OF WESTERN AUSTRALIA
BETWEEN
NICHOLAS NI KOK CHIN PLAINTIFF
AND
TIMOTHY ROBIN THIES FIRST DEFENDANT
AND
PAUL CHUNG KIONG CHIN SECOND DEFENDANT
WRITTEN SUBMISSIONS BY PLAINTIFF (IN RESPONSE TO FIRST DEFENDANT’S SUBMISSIONS), FILED AND SERVED PURSUANT TO ORDER NO. 4 OF JUSTICE KENNETH MARTIN DELIVERED ON 13.5.2010
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Date of Document: 24th June, 2010
Date of Filing: 24th June, 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
(PLEASE NOTE: THE NUMBERING SYSTEM OF THIS DOCUMENT (EXCEPT FOR THE CONCLUSION) FOLLOWS THE NUMBERING SYSTEM OF THE FIRST DEFENDANT SUBMISSIONS DATED FILED AND SWORN 10.6.2010 FOR EASE OF REFERENCE).
1. The Plaintiff seeks:
(a) No Order for Security of Costs is necessary as this is a public interests litigation instituted by the Plaintiff to uphold the public interests that solicitors do not advance their own personal interests ahead of their own client’s interests through exploiting the vulnerabilities of their clients. The First Defendant is reasonably perceived to be using the proposed security order for costs to intimidate the Plaintiff such that he may desist from pursuing this action. Having regard to the prevailing circumstances, on the other hand, it is for the First Defendant to provide the court with the security of costs to the Plaintiff.
(b) No Orders should be made discharging so much of the Orders of Justice Hasluck on 7.11.2008 per the request of the First Defendant as there were none of such orders that need to be relevantly discharged on the following grounds:
b.1. The First Defendant does not have an entitlement for profit costs even if he were to win the case by engaging counsel to do so, as it would be contrary to the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2005 and the legislative intent of Parliament when enacting these provisions (The MCCPA).
b.2. The First Defendant is reasonably found to have abused and is abusing the process of court by commencing an unconscionable, frivolous and vexatious claim with a ZERO SUM DEBT. The test for this frivolity is that it is unlikely to succeed if the court processes in the courts below were transparent and were decision within the jurisdictions of those public authorities which made those decisions.
b.3. Registrar’s Wilde duress-vitiated Consent Judgment entered into involuntarily by her in FR417 of 2007 is the result of the involuntary promptings of the Plaintiff and it is therefore of null legal effect and unenforceable at law on the ground that she, the decision-maker, was at all material times apprised of the duress-situation by the Plaintiff (Registrar Wilde Consent Judgment).
b.4. Registrar Wilde entered into the Registrar Wilde Consent Judgment knowing that it is vitiated by duress for the purpose of avoiding the then inevitable apprehended calamity befalling the family members of the Plaintiff, particularly the Second Defendant, evidence of which had been provided in the courts below.
2.1. The personal circumstances of the Plaintiff does not fall under items 1, 2 and 3 of Order 25 r.2 of the RSC, 1971 (WA), in accordance with the principle of law as quoted by the First Defendant in the case of KP Cable Investment Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198 . Therefore, the relevant particular circumstances of the Plaintiff do not warrant this Honourable Court to order for security of costs:
2.1.1 The Plaintiff is not ordinarily resident out of the jurisdiction, notwithstanding the fact that that Plaintiff may be temporarily visiting his children or his relatives out of the jurisdiction.
2.1.2. The Plaintiff is not about to depart from the jurisdiction as the Plaintiff lives permanently in Western Australia and is an Australian Citizen;
2.1.3. The Plaintiff does not enjoy within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution;
2.2. This Honourable Court has discretion not to grant security for costs as provided for by Order 25 r.3 by having regard to the prima facei merits of the Plaintiff’s claim i.e. the circumstances of the Registrar Wilde Consent Judgment and the subsequent coerced settlement which is never a compromise.
3. The First Defendant does not present any relevant matters for the consideration of this Court for an Order for Security Costs to be issued against the Plaintiff. The common law position that it is just and reasonable that the First Defendant who has caused the Plaintiff to incur the costs of litigation should reimburse the Plaintiff for the cost liability incurred by the Plaintiff; caused by the frivolity and vexatiousness of the First Defendant’s Zero sum false debt claim which unfortunately had un-meritoriously received the sanction of the lower courts. This ridiculous situation is contrary to what would normally have been the case because courts from time immemorial have always been extremely reluctant to depart from the rule that ‘costs follow the event’ (the usual costs rule).
4. The Plaintiff’s case is very strong and the cogent evidence provided by him is unassailable before this Court. Justice Hasluck had performed his duties admirably under subs. 36(1) of the Magistrates Court Act, 2004 (the MCA). He is now functus officio. Justice Kenneth Martin is now performing the judicial functions as provided for under subs. 36(4) of the MCA. His Honour is required to implement the recommendations of Justice Hasluck only if he were to consider it “just” to do so. “Just” means:
“Legally right; conformity with that which is lawful or fair; affording no undue advantage [to the other party or one of the party]; appropriate ”.
4.1. The benefit of the Affidavit Evidence of the First Defendant sworn 6.10.2009 does not address the issue identified at paragraph 139 of Justice Hasluck, which I need to quote below in order to indicate to this Court its exact nuances of meanings (that happens to be incorrectly conveyed by the First Defendant), in the following terms (the Affidavit Evidence):
“139 I feel obliged to emphasize again that at this stage I have heard from one side only and it should not be thought that I have arrived at any conclusion as to whether the respondent's final claim can be justified or not. However, the fact is that I have before me also the transcripts of various hearings and at no stage does it seem that any information or answer was provided to any of the courts as to how it came about that a claim for legal costs could be increased so dramatically in respect of comparatively uncomplicated civil proceedings, and in circumstances where the clients had purported to terminate the retainer. The nature of the services performed by the respondent and the reason why the termination of the retainer was apparently disregarded does not appear to have been explained in the earlier proceedings.”
4.a.1. The Affidavit Evidence did not fit in with the time-constraint which was made the essence of the Order of Justice Hasluck under circumstances which had caused much heartache to the Plaintiff when implementing Justice Hasluck Orders, caused by the First Defendant’s efforts to evade service of the required documents for the purpose of bringing him to answer the claim of the Plaintiff at the second stage of the MCA s.36 due process of law (the heartache).
4.a.2. After undergoing the heartache, this Honourable Court through the learned Justice Kenneth Martin in the interests of justice did allow the admission of the Affidavit Evidence without requiring an explanation for the delay or there was insufficient explanation for the delay . This is one instance of a reasonably observable bias of the learned Justice.
4.a.3. In the aftermath, as usual, the First Defendant is reverting to his usual former self of escaping with impunity by continuing to mislead this court; this state of affairs is reflected by the efforts of the former solicitor of the First Defendant Mr.Dean Elek-Roser who is reasonably found to be secretly attempting to communicate with the learned Justice Hasluck; but that learned Justice was able to commendably exercise his judicial duties independently. The First Defendant is now misleading this court again by introducing voluminous irrelevant information of evidence of unwanted and un-required work that was performed by him ceaselessly, purportedly, for the benefit of his victim after the termination of his retainer. He pays scant regard to the reverberations of Justice Hasluck’s statement in para. 139 as quoted by him, which the Plaintiff reasonably comprehended in these terms:
“It is a baffling situation when one looks at the situation of the First Defendant who is continuing to proffer no reasonable explanations in the courts below and even now before Justice Kenneth Martin with regard to his un-matching and fantastic costs escalations in a relatively uncomplicated legal proceedings, that was never quelled by the timely termination of his retainer by his client, the Second Defendant?”
4.a.4. In other words, the only relevant information which this Court should now reasonably look at in that Affidavit evidence in the words of the Plaintiff are:
“…the timely elimination of the annoying and inadvertent retainer entered into non-consensually, by the victim, which retainer, being the source of Mr. Thies’ unfounded claim for the legal costs of unwanted works, which, escalates disproportionately and unconscionably …albeit… uncontrollably …for the benefit of the exploiting lawyer…as if there is discernibly a design in it, as it was engineered by a stronger party against a weaker party for the purpose of exploiting the vulnerabilities of the weaker party.”
4.b.1. The crucial issue therefore before this court is not the duress-vitiated compromise of the proceedings in FR417 of 2007 but that a lawyer had escalated a ZERO SUM DEBT unconscionably and uncontrollably under circumstances of duress for the purpose of exploiting the vulnerabilities of his victims and also for advancing his own personal interests over the interests of his own clients. This is professional misconduct within the terms of the relevant legislation.
4.b.2. Another instance of the apprehended bias of the learned Justice Kenneth Martin stated as a pre-judgment at para.5 in his judgment of Thies v Chin [2010]WASC 111 delivered 13.5.2010 and published 25.5.2010 (the pre-judgment) upon the issue of the Zero Sum debt false claim and the legal impossibility of charging that false debt claim by First Defendant on the caveat property of the Second Defendant, in the following words:
“… unmet legal fees said to be secured by a charge over [Paul Chin] property”[My emphasis].
4.b.3. Magistrate Michelides’ decision in FR417 of 2007 in dismissing the Plaintiff’s appeal against Registrar Wilde Order can only mean that it is also tainted as a null order due to its jurisdictional excesses.
4.b.4. It is a common sense notion that anything that bases itself upon a false foundation is bound to collapse if that foundation were to collapse. Similarly, Commissioner’s Herron’s decision in DC Appeal No.6 of 2008 is without jurisdiction because of the post decision conduct of the District Court of Western Australia. It is presumably withdrawn by it as it was published only temporarily at the District Court Website at http://www.districtcourt.wa.gov.au/ and in Austlii at http://www.austlii.edu.au/au/cases/wa/WADC/. There are three other cases decided by the learned Commissioner that are still being published. Therefore, an inference must be reasonably drawn as to why that impugned judgment has now been withdrawn i.e. it is no good law. The learned Commissioner is no longer a judicial officer of the District Court of Western Australia.
4.b.5. The learned Commissioner, with due respect to him, made what I would call a preposterous proposition and then acted it out by first denying that he had NOT the jurisdiction to interfere with the decision of Magistrate Musk in FR944 of 2007. Yet, he did decide on the issue of coerced compromise as a non-void compromise and he aggravated the situation by irrationally and unreasonably making a costs order against the Plaintiff. Any reasonable person would then infer that that costs order is without jurisdiction and is therefore a null order just as Registrar Wilde Order is but under different circumstances. The difference between the two is the voluntariness of each decision-maker who came to that decision and their respective purposes intended to be achieved by their decisions.
4.b.6. Is it true that our justice system in Western Australia is being taken for a ride by Mr. Thies and that anomalous situation is verging on the ridiculous and incredulous?
4.b.7. Which public spirited judge, if he is fair-minded enough, would not agree that this anomalous situation needs rectification? It is clear that Commissioner Herron was on a sojourn here from another state in Australia as the District Court website does not provide a clue as to the history of Commissioner Herron and the mysterious disappearance of his decision. A search of the District Court of Western Australia decisions in Austlii also reveals no result. There seems to be some strange goings on which is rather inexplicable…..
4.b.8. The decision of Magistrate Michelides and Commissioner Herron are capable of being relieved by the remedy of the ancient writ of Certiorari now embedded into s.36 of the MCA on the grounds that they are unreasonable and irrational decisions made without jurisdiction.
4.b.9. Magistrate Michelides denied the Plaintiff natural justice by shutting his mind to my argument for my delay in appealing FR417 of 2007 whereas Justice Kenneth Martin allowed took no significant notice of the delay of the First Defendant in failing to file his Affidavit Evidence in CIV 1903 of 2008 on time on the ground of the cobbler analogy ground as indicated earlier. A very interesting though contrasting situation which indicates an apprehended but subconscious bias of the learned Justice Kenneth Martin and Magistrate Michelides.
4.b.10. This is true to what the former solicitor of the First Defendant, Mr. Dean Elek-Roser said the Plaintiff at the initial stage of the FR417 of 2007 and the FR944 of 2007 proceedings that the courts will not do justice in accordance with the law.
4.b.11. This Honourable Court is capable of challenging the Null decision of Commissioner Herron made without jurisdiction by invoking subs. 36(4)( c) of the MCA in order to enable it to make consequential Orders for the District Court of Western Australia to remit that Commissioner Herron’s judgment in DC Appeal No.6 of 2008 to the Supreme Court pursuant to subs 36(7) of the MCA and s.77 of the District Court Act, 1969 (WA) (the DCA).
4.b.12. The learned Commissioner did not do his duties in accordance with the statute law as indicated above, and it is now not too late for Justice Kenneth Martin or his alternative to do the same so as to correct that injustice occasioned to the Plaintiff, by allowing that decision to hang in the air.
4.c. It is frivolous and vexatious of the First Defendant to advance the proposition that there is strong evidence that the compromise was entered into without coercion on the following grounds in the context of para. 28 of Justice Hasluck’s judgment:
“28 At that time the applicant's son was suffering from a psychiatric illness and was under the care of a psychiatrist, Dr Giles. Steps were therefore taken to arrange for the son's signature to the deed to be witnessed by his psychiatrist, with a certification that he was not mentally impaired, he was not suffering from side effects of any drugs as would render him incapable of understanding the deed, and he appeared to sign the deed voluntarily and of his own free will.”
The veracity of the submissions of the First Defendant in this respect will need to be examined by this Court under the following circumstances:
4.c.1. The Plaintiff was at all material times protesting aloud to the treating psychiatrist the situation that the Second Defendant was “signing freely and voluntarily” because he was forced to sign that compromise document under threats of coercion due to the ever-escalating costs of the First Defendant if a compromise was not reached on time. Written communications did pass between the Plaintiff and the Health Department and the First Defendant to this effect.
4.c(i).1. The treating psychiatrist is not a lawyer and when threatened by a lawyer in the person of the First Defendant, she, Dr. Giles was under coercion to certify that the Second defendant was voluntary in coming to that duress-vitiated compromise.
4.c(i).2. The Second Defendant’s illness was precipitated by the stress and trauma of the duress situation and it is in the treating psychiatrist interests to certify that Second Defendant was well at the time he signed the compromise agreement. However, the question remains: How does the psychiatrist assess the voluntariness of the Second Defendant or the voluntariness of the Plaintiff as he and his wife Irene YM Lem was physically present and they voluntarily accompanied the Second Defendant to see Dr. Giles whilst they did apprise Dr Giles of the situation of duress?
4.c(i).3. Were the Plaintiff and his wife Irene voluntary as well? Of course, they were there as they appeared to have gone there voluntarily in order to achieve their objective. Hence the reason why Justice Hasluck said: “….he appeared to sign the deed voluntarily….”
4.c(i).4. The First Defendant must testify to the truth of his assertion that the psychiatrist is capable of attesting that the Second Defendant “signed freely and voluntarily” the compromise agreement, though it is admitted that the psychiatrist is capable of testifying that the Second Defendant was well at that time because of his lull moments.
4.c(i).5. There is no denying the fact that only the devil knows what is in a the Second Defendant’s mind when he signed the compromised agreement in the presence of his treating psychiatrist; because that is the only way for the Second Defendant to get out of the trouble of the ever-present escalating costs of the First Defendant that was hovering over his head at all material times.
4.c(ii).1. The learned Registrar Wilde has at all material times been apprised of the duress situation exerted by the First Defendant and there was “a hurry” for the Plaintiff and the Second Defendant to get out of that untenable situation.
4.c.(ii).2. Who would want to delay paying the coerced settlement money – not the Plaintiff nor the Second Defendant but the First Defendant himself? He of course, wanted more monies and the longer the delay the more money he gets out of a frivolous and vexatious ZERO SUM DEBT FALSE CLAIM.
4.c.(ii).3. This situation is evidenced by the ensuing circumstances. There was a strange and uncanny thing happening to the Plaintiff and the Second Defendant and the costs escalating factor is an unknown factor that is too “frightening” for them to delay the payment of because the justice system is perceived to be working in strange and uncanny ways. Why let it to chance and end up paying more? This is the very action of any individual confronted with a similar situation.
4.c.(ii).4. The Plaintiff had to activate the learned Registrar Wilde who dared not act against her conscience. However, there was a pressing need for the duress vitiated judgment to be acted upon by Registrar Wilde; thereby her Consent Judgment was entered into involuntarily by her as she knew that the Plaintiff and Second Defendant were involuntary but had to pretend and to be seen to be acting voluntarily. Hence, the reasons for the delay of Magistrate Wilde to enter into that judgment from 13.4.2007 till the 7.6.2007.
4.c(iii).1. The amount of the settlement payment was not a compromise on false claim of a ZERO SUM DEBT. At least it is not a compromise to the First Defendant as he was reasonably found to be using his wit to make more than the $11,500.00 windfall he had fraudulently induced the Plaintiff and the Second Defendant to pay him for nothing. He was not satisfied and was aiming at fishing for more and more….with due respect to the First Defendant… his greed knew no bounds … he would never release his stranglehold on the caveat on the caveat property of the Second Defendant for which he never had any caveatable interests … until he gets the whole property… that was his aim.
5.1. The Plaintiff got a null costs order from Commissioner Herron decision which was taxed by Registrar Hewitt. The learned Registrar refused to upset the order of Commissioner Herron although the law provides that he may do so. There was no way the First Defendant was able to enforce that Null Costs Order of Commissioner Herron.
5.2. Registrar Hewitt perhaps had become acutely aware of the atrocity of that inequitable Cost Order of Commissioner Herron and I have evidence to indicate that Registrar Hewitt when met with a similar situation in DC Appeal No.36 of 2008 delivered a ZERO COST ORDER to counter the original costs order of His Honour Judge Sullivan. Apparently Registrar Hewitt was bewildered by my legal argument as to why Commissioner Herron’s out of jurisdiction costs order cannot be executed.
5.3. There is no risk that the Plaintiff will run away without paying any costs to the First Defendant as he guarantees that he will be paid his costs if he wins the case as a Minor Case. This is because the dictates of the law allows the Plaintiff not to comply with the jurisdictional excesses costs order of Commissioner Herron in DC Appeal No.6 of 2008.
5.4. An undertaking to pay costs under the Minor Case Provisions is not to be taken lightly by this Court as it is a professional misconduct for the Plaintiff not to comply with his undertaking given honourably to this Honourable Court.
6.1. Irrespective of whether the Plaintiff is impecunious or not, the Plaintiff do have equitable interests in the caveat property of the Second Defendant because he had taken a $7,500.00 loan to pay the First Defendant the $6,000.00 in FR944 of 2007.
6.2. If he does not get his money back from the First Defendant to repay his loan, he will have to get it back from the Second Defendant. Therefore he has equitable interests in the property of the Second Defendant.
7.1. The Plaintiff is a victim of Australian racism. This is properly documented in his article entitled “Right to Work” found at the website of the Unity Party WA accessible at: http://www.unitywa.org/information-right-to-work.html.
7.2. The Plaintiff is impecunious but he has three sons and relatives who are monied. This does not mean that the First Defendant should be outwitting him in getting monies from his sons or his other family members to feed, with due respect, his unconscionable means of exploiting client’s vulnerabilities.
8.1. The Plaintiff’s right to access justice is blocked by the jurisdictional excesses of their Honours Magistrate Musk, Magistrate Michelides and Commissioner Herron. There is no denying of these facts.
8.2. They do stultify his rights to redress. Justice for the First Defendant is easy but justice for the Plaintiff is hard to get, given the circumstances.
9. The Plaintiff feels the grievance because he had been subjected to a false claim of a ZERO SUM DEBT that was caused by the First Defendant confusing the minds of the courts by misleading the court. The First Defendant being an officer of the court is placed in high regard by the courts below and he abused his powers to the following effects:
9.(a).1. It is not the case of the Plaintiff issuing multiplicity of proceedings in contesting the issue the validity of the compromise agreement. It is a fact that the compromise agreement is duress-vitiated right from its inception and the courts below were not able to see it as it is too unconventional.
9.(a).2. It is unbelievable that an officer (with due respect to Mr. Thies) of the court had resorted to ensnare and exploit vulnerable clients.
9.(b). The First Defendant misconceived that the Plaintiff had had made
unfounded Applications, in the following terms:
9.(b).i. The application for recusal of Justice Kenneth Martin is valid upon the following instances of apprehended bias as already explained in the foregoing sub-paragraphs 4.a.2, 4.b.2 and 4.b.9 and also when His Honour refused to accept the following:
9.(b).i.(1): the written submission of the Second Defendant in CIV 1112 of 2007 or the Plaintiff as a litigant in person ;
9(b).i.(2) the Summons in Chambers of the Second Defendant or the Plaintiff together with the Supporting Affidavit in CIV1112 of 2007 as a litigant in person;
9(b).i.(3) the fact that the Plaintiff is merely the free agent or the amicus curiae or the McKenzie friend of the Second Defendant.
9(b).i.(4) the fact that the Second Defendant can have someone else to act as his scribe or writer of his legal documents, even though it might be the Plaintiff himself?
9(b).i.(5) the fact that the Plaintiff can never be reasonably found to be acting in conflict of his own personal interests against the interests of the Second Defendant , because he was at all material times acting pro-bono for his son the Second Defendant, in accordance with subs.12(3)(d) and 12(4) of the Legal Profession Act, 2008 (WA) .
9(b).i.(6) and to understand that an uncertificated legal practitioner is still able to use his name as a barrister and solicitor provided he informs the public that he is currently uncertificated, on the ground that the Plaintiff’s name has never been removed from the roll of barristers & solicitors (and that he could be so removed only for grave and consistent professional misconduct, for which there has never been a finding of a simple professional misconduct against him, despite LPCC trying to re-persecute him for a FURTHER REMEDY debarred by the common law based on the grounds of res judicata );
9(b).i.(7) that the First Defendant is indeed and reasonably found to be acting in conflict of interests against the interests of his own clients, the Plaintiff and the Second Defendant by advancing his own personal interests before the interests of those clients.
9(b).i.(8) that the Plaintiff owe a responsibility not to neglect his own son in the Second Defendant and has a moral and legal obligation to protect his own son as the natural father from harm i.e. from the marauding activities of the First Defendant.
9(b).i.(9) that the Plaintiff should be construed as a party to the action in CIV1112 of 2007 under the circumstances as contained within paragraphs 22, 23 and 24 of the Affidavit of the Plaintiff sworn and filed on 26.5.2010 and served on the First Defendant on 3.6.2010.
9(b).i.(10) that he has the right to rebut the contents of the Plaintiff’s 2-page facsimile letter, addressed to the Principal Registrar of the Supreme Court, marked for the attention of the Associate to His Honour Justice Kenneth Martin, copied to the LPCC and dated 28.5.2010 containing 12 grounds called for the learned Justice’s recusal.
9(b).i.(11) that the First Defendant never had a caveatable interests in the Second Defendant home property at No.29, O’Dell Street, Thornlie as he never contributed to its improvement in value to qualify for a proprietary interests, it was never part of the impugned varied solicitor’s costs agreement as it was never consensual anyway, and even if it were, that charged or mortgaged was never specifically described so as to be distinguishable in it.
9(b).i.(12) by his error in his misconception of the legal meaning of caveatable interests through quoting Bashford & Bashford at para.10 of the prejudgement by equating it with “an arguable interest in land ” divested of an equitable interests in the caveat land .
9.(b).(i).(13): that he had not taken into account relevant matters and had taken into account irrelevant matters in his pre-judgment, to the extent that he denied the Plaintiff and the Second Defendant natural justice by providing deficient statement of reasons for relevant issues of law of facts which remains undecided though they were contained in the written submissions and affidavits that was before him.
9.(b).ii. The Plaintiff’s objection to the taxation of the First Defendant’s bill of costs emanating from the Commissioner Herron’s jurisdictional-excess cost order is premised on the rationale that a cost order made without jurisdiction is prima facei unenforceable and is of null effect.
9.(b).iii. The Application for consolidation of these proceedings is based on Order 83 of the RSC 1971 (WA) which has the legal effects of a principle of the common law as applicable in Western Australia and is reasonable and just as its purpose is to quiet all claims pertaining to one transaction or event and is aimed at the conservation of resources of all parties concerned .
9.(c). The Plaintiff does not make false allegations of impropriety against Mr.
Thies and judicial officers without providing proper particulars and adequate
supporting materials and will endeavour to do so in the following:
9.(c).(1). Every statement made by the Plaintiff in paragraph 10 of his Affidavit sworn filed and dated 23.7.2008 is fully substantiated with spontaneous and simultaneous evidentiary materials that are contained within the court records of those proceedings for which the parties involved have also simultaneously been fully apprised of. They pertain to Her Honour Magistrate Musk denial of natural justice to the Plaintiff and her jurisdictional excesses.
9.(c).(2). Paragraph 28 and sub-paragraph 85.7 of the Plaintiff’s Affidavit sworn 12.5.2010 bears the truth that Registrar Wilde was involved in an involuntary decision to make that Consent Judgment Order in order to avert further calamities to the Plaintiff, the Second Defendant and his other family members.
9.(c).(3). That was the best Registrar Wilde could do in the interest of justice and she did it at the importunateness of the Plaintiff to fulfil a need at that time.
9.(c).(4). Under the circumstances, she is to be construed as a conscientious, honest and a just judicial officer.
9.(c).(5). Registrar Wilde’s will in the meantime had been suborned by the duress of the First Defendant and therefore her decision is a nullity and she knew it to be so and that explains the reasons why she had delayed in delivering that Consent Judgment, albeit she even refused to endorse the subsequent Costs Order of the learned Magistrate Michelides, implying the universal truth that any derivative of a fraudulent compromise is of itself of null effect and unenforceable by a court of law.
9.(c).(6): His Honour Justice Ken Martin should reach his own conclusions about whether he should recuse himself from further hearing this case without the interference of the First Defendant as any consent request by him would be:
"fraught with potential coercive elements which make this practice undesirable ."
9.(d). All materials provided by the Plaintiff are to the point and serve
to emphasise the case for the Plaintiff in that the conduct of the First
Defendant in these proceedings had been anything but oppressive, frivolous,
intimidating, exploitative and vexatious.
10. Irrespective of whether there was a delay for security of costs, this Application does not serve any fruitful purpose in the interests of justice, is misconceived and should be dismissed with costs.
11. The security for costs is a tactic to stultify the Plaintiff from accessing his just claims and is therefore an abuse of the court process.
12. As per the dictates of the circumstances, these proceedings in FR417 of 2007is reviewable under the Certiorari Orders and are to be made absolute in terms of subs. 36(4) of the MCA.
13. Registrar Wilde had rightly refused to sign the costs orders of Magistrate Michelides as they are orders made without jurisdiction as the Plaintiff was denied natural justice on the ground that the learned Magistrate did shut his mind off to the Plaintiff’s Appeal against Registrar Wilde Consent Judgment on the ground of his plainly unreasonable refusal to extend time to appeal.
14.1. The principles ordinarily applicable to the discretion of Justice Kenneth Martin under s.36(4) of the MCA pertaining to a grant of a stay of the decisions made without jurisdiction of Magistrate Michelides pending an appeal as quoted by the First Defendant in the case law quoted by the First Defendant is indeed misleading this Court.
14.2. However, the relevant case law providing the legal authority for the lawful exercise of discretion by this Court under s.36(4) of the MCA to exercise its discretion to allow the Plaintiff’s application for Certiorari Orders to be made absolute has been established in the decision of Beech J in the case of Re An Application Under The Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151 in circumstances where there has been an exercise of public authority by Registrar Wilde (albeit involuntarily), Magistrate Musk, Commissioner Herron and Magistrate Michelides, without jurisdiction .
15. The effect of Order 5 does not deprive the First Defendant of his fruits of his judgment as those judgments of Registrar Wilde Consent Order, Magistrate Musk, Magistrate Michelides and Commissioner Herron are decisions made by a public authorities without jurisdictions, they are reviewable by way of Certiorari and should be set aside by the discretion of Justice K Martin by way of a proper exercise of discretion as accorded by s.36(4) of the MCA.
CONCLUSION:
1. The First Defendant Application for security of costs be dismissed with costs.
2. The Plaintiff be provided for security of costs by the First Defendant.
3. The Court exercise its discretion to make the Certiorari Orders originally granted by Justice Hasluck to be made absolute.
4. The two actions in CIV 1903 of 2008 and CIV1112 of 2007 be consolidated.
5. The Second Defendant be compensated with special damages for the wrongful caveat of the First Defendant in accordance with s.140 of the Transfer of Land Act, 1895(WA) at the rate of $95.50 per day to be calculated as from the 13.4.2007 till judgment and until the unlawful caveat has been lawfully removed by the First Defendant.
6. The First Defendant put the Plaintiff and the Second Defendant to their original position as if the Zero Sum false Claim of the First Defendant never occurred.
7. Costs of these proceedings to be assessed by this Court.
8. Any other relief deem fit.
Signed by the Plaintiff: ………………………………… ….
LIST OF AUTHORITIES
CASE LAW:
1) Bashford V Bashford [2008] WASC 138;
2) Chin v Thies [2008] WADC 71;
3) 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) At Paragraphs: 122 And 123 Per Asher J:
4) Eastland Technology v Whisson (2003) 28 WAR 308 at 311;
5) Gudgeon v Black; ex parte Gudgeon (1994) 14 WAR 158 at 178 – 179);
6) Latoudis V Casey [1990] HCA 59;
7) Mcwilliam And Civil Aviation Safety Authority [2005] AATA 1148 (11 November 2005) At Para. 35;
8) Minister For Immigration And Multicultural Affairs V Bhardwaj [2002] HCA 11; (2002) 209 CLR 597;
9) Oshlack V Richmond River Council (1998) 193 CLR 72;
10) Re An Application Under The Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151;
11) Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ;
12) Re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372 at 473 [284] per Hayne J observed in (Gummow and Gaudron JJ agreeing at [80]);
13) Re Michelides; Ex Parte Chin [2008] WASC 256: Para. 144;
14) Ruddock V Vadarlis [2001] FCA 1865;
15) Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475.
16) Thies -V- Chin [2010] WASC 111;
STATUTE LAW:
1) District Court Act, 1969 (WA): ss. 76, 77;
2) Legal Profession Act, 2008 (WA), s.12;
3) Magistrates Court (Civil Proceedings) Act, 2004 (WA); s. 25 and 31;
4) Magistrates Court (Civil Proceedings) Bill 2003 (WA) s. 25(5);
5) Magistrates Court Act, 2004 (WA): subs. 36(1), 36(4), 46(4)(c), 36(7);
6) Transfer of Land Act, 1893 (WA): ss. 137,138 B, 138C, 140.
ARTICLES AND WEBSITES:
1) http://legal-dictionary.thefreedictionary.com/just;
2) http://www.mass.gov/courts/sjc/cje/92-1h.html for the article: CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father , and ADA, and Trials Involving The District Attorney's Staf;f
3) http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: S Boyle: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED.
4) http://www.unitywa.org/information-right-to-work.html.
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