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THE SUPREME COURT OF
WESTERN AUSTRALIA
1604 of 2010
IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS AGAINST THE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL, CHANEY J, AND HEENAN J
ex parte
NICHOLAS NI KOK CHIN
LE MIERE J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 29 JUNE 2010, AT 10.29 AM
The applicant appeared in person.
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(s&c)
LE MIERE J: ..........present yourself.
CHIN, MR: Yes, sir.
LE MIERE J: Yes, very well. All right. This is your application this morning.
CHIN, MR: Yes, sir.
LE MIERE J: What do you want to say in support of it?
CHIN, MR: Sir, the only issue that come before this honourable court is that I have been denied to practise law independently on my own account because the regulator of the legal profession in WA has been usurped by a pseudo board which did not have its powers to impose the necessary conditions to limit my independent legal practice, sir.
I have undergone tremendous difficulties in getting myself to be free from the unconscionable curb on my independent legal practice because, sir, there are many, many people of Western Australia that have been pillaged and plundered by erring lawyers without any relief. I am fighting this case, sir
LE MIERE J: None of those issues are before me this morning, are they?
CHIN, MR: There is only
LE MIERE J: The application you seek this morning is
CHIN, MR: Sir, my case is complicated by myriad complications of false allegations being made against me and there are currently other actions that I'm taking against those people who have made false allegations against me. And I know that Dr Chen has been receiving relief from the Crime Corruption Commission at the moment as a result of my effort.
LE MIERE J: Again, Mr Chin, none of that is before me this morning. Your application before me is for a writ of mandamus
CHIN, MR: Yes.
LE MIERE J: - - - initially an order nisi for a writ of mandamus
CHIN, MR: Yes, sir.
LE MIERE J: - - - against Heenan J and against Chaney J, as president of the State Administrative Tribunal, in respect of the decision made by Heenan J in CIV 1019 of 2010 and the decisions of the State Administrative Tribunal
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in VR 107 of 2008 and VR 87 of 2009.
CHIN, MR: It is correct, sir. There is only the two prong mandamus orders nisi that I'm seeking from this honourable court, the first one against his Honour Heenan J. With due respect to him, I believe that Heenan J had given deficient reasons for his decision made on 21 April because his extempore decision on 21 April was based on wrong premises and that his decision - written one that has been published on 30 April is not the correct decision.
LE MIERE J: No. Well, you've challenged all that by appealing from his decision, haven't you?
CHIN, MR: Yes, sir. The appeal is
LE MIERE J: What's happened to that appeal?
CHIN, MR: The appeal is only on the question of merit, sir, and the appeal has been put in abeyance pending my application for mandamus orders. If my mandamus orders is successful, then the appeal will be set aside.
I have, sir, been unable to appeal against the decision of the SAT decision because I - under the constraints of the SAT Act, I have to make an application for leave to appeal first to the Court of Appeal, and I did that, but due to my oversight I did not cite the very fact that the - Chaney J's credibility was the crux of the issue.
LE MIERE J: Mm.
CHIN, MR: Chaney J did not decide on the live issue of the pseudo board. This issue of - the live issue of the pseudo board was never decided, and this matter went to the Court of Appeal without deciding this live issue and it went to the High Court without deciding this live issue. Therefore, the live issue of the pseudo board is never res judicata and is before the court now, your Honour.
LE MIERE J: Right.
CHIN, MR: Your Honour, it is in a matter public interest that I am fighting this case. I am a retired teacher and I wanted to be in the legal profession, because at a very young age I wanted to be a lawyer. And when I came to Western Australia, I was faced with tremendous difficulties of even getting a position as a permanent teacher, although I was on the top of the scale as a schoolteacher.
And I have to go through tremendous difficulties. There was a lot of racism against me that - and this - evidence of this has been in the papers and this well recorded in my article, Right to Work, which is at the web
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site of the Unity Party WA.
I am a victim of racism, your Honour. I am very sorry to say this, but it happened to me. I am a victim of injustice, and being a victim of injustice does not go away. It just keeps coming and coming. Whenever I get into a position, they just want to put me off. They just want to put me off, because they won't allow me to work. They won't allow me to raise my head and be a respected member of this society.
Your Honour, I coming to Australia to escape from that positive racism that is prevailing in Malaysia against ethnic Chinese - against the ethnic Chinese community - and I hope that racism in Malaysia will one day go away.
But I coming to this country knowing that Australia is upholding its democratic ideals, but in the practical sense it just not happen, your Honour, perhaps because - it happens to me perhaps. Why did it happen to other people, your Honour? Perhaps because I'm a very outspoken person and I am aware of my rights all the time, because since a very young age I have been fighting all injustice and I've been standing up and I have that proclivity to stand up for my rights and this perhaps has got people on the offside against me, your Honour.
LE MIERE J: All right. Is there anything else you wanted to say?
CHIN, MR: Your Honour, I need to help people who are not only ethnic Chinese, who are ethnic Italians, who are ethnic white people of British and Welsh descent and of Scottish descents who, by virtue of their being unknowledgeable in the law, by virtue of them being disadvantaged in society, by virtue of them being incapable of understanding the law to the full capacity, they have been victims of raiding, pillaging and plundering by people who are well knowledge in the law.
This is a public interest, your Honour. This is public interest that we, as citizens of Australia, must seek to upright. This is something that we're aiming for a truly democratic society in Western Australia. I'm not only fighting for myself; it is for those poor people who have been made victims.
If there is anything that I've said here, your Honour, that you think it is not the truth, I am prepared to prove them to you, your Honour. I am never utter a single word of lie. I never said anything that is without proof. I never make a false allegations against a fellow practitioner. This I will never do and I will prove to the hilt that I am not the kind of person who makes false allegations and that there is a false accusation
against me that I am deficient in my professional
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knowledge. This cannot happen. This is an unreasonable and a fallacious accusation, which I can always stand up for.
I am well trained. I have gone through all the processes of training that is required of me. I am well equipped to be a lawyer, and I don't want to be under the supervision of another lawyer who will control me and stop me from giving justice to ordinary people.
I mean, there is a system of friends protecting their friends. This is only natural. Everyone wants to protect their friends, but there must be a limit to this kind of protection that is afforded to their friend, because the public interest is greater than the interests of the personal friend.
LE MIERE J: Thank you.
CHIN, MR: Thank you very much, your Honour.
(Judgment delivered)
LE MIERE J: Accordingly, Mr Chin, the order I make is that the application by notice of originating motion dated 29 April 2010 and filed 3 May 2010 is dismissed. I don't think there's anything else that arises from that, is there? Is there anything arising from that order?
CHIN, MR: Say again, your Honour.
LE MIERE J: The order that I'm going to make is that the application by notice of originating motion dated 29 April 2010 and filed 3 May 2010 is dismissed. Is there anything you want to say about the form of that order?
I understand you don't agree that the application should be dismissed, but I've given you my reasons for dismissing it. I now come to the question of the formal order that I should make. The formal order that I intend to make is that the application by notice of originating motion dated 29 April 2010 and filed 3 May 2010 is dismissed. Is there anything you want to say about the form of that order?
CHIN, MR: There is one thing I do not really understand, your Honour. There is only one issue. That is, the pseudo board did not have the majority consent of the Legal Practice - of the regulator. There are 52 members in the regulator. Only four person (indistinct) that order and that order was admitted by the whole board. That did not receive the majority consent. The majority consent must be in the form of the minutes. They are the statutory provisions governing the Legal Practice Board.
Now, all I want is that the regulator has made a void
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decision against me. All I want, your Honour, is please let me practise independently.
LE MIERE J: Thank you. I have given my reasons. It's not appropriate that I should add to them. If you wish, you may apply for a copy of the transcript so that you may read and study them at your leisure.
CHIN, MR: Your reason, your Honour
LE MIERE J: Very well. That's
CHIN, MR: Please may I say it again? Your reason - your Honour say that the issue of pseudo board is not before your Honour. Your Honour has not decided on this issue. Your Honour has not made a legal determination on the exact prayer that I asked for.
Why the Legal Practice - why the pseudo board, without the majority consent, can make that order. Why is this court refusing to nullify that order that has been made without majority consent? That is a void order. That is a void order. Why is this court and the previous court and all the courts have not questioned the credibility of Chaney J, who is the trial judge in this matter? The trial judge did not pronounce on the very issue I am before this court.
The very issue I am before the court is for this court to make the legal determination so that it will never be - it will be a res judicata, will bar me from ever harping on this issue again. That is, this issue is before this court and this court is refusing to make this determination.
This court, your Honour, with due respect, your Honour, is refusing me justice. I want justice. I want the answer to be given to me why the Legal Practice Board without the majority consent is able to impose a condition on me? Why this court is not pronouncing that is a void order against me? It is curbing my independent legal practice unconscionably and unlawfully.
This is the very issue that I want determined. I've been to the High Court. I've been to the Court of Appeal. The Court of Appeal stopped me from getting leave. The issue has never been litigated. I come before this court for this issue to be litigated. I don't want to have - I don't want to cast aspersions on the character of any judges that I've come before before. I'm not interested in making any false allegations against any judges. I only want this issue to be determined.
Your Honour, I quote the common law. The common law is that, before your Honour makes the order, I object to it immediately. And if I object to it immediately,
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your Honour yourself have to make the decision in the Collova case. In the Collova case your Honour say that if there is an immediate objection to the order which you are going to make and which has not become law, which has not been written up, which has not been pronounced yet, then I have made that objection and your Honour is there to review it. Your Honour must review it, your Honour.
With due respect to you, your Honour must review this objection I am making. This is the only objection, the only point I am objecting, the only point - I can't stop emphasising this point. The only issue that is before this court is that there is never any legal authority or any lawful authority made by the four members of the pseudo board to curb my independent practice unconscionably without the majority consent of the board.
This is statute law. The statute law governs the authority of the Legal Practice Board. No one can - no one, no four person, can just say, "We get together. We have a meeting. We stop this person from being a lawyer, because he's annoying our friends. We don't want him. We want to castigate him, get him off. So we, the four people - we want to do that." But these four people must produce the minute. The minute must be authorised by the majority consent of the 52 members. And first time I ask, "Where is your minute?" they're not able to produce it. Second time my lawyer ask - my barrister ask, "Where is your minute?" they're not able to produce it. Third time we ask, "Where is your minute?" they still not able to produce it.
Your Honour, I have objected to this point repeatedly and I object to it right in your presence immediately, and your Honour has the legal obligation, which is the law which your Honour made. This is the common law principle which your Honour yourself make in the Collova case. The Collova case says that, if I objected to it, you have the right to review it, and your Honour must review it.
I pray, your Honour, that your Honour review it. I kneel down and pray that your Honour review this, because it affects me. It affects my life. It affects me as a human person. It affects me on how I live and how I die. I want to be a member of the legal profession. I want to help people. I have got a noble objective in life. I don't want to see injustice. Your Honour is there to see that injustice is not done. And, your Honour, if you make that order, your Honour is going to allow injustice to happen, and it never happen.
Let it be a lesson that, no matter how great a person is, if you have done wrong you have to face the consequences of that wrong. Your Honour, we're all friends. I have got a lot of friend. I am here to protect all my friends. But if my friend does something wrong to this innocent man, why, your Honour, do your Honour have to
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protect these people?
There is no justification to protect this people, your Honour, because it is my life. I work hard for it. If you do not allow me independent practice, I can never practise again. I can never be an independent lawyer. Wherever I go in the world I can never practise law.
LE MIERE J: You've made that point, Mr Chin.
CHIN, MR: Right. Your Honour, I have no professional misconduct. If I have no professional misconduct, why do you stop me? Now, other lawyers have been stopped because they have professional misconduct, but I never commit a professional misconduct. Why are they stopping me? This is the only thing I'm asking from you, your Honour, in the name of God, in the name of justice.
LE MIERE J: All right.
CHIN, MR: Justice must be seen to be done.
LE MIERE J: Yes, all right. Thank you. I've heard what you had to say, Mr Chin. The order that I make is that the application by notice of originating motion dated 29 April 2010 and filed 3 May 2010 is dismissed. The court will now adjourn.
AT 11.05 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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