My ref: CIV1981 of 2010 & CACV41 of 2010.
October 20, 2010
The Chairperson
The Legal Practice Board
Atten:
Mr. Shung Kee Neoh, Legal Officer.
5th Floor, Kings Building, 533 Hay Street
PERTH WA 6000
Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743
Dear Sir FACSIMILE TRANSMISSION
TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008
I refer to the above matter and to my facsimile letter to you dated 11.10.2010. I would now like to clarify the following:
a) Upon my study of the relevant sections 12, 13 and 14 of the Legal Profession Act, 2008 and the Table of r. 5(2) of the Legal Profession Regulations 2009, my mind is now clearer as to my past mistakes in representing myself as a “barrister and solicitor” in my court documents and correspondence through using my stamp which has these words.
b) I was always arguing the point that I would be entitled to use as my title “barrister and solicitor” because I am an Australian lawyer who had been so admitted by the Supreme Court of Western Australia and my name has not been struck off the roll for any professional misconduct or unprofessional conduct.
c) I now realize that although I am still an Australian Lawyer who has not applied for a current practicing certificate due to the conditions restraining my status as an independent legal practitioner; I am only entitled to use the title “Lawyer” to my name.
d) When I spoke last to your legal officer Mr. Shung Kee Neoh on 11.10.2010, I found that he is a kindly person and as a result I asked for his help to clarify this confusing matter of my being prosecuted for my having allegedly representing that I was entitled to be engaged in legal practice pursuant to subs.13(1) of the Act. I would now like to retract my earlier statement that Mr. Shung said that the Board would resile from prosecuting me further as it is not quite accurate.
e) What I intended to say in that letter was that Mr. Shung said that he agreed to try and help me to seek and persuade the Board to re-consider its position to prosecute me further provided I write a written confirmation to the effect that I will refrain from the subs 13(1) representation in future.
f) I must say that I have a genuine belief that I was entitled to represent my son as his counsel in the duress-handmaid case of CIV1112 of 2007 due to the mandate that I received from the learned Justice Hasluck on 17.6.2009 to the effect that I could protect my son in all the Prerogative Relief Proceedings to its final conclusion in my capacity as a lawyer with my son being inactive and being absolved from appearing in court and his bearing no responsibility even though his name is included as the Second Defendant.
g) I take it to mean that the Prerogative Relief Proceedings instituted by me include the duress-handmaid case instituted by Mr. Thies to intimidate my son and to facilitate the sham compromise which only has my son as a party because it affects my son’s home that was being unlawfully caveated by Mr. Thies who had no caveatable interests.
h) The difficulties of removing the caveat were exacerbated by Mr. Thies refusing to loosen his grip on this strangle-hold clogging of Paul’s equity for a very long time. This finally led to the Second Judge ordering its removal without a consequential costs order in June, 2010 and despite this, Mr. Thies continue to threaten my son for his legal costs for the removal of that Caveat and this caused my son to become ill again when he returned to Malaysia sometime in July, 2010.
i) Before I embarked on preparing the Chamber Summons in my name purporting to act for my son Paul in that duress-handmaid case, I wrote to both the Chief Registrar of the Supreme Court of Western Australia as well as the LPCC informing it of my decisions to so act and I should have received a reprimand if I was not so entitled. I am sorry for all the mistakes that have occurred so far.
j) My defence to the subs.13(1) representation is that I was labouring under a mistake to a non-strict liability offence by virtue of the existence of the words “rebuttal presumption” in subs.14(1) of the Act.
k) I have since appeared before Justice Newnes of the Court of Appeal in my CACV 75 of 2010 and have been granted leave to amend my Appellant’s Case so that it is confined to the issues of the Security Orders Judgment dated 17.6.2010 and the Mandate Exclusion Decision Judgment of the duress handmaid case dated 13.5.2010 by His Honour Justice Kenneth Martin.
l) His Honour is the second judge in the s.36(4) Magistrates Court Act, 2004 proceedings under circumstances when the First Judge, His Honour Justice Hasluck had already granted his Review Order in the Prerogative Relief Proceedings in subs.36(1) of the Act. As such, the Second Judge should have adopted a normal approach by exercising his discretion to withhold the Prerogative Relief only if there are justifying circumstances and His Honour erred in his jurisdictional excess in that he was reasonably apprehended to be biased against me in the second stage of the Prerogative Proceedings for which I had to make repeated oral and written calls for his recusal which was noted by the Court of Appeal.
m) Further the Second Judge erred by taking into account irrelevant considerations and ignored the pointed given by the First Judge as to how the future proceedings should have been proceeded with having regard to the fact that Mr. Thies did not obey Justice Hasluck wishes that that Show –Cause Affidavit should have been complied with timeously so as to enable the mediator Registrar Rimmer to perform his job satisfactorily. It so transpired that the Show Cause Affidavit did not comply with the requirements of Justice Hasluck, particularly it did not confine itself to the core issues of why the legal costs had been found to be unreasonably escalated disproportionately in terms of the solicitor cost agreement having been terminated timeously and in terms of the pre-contractual emails that have passed between the parties. Instead a lot of red herrings had been introduced in the Show-Cause that was intended to mislead the Second Judge and it did mislead His Honour.
Yours faithfully
NICHOLAS N CHIN
Thursday, October 21, 2010
Sunday, October 10, 2010
MANDATE GIVEN TO ME BY SUPREME COURT TO DEFEND MY SON'S CAVEAT CASE IN CIV 1112 OF 2007 THROUGH CIV 1903 OF 2008
My ref: CIV1981 of 2010 & CACV41 of 2010.
October 11, 2010
The Chairperson
The Legal Practice Board
Atten:
Mr. Shung Kee Neoh, Legal Officer.
5th Floor, Kings Building, 533 Hay Street
PERTH WA 6000
Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743
Dear Sir FACSIMILE TRANSMISSION
TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008
I refer to the above matter and the Statements of Material Facts (in Forms 5 and Form 3 of the Criminal Procedure Regulations, 2005 in 7 pages dated 7.10.2010), which was served on me on the 8.10.2010. I was pleasantly surprised and shocked at this seeming wrongful persecution. This promptly caused me to call and I spoke to the legal officer who signed these documents, one Mr. Shung Kee Neoh. After a brief conversation with him, he told me that based on what he heard from me, he would consult Counsel with regard to the withdrawal of these two charges. He told me that he would call me to confirm this matter by the latest Wednesday 13th day of October, 2010. Under the circumstances as explained above, I would like to state the following:
a) The Statements of Material Facts pertains to the Summons in Chambers in CIV 1112 of 2007 prepared by me dated 8.10.2009 together with my Affidavit in Support of it dated 12.10.2009 for the purpose of amalgamating it with CIV 1903 of 2008 in which I was made Plaintiff by Justice Hasluck (the First Judge) under Order 83 of the Rules of Supreme Court, 1971 WA (the Amalgamation).
b) For the purpose of the Amalgamation, I stated that I was a Barrister & Solicitor acting as counsel for my son Paul Chin Chung Kiong pursuant to ss.13 and 14 of the Legal Profession Act, 2008 (the Act) and r.5 of the Legal Profession Regulations, 2009 (the Regulations) under the mandate given to me by the First Judge in His Orders dated 17.6.2009 to be read together with the transcript of those proceedings.
c) It was on the ground that the mandate requires my son to remain inactive in these proceedings that I had to resort to act for my son as his counsel and in my capacity as barrister and solicitor because that is only way I could enter into the Caveat Case to defend my son’s human rights because that Caveat-duress case employed by lawyer Thies was without my name as defendant but it contains only my son’s name and my son was required to remain inactive, as there would be deleterious health consequences for him if he were not to remain so.
d) The difficulty for me to enter into the Caveat-duress case as counsel for Paul was caused by the difficulties posed by lawyer Thies himself as was being explained to him and the Chief Registrar in my letter to them dated 3.10.2010. (See copy attached). In this letter, I had similarly put in disclaimers as I did subsequently (in the Summons in Chambers and Affidavit of Civ 1112 of 2007) in that I was entitled to be engaged in legal practice as a litigant in person whilst acting for my son Paul as his counsel pursuant to s.13(1) of the Act, knowing that I was not transgressing the law and that it would be an offence of strict liability if I were to do so (the s.13 representation).
e) The s.13 representation did invite the complaint of Lawyer Thies which came through the Legal Profession Complaints Committee’s letter to me dated 27.10.2009 to which I had responded by way of my facsimile letter dated 29.10.2009 at paragraph 3 at page 3 contained in my CIV 1981 Application.
f) As soon as I realized that the second judge in CIV 1903 of 2008 His Honour Justice Kenneth Martin sometime in May, 2010 was refusing to think along the same lines as the First Judge, my son, Paul with the help of myself and some friends sought to rectify the situation by presenting his own set of documents as a litigant in person instead of my s.13 representation thus violating the Order of the First Judge that Paul is to remain inactive (Paul’s documents). Unfortunately, the Second Judge did not accept these documents giving as his excuse that it was unsigned as indicated in his written judgment. This is not the truth as Paul’s documents were signed by himself and filed by me.
g) I had pleaded with the Second Judge to cease and desist from hearing the second stage of the s.36 Magistrate Court Act, 2004 proceedings on the ground of his apprehended bias as he should have adopted the common law by using the normal approach as is in the case of Ex-parte Brecker but it was otherwise. I therefore made an Application for judicial review for prerogative orders in CIV 1981 of 2010 on 28.6.2010 in 126 pages.
h) The Second Judge, with due respect to him, however, went on with the case by ordering the unlawful caveat of lawyer Thies to be removed anyway without any costs orders but lawyer Thies is in contempt of court when he disobeyed the First Judge Orders by contacting my son and demanding him for another $650.00 for the costs of the removal of the caveats.
i) I have in the meantime appealed the decision of the Second Judge who gave judgment against me in favour of lawyer Thies by granting him security for costs orders thus stultifying my s.36 proceedings in CIV 1903 of 2008 all in the name of the null costs orders of the courts below that had been stopped by the First Judge except for the District Court Appeal No.6 of 2008 judgment of Commissioner Herron, which as I understand it, is also unenforceable.
j) Even if I had acted for my son Paul in the duress-Caveat Case which I did not, I would not have played the public role of a solicitor for my son as I was acting for myself as a litigant in person pursuing my own case against Lawyer Thies as my son was never in a client-solicitor relationship with him as Paul had acted under coercion and was under my undue influence. That client solicitor-relationship was in reality with me and was subject to those pre-contractual terms which he reneged and therefore that relationship had been terminated. There was therefore no debt for him to sue and in the process he had extorted monies from me and my son on a sham compromise.
k) In view of the foregoing paragraphs, it is apparent that I knowingly had evinced no intention to represent that I could be engaged in legal practice other than as a litigant in person. I filed the first set of those documents with disclaimers and my son Paul had it exchanged for the second set of those documents with Paul’s name as a litigant in person as soon as the Second Judge objected to it. If I had ever stated publicly that I am a Barrister & Solicitor, I have always qualified it with the words “non-certificated”. As from today, I shall cease to apply the title “Barrister and Solicitor” to any documents that I shall prepare so as to stop confusing the minds of the public that I am entitled to be engaged in legal practice until my dispute with the Legal Practice Board of Western Australia is settled or until I assume supervised practice.
l) Assuming that s.13 of the Act pertains to a strict liability offence; I could have been labouring under a mistake of fact as to the nature of the mandate given to me by the First Judge until it was objected to by the Second Judge, and the situation would have been retrieved if the Second Judge had given his reasons for so objecting. The mandate by the First Judge would have qualified me under column 6 of r. 5(2) of the Regulations; consequently, I would have realized that unless I worked under the mandate of the First Judge or under other circumstances, I should not use the name Barrister & Solicitor. Despite this, I had taken remedial action to remove myself from this mistake. In the premises, I have not committed any offence under subs. 13(1) of the Act that warrants this prosecution.
Yours faithfully
NICHOLAS N CHIN
October 11, 2010
The Chairperson
The Legal Practice Board
Atten:
Mr. Shung Kee Neoh, Legal Officer.
5th Floor, Kings Building, 533 Hay Street
PERTH WA 6000
Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743
Dear Sir FACSIMILE TRANSMISSION
TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008
I refer to the above matter and the Statements of Material Facts (in Forms 5 and Form 3 of the Criminal Procedure Regulations, 2005 in 7 pages dated 7.10.2010), which was served on me on the 8.10.2010. I was pleasantly surprised and shocked at this seeming wrongful persecution. This promptly caused me to call and I spoke to the legal officer who signed these documents, one Mr. Shung Kee Neoh. After a brief conversation with him, he told me that based on what he heard from me, he would consult Counsel with regard to the withdrawal of these two charges. He told me that he would call me to confirm this matter by the latest Wednesday 13th day of October, 2010. Under the circumstances as explained above, I would like to state the following:
a) The Statements of Material Facts pertains to the Summons in Chambers in CIV 1112 of 2007 prepared by me dated 8.10.2009 together with my Affidavit in Support of it dated 12.10.2009 for the purpose of amalgamating it with CIV 1903 of 2008 in which I was made Plaintiff by Justice Hasluck (the First Judge) under Order 83 of the Rules of Supreme Court, 1971 WA (the Amalgamation).
b) For the purpose of the Amalgamation, I stated that I was a Barrister & Solicitor acting as counsel for my son Paul Chin Chung Kiong pursuant to ss.13 and 14 of the Legal Profession Act, 2008 (the Act) and r.5 of the Legal Profession Regulations, 2009 (the Regulations) under the mandate given to me by the First Judge in His Orders dated 17.6.2009 to be read together with the transcript of those proceedings.
c) It was on the ground that the mandate requires my son to remain inactive in these proceedings that I had to resort to act for my son as his counsel and in my capacity as barrister and solicitor because that is only way I could enter into the Caveat Case to defend my son’s human rights because that Caveat-duress case employed by lawyer Thies was without my name as defendant but it contains only my son’s name and my son was required to remain inactive, as there would be deleterious health consequences for him if he were not to remain so.
d) The difficulty for me to enter into the Caveat-duress case as counsel for Paul was caused by the difficulties posed by lawyer Thies himself as was being explained to him and the Chief Registrar in my letter to them dated 3.10.2010. (See copy attached). In this letter, I had similarly put in disclaimers as I did subsequently (in the Summons in Chambers and Affidavit of Civ 1112 of 2007) in that I was entitled to be engaged in legal practice as a litigant in person whilst acting for my son Paul as his counsel pursuant to s.13(1) of the Act, knowing that I was not transgressing the law and that it would be an offence of strict liability if I were to do so (the s.13 representation).
e) The s.13 representation did invite the complaint of Lawyer Thies which came through the Legal Profession Complaints Committee’s letter to me dated 27.10.2009 to which I had responded by way of my facsimile letter dated 29.10.2009 at paragraph 3 at page 3 contained in my CIV 1981 Application.
f) As soon as I realized that the second judge in CIV 1903 of 2008 His Honour Justice Kenneth Martin sometime in May, 2010 was refusing to think along the same lines as the First Judge, my son, Paul with the help of myself and some friends sought to rectify the situation by presenting his own set of documents as a litigant in person instead of my s.13 representation thus violating the Order of the First Judge that Paul is to remain inactive (Paul’s documents). Unfortunately, the Second Judge did not accept these documents giving as his excuse that it was unsigned as indicated in his written judgment. This is not the truth as Paul’s documents were signed by himself and filed by me.
g) I had pleaded with the Second Judge to cease and desist from hearing the second stage of the s.36 Magistrate Court Act, 2004 proceedings on the ground of his apprehended bias as he should have adopted the common law by using the normal approach as is in the case of Ex-parte Brecker but it was otherwise. I therefore made an Application for judicial review for prerogative orders in CIV 1981 of 2010 on 28.6.2010 in 126 pages.
h) The Second Judge, with due respect to him, however, went on with the case by ordering the unlawful caveat of lawyer Thies to be removed anyway without any costs orders but lawyer Thies is in contempt of court when he disobeyed the First Judge Orders by contacting my son and demanding him for another $650.00 for the costs of the removal of the caveats.
i) I have in the meantime appealed the decision of the Second Judge who gave judgment against me in favour of lawyer Thies by granting him security for costs orders thus stultifying my s.36 proceedings in CIV 1903 of 2008 all in the name of the null costs orders of the courts below that had been stopped by the First Judge except for the District Court Appeal No.6 of 2008 judgment of Commissioner Herron, which as I understand it, is also unenforceable.
j) Even if I had acted for my son Paul in the duress-Caveat Case which I did not, I would not have played the public role of a solicitor for my son as I was acting for myself as a litigant in person pursuing my own case against Lawyer Thies as my son was never in a client-solicitor relationship with him as Paul had acted under coercion and was under my undue influence. That client solicitor-relationship was in reality with me and was subject to those pre-contractual terms which he reneged and therefore that relationship had been terminated. There was therefore no debt for him to sue and in the process he had extorted monies from me and my son on a sham compromise.
k) In view of the foregoing paragraphs, it is apparent that I knowingly had evinced no intention to represent that I could be engaged in legal practice other than as a litigant in person. I filed the first set of those documents with disclaimers and my son Paul had it exchanged for the second set of those documents with Paul’s name as a litigant in person as soon as the Second Judge objected to it. If I had ever stated publicly that I am a Barrister & Solicitor, I have always qualified it with the words “non-certificated”. As from today, I shall cease to apply the title “Barrister and Solicitor” to any documents that I shall prepare so as to stop confusing the minds of the public that I am entitled to be engaged in legal practice until my dispute with the Legal Practice Board of Western Australia is settled or until I assume supervised practice.
l) Assuming that s.13 of the Act pertains to a strict liability offence; I could have been labouring under a mistake of fact as to the nature of the mandate given to me by the First Judge until it was objected to by the Second Judge, and the situation would have been retrieved if the Second Judge had given his reasons for so objecting. The mandate by the First Judge would have qualified me under column 6 of r. 5(2) of the Regulations; consequently, I would have realized that unless I worked under the mandate of the First Judge or under other circumstances, I should not use the name Barrister & Solicitor. Despite this, I had taken remedial action to remove myself from this mistake. In the premises, I have not committed any offence under subs. 13(1) of the Act that warrants this prosecution.
Yours faithfully
NICHOLAS N CHIN
Monday, October 4, 2010
Saturday, October 2, 2010
FACSIMILE LETTER TO CHIEF REGISTRAR OF SUPREME COURT RE: APPLICATION FOR A COURT OF APPEAL JUSTICE TO HEAR JUDICIAL REVIEW FOR PREROGATIVE ORDERS IN CIV 1981 & 1887 OF 2010
Your ref: CIV 1877 of 2010 & CIV1981 of 2010.
Thursday, 30 September 2010
ATTEN: RACQUEL
Dear Sir
FILING OF NOTICE OF MOTION IN CIV 1981 AND 1877 BOTH OF 2010 AND SUPPORTING AFFIDAVIT
I refer to the above matter and my attendance at the Central Office of the Supreme Court of Western Australia at Perth this morning when I was serviced by Racquel. Further, I would like to state the following:
a) I am presenting my NOTICE OF MOTION dated 30.9.2010 in 2 pages applicable to both the cases and my Affidavit in Support of it sworn the day in 22 pages.
b) Racquel retained a set of those documents for CIV 1981 of 2010 but requested me to file by faxing a similar set of those documents for filing in CIV 1877 of 2010 to Fax No. 08-9221 8350.
c) Racquel requires this procedure for filing those two sets of documents in those two cases on the ground that although the judgment of Justice EM Heenan in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 heard on 4.8.2010 and delivered on 11.8.2010 is a consolidated judgment of those two cases, in fact these two cases have not yet been consolidated into one case. Therefore two sets of these documents would have to be filed for each of the two cases into their respective files kept at the Supreme Court of Western Australia.
d) The procedure for filing this Notice of Motion dated 30.9.2010 together with my Supporting Affidavit is prescribed for by Registrar Eldred in her letter to me dated 29.7.2010 as contained in page 16 of the my Affidavit sworn 30.9.2010.
e) The prescription affects CIV 1877 of 2010 but should similarly affect CIV 1981 of 2010 in so far as its purpose is to enable me to make an Application for a Court of Appeal Justice to hear both the judicial review cases for prerogative remedies instead of Justice Heenan hearing them because His Honour is of the same rank as Justice Kenneth Martin and Justice Chaney of SAT.
f) Therefore there is an admission by Justice Heenan that he had no authority to dismiss a similar application for judicial review for prerogative orders in CIV 1019 of 2010 which has now been appealed to the Court of Appeal in CACV41 of 2010.
Please therefore find the following documents attached for the purpose of fax filing CIV1877 of 2010 as the documents
for CIV1981 of 2010 have already been accepted for filing by Racquel:
i) Application in CACV 107 of 2008 which contains bullet point No.2 as requested for by Racquel in one page.
ii) Form 2 Application by me for waiver of fees for CIV 1877 of 2010 in 5 pages.
iii) NOTICE OF MOTION dated 30.9.2010 in 2 pages.
iv) My Affidavit in Support of the NOTICE OF MOTION sworn 30.9.2010 in 22 pages.
Yours faithfully
NICHOLAS N CHIN
c.c.
Registrar Eldred, Court of Appeal, Supreme Court of WA Fax: 9421 5471
This letter only is sent to you for you to take note of sub-para.(f) above. His Honour Justice Heenan had admitted in his judgment delivered on 11.8.2010 that he had no jurisdiction to deal with CIV 1019 of 2010 which became my current Appeal in CACV 41 of 2010.
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