I do not wish to apply for a practice certificate at the moment. As indicated earlier, there is a never a client-solicitor relationship between my son Paul and myself in all my dealings. I am always entitled to work as a free agent for my son on a pro bono basis and I do not contravene s.12 of the Legal Profession Act, 2008 (WA).
20.0. At page 5 the Learned Justice did not accept that the Caveat Case is related to the Review Order and he refused to give reason for his decision in this respect. The learned Justice said “please stop” and thereby denied me natural justice (see page 5 at line 25 and 27 of the transcript).
21.0. At page 6 of the transcript, the learned Justice said that I had an “appalling conflict of interest”. The learned justice is wrong in that I never practice as a solicitor for my son and therefore I have no public role interests that conflicted with my private role as a natural father of my son Paul to protect his interests which is also my own interests. Mr. Thies is our solicitor and he has a public role interests that he should never advance his personal interests to conflict with the former.
22.0. In order to avert the controversy, Paul Chin has decided to file his own Affidavit and to submit his own Written Outline of Submission dated and filed the 10th day of May, 2010.
23.0. Through judicial activism or the direct intervention of the judicial process by the Learned Justice himself in an Australian adversarial system of justice as distinct from an inquisitorial system, he is seen to be advocating for Mr. Thies in respect of his perception of an unreal conflict of interests situation but at the same he is refusing to see the conflict of interests situation of Mr. Thies himself; he is descending into the arena of conflict and is blinded by the dust of conflict.
24.0. Surely, he knows this: The true function of this Court is to hear and determine cases, according to law, without fear or favour – nothing more and nothing less . I am indeed perplexed as this is surely not the scene that I expected from the Learned Justice Martin.
25.0. At line 36 to 38 of page 6 of the transcript, the Learned Justice refers to a “basis to support a charge which supports the caveat for unpaid solicitors’s fees”. This statement by a Judge or potential judge in the Caveats warrants the reasonable belief that there has been a secret communication between the Learned Justice Martin and the other party to these proceedings and therefore warrants an immediate recusal of that learned Justice. If indeed the Learned Justice is acquainted with the evidentiary materials before him he would have reached this preposterous conclusion having regard to the fact that the costs agreement between Mr. Thies and myself and my son Paul son never specifically alluded to the Caveat Property and how on earth did Mr. Thies gets the idea that he has an equitable charge over that Caveat Property.
26.0. At the last paragraph of page 6 of the transcript, the learned Justice Martin is again stating there is a compromise when he fully knows that the facts of the case points irrevocably to the fact that the compromise had been vitiated by the duress exerted by Mr. Thies on both the father and the son. The word “duress” has been mentioned 24 times and this indicates that Justice Hasluck is mindful that the presence of duress upon the minds of both myself and my son Paul is not fanciful but something very real .
27.0. At lines 1 to 14 of page 8 of the transcript, Justice Martin is continuing to deny me natural justice by paying lip service to the fact that I am the Plaintiff in the Review Order Case. He is dictating his own version of the story by taking the sides of Mr. Thies knowing that he had been secretly communicated by barrister Scott Ellis without my knowledge as admitted subconsciously by the learned Justice at line 10 and 11 of page 3 of the transcript.
28.0. Justice Martin descended into the arena of conflict again by siding with Mr. Thies with regard to defunct order of Commissioner Herron which is an out of jurisdiction decision that has since been taken off the District Court website as no good law. He knows that s.36 of the Magistrates Court Act, 2004 does not allow Justice Hasluck to make any pronouncements on the District Court costs order that is a nullity and yet he is not accepting the argument that if the Review Order Decision has gone into the root of the matter at the Magistrates Court level before the two judicial officers Magistrate Musk and Magistrate Michelides who have consented to the withdrawal of their respective decisions, there should no longer be any debate on the intervening District Court decision of Commissioner Herron which rests on those defunct Magistrates Courts decisions in the courts below. This is a non-argument and the matter should be put to rest, lest there be an appeal again from the District Court to the Supreme Court which would cause unnecessary wastage of resources.
29.0. The next issue is the NON-COMPLIANCE by Mr. Thies as the Respondent in the Review Order Case to comply by filing an Affidavit in his Defence within 21 days of the Order dated 17.6.2009. Mr. Thies filed on the 6th day of October, 2009 after a lapse of some three months. Justice Hasluck made time of the essence of his Order. Unless there are reasonable explanations, there is no point for this Honourable Court to waste its resources on debating the contents of the two volumes of these Affidavit which points to the same contentions as brought by the Applicant for the Review Order.
30.0. Looking at page 10 and 11 of the transcript, the issue is whether I should have done something when Mr. Thies did not comply. Justice Martin said he is not there to provide me with legal advice but he is bound by law to advice me procedurally in order for the case to go on. However, I did do what I needed to do and I got a response letter from the Associate to Justice Hasluck to the effect that I have done everything that needs to be done .
31.0. The issue raised at page 11 of the transcript concerns not the $6,000.00 owing to me but the whole of the $11,500.00 that was taken by Mr. Thies from under a vitiated by duress vitiated compromise agreement, which sum Mr. Thies ought to replace. He is being forgiven for the mental trauma and harm he had caused to me and Paul and to his mother. We are not asking for damages on this mental harm. All we want is to see that a member of the legal profession must be dealt in accordance with the law for taking monies which are not due nor payable to him because there is no disputed debt at all and he has waived his defence if there is one by not complying timeously with the Order of Justice Hasluck in the Review Order case.
32.0. The jurisdictional issue of their Honour Magistrate Musk, Magistrate Michelides and Commissioner Herron of the District Court resolves around their abuse of powers as judicial officers and acting out of their jurisdictions in refusing to look into the issues of the zero sum debt and the illegal demands for monies for no debts and for not recognizing the issue of duress in accordance with the law. These issues have been spelt out by Justice Hasluck in the Review Order Case in terms of the following:
32.1. Para. 24 refer to a debt which may justify the caveat and there was not.
32.2. Para. 84 refers to s.6 of the Magistrates Court Act, 2004 (WA) which empowers both the Magistrates and Commissioner Herron to intervene but since there was no such powers accorded to them, there is therefore an abuse of power by them.
32.3. the Catchwords refers to the duress of the duress-vitiated compromise;
32.4. Para. 40 refers to the setting aside of the duress-vitiated compromise;
32.5. Para.46 refers to the duress-vitiated compromise that was before Commissioner Herron;
32.6. Para.47 refers to the error of Commissioner Herron in concluding there was no duress-vitiated compromise;
32.7. Para.55 refers to the lynchpin of the facts and law where the duress-vitiated compromise should exist;
32.8. Para.56 and 57 makes four references to the error of Magistrate Michelides who dismissed the Appeal of the Applicant regarding the duress-vitiated compromise on the unjustifiable ground of “a last ditch effort” and as “an after-thought”. The evidence before the court was that the Registrar who entered into the Consent Judgment was fully informed of the duress-situation.
32.9. Para.62 refers to the lengthy Notice of Originating Motion in the Review Order case affecting the duress-vitiated compromise;
32.10. Para. 103 is the general observation of Justice Hasluck that duress-vitiated compromise exists by virtue of the existence of the professional misconduct of the over-charging conduct of Mr. Thies.
32.11. Para.108 refers to Magistrate Musk’s refusal to set aside the duress-vitiated compromise on the ground that a perfected order affecting the Registrar’s perfected consent judgment should not be tempered with. This situation is confirmed by Commissioner Herron and is His Honour’s jurisdictional error on the ground that the Registrar’s consent judgment itself arose from a jurisdictional error.
32.12. Para. 125 refers to the actionable duress-vitiated compromise that must be set aright by this Court in accordance with the law.
32.13. Para.126 made three references to justify the fact that Mr. Thies although threatening to carry out a lawful act can bring about the duress-vitiated compromise.
32.14. Paragraph 132 refers to Magistrates Michelides error that a duress- tainted and thus a duress-vitiated order can be set aside by this Court.
32.15. Para.133 suggests the error of Commissioner Herron and Magistrate Michelides to the effect that duress-vitiated compromise can be accomplished without the free will of both the father Plaintiff and the son victim.
32.16. Para.134 relates to the setting aside of a duress-vitiated compromise that is based on fraud and unconscionable conduct based upon the evidentiary materials before this Court.
32.17. Para.135 relates to the cause of the duress-vitiated duress arising out of the economic duress, fraud, undue influence of a solicitor upon the minds of his victims resulting in the wills of the victim being over-borned and that time for appeal should be extended where there are reasonable circumstances to explain the delay.
32.18. Para.140 refers to the duress-vitiated compromise being viable on account of the escalating costs demands under circumstances when the legal services of Mr. Thies which is the source of those unexplainable costs has been terminated earlier in time so that the Applicant and his son can expect a cessation of those over-charging and excessive solicitors costs that are not within the contemplation of the contracting parties.
32.19. Para.143 refers to the fact that the duress-vitiated compromise being a reasonable and arguable case which the judicial officers in the courts below should have taken into account relevant matters and should not have taken into account irrelevant matters.
32.20. Para.145 refers to the fact that Magistrates Michelides should have allowed my Appeal by first extending the time to appeal, take into account the duress-vitiated consent judgment.
32.21. Para.149 refers to the facts that the Judicial Officers of the Courts below had erred and they agreed indeed they have erred. Commissioner Herron cannot be contacted to signify that His Honour had erred but he implied by his conduct by removing his out of jurisdiction judgment from the website of the District Court of WA such that it would continue to mislead the public.

CONCLUSION:
33. If Your Honour cannot agree with the above points I have raised, then it is very clear that Your Honour have made a pre-judgment of those issues as indicated above and they are self-evident in the transcript. The only viable solution for me then is to ask for another impartial judge to carry out his duties in accordance with his Oath of Office. I sincerely apologized to Your Honour for this intentional personal affront which I had to give to Your Honour.
34. If Your Honour still thinks that Your Honour can bring an impartial mind to these issues, then I would expect all future decisions of Your Honour to be made transparently and are to be made with full explanations with logical human reasoning based on relevant issues of facts and law and Your Honour must not take into account irrelevant issues of facts or law or refuse to take into account relevant issues of facts and law.
35. Consequently, I would not want any issues that have been explained by the learned Justice Hasluck in the Review Order case to be avoided at all costs by Your Honour, such that we can together avoid the public perception that justice is not palpably seen to be done fairly to all parties concerned.
36. We are trying to avoid the public perception that all lawyers are not seemingly to be acting legally. I want to be the lawyer who is acting legally and with conscience and in these contexts I want the public interests to be upheld by our legal system which is seen to be palpably working in the public interests.





Signed by: ………………………………… ….





















LIST OF AUTHORITIES

STATUTE LAW
1. Legal Profession Act, 1008 (WA) s.12;
2. Magistrates Courts Act, 2004 (WA) s.6;
3. UN Convention Against Torture

ARTICLES:

4. CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff found at:
http://www.mass.gov/courts/sjc/cje/92-1h.html
5. Judicial Activism found at http://www.conservapedia.com/Judicial_Activism;
6. Boyle, S: an article in the Murdoch Law School Electronic Journal, found at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED said at para.1;
7. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196;
8. LAWASIA Conference, Tokyo an article by JUSTICE ALWYNNE ROWLANDS AO entitled: ASPECTS OF JUDICIAL PROFESSIONALISM IN THE AUSTRALIAN FAMILY LAW CONTEXT 1 September 2003

CASE LAW:


9. BPR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 41 per ROBERTS-SMITH JA at paragrraph 79;
10. DIAGNOSTIC MEDLAB LTD V AUCKLAND DISTRICT HEALTH BOARD, WAITEMATA DISTRICT HEALTH BOARD, COUNTIES-MANUKAU DISTRICT HEALTH BOARD AND ORS HC AK CIV 2006-404-4724 [2007] NZHC 177 (20 March 2007);
11. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
12. Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294”
13. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
14. Porter v McDonald [1984] WAR 271 at 276;
15. RE BURTON; EX PARTE LOWE & ANOR [2003] WASCA 306 as per Murray J, Barker J and Roberts-Smith J in paragraph 63;
16. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) per Dawson J, at para.2;
17. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
18. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;