SUBMISSIONS FOR GROUNDS OF APPEAL IN CACV75 OF 2008

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
OUTLINE OF WRITTEN SUBMISSIONS BY APPELLANT
FOR APPELLANT’S GROUNDS OF APPEAL AND LIST OF AUTHORITIES


Date of document: 16th July, 2010
Date of filing: 16th July, 2010.
Filed on behalf of: The Appellant
Prepared by:
Nicholas N Chin Phone & Fax: 08 9275 7440
387, Alexander Drive Email: nnchin@msn.com;
nnchin09@tpg.com.au
DIANELLA WA 6059 Mobile: 0421642735

INDEX PAGE NUMBERS

COURT OF APPEAL 1
Ex-parte: NICHOLAS NI KOK CHIN 1
OUTLINE OF WRITTEN SUBMISSIONS BY APPELLANT 1
FOR APPELLANT’S GROUNDS OF APPEAL AND LIST OF AUTHORITIES 1
Prepared by: 1
BACKGROUND 2
JURISDICTION 2
THE APPEAL 3
GROUNDS OF APPEAL 4
A) NORMAL APPROACH: 4
B) DENIAL OF NATURAL JUSTICE 5
C) CONSOLIDATION 7
D) MC KENZIE FRIEND 10
E) RECUSAL OF SECOND JUDGE 12
E) RE-OPERNS THE FLOODGATE OF LITIGATION: 15
CONCLUSION: 16

BACKGROUND
JURISDICTION
A. The jurisdiction of the Court of Appeal of the Supreme Court of Appeal is provided for in s.58(1)(a) of the Supreme Court Act, 1935 (WA) in these terms:

“applications for a new trial or rehearing of any cause or matter, or to set aside or vary any verdict, finding or judgment found given or made in any cause or matter tried or heard by a judge or before a judge and jury”.

B. The sections of the Act that allows this Appeal are: s. 59(1), (3), (4) and (6) and s.60 (1)(f) & (3) which provide as follows:

59(1) In any cause or matter in which a verdict has been found by a jury, or by a judge without a jury … the Court of Appeal may order a new trial or reference, or vary or set aside such verdict, or reduce the damages awarded.
59(3) A new trial may be ordered as to part only of any matter in controversy or as to some or one only of the parties, or as to any question or issue without disturbing any finding or decision as to any other part of the controversy or any other party, or on any question or issue, and final judgment may be given as to any such other part or party or on any such other question or issue.
59 (4) On the hearing of any such application the Court of Appeal shall have and may exercise all such powers as are exercisable by it upon the hearing of an appeal and may, if it is satisfied that it has before it all the materials necessary for finally determining the question in dispute or any of them, or for awarding any remedy or relief sought, give judgment accordingly, and for that purpose shall have and may exercise all the jurisdiction, powers, and duties of the Court, whether as to amendment or otherwise, and may draw any inference of fact not inconsistent with the findings of the jury, if any, or may, if it is of the opinion that it has not sufficient materials before it to enable it to give judgment, direct the application to stand over for further consideration, and may direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit, or may direct judgment to be entered in accordance with the finding or determination of any issue or question directed to be tried or determined, or may give judgment, in any of the modes authorised by this Act or the rules of court.
59(6) Except as may be otherwise provided by the rules of court every application —
(i) for a new trial; or
(ii) to set aside a verdict, finding, or judgment,
in any cause or matter where there has been a trial by a judge sitting without a jury, shall be made by way of appeal to a Court of Appeal in accordance with the rules of court.
60 (1) (f)(3): No appeal shall lie to the Court of Appeal — without the leave of the judge or the master of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by a judge or a master, except in the following cases, namely:….. An application for leave to appeal may be made ex parte, unless the judge or the master or the Court of Appeal otherwise directs.
THE APPEAL
A. This is an Appeal against the Second Judgment of the Second Judge in the second stage of the CIV 1903 OF 2008 S.36 Review Proceedings cited as RE: MICHELIDES; EX PARTE CHIN [No.2] [2010] WASC 169 heard 17.6.2010 delivered on 8.7.2010 for which leave is being sought from a judge of the Court of Appeal under s. 60(1)(f)(3) of the Supreme Court Act, 1935 WA.
B. The Second Judgment is the decision of the second stage or the subs. 36(4) proceedings in CIV 1903 of 2008 in which the Applicant is made the Plaintiff by the Justice Hasluck (the First Judge).
C. The first stage or the subs. 36(1) proceedings in CIV 1903 of 2008 was heard by First Judge who granted his Review Orders on 7.11.2008 in his judgment cited as RE MICHELIDES, EX PARTE CHIN [2008] WASC 256 delivered on 7.11.2008.
D. The Second Judge before his delivery of the Second Judgment had delivered his First judgment cited as THIES V CHIN [2010] WASC 111 heard 13.5.2010 and published on 25.5.2010.
E. The First Judgment has the legal effect of excluding the Appellant from being heard in his own cause in his son’s (Paul Chung Kiong Chin or the Second Defendant in the CIV1903 of 2008) case in the Caveat Case of CIV 1112 of 2007 of which the First Defendant is the Plaintiff and the Paul is the First Defendant.
F. The purpose of this Appeal is to appeal both the First Judgment and the Second Judgment of the Second Judge.

GROUNDS OF APPEAL
A) NORMAL APPROACH:

1. The Second Judge should not have departed from the normal approach as such a departure is proscribed by the common law principle in the case of RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J who said the following (see page. 6 of the Affidavit of the Appellant in CIV 1981 of 2010 sworn 28.6.2010):
“58 However, I do not accept the respondent’s submission that an applicant for prerogative relief who has demonstrated a jurisdictional error must then satisfy the court that the circumstances call for a favourable exercise of discretion. In my opinion, the position is to the contrary. In the setting of an application for prerogative relief, the discretion may be said to be a discretion to withhold relief, rather than a discretion to grant it. So, for example, in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black ; ex parte Gudgeon (1994) 14 WAR 158 at 178 – 179) that an appropriate starting point in the consideration of the exercise of the discretion to grant prerogative relief is that once it is found that the Tribunal exceeded its jurisdiction the court will normally exercise its discretion in the applicant’s favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.”
1.1.1. Note that it is not for the Appellant to satisfy the Second Judge that the former is calling for the s.36 relief. Rather it is the duty of the First Defendant in the second stage of the s.36 proceedings through his counsel barrister Scott Ellis to satisfy the Second Judge so that the latter would have to withhold that s.36 relief which had already been granted by the First Judge to the Appellant on 7.11.2008.
1.1.2. Since there have been no justifying circumstances to depart from that normal approach, and since the jurisdictional error of the courts below have been proven to the First Judge, the Second Judge is in jurisdictional error because he had departed from that normal approach as proscribed by the common principle of Ex-Parte Brecker in his two interlocutory judgments as described above.
1.1.3. See the explanation for the role of the Second Judge in the subs.36(4) of these proceedings and the reasons why the Second Judge is being deflected from that role in paras.4, 5, 11, 12, 13, 18 and 21 to 29 of the CIV1981 of 2010 Affidavit filed by the Appellant dated 28.6.2010 for the purpose of calling for the recusal of the Second Judge.
1.1.4. There is no where in the transcript of the proceedings before the Second Judge that indicates that the First Defendant in the second stage of the s.36 proceedings has been fulfilling his duty to the court to call upon the Second Judge to withhold the grant of the s.36 relief already given by the First Judge.
1.1.5. See List of transcripts of proceedings before the Second Judge at page 1-3 of the CIV 1981 Affidavit: NNC1- pages 12-27; NNC-2 pages 28 – 47; NNC- pages-48-53; NNC-54-68; NNC-pages 69 to 70a- 73c – 74 and the last transcript dated 8.7.2010. Yet Second Judge at paragraph 28 at page 9 of his Second Judgment said that the Appellant had “limited success” and that “he thought he had successfully obtained final relief”. This shows that the Second Judge is erring on the ground of his apprehended bias in that he has less than the impartiality that is required of him to continue to hear these proceedings; he should therefore recuse himself; the second stage of the s.36 proceedings should therefore be heard de novo by another Judge.
1.1.6. See page 95 to 111 of Annexure NNC12-1 of the CIV1981 Affidavit of the Appellant which contains the Written Submission of the Appellant in relation to Order for Security of Costs filed 24.6.2010.

B) DENIAL OF NATURAL JUSTICE
2.1. Owen J in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288-289 defines “denial of natural justice” in these terms:

“A decision contrary to natural justice is where the presiding Judge or Magistrate [THE SECOND JUDGE] denies to a litigant[THE APPELLANT] some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings [THE SUBS.36(4) PROCEEDINGS], as for instance where a Magistrate refuses to allow a litigant to address the Court[FOR EXAMPLE: TO BE HEARD IN HIS OWN CAUSE IN THE CAVEAT CASE OR TO CONSOLIDATE THE CAVEAT CASE INTO THESE PROCEEDINGS AND HE REFUSED TO SEE THAT THE AFFIDAVIT OF THE FIRST DEFENDANT IS CONCISE WITH REGARD TO THE ISSUE OF THE NON-CONSENSUALITY OF THE VARIED SOLICITOR COSTS AGREEMENT ENTERED INTO BETWEEN THE APPELLANT AND HIMSLF], or where he refuses to allow a witness to be cross-examined, or cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court”[EMPHASIS ADDED].
2.2. The First Defendant as seen in these proceedings is continuing to exploit the vulnerabilities of the Second Defendant Paul C.K. Chin by his various and varied attempts to exclude the Appellant from protecting his own son Paul.
2.3. The First Defendant knew at all material times that the Paul was not his willing client as can be seen from his own Affidavit. See paras: 30 to 35 at page 10 of the CIV 1981 Affidavit.
2.4. See the transcript of proceedings before the First Judge dated 19.8.2008 at the first directions hearing in the subs. 36(1) proceeding, which was provided to Magistrate Michelides on 20.8.2008 and which succeeded in staying his costs orders against the Appellant. This document provides the whole scenario that was before the courts below to the Supreme Court.
2.5. The Appellant terminated the non-existing retainer of the First Defendant on 4.3.2005 under circumstances where there was never any consensual agreement reached between the former and the latter caused by the latter breaching the pre-contractual terms and the overriding clause of the Varied Solicitor Costs Agreement entered into only between the two parties exclusive of Paul because Paul was never the willing party to the Agreement.. See paras. 36 to 39 of the CIV 1981 Affidavit at page 11.
2.6. Despite this, Paul terminated the retainer of the First Defendant on 21.2.2005 when there was never any retainer between Paul and the First Defendant to begin with: See paras. 40 and 41 of the CIV 1981 Affidavit at page 11.
2.7. Appellant never played the public role of solicitor for his son in the purchase of the Centenary Lunch Bar nor in his engaging the services of the First Defendant. He was at all material times the McKenzie friend of his son Paul or the free agent of his son. Yet, for employing the First Defendant as his son’s lawyer, he found himself to be fighting against his son lawyer instead of finding that lawyer working honestly for this son’s interests against the other party to the DC2065 of 2007 dispute. Why is there a need for the First Defendant to be employed by Paul unless the First Defendant is genuinely is advancing the interests of his supposed client Paul or the Appellant instead of the lawyer’s own interests. There should be no dispute about the legal fees for legal services owing to the First Defendant in accordance with the terms of employment that was clearly spelled out between the parties i.e. between the Appellant and the First Defendant. See paras. 42 to 43 of the CIV 1981 Affidavit at page 11 and 12.
2.8. See why the ZERO SUM FALSE DEBT CLAIM in FR417 of 2007 that was initiated by the First Defendant had made use of the Caveat Case as its handmaid or its “gun” of duress. But for that oppressive handmaid, there would be no duress and therefore there would be no “appearance” of the compromise in the Registrar Wilde Consent Judgment. The Second Judge is always stating that there were “unmet fees” for legal services of the First Defendant and this contrary to the evidence that is available before His Honour. Why should this be so if there was only the “appearance” of a compromise and the existence of the pre-contractual terms which had been breached by the First Defendant has never been disputed by the First Defendant? See paras. 19 and 20 of the CIV 1981 Affidavit. Yet His Honour was telling the Appellant as seen in the transcript that the Appellant need not understand his reasoning and has to accept as Gospel Truth his First and Second Judgments.

2.a. See the transcript of proceedings dated 19.8.2008 before the First Judge in 24 pages. This gives the background of the Appellant’s case for review. There was never any dispute about the honest and integrity of the First Judge. There was never any need for any argument and it was all based on logic. There seems to be no logic in what the Second Judge has been doing and is not arguable at all?
2.a.1. See the Summons in Chambers filed by Paul C. K Chin dated 10th May, 2010 again in 60 pages beginning from pages 21 to 80 of the Affidavit of the Appellant sworn and filed 12th day of May, 2010 in these proceedings.
2.a.2. This same document was first filed by Paul in his own name on 8.10.2008 and Paul appeared before Master Sanderson on 1.5.2009 and it was rejected and the unlawful Caveat was not removed.
2.a.3. It was filed by the Appellant as the legal representative of Paul in these proceedings before the Second Judge and it was not accepted because the Second Judge would not allow Paul to be represented by his father.
2.a.4. See transcript of proceedings before the Second Judge dated 13.5.2010 at page 52 of the CIV 1981 Affidavit.
2.a.5. It is indicated in this transcript that Master Sanderson erred by refusing to release the Caveat on 1.5.2009 on the ground that Paul C.K.Chin was not before him but this is not the case because Paul appeared as a litigant in person before the Learned Master. So an injustice has been done here to Paul where there was an obstruction of the due process of court.
2.a.6. As a result the Second Judge delivered the First Judgment by refusing the right of audience to the Appellant as a McKenzie Friend for his son Paul but His Honour was kind enough to remove the unlawful Caveat of the First Defendant on 16.6.2010 without awarding the damages to Paul CK Chin caused by the unlawful Caveat thus denying the Appellant his natural justice. The Appellant checked with the Registrar of Titles subsequently and found that the unlawful Caveat had indeed been removed. Registrar Ellis informed the Appellant on 17.6.2010 that a letter was sent to the Second Judge to this effect and that a copy of it will be dispatched to Paul but this letter has never arrived. The Second Judge will be reviewing this issue of the unlawful Caveat on 5.8.2010 without the Appellant being present contrary to the promise of the First Judge that the Appellant will be able to represent the interests of Paul in these proceedings until its conclusion. This has been stopped by the Second Judge.
2.a.7. See the Written Submissions dated 10.5.2010 by Paul C.K. Chin as Annexure NNC-2 at page 94 to 107 of the Affidavit of Appellant dated 12.5.2010.
2.a.8. See the Written Submissions dated 10.5.2010 by the Appellant as Annexure NNC-1 at pages 82 to 93 of the Affidavit of Appellant dated 12.5.2010.
2.a.9. The Appellant was denied representation of his son as his McKenzie friend contrary to the decision taken by the First Judge as is contained in the transcript of the proceedings in the first stage of these proceedings.
2.b.1. See the Affidavits of the Appellant filed in the first stage of these proceedings that was before the First Judge in these proceedings dated the 24.7.2008 in 267 pages, 29.8.2008 in 98 pages, 18.9.2008 in 37 pages.
2.b.2. See the Affidavits of the Appellant filed in the second stage of these proceedings dated 12.5.2010 in 140 pages and in CIV 1981 of 2010 calling for the Second Judge’s recusal dated 28.6.2010 that is scheduled to be hard on 4.8.2010 at not before 11.00 am containing 127 pages.

C) CONSOLIDATION
3.1.1. There is no basis for the refusal of the Second Judge to refuse to consolidate the Caveat Case into the current proceedings so that they can be dealt with efficaciously because there is only one transaction or event; they revolves around the Zero sum debt claim with its handmaid of extortion, the Caveat case.
3.1.2. The consolidation of these two actions CIV 1903 of 2008 and CIV 1112 of 2007 is being pursued pursuant to Order 83 of the RSC which has the force of law.
3.1.3. Furthermore, the caveat is unlawful as the First Defendant had no caveatable interest in the home property of the Paul or the Caveat Property at No.29, O’Dell Street, Thornlie, in terms of s.137 of the Transfer of Land Act, 1893 which must confer on him an equitable interests before he can have that caveatable interest . . .
3.1.4. There is no law that can stop the Second Judge from consolidating the Caveat Case into these proceedings or to prevent the joinder of the Appellant to the Caveat Case.
3.1.5. There is also no logical explanation in law that enabled the Second Judge to order that the Appellant pay security costs into court for the purpose of stifling these proceedings.
3.1.6. See the outline of submissions by both the Appellant and his son in these proceedings and the in the Caveat Case filed 10.5.2010 from pages 82 to 107 of the CIV 1981 Affidavit of the Appellant filed 12.5.2010 in these proceedings.
3.1.7. Why should the consolidation of the two cases be avoided unless the aim is to prevent the grounding of liability against the First Defendant for statutory damages under s.140 of the Transfer of Land Act, 1893 (WA).
3.1.8. There are many reasons why the sum of $11,500.00 paid by both the Appellant and his son Paul Chin to the First Defendant constitutes extortion money.
3.1.9. Registrar Wilde knew it to be extortion money and hence the reason why she delayed her delivering of that duress-vitiated Consent Order from 12.4.2007 until 7.6.2007.
3.1.10. The receipt of the extortion money is therefore a criminal offense contrary to subs.391(3) and s.397 and of the Criminal Code Act, 1913 (WA) with circumstances of aggravation:
397. Demanding property with threats with intent to extort or gain
Any person who, with intent to extort or gain anything from any person, —
Knowing the contents of the writing, causes any person to receive any writing
demanding anything from, or that anything be procured to be done or omitted to be done by any person, without reasonable cause, and containing threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with; or Orally demands anything from, or that anything be procured to be done or omitted to be done by, any person, without reasonable cause, with threats of any injury or detriment of any kind to be caused to any person, either by the offender or any other person, if the demand is not complied with, is guilty of a crime, and is liable to imprisonment for 14 years.
Alternative offence: s. 338A or 338B.
The term writing includes any gramophone record, wire, tape, or other thing by
Which words or sounds are recorded and from which they are capable of being
reproduced.
3.2. The elements of the crime of demanding property with intent to extort and gain with aggravation, as indicated above are as follows:
3.2.1. Mr. Thies has an intention to extort or gain the $11,500.00 from the Appellant and his son, Paul.
3.2.2. Mr. Thies knows the contents of his writings in the Caveat Case and the False Debt Claim in FR417 of 2007 are a demand for monies from the Appellant and his son Paul without a reasonable cause because there was no debt then owing to him.
3.2.3. Mr. Thies caused his writings to be received by the Appellant and his son Paul.
3.2.4. Mr. Thies knows that his writings contain threats of injury to the Appellant’s son to be landed in hospital as he had caused this on a previous occasion.
3.2.5. Mr. Thies knows that his writing will cause the physical injury to the Appellant’s if his demands to pay him monies for no legal services are not being complied with by the Appellant and his son Paul.
3.2.6. Mr. Thies knows that the person who had the capacity to make the decision to yield to his demand is the Appellant and he is more than sixty years at the time of that demand, hence the circumstances of aggravation..
3.3. Para. 30 of the Second Judgment of the Second Judge states that the First Respondent received clear funds of $11,500 from the Appellant and the Second Respondent in the Sum of $11,500.00 on 18.4.2010 under circumstances that he knows that there was then no consent judgment issued by Registrar Wilde, which was issued belatedly only on 7.6.2007 when the situation became unbearable and the Appellant had to demand for that consent judgment to be issued by an unwilling court to avert the calamity.
3.4. Registrar Wilde was involuntary when she gave in to the demand of the Appellant as she knew that the wills of the both the Appellant and the Second Respondent have been deflected by duress. In fact the will of Registrar Wilde herself had also been deflected as she was also subjected to duress.
3.5. Having regard to the above circumstances, the Second Judge erred when he said at para.31 of the Second Judgment that the First Defendant explained circumstances at 21.6.2007 (this letter was written by the First Defendant in 2007 and in 2009) indicating “that Mr. Chin was seeking to resile from the terms of the settlement deed..” There is no truth in this explanation as it was Mr. Thies recalcitrance to refuse to release the Caveat after had received the “compromise” money.
3.6. The Second Judge at para.32 erred by stating that “ in order to proceed further, that it must be directed some proper procedural or jurisdictional error out of the decisions of the two magistrates,”. His Honour knows that the two magistrates in the court below did not make decisional errors based on merits but they lacked the necessary authority to make those jurisdictional errors i.e. by taking irrelevant considerations in account and not taking relevant considerations in account and by denying the Appellant’s natural justice. These are jurisdictional errors, plain and simple. This is very plain and it is a sad state of affairs….
3.7. The Second Judge has read the contents of the Appellant’s Affidavit filed in CIV 1903 of 2008 sworn 18.9.2008 of 37 pages with annexures. These documents would make it clear that those costs orders by the two magistrates cannot be enforceable under any circumstances. These documents would have eliminated any doubt that the two magistrates have indeed made jurisdictional errors and not errors based on the merits of the cases before them.
3.8. See also the extract of the transcript of these proceedings before the First Judge from pages 121 to 127 of the CIV 1981 Affidavit to see that the First Judge understands the implications of the Minor Cases Provisions and the costs implications is also another basis of the jurisdictional errors of the courts costs orders below which renders them unenforceable.
3.9. The Second Judge erred by failing to understand these costs implications under circumstances when the First Judge did.
3.10. On 8.7.2010 the Second Judge is in jurisdictional error again when he ordered the Appellant to pay the costs of the Security Costs Order to the First Defendant by no complying with the legislative intention of Parliament when enacting the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004.
3.11. See para.36 and 40 of the Second Judge’s judgment in his Second Judgment. This is not the case of having the opportunity to hear the other side as there are many red herrings introduced by the Affidavit of the First Defendant filed 7.10.2009.
3.12. There is only one issue: the non-consensuality of the Varied Solicitor Costs Agreement, not between Paul and This but between Appellant and Thies that was abrogated by the conduct of Mr. Thies himself. There is therefore no entitlement to the proposed legal fees that the First Defendant was improperly demanding from the Appellant or his son Paul. So there is a crime of extortion.
D) MC KENZIE FRIEND
4. A McKenzie friend :
“assists a litigant in person in a common law court. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances. Their role was set out most clearly in the eponymous 1970 case McKenzie v. McKenzie. McKenzie v. McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034, CA.[1] This role applies in the jurisdiction of England and Wales, it is regarded as having its origins in common law and hence has been adopted in practice in other common law jurisdictions such as Australia, Canada, New Zealand, the Republic of Ireland, and the USA”.
4.1. See pages 63 to 79 of the CIV 1903 Affidavit of the Appellant filed 12.5.2010 which contains the transcript of proceedings before the First Judge dated 17.6.2008. The terms and conditions for the joinder of Paul C K Chin were decided unanimously there by the disputing parties.
4.2. That transcript contains evidence as to the intention of the First Judge to allow the Appellant to represent his son in these proceedings until it reaches its finality and that such representation not to be delimited by the mediation process. There is no mistake here although that the Orders also refer to the mediation process for such representation by the father for the son.
4.3. But the First Judge did not anticipate the mediation to take place anyway and was keen on ensuring that the First Defendant do not bring red herrings into his Affidavit which was not filed in time but only on 7.10.2009.
4.4. The First Judge identified the issues for the First Defendant and request for his Affidavit to be short and concise.
4.5. The purpose of this exercise before the First Judge is for the Appellant to ensure that his son Paul C. K. Chin does not become active in these proceedings thereby not becoming liable for any costs consequences, to the extent that he should not know about the progress of these proceedings such that he does not distress himself unnecessarily to avoid any calamity to him.
4.6. This is to avoid the continuing harm which the First Respondent had been hitherto causing the Second Defendant or Paul C.K.Chin.
4.7. See also page 115 of the CIV 1981 Affidavit where the Appellant explains to the LPCC that he has the mandate from the First Judge to represent his son in these proceedings which includes the Caveat Case and this is the rightful belief of the Appellant in the manner it was negotiated.
4.8. The Second Judge is in error when he said at para. 21 of his Second Judgment that the First Judge did not grant the Appellant general leave to represent his son in the Caveat Case but only in the s.36 proceedings but it is common sense that the latter case is inclusive of the former case which is these proceedings.
4.9. The s.36 Review Process in CIV 1903 of 2008 consolidated the FR944 of 2007 and the FR417 of 2007 or the ZERO SUM FALSE DEBT CLAIM into the subs. 36(1) proceedings before Justice Hasluck.
4.10. The First Defendant applied for the Second Defendant Paul C.K. Chin to be joined into these proceedings and this was agreed to by all the parties before the First Judge with the proviso that Paul be not active. Therefore Paul interests in the Caveat Case must be taken care of by his father as his McKenzie friend.
4.11. The Second Judge in the subs. 36(4) proceedings now refused the Caveat Case to be consolidated into these proceedings for no apparent reason.
4.12. The First Defendant had thought of the expedient of his using the Caveat Case as his gun of duress so that he could escalate the ever-mounting imaginary solicitor’s costs for no legal services performed and hence the reason why the Caveat Case is included in these proceedings.
4.13. The Second Judge misconceived that the First Defendant had a caveatable interests when he did not. See: para.18 of the CIV 1918 Affidavit.
4.14. The Second Judge is reasonably apprehended to be biased in favour of the First Defendant and against the Appellant. See: paras.6 and 8 of the CIV 1981 Affidavit.
4.15. Appellant was not allowed to be joined as Second Defendant in the Caveat Case in CIV 1112 of 2007: See paragraph 9, 10, 15, 16 & 17 of the CIV 1981 Affidavit at pages 5 and 7.
4.16. Transcript in NNC1 referred to above, dated 30.4.2010 portrays the Second Judge’s refusal of the Appellant’s natural justice to hear him in his own cause in the CIV 1112 of 2007 or caveat case, and this is a jurisdictional error on his part, on the grounds:
4.16.1. Second Defendant Paul was never a willing party to the client solicitor relationship with the First Defendant.
4.16.2. There was no consensus ad idem between the Appellant and the First Defendant for the solicitor-client agreement as the latter had breached it fundamental terms.
4.16.3. Transcript in NNC3 dated 17.6.2010 referred to above, where again the Second Judge denied the Appellant his natural justice to appear in his own cause. His Honour incorrectly cited a conflict of interests which is non-existent as the Appellant never played the public role of a solicitor for his son.
4.16.4. The parties have agreed before the First Judge that the Second Defendant Paul is to remain inactive and that his case is to be represented by his father the Appellant, albeit not as a solicitor but as a McKenzie friend and on a pro-bono basis.
4.16.5. Transcript in NNC4 dated 13.5.2010 referred to above, the Appellant refers to the ZERO DEBT FALSE CLAIM of the First Respondent in FR417 of 2007 at pages 55 & 56 which led to the Duress-Vitiated Registrar Wilde Consent Judgment delivered involuntarily by Registrar Wilde on 7.6.2007.
4.16.6. At page 56 of the transcript, there was a reference by the Appellant to the non-compliance of the filing of the show cause affidavit by the First Defendant within the time constraints imposed by the First Judge and yet there was no reasonable explanation for its delay.
4.16.7. At page 64, the argument was made about the legislative intent of parliament in enacting the Minor Cases Provisions of the MCCP.
4.16.8. At page 67, the Appellant argues that the First Respondent has admitted that there as no debt ever owing to him. The Second Judge refused to accept this point.
E) RECUSAL OF SECOND JUDGE
5.1. Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71:

”The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”:
5.2. See the Affidavit of the Appellant filed in CIV 1981 of 2010 calling for the recusal of the Second Judge dated 28.6.2010 containing 127 pages.
5.3. West’s Process Engineering Pty Ltd (Administrator Appointed) (ACN 002 498 142) & Ors v Westralian Sands Ltd (ACN 008 675 016) & Ors [1998] WASC 108 (15 April 1998) per White J at para.2 – question of whether the court could exercise its discretion to Order for Security of Costs.
5.4. Reference made by White J to the case of MA Productions Pty Ltd v Austarama Television Pty Ltd [1982] 1 ACLC 404, where court listed some matters which go to the proper exercise of proper discretions:

5.3.1. The strength and bona fides of the Plaintiff’s case as attested to by the First Judge.
5.3.2. Whether the opposite party is being oppressive to deny the impecunious his right to litigate;
5.3.3. No money was owing to the First Defendant or there is Zero Sum False debt being claimed by the First Defendant.
5.3.4. The security of costs order is stultifying the Appellant’s action that was confirmed by the First Judge in the s.36 proceedings to have a strong case as opposed to the Second Judge’s view that it is an inherently weak case.

5.5. White J further quoted the case of Cowell v Taylor (1885) 31 Ch D 34 - Court of Appeal held that there is a general rule that the Court does not require security for costs to be given by a plaintiff … even where he is in insolvent circumstances. Bagallay LJ said, at 37:
“But the rule is that any one may sue without giving security, in any but certain excepted cases. Until lately, security was never required in Chancery unless the plaintiff was abroad, and if there were two co-plaintiffs, one of whom only was abroad, security was not ordered.”
5.6.1. The Second Judge erred by not noting that the First Defendant in his Affidavit sworn 7.10.2009 admitted to the following evidence which shows that if he breached them consistently, he has repudiated the fundamental terms of the Varied Solicitor Client Agreement dated 3.11.2004 in the following terms:

5.6.1.1. The pre-contractual terms of the email correspondence between the Appellant and the First Defendant dated 25.10.2007;
5.6.1.2. The overriding clause to the Solicitor Costs Agreement dated 3.11.2004 signed by the First Respondent stating that the Appellant shall approve all billing/costing;
5.6.1.3. The disputed debt for legal services if any is limited to $3,500.00;

5.6.2. Even if First Respondent wins the case, there is the Minor Case Provisions of the subs. 25(1) and Subs. 25(9) and the allowable costs in subs.31(1) of the Magistrates Court (Civil Proceedings) Act, 2004.
5.6.3. The costs claimable by the winner would be limited to out of pocket expenses or for filing fees reasonably incurred by him which was guaranteed by Appellant to the Court.
5.6.4. Refer to transcript of proceedings for both cases CIV 1903 of 2008 and CIV 1112 of 2007 heard before the Second Judge on 30.4.2010 and second directions hearing on 13.5.2010.
5.7 Dawson J, in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) at para.2 said the following:
“See Kanda v. Government of Malaya (1962) AC 322, at p 337. It is the latter possibility which is important in this case because it is not suggested that the parties did not, in the events which transpired, have an opportunity to be heard. What is suggested by the husband is that he is reasonably entitled to entertain an apprehension of lack of impartiality on the part of the judge. If that is so, then it is enough to vitiate the proceedings because it is established that a judge ought not to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial mind to the resolution of the questions involved in it: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294”

5.8. The Second Judge erred when His Honour said that the Appellant had a conflict of interests even if when the Appellant had applied for a practice certificate which he had not. The Appellant can still have his name as a barrister and solicitor because he is what he is irrespective of whether he was practicing law or not. There is a conflict of interests if:
5.8.1. The Appellant owe separate duties to act in the best interests of his son Paul Chin and at the same time if he were practicing law and this happened if he were to be paid by his son Paul for his legal services rendered to his son.
5.8.2. But to have a conflict of interests in relation to the First Defendant he must have agreed to act for the First Defendant in his best interests in relation to the same or related matters and the First Defendant must have paid the Appellant his legal fees.
5.8.3. Then only under such circumstance can the Appellant be said to have been acting in conflict of duties or those separate duties of the Appellant are conflict with each other, or there is a significant risk that those duties of the Appellant may be in conflict with each other; or
5.8.4. The Appellant’s duty to act in the best interests of his son Paul as His Mc Kenzie friend does not conflict with the interests of the First Defendant at all material times, or is there a significant risk that they may conflict, with the First Defendant’s interests in relation to the Review Order Case or the Caveat Case.
5.8.5. But the Appellant or if it is indeed the case, Paul C.K. Chin have been Mr. the First Defedant’s clients (which is not the case) or both of them have been his former clients and the First Defendant owes them a duty to work in their best interests and not to mislead this Honourable Court or to tell the truth to this Honourable Court and in order to do so, the First Defendant must be protecting his own interests in relation to Paul’s interests; therefore the First Defendant must he must not to be reasonably found to be pillaging and plundering Paul or to harass him or to harm him any further.
5.8.6. If the Appellant had not applied for a practice certificate and the Appellant is still not a judge (because he as an officer of the court is a member of the court in which he is participating in) in both the Review Order Case and the Caveat Case as the Appellant is not playing the public role of a solicitor for Paul Chin, and the Appellant does not owe a duty to the public to be fair, but the Appellant still wants to be fair to the First Defendant when he is pursuing justice for both himself and for his son’s own interests.
5.8.7. As long as the Appellant did his work on a pro-bono basis as a McKenzie friend for his son Paul in his Caveat Case, the Appellant cannot be faulted for practicing as a lawyer without a practice certificate.

5.8.8. The Australian government must take steps to ensure that ordinary people who are the mercy of our judicial system which are being misled by erring lawyers are not being tortured against “—UN Convention Against Torture. On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment orpunishment.” Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention against Torture and for international conflicts the Geneva Conventions III and IV.

5.8.9. The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II. Article II of the United Nations Convention Against Torture provides:
5.8.1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
5.8.2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
5.8.3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”

5.9.1. This Honourable Court must divest the Appellant’s personality as a solicitor serving the interests of a member of a public who happens to chose the Appellant as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind. The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense.
5.9.2. The only criteria for the concept of conflict of interests to exist is to prevent the father from becoming impartial in the execution of his duties as an officer of the court when advocating for his son. Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.
5.9.3. See pages 46 and 47 of the transcript of the proceedings in the Review Order Case on 17.6.2009 before Justice Hasluck, the Plaintiff and the Respondent together with the latter’s counsel barrister Scott Ellis.

E) RE-OPERNS THE FLOODGATE OF LITIGATION:
6. The Second Judge is proposing to re-open the flood-gates of litigation by ordering that the First Defendant is granted the liberty to apply to vary Order 5 of the First Judge Order so that the Null Costs Orders of the courts below can be re-opened.
6.1. The Second Judge therefore opens up his motives for ordering the Security of Costs against the Appellant purportedly to stifle these prosecutions and His Honour is therefore seen to be favouring and advantaging the First Defendant. This is a travesty of justice and common sense.

CONCLUSION:
7.1. There is only one version to the truth. Either the First Defendant is on the correct side of law or the Appellant is.
7.2. The truth can only be ascertained from the fact whether the First Defendant has a bona fide belief that he an entitlement to the legal fees for the work he has done for the Appellant.
7.3. Whether or no he has that entitlement stems from whether or not there is a CONSENSUAL VARIED SOLICITORS COSTS AGREEMENT ENTERED into between the two parties.
7.4. The fact that there is a Varied Solicitor Costs Agreement entered into between the two parties is without doubt.
7.5. The issue is whether the parties to that VARIED SOLICITOR COST AGREEMENT
confined to the First Defendant and the Appellant had breached the FUNDAMENTAL TERMS of that Agreement:
7.6.1. There is no dispute that the conduct of the First Defendant is irrevocably clear that that he had repudiated the FUNDAMENTAL. TERMS of that Agreement.
7.6.2. The issue is now whether the Appellant had acted upon the repudiating conduct of the First Defendant.
7.6.3. The conclusion of this court is inevitable: the Appellant had ELECTED to accept the repudiating conduct of the First Defendant and to sue him for DAMAGES.
7.6.4. The Appellant HUMBLY SAYS that the only solution left for this Honourable Court is to assess the damages payable by the First Defendant to the Appellant and his son, Paul.


Signed by: ………………………………… ….


LIST OF AUTHORITIES

Websites:

1. Wikipedia Website for the definition of McKenzie Friend at http://en.wikipedia.org/wiki/McKenzie_friend
2. Blogspot of Nicholas N Chin for information of legal documents filed with the
3. Supreme Court of WA regarding my current proceedings at: http://nicholasnchin.blogspot.com/ and http://www.nicholasnchin.com/
4. http://en.wikipedia.org/wiki/United_Nations_General_Assembly
5. http://en.wikipedia.org/wiki/Geneva_Conventions
6. http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights
7. For the meaning of Caveatable interests in the article by S.Boyle: Caveatable Interests, Common Lore Distinguished: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html;


STATUTES

1. The Supreme Court Act, 1935 WA: Subs. 60(1)(f)(3); 58(1)(a); 59(1), (3), (4) and (6);
2. The Magistrates Court Act, 2004: Subs. 36(1); Subs.36(4).
3. The Magistrates Court (Civil Proceedings) Act, 2004: subs.25(9) and 31(1).
4. The Transfer of Land Act, 1893 WA ss. 137, 140.
5. The Criminal Code Act, 1913 WA subs. 391(3); s.397.
6. The Magistrates Court (Civil Proceedings) Bill, 2003: EXPLANATORY MEMORANDUM
Clause 25(5)
Subclause (5) ensures that where a matter that is within the minor cases jurisdiction is commenced in the general jurisdiction the costs that can be awarded are the very limited costs that would be allowed had the action been commenced in the minor cases jurisdiction. The intention is to ensure that a defendant in a case that could have been commenced in the small cases jurisdiction is not thereby disadvantaged.
Subclause (8) is derived from the Litigants In Person (Costs and Expenses) Act 1975 (UK) and allows a person who represents themselves to recover any expenses or losses incurred if they are successful in recovering costs.
Subclause (9) is effectively a penalty clause and relieves a person from some or `all of costs if the lawyer involved has improperly incurred them or wasted them due to misconduct or default. The lawyer can also be required to make payments to the party if that party is liable to another party due to the actions or omissions of the lawyer. Under subclause (10) a Court cannot make an order under subclause (9) unless it has informed the lawyer and allowed the lawyer to call evidence and make submission in relation to the proposed order. Subclause (11) provides that if an order is made under proposed subsection (9)(c) disentitling a lawyer to costs, the lawyer must not charge and cannot recover the costs concerned.
Clause 31 – Costs
It is the intention of the Bill to keep costs payable in relation to minor cases to a
minimum. Subclause (1) defines “allowable costs” for the purposes of this proposed
section to mean court fees and service fees and the costs of enforcing a judgment.
Subclause (2) provides that the successful party in a minor case is entitled to an order in
relation to their allowable costs but not in relation to the other party’s costs though under
subclause (3) the Court can make an order in relation to the other party’s costs if satisfied
that it is reasonable to make such an order.


CASE LAW:
1. RE: MICHELIDES; EX PARTE CHIN [No.2] [2010] WASC 169
2. RE MICHELIDES, EX PARTE CHIN [2008] WASC 256;
3. THIES V CHIN [2010] WASC 111;
4. RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J
5. Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black ; ex parte Gudgeon (1994) 14 WAR 158 at 178 – 179);
6. Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288-289;
7. Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
8. Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71:
9. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986);
10. Kanda v. Government of Malaya (1962) AC 322, at p 337;
11. Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294;
12. 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.
13. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
FOOTNOTES:
See the judgment of Asher J in the case of: 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 as indicted below:
[122] A conflict of interest arises when a person carries out a particular function with two or more interests in conflict. In administrative law, a conflict of interest exists when a person has a private interest in a decision where that person also has a public role. In such a case the person's public role and private interest are in conflict. The result can be a poor decision because private concerns that have nothing to do with the public duty have influenced the decision.
[123] The concept of a conflict of interest is well known in the common law. It has developed particularly in the context of professional and fiduciary duties, the classic example being a solicitor's duty not to be in a conflict of interest with a client. It is also well understood in public law where its usual expression is under the heading of bias or apparent bias.

Boyle, S in her article in the Murdoch Law School Electronic Journal found at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED said at para.1 that:
“proprietary interest in land will always be sufficient to found a caveatable interest, but a proprietary interest is not necessary for the establishment of a caveatable interest. Consequently, an equitable interest of the sort often dismissed as in the nature of a claim in personam, a mere personal right, is a caveatable interest”.
At para.2 of that article, she further identified four categories of caveatable interests in relation to s.137 of the Transfer of Land Act, 1893 (WA) in the following terms:
“The section identifies four categories of caveatable interests. They are:
(a) any estate or interest in land under the operation of this Act;
(b) any estate or interest under any:
i) unregistered instrument;
ii) document; or
iii) writing
in any lease mortgage or charge;
(c) any estate or interest in any equitable mortgage or charge by a deposit without writing; and
(d) any estate or interest which arises
i) by devolution in law; or
ii) otherwise.”
If Mr. Thies did not have a caveatable interest in the Caveat property, he has no legal basis for his caveat and it must be ordered to be removed together with the concomitant damages as quantified to be made good by him. He can only have the caveatable interest if he has an equitable mortgage or charge over that Caveat property. The only way for him to get an equitable charge or equitable charge over that Caveat Property is for him to enter into a costs agreement with the name of the Caveat property specifically identified in that agreement, failing which he can never be said to have an equitable charge or an equitable mortgage. The law is clear on this point. See the case of: Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475.

http://en.wikipedia.org/wiki/McKenzie_friend