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THE SUPREME COURT OF
WESTERN AUSTRALIA
1903 of 2008
NICHOLAS NI KOK CHIN
and
TIMOTHY ROBIN THIES and
PAUL CHUNG KIONG CHIN
KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 8 JULY 2010, AT 9.11 AM
(In Chambers)
Continued from 17/6/10
The plaintiff appeared in person.
MR D.S. ELLIS appeared for the first defendant.
8/7/10 37
(s&c)
THE ASSOCIATE: Supreme Court of Western Australia, general division, CIV 1903 of 2008, Re Michelides ex parte Chin.
KENNETH MARTIN J: Mr Chin, you are in person this morning, and Mr Ellis.
ELLIS, MR: Your Honour.
KENNETH MARTIN J: For the reasons which I now publish in respect of the application of the first defendant for security for costs, I will order that there shall be an award of security for costs in favour of the first defendant in the amount of $20,000 which is to be paid into court at a time not later than 48 hours after the publication of these reasons. At this stage, I will not vary Hasluck J's order 5 of his orders of 7 November 2008 but I grant liberty to the first defendant to apply further in that respect should further events prove it necessary to pursue that application. Gentlemen, those orders are taken from paragraph 42 of my reasons for judgment. Mr Ellis?
ELLIS, MR: Your Honour, a couple of things: firstly, the question of a stay. The summons sought a stay pending compliance with the orders.
KENNETH MARTIN J: Yes. The order will be that unless the $20,000 is paid into court within 48 hours, the action will be stayed.
ELLIS, MR: Thank you, your Honour. The second issue arises out of the orders which your Honour made on 13 May when the matter was before you for directions.
KENNETH MARTIN J: Yes.
ELLIS, MR: You may recall that the fifth order I think was that the first defendant file an outline of the matters which it considered - - -
KENNETH MARTIN J: You would like me to suspend that, given the orders that have been made here.
ELLIS, MR: Yes, your Honour. That's part of it. The suspension part is covered by the order for a stay.
KENNETH MARTIN J: Yes.
ELLIS, MR: The other issue is that Mr Thies is absent from the state for a couple of weeks. I am going away next week as well. What I would seek is an order that effectively we have 14 days, an extra 14 days, or 14 days after the provision of security, whichever occurs sooner. I had drafted a minute of proposed orders which covers that contingency. In light of your reasons, order 3 is not
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appropriate. The issues dealt with in proposed order 4 - there is an error in the last line of order 4. Order 1 should be order 2.
KENNETH MARTIN J: Yes. I understand the effect of order 4. That seems to me to be appropriate, Mr Ellis.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: But I will hear Mr Chin about that. Then I suppose there are the costs of the security application in respect of which the first defendant has been successful.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: You would seek those?
ELLIS, MR: Yes, and order 5.
KENNETH MARTIN J: Costs of the application?
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Very well. Mr Chin, do you wish to be heard?
CHIN, MR: Yes, sir. I have no money to pay and I will not be able to go on with this case. I have made an application for mandamus and certiorari orders in CIV 1981 which is scheduled to be heard on 4 August 2010.
KENNETH MARTIN J: Sorry? CIV 1981 of - - -
CHIN, MR: 2010. If I am not successful - - -
KENNETH MARTIN J: Is that something I know about?
CHIN, MR: Say it again, sir?
KENNETH MARTIN J: Which action is that?
CHIN, MR: It is called CIV 1981 of 2010.
KENNETH MARTIN J: Yes. Have I seen that matter?
CHIN, MR: This is an ex parte application.
KENNETH MARTIN J: I don't know anything about that matter.
CHIN, MR: I have made an application for your recusal, sir, and I have put in the evidence as to why I need the two cases to be consolidated and my son needs to be heard on this matter and that there is to be no security for
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costs. If I am not successful, I will try and appeal. Sir, as far as security for costs are concerned, I will not be able to comply with it. If I don't have the money, where do I get it, sir? I will just retire. If there is no avenue for me to succeed, I will just retire. There is nothing else that I can do.
KENNETH MARTIN J: Mr Chin, you are re-arguing the security for costs application. I have just published my reasons for decision which you obviously haven't read yet. The question is the orders to be made on that security for costs application. The first order that I propose to make is that that action will be stayed unless you pay $20,000 into court within 48 hours.
CHIN, MR: Yes. I have no money to pay.
KENNETH MARTIN J: That doesn't meet the point.
CHIN, MR: If you want to stay, you stay but we will wait until 4 August and see what happens.
KENNETH MARTIN J: Sorry? Say that again?
CHIN, MR: Until 4 August - until this case is heard. I am asking for mandamus and prohibition orders.
KENNETH MARTIN J: Against who?
CHIN, MR: Against your Honour, sir.
KENNETH MARTIN J: Sorry? Say that again.
CHIN, MR: Against your Honour for recusal.
KENNETH MARTIN J: You're asking for prohibition and certiorari against me?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: That is probably the reason why I haven't seen it. That's a matter for you, Mr Chin, to pursue at your discretion. I obviously shouldn't say anything about that. Do you have anything else to say?
CHIN, MR: Yes. I just want to retire if I cannot get justice.
KENNETH MARTIN J: You want to retire?
CHIN, MR: Retire. I don't want to do anything. I just don't have to pursue anything any more. I don't want to worry myself to death about this matter if there is no justice.
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KENNETH MARTIN J: We are dealing with the question of orders on my reasons for judgment and the question of costs. Do you have anything relevant to say about that issue?
CHIN, MR: The question of costs in the lower court - there is no cost because those orders are now orders. I have got one point to say: the ex parte record has - that is the common law which decides a section 31 issue, a 36 issue; that is, if the first judge - his Honour Hasluck J - had decided in my favour, it is for the second judge to decide this in my favour as well. If it is not, then there must be justifying circumstances. The justifying circumstance is that the evidence is presented before this court by Mr Thies himself in his two books. The evidence indicates that he admits that there is never any debt of money ever owing to him at all. He admitted that. He is bound by the precontractual agreement he entered into with me. He admitted that my son was never a willing party to the transaction entered with him. He admitted that there is solicitor's cost agreement entered into between him and myself and therefore in all the circumstances - and on many occasions he admitted that he has got no power to charge me and that he must get an authority to charge me and that he has got no authority to continue working for me unless I tell him to continue working. All those things have been admitted. I do not understand why your Honour did not see this point very, very clearly because - - -
KENNETH MARTIN J: Mr Chin, you are arguing with me and I don't intend to hear you arguing.
CHIN, MR: I'm sorry, sir. I'm sorry.
KENNETH MARTIN J: Mr Chin, confine yourself to the issue of orders and costs. Have you got anything to say on the orders and costs? I have given you two opportunities now. You have ignored both. This is your last opportunity.
CHIN, MR: Your Honour, the compromise agreement was entered into involuntarily by Registrar Wild herself. She knew all the time that there was duress being exerted upon her and in order to avoid having the situation aggravated, Registrar Wild delayed in delivering her consent judgment until I importunated her to do so in order to avoid harm to my son. Registrar Wild knew that all the time because I had written communication with her and this evidence is before this court. Because Registrar Wild - a consent judgment is a null consent order because it is made against her own wishes. Therefore, that consent order can never be acted upon. Because it is a null consent order, all the other orders, cost orders, made by Herron C, made by Magistrate Musk and made by Magistrate Michelides - they are all consent orders. They all fall into the same heap, because if there is no basis for such an order in the first
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place, then everything falls underneath because there is no foundation for the cost orders.
KENNETH MARTIN J: It is the same jurisdictional argument you put to me many times in the past, Mr Chin. I understand it but I don't accept it.
CHIN, MR: Sir, I do not understand your logic, sir.
KENNETH MARTIN J: It's not a question for you to understand me, Mr Chin. It is a question for me to hear the arguments and make a decision and publish my ruling. My ruling has been the subject of the reasons that you have in front of you and the question is the orders to be made. That's all I am concerned with at this point.
CHIN, MR: I have no money to pay Mr Thies.
KENNETH MARTIN J: You have also said that before.
CHIN, MR: So why did you never take into consideration the court costs regarding the money for the case and the legislative intention of parliament when it enacted those monetary provisions?
KENNETH MARTIN J: Mr Chin, it is not for you to interrogate me about what I did or didn't do. Do you understand that? It is for me to interrogate you, not the opposite.
CHIN, MR: Yes.
KENNETH MARTIN J: Very well. I have heard enough from you this morning. You are not addressing the point. Please sit down. The court will make orders in these terms: (1) there will be an order for security for costs in the amount of $20,000 in favour of the first defendant payable by the plaintiff; second, unless the amount of $20,000 is paid into court by the plaintiff within 48 hours, then the plaintiff's action is stayed; third, the plaintiff shall pay the first defendant's costs of the security for costs application of 13 May 2010 to be taxed and, fourth, the time limited by order 5 of my orders made on 13 May 2010 for the provision of a draft statement and a draft agreed chronology of events is extended to a date which is 28 days from today or 14 days after compliance by the plaintiff with order 2 of my orders which is the payment of $20,000 into court, whichever is the latter event. There will be orders 1 to 4 in those terms. Mr Ellis?
ELLIS, MR: Your Honour, my recollection is that the order for payment of securities was order number 1, not order number 2. Order number 2 was about the stay.
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KENNETH MARTIN J: Yes, quite right. I will renumber order 4 to refer to order 1, the payment of $20,000.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Very well. Court will now adjourn and reconstitute as the CMC list.
AT 9.26 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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