IN THE HIGH COURT OF AUSTRALIA No. of 2010
[PERTH REGISTRY]
BETWEEN:
NICHOLAS NI KOK CHIN Applicant
and
TIMOTHY ROBIN THIES First Respondent
PAUL CHUNG KIONG CHIN Second Respondent
APPLICATION FOR SPECIAL LEAVE TO APPEAL
1. The applicant applies for special leave to appeal the whole of the interlocutory judgment of Justice Pullin JA and Newnes JA of the Court of Appeal of Appeal, Supreme Court of Western Australia given on 23.11.2010 in CACV 75 of 2010 and published on ………. This case is also cited as CHIN V THIES [2010] WASCA …. (the judgment below).
2. The judgment below is concerned with the refusal of the Court of Appeal to allow the Applicant’s Application for Leave to Appeal the interlocutory judgment of Ken Martin J:
21. RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169 (Michelides No.2) which unlawfully imposed a Security Costs Order of $20,000.00 on the Applicant thereby stultifying the proceedings in RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (Michelides No.1).
2.2. THIES -v- CHIN [2010] WASC 111 which unlawfully excludes the Applicant as a litigant in person from protecting his second son Paul Chung Kiong Chin, the Second Respondent, whose vulnerabilities had hitherto been exploited by the First Respondent from being further exploited by him, in accordance with the Mandate given to the Applicant in Michelides No.1 (The Mandate Exclusion Case).
2.3. In the Mandate Exclusion Case, the Applicant is at all material times a “lawyer” and not a “legal practitioner” or “counsel” or “barrister and solicitor” in accordance with the strict interpretation of Column 1 of regulation 5(2) of the Legal Profession Regulations, 2009 (WA).
2.4. The Applicant has never held himself up to the public that he was entitled to be engaged in legal practice other than as a litigant in person fighting his own cause against the First Respondent.
2.5. As such the Applicant is never playing the public role of a legal practitioner and therefore he could never be wrongly interpreted nor faulted by Ken Martin J to have been acting in conflict of interest situations in so far as he was extricating his son out of the tentacle-like grip of the First Respondent which the Applicant had inadvertently caused the Second Respondent to become involved in.
3. The judgment below therefore had caused a travesty of justice to the Applicant on the following grounds:
3.1. It refused to take into account the relevant facts that Counsel for the First Respondent Barrister Scott Ellis had misled the court of Ken Martin J on 17.6.2010 as recorded at page 33 of the transcript of those proceedings in Michelides No.2, in the following terms:
3.1.1. Registrar Susan Wilde’s Consent Judgment of the Fremantle Magistrates Court in FR417 of 20007 dated 7.6.2007 is involuntary as she acted under duress. The basis of her involuntariness resulted from her having been constantly updated by the Applicant by way of explicit simultaneous correspondence addressed to her and to all parties concerned with regard to the then prevailing conditions of duress being exerted upon her, the Applicant and the Second Respondent by the First Respondent. This situation of duress led to the Sham Consent Judgment and as such it is a Void Judgment and is unenforceable at law (the Sham Consent Judgment).
3.1.2. The Sham Consent Judgment is the basis for the improper costs order of Commissioner Herron in District Court Appeal No.6 of 2008 (Commissioner Heron’s Order).
3.1.3. Commissioner Herron’s Order is the basis for the Michelides No.2 judgment at [38] to stultify the righteous judgment of Hasluck J in Michelides No.1.
3.1.3. Registrar Hewitt’s taxation of Commissioner Herron’s Order at [36] of Michelides No.2 was lawfully objected to by the Applicant on the basis that the touchstone for the recoverability of costs is whether the First Respondent had rendered his legal services to the Applicant or the Second Respondent as the basis for his claim in FR417 of 2007. This is an issue pointed out in Michelides No.1 that was refused consideration by the learned Ken Martin J in Michelides No.2.
3.1.4. The Court of Appeal is purported to have dismissed the Applicant’s Application for leave to appeal under Rule 43(2)(g)(i) because none of the grounds of appeal have a reasonable prospect of succeeding or under Rule 44(2)(g)(ii) for failure to comply with Rule 32(4)(b) or that his submissions fail to comply with Rule 32(5)(1). If there is such failure to comply with the Rules, it should have been subsumed by the argument of the Applicant’s use of the metaphor that the Sham Consent Judgment represents the single Golden Thread interwoven into the fabric of the Applicant’s Grounds of Appeal in CACV 75 of 2008 as the purpose of the court to provide fair justice should not have been complicated by mere technicalities (the Single Ground of Appeal).
3.1.5. The Single Ground of Appeal did comply with the Rules on the following basis:
3.1.5.1. The Rules are derived from The Supreme Court (Court of Appeal) Rules, 2005 and are either directory Rules or mandatory Rules.
3.1.5.2. The Rules involved in this case are directory Rules, the compliance with which is optional for the Applicant.
3.1.5.3. The Rules set out duties and procedures which the legislature intends or expect to be obeyed.
3.1.5.4. The legislature may simply trust its officers i.e. the Court of Appeal to yield implicit obedience to them or if it sees fit to attach a penalty as punishment for disobedience. But in this case, the obedience to procedural law as opposed to substantive law cannot be sacrificed by it in circumstances when it is clear to it that the First Respondent is lacking in morality in his conduct and action towards the Applicant and the Second Respondent, as it is a universally acknowledged principle of fair law, which cannot exist independently if it were not inherently impregnated with morality (the good law).
3.1.5.5. The Court of Appeal knows that morality means justice and fair play and knows the distinction between what is right and what is wrong. It cannot condone the First Respondent reneging on his contractual obligations and extorting monies from the Applicant under conditions of duress consequent on his failure to fulfill his contractual obligations to the Applicant. This is the issue pointed out by Hasluck J in Michelides No.1 for determination by Ken Martin J in Michelides No.2 but it was not done (only the good law must be administered).
3.1.5.6. The Court of Appeal knows that for it to function lawfully, its duty is to stop the unlawful acts of the First Respondent and his counsel Scott Ellis who is a judge of his own cause on the ground that the latter received $6,000.00 as legal fees for legal advice from the former but he had tendered him the wrong legal advice in the former’s defence of FR944 of 2007 and he knows that the First Defendant is going to sue him for that wrong legal advice. Scott Ellis is now perpetuating his first wrongs by misleading the court of Ken Martin J to the effect that the Sham Consent Judgment is not sham (an officer of the court must not act in conflict of interests and must help the court to administer good law).
3.1.5.7. The Court of Appeal must adopt a neutral position with regard to its interpretation of statute and common law including the Rules but it must side with the Applicant against the First Respondent and must only enlist officers of the court who are not acting in conflict of interests and who can help the court to administer good law.
3.1.5.8. The Court of Appeal therefore knows that strict compliance with the Rules is unnecessary in this particular case because it has a duty to decide on the legal consequence of non-compliance with the Rules that will affect the rights of the Applicant and the Second Respondent viewed in the light of a concrete state of facts and a continuing chain of events involving the First Respondent and his counsel who are not administering good law. It therefore should not have dismissed CACV75 of 2010.
3.1.5.9. The Court of Appeal knows that FR417 of 2007 was started by the First Respondent against the Applicant and the Second Respondent for the vexatious purpose of pursuing a ZERO SUM debt claim against the latter by using his gun of duress action in CIV1112 of 2007 caveat case against the home property of the Second Respondent. By wielding both weapons against the father and son, the First Respondent was able to extort $11,500.00 from them under the Sham Consent Judgment (the wrongs of the First Respondent).
3.1.5.10. The Court of Appeal knows that all legal costs involved in proceedings at whatever forum and whatever stage of the proceedings that is caused by the wrongs of the First Respondent cannot be brought upon the shoulders of the Applicant but must be borne by the First Respondent himself. That is the case for the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004.
3.1.5.11. The Court of Appeal knows that s.60(1)(f)(3) of the Supreme Court Act, 1935 provides that the subject application before the Court of Appeal in CACV 75 of 2010 is to be brought ex-parte by the Applicant (the subject application). However, Newnes J at the first hearing denied the Applicant his natural justice by refusing to make a legal determination by inviting a formal application from the First Respondent as to why he should have been made a party to the subject application. As a consequence, the Applicant owes no liability for costs of the subject application to the First Respondent, should it fail.
3.1.5.12. The Court of Appeal knows that in relation to its duty to impose the Rules, it is now faced with an ambiguous task to impose conditions of validity or invalidity on those Rules in the process of administering good law. Under these circumstances, it will then have to exercise its wide discretion to make those Rules either mandatory or directory. The predisposing circumstance of this particular case renders those Rules mere directory rules and this concludes that the judgment below is wrong.
3.1.5.13. The Court of Appeal knows that the First Respondent did not comply with the r.22 of the Consolidated Practice Directions of the Supreme Court of Western Australia as its submission was delivered by way of email to both the Court of Appeal Registrar and the Applicant on 22.11.2010 at 4.48 pm for hearing on 23.11.2010 at 10.30 am. There is no two clear working days before the hearing and the Applicant suffered a detriment as he was taken by surprise.
3.1.5.14. The Court of Appeal knows that the First Respondent did not comply with Rule 33(3) and (4) to file his answer within seven days to the Applicant’s Appellant’s Case with his answer, submissions, notice of contention and legal authorities. The Court of Appeal discriminate the Appellant and sided with the First Respondent by not requiring him to comply with the Rules but requires the Applicant to comply strictly with the Rules.
3.1.5.13. The Applicant is seeking the Court of Appeal to review the judgment below and shall be away from the jurisdiction for the duration of December, 2010, January, 2011 until mid-February, 2011. The Applicant hopes to repair the technical slip of the Court of Appeal through s.33 of the Supreme Court Act, 1935 without having to go through an appeal process in the High Court of Australia.
Order(s) sought
The Applicant seeks the grant of:
i) A Special Leave to Appeal the Order of the judgment below be allowed.
ii) The judgment below in CACV 75 of 2010 be set aside.
iii) Michelides No.2 be heard before another judge of the Supreme Court in accordance with the normal approach of the common law as extant in Western Australia in relation to an application for Review Orders pursuant to s. 36(4) of the Magistrates Court Act, 2004 (WA). This is the second stage of the CIV 1903 of 2008 proceedings and that it be pursued by the Applicant as Plaintiff to its final conclusion, without its being strangled or stultified by an improper Security for Costs Order caused by the error of Ken Martin J.
iv) The Interim Security for Costs Order in Michelides No.2 by Ken Martin J be set aside on the ground that it is founded on incorrect law.
v) The Costs Order of Commissioner Herron and of the District Court Appeal No. 6 of 2008 be set aside.
vi) The Costs Order of the Court of Appeal in CACV 75 of 2010 be set aside.
vii) Costs of this Application.
viii) Any other relief which this Honourable Court may deem fit.
Dated this 24th day of November, 2010.
To:
1. The First Respondent
No.7, Yalgoo Avenue
White Gum Valley WA 6152
2. The Second Respondent
387, Alexander Drive
DIANELLA WA 6059
(The Second Respondent to remain inactive pursuant to Orders of Court in Michelides No.1).
TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.
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