SUPREME COURT OF WESTERN AUSTRALIA NO.: CACV: 75 OF 2010
COURT OF APPEAL
In the matter of an Application pursuant to subs. 60(1)(f)(3) of the Supreme Court Act, 1935 (WA) for leave to appeal the decision of the Justice Kenneth Martin in CIV 1903 of 2008 heard on 17.6.2010 and delivered on 8.7.2010 granting the First Defendant stay of the subs.36(4) Magistrates Court Act, 2004 proceedings, subject to the payment of security for costs of $20.000.00 into court, thus unjustly stultifying those proceedings which has already been granted the first stage of the subs.36(1) Review by Justice Hasluck.
Ex-parte: NICHOLAS NI KOK CHIN
------------------------------------------------------------------------------------------------------------
GROUNDS OF APPEAL
Date of document: 18th July, 2010
Date of filing: 18th July, 2010.
Filed on behalf of: The Applicant
Prepared by:
Nicholas N Chin Phone: 08 9275 7440
Litigant in person Fax: 08 92757440
387, Alexander Drive Email: nnchin@msn.com;nnchin09@tpg.com.au
DIANELLA WA 6059 Mobile: 0421642735
INDEX OF HEADINGS PAGE NUMBERS
GROUNDS OF APPEAL 1
BACKGROUND: 1
THE APPEAL: 2
GROUNDS OF APPEAL: 2
A) NORMAL APPROACH 2
B) DENIAL OF NATURAL JUSTICE 2
C) CONSOLIDATION 3
D) MC KENZIE FRIEND 4
E) RECUSAL OF SECOND JUDGE 4
E) RE-OPENS THE FLOODGATE OF LITIGATION 4
BACKGROUND:
The Appellant appeals to the Court of Appeal pursuant to subs. 58(1)(a) of the Supreme Court Act, 1935 for its exercise of its jurisdiction:
a) To grant leave to appeal of the interlocutory decision of Justice Kenneth Martin as the Second Judge in these review proceedings, dated 8.7.2010 made pursuant to subs.36(4) of the Magistrates Court Act, 2004; that leave relates specifically to the Second Judge having granted in error the First Respondent’s Application for Security of Costs under un-justifying circumstances;
b) The first part of these proceedings, already disposed of by the First Judge, Justice Hasluck’s decision, made pursuant to subs. 36(1) of the Act. Since the First Judge had already granted the Review Orders at the first stage of these proceedings, it is now for the Second Judge to adopt the normal approach as recommended by the Ex-parte Brecker principle. However, the course of justice had been deflected by the Second Judge who had followed a less than the normal approach;
c) The Second Judge’s deflection from the normal course of justice had instead dealt a death blow to the continuation of these proceedings by his error in the grant of the Security Costs Order Gag on 8.7.2010 for which the Appellant is seeking to appeal by way of a re-trial of the second-stage process of these proceedings so as to stop the unlawful and illegitimate stifling of these proceedings in the public interests such that a lawyer cannot be seen to be advancing his own interests instead of the interests of his own client through the expediency of making a zero sum debt claim against his client with impunity.
THE APPEAL:
The Appellant now appeals the second stage of these proceedings be abrogated and a re
hearing of the second stage of these proceedings be instituted by a new judge by reason of the fact
that the Second Judge had erred on the following grounds:
GROUNDS OF APPEAL:
A) NORMAL APPROACH
1. In mixed fact and law through contradicting the First Judge’s Review Orders by departing from the normal approach without identifying any justifiable circumstances for doing so.
B) DENIAL OF NATURAL JUSTICE
2. In mixed fact and law by refusing and denying the Appellant his natural justice to be heard in his own cause in the associated case of the Caveat Case of CIV1112 of 2007 of his son (the Caveat Case) having regard to the following facts:
a. The Caveat Case was used by the First Respondent as his handmaid of duress in advancing his zero sum debt FR417 of 2007 claim for the purpose of achieving what he termed to be a real compromise but what was achieved in reality is only the “appearance” of a compromise in Registrar’s Wilde Consent Judgment.
b. The First Respondent is exploiting the vulnerabilities of the son of the Appellant who is the Second Respondent in these proceedings knowing that the latter has always been his unwilling client by making attempts to exclude the Appellant who was at all material times trying to prevent this exploitation. The Second Judge is reasonably seen to be aiding the Second Respondent’s attempt in this regard.
c. The Second Judge contradicts the intention of the First Judge to allow the Appellant as a litigant in person to represent his son as his McKenzie friend in these proceedings to its finality by unreasonably delimiting that representation only to CIV1903 of 2008 but not to the Caveat Case knowing that the Caveator lawyer has no caveatable interests in the caveat property of the exploited Caveatee, in order to unjustifiably entitle the former to such exclusion of the Appellant.
d. The Second Judge’s refusal to look into the evidence of the non-consensual aspect of the Solicitor Costs Agreement entered into between the Appellant and the First Respondent subject to those pre-contractual terms and the overriding clause of the Appellant’s reservation of his rights to approve all billing/costings already in place; without impinging on the latter’s just entitlements for remuneration as a solicitor sans any champertous arrangements struck between them and giving due regard to the principles of the sanctity of contract, its termination and the ramifications of the parties’ mutual contractual obligations and rights, including the repudiation and acceptance of their fundamental terms.
e. The Second Judge culpable refusal to understand the law with regard to the non-caveatable interests of the First Respondent’s unlawful caveat on the exploited caveatee’s land thus grounding in the liability of the First Respondent in damages under s.140 of the Transfer of Land Act, 1893 (WA) to the exploited caveatee Second Respondent.
f. The Second Judge attempts to find that needle in the haystack which he unreasonably believes is impinging upon the bona fides of the First Respondent’s belief that he had just entitlements to his legal fees which could form the basis of his unreasonable and inexplicable escalation of legal profits costs under circumstances where there are none such evidence available as they form the irrelevant evidence introduced by the First Respondent as red-herrings to confuse the Second Judge as he was wont to do in the courts below with impunity.
g. He refused to take heed of the First Judge’s findings of the ramifications of the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004, which impacts on the improper costs orders of the courts below.
C) CONSOLIDATION
3. In mixed fact and law when he refused to accede to the Appellant’s request for the Appellant’s joinder in the Caveat Case and subsequently for the Caveat Case to be consolidated into the second stage of these proceedings for the purpose of quieting all claims arising from one transaction or event of the Zero Sum debt claim in FR417 of 2007, pursuant to Order 83 of the Rules of Supreme Court, 1971 (WA).
D) MC KENZIE FRIEND
4. In both mixed fact and law in his refusal to acknowledge the fact that the Appellant although a solicitor who has chosen not to renew his practice certificate because he is currently being curbed in his independent practice has the choice to act pro bono for his son without playing the public role of a solicitor and is free from being tainted as having acted in a conflict of interest situation as he has no duties of a court officer to be fair to the First Respondent but the reverse is the case with regard to the responsibilities of the First Respondent vis a vis the Appellant, who is at all material times the client of the First Respondent with regard to the affairs of the Second Respondent.
E) RECUSAL OF SECOND JUDGE
5. In mixed fact and law by virtue of his apprehended bias which is currently the subject of the Appellant’s Application for Mandamus and Prohibitions Orders for the Second Judge to recuse himself from further hearing the second stage of these proceedings filed by the Appellant in CIV 1981 of 2010 on 28.6.2010; the matter is pending hearing by the 4th day of August, 2010 for which the Second Judge had been informed on the 8.7.2010.
E) RE-OPENS THE FLOODGATE OF LITIGATION
6. In mixed fact and law in that he had unjustifiably granted the First Respondent the liberty to apply to vary the First Judge’s Order No.5 given on 7.11.2008 under circumstances when he knew or ought to have known that it would re-open the flood-gates for further litigation of those improper costs orders of the courts below that had been made with jurisdictional errors.
Signed by the Appellant: ………………………………………….
(NICHOLAS NI KOK CHIN)
No comments:
Post a Comment