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THE SUPREME COURT OF
WESTERN AUSTRALIA
COURT OF APPEAL
CACV 75 of 2010
NICHOLAS NI KOK CHIN
and
TIMOTHY ROBERT THIES and ANOTHER
PULLIN JA
NEWNES JA
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 23 NOVEMBER 2010, AT 11.18 AM
Continued from 15/10/10
The appellant appeared in person.
MR D.S. ELLIS appeared for the first respondent.
23/11/10 11 (s&c)
THE ASSOCIATE: Chin and Thies, CACV 75 of 2010.
PULLIN JA: Mr Chin, you're appearing on your own behalf?
CHIN, MR: Yes, sir.
PULLIN JA: All right. Thank you. Mr Ellis?
ELLIS, MR: I appear on behalf of the first respondent, your Honour.
PULLIN JA: Thank you. Mr Chin, we are all here today because of a registrar's notice which indicates that you are today to show cause why the appeal should not be dismissed under rule 43(2)(g)(i) because none of the grounds of appeal have a reasonable prospect of succeeding, or under 43(2)(g)(ii) for failure to comply with rule 32(4) or (5). You understand that's why we're here today?
CHIN, MR: Yes, sir.
PULLIN JA: All right. What are your submissions as to why those orders should not be made?
CHIN, MR: Sir, there is only one golden thread interwoven into all my grounds of appeal. That golden thread is the involuntary consent judgment of Registrar Susan Wyle in FR417 of 2007 that happened on the 7th day of June 2007. Your Honour, that is the only point that is of importance to this court and that is the subject of the (indistinct) conduct of my learned friend, a barrister called Ellis.
NEWNES JA: Mr Chin, the appeal is against a judgment of Kenneth Martin J on 8 July 2010. When this matter came before me sitting alone on 15 October, in the course of an exchange you told me or you confirmed that there were essentially two complaints that you wished to make in the appeal. One was that his Honour had not disqualified himself from hearing it, and the other was that he had erred in ordering that you provide security for costs.
On that occasion I observed that none of those matters were reflected in the grounds of appeal or the submissions which you had filed then in the appellant's case as it then stood and you were given leave to file an amended appellant's case within a certain period of time on the basis that in all probability that would be the last opportunity you got to file an amended appellant's case, the matter having gone on for some considerable time at that point.
You filed an amended appellant's case - that is dated 1 November, although it was filed on 3 November - but it is not apparent that that is the subject matter of your appeal, which seems to canvass a number of different proceedings, a number of different issues, and in many
23/11/10 CHIN, MR 12
cases it's very difficult, if not impossible, to understand. A moment ago you seemed to be talking about some other decision.
CHIN, MR: His Honour Kenneth Martin J make two decision. One is the (indistinct) exclusion case. The other is the security order case. In the security order case the only reason for his Honour Ken Martin J in ordering the security costs against me is the unmet legal costs of the District Court matter which has been taxed by a Registrar Hewitt. That matter has not been appealed to the Supreme Court. That is a debt that remain and that is the reason why the security costs order has been made against me.
That is not a debt. That debt is based on the (indistinct) judgment. The (indistinct) judgment is the involuntary consent order and my learned friend, Mr Timothy Robert Thies, and his counsel, Mr Scott Ellis - they are aware that I have been updating Registrar Wyle from 12 April when those applications was made for consent order and there is a series of correspondence and those correspondence were addressed to Registrar Wyle and that is why Registrar Wyle delayed the process of the consent order from the 12th day of April to the 7th day of June. What happened was on the 6th day of June when it became impossible for the matter to be delayed any more, for the sham compromise to be crystallised ‑ ‑ ‑
NEWNES JA: I think you are getting off the topic, Mr Chin. The question today is, among others, whether the grounds of appeal comply with the rules.
CHIN, MR: Yes, your Honour, the grounds of appeal abide by the rules. All the grounds of appeal is interwoven with one single golden thread, and that golden thread is the involuntary consent order of Registrar Wyle.
PULLIN JA: All right. Well, that's the simple point you make then, is it?
CHIN, MR: That is the most simple point, sir, and that is the subject of the misleading statement that was made to Ken Martin J on the 17th day of June 2010. That misleading statement was contained at page 33 of the transcript of 17 June 2010 and that is the subject of my complaint (indistinct) and that letter has been sent, a copy, to the Court of Appeal registrar and that letter is proof that - that is proof that Mr Scott Ellis, my learned friend, knows - he knows very well and Mr Timothy Robert Thies knows very well that the duress situation was communicated to Registrar Susan Wyle and Registrar Susan Wyle could not do anything but she was press under duress to (indistinct) to that consent judgment. That consent judgment isn't (indistinct).
23/11/10 CHIN, MR 13
The event that happened on 6 June - my son became so unwell that he has got to be treated by his doctor and that was communicated, that situation was communicated to her, and in order to switch the situation (indistinct) harm to my son. That is what has happened to Registrar Wyle who involuntarily consented to that consent judgment.
NEWNES JA: That's the substance of your appeal, is it?
CHIN, MR: Yes. That is the only issue of my appeal.
PULLIN JA: All right. Thank you, Mr Chin, for those submissions.
CHIN, MR: Thank you, sir.
PULLIN JA: We don't need to trouble you, Mr Ellis, thank you. The court is satisfied that the appeal should be dismissed for the reasons referred to in the registrar's appeal notice and reasons for the decision will be published in due course. Mr Ellis, is there any consequential order?
ELLIS, MR: I seek an order for the costs of the appeal, your Honour.
PULLIN JA: All right. Mr Chin, is there any reason why a costs order should not be made?
CHIN, MR: Sir, this is - the rule, the Supreme Court rule, Supreme Court Act, section 61F(3), says that if a Supreme Court judge makes a decision, that decision is subject to an ex parte application. There has been no judicial determination by this court before ‑ ‑ ‑
PULLIN JA: No, we're just concerned with a costs order at this stage, Mr Chin.
CHIN, MR: Yes, sir. If it is an ex parte application there would have been no cost because there has been no judicial determination that the ex parte case can be made inter partes. Second point, sir, is that the legislative intention of this court is that there was never any debt claimable by Mr Thies against my son and me. Hasluck J, in the first stage of the proceedings ‑ ‑ ‑
PULLIN JA: No, no, just on the costs. The only question is whether or not a costs order should be made, Mr Chin. Normally a costs order would be made, as you would know, if you had been unsuccessful.
CHIN, MR: Yes, but the case of (indistinct), your Honour, says that if Mr Thies link me to an action that has no basis of success, that because there was never any valid claim against me, there is no costs because of the legislative intention of the (indistinct) provisions.
23/11/10 CHIN, MR 14
PULLIN JA: All right. Thank you.
CHIN, MR: The third point is that Mr Thies started the case FR417 of 2007 claiming for legal costs, claiming for profit costs. The case of Dobree v Hoffman says that if you are litigant in person, you are not entitled to claim for any profit costs.
PULLIN JA: All right. Thank you, Mr Chin. The orders of the court will be that the appeal is dismissed and that the appellant pay the respondent's costs of the appeal to be taxed. As I say, reasons will be delivered later.
AT 11.31 AM THE MATTER WAS ADJOURNED ACCORDINGLY
23/11/10 CHIN, MR 15
Their Honours Pullin JA and Newnes JA refers to Sub-rule.43(2)(g)(i)of the Supreme Court (Court of Appeal) Rules 2005 (WA) to dismiss my appeal in CACV75 of 2010. This Sub-rule provides as follows:
ReplyDelete"A single judge has jurisdiction to do any of the following —
(g)to dismiss the appeal if —
(i)none of the grounds of appeal has a reasonable prospect of succeeding ..."
The Applicant/Appellant has ONE SINGLE GOLDEN THREAD OF CONSISTENCY representing his SINGLE GROUND OF APPEAL that is interwoven into the fabric of his GROUNDS OF APPEAL. That Golden Thread is REGISTRAR SUSAN WILDE INVOLUNTARY CONSENT JUDGMENT IN FR417 OF 2007 ENTERED IN BY THE APPLICANT AND HIS SON WITH SOLICITOR TIMOTHY ROBIN THIES ON 7.6.2007 UNDER CONDITIONS OF DURESS.
The Subrule under r.43(2)(g)(ii)further provides:
ReplyDelete"the appellant has not obeyed these rules or any order made under them".
The Appellant/Applicant in CACV 75 of 2010 has not failed to obey the Order of Registrar of the Court of Appeal to show cause as to why he had failed to obey r.32(4) and r.32(5) of the Rules which provides as follows:
"(4)The document titled “Appellant’s grounds of appeal” —
(a) must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal;
(b) must state the grounds, and concise particulars of them, succinctly in numbered paragraphs and must not merely allege —
(i) that the primary court erred in fact or in law;
(ii) that the primary court’s decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence;
(iii) that the primary court’s decision is unsafe or unsatisfactory; or
(iv) in the case of an appeal against a sentence, that the sentence is excessive or inadequate;
and
(c) must state, for each ground, whether it is —
(i) an error of fact;
(ii) an error of law; or
(iii) an error of mixed fact and law.
(5) The document titled “Appellant’s submissions” —
(a) must, for each ground of appeal, contain the appellant’s written submissions (or argument) expressed so as to convey the substance of them clearly and as succinctly as possible;
(b) must set out the submissions about the ground in numbered paragraphs;
(c) must include references to —
(i) each page number of the primary court’s transcript on which relevant material appears;
(ii) the number of each exhibit in the primary court that is relevant; and
(iii) each principal legal authority on which the appellant relies in support of the ground;
(d) must not be more than 20 pages long; and
(e) must be signed by the person who prepared it.
The Court of Appeal must not be complicated by technicalities on the following grounds:
ReplyDeletea) The Appellant has complied with those rules and there must be no fault-finding.
b) The Appellant has only one ground of appeal i.e.the INVOLUNTARY REGISTRAR WILDE'S CONSENT ORDER which is a VOID JUDGMENT voided by duress exerted by Timothy Robin Thies then being exerted upon the judge of that Consent Judgment and the parties who are being forced to pay a sum of extorted monies which they did not voluntarily paid to Mr. Thies.
c) The rules of court are either mandatory or directory rules and their status are interchangeable as they depend upon the extenuating circumstances under which the Appellant is required to comply with.
d) The rules of court are mandatory for the First Respondent to comply with and he had not complied with them.
e) Why is the Appellant required to comply with the Rules whereas the First Respondent is not required to comply with them.
Subrule 33(3)(a) of the Rules requires the First Respondent to file his written Answer, Written Submission, Notice of Condition and List of Authorities within 7 days. It provides as follows:
ReplyDelete"After being served with the appellant’s case, the respondent must file the “Respondent’s answer”.
(3) The respondent’s answer must be filed:
(a) in an interlocutory civil appeal, within 7 days after;
the date the respondent is served with a notice issued by the registrar requiring the answer to be filed."
"Subrule 33(4)(a) provides:
(4)The respondent’s answer consists of a Form 8 to which is attached —
(a)in an interlocutory civil appeal, these documents —
(i)a document titled “Respondent’s submissions”;
(ii)if the respondent seeks to uphold the primary court’s decision on a ground not relied on by the primary court — a document titled “Respondent’s notice of contention”;
(iii) a document titled “Respondent’s legal authorities”;
Why does the Court of Appeal not take into account the following:
ReplyDeletea) The First Respondent did not comply with subrule 33(3)(a) and subrule 33(4)(a) of the Supreme Court (Court of Appeal) Rules, 2005 (WA)(the Rules).
b) Did not decide on the validity or invalidity of the Appellant's alleged non-compliance with Subrules: r.43(2)(g)(i) & (ii)of the Rules.
c) Did not take into account that counsel of the First Respondent having misled the trial judge Ken Martin J in Michelides No.2 decision on 17.6.2010 as indicated at page 33 of the transcript.
d) Ken Martin J was misled by barrister Scott Ellis that the Appellant had a weak case on the ground that there is no evidence before the court regarding the involuntariness of Registrar Wilde in entering into the FR417 of 2007 Sham Consent Judgment on 7.6.2007 in circumstances where such evidence is available before the trial judge at pages 126 and 128 of the Affidavit of the Appellant sworn and filed 26.5.2010 in Michelides No.2. e) Commissioner Herron's Costs Order in District Court Appeal No.6 of 2008 is based on the Void Sham Consent Judgment is also void or voidable. Being so void or voidable, there is no debt ever owing by the Appellant to the First Respondent which can render Michelides No.2 weak or having an inherent weakness.
e) There was therefore never a RSC O 25 r 2(g)justification for the trial judge's misconceived interim order to impose a security costs order against the Appellant for the purpose of stultifying his progress of Michelides No.1.
f) Michelides No.2 should therefore be heard before another Supreme Court Judge and the Misconceived Security Costs Order by Ken Martin J be set aside.
The documents complaining against barrister Scott Ellis having misled Ken Martin J in Michelides No.2 is filed with the following:
ReplyDeletea) The State Administrative Tribunal in VR87 of 2009.
b) The Legal Profession Complaints Committee marked for the attention of its legal Officer Ms. Lee Miere.
c) Filed with the Court of Appeal Registrar in CACV 75 of 2010.
d) Filed with the Court of Appeal in CACV41 of 2010 found at pages 157 to 163 of the Yellow Appeal Book by the Applicant.