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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
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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.
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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 - - -
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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.
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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.
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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.
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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
17/6/10 CHIN, MR 26
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?
17/6/10 CHIN, MR 27
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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