Friday, December 17, 2010

P50 OF 2010 APPLICATION FOR SPECIAL LEAVE TO APPEAL CACV75 OF 2010 TO THE HIGH COURT OF AUSTRALIA

Form 23       Application for leave or special leave to appeal (rule 41.01.1)
IN THE HIGH COURT OF AUSTRALIA                          No.                   of 2010

[SYDNEY 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, Supreme Court of Western Australia given on 23.11.2010 in CACV 75 of 2010 and published on 7th December, 2010.  This case is also cited as CHIN V THIES [2010] WASCA 230 (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 in RE: MICHLIDES; EX PARTE CHIN [NO.2] [2010] WASC 169 (Michelides No.2):
21. Michelides No.2 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 is a separate decision of Ken Martin J 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 the First Respondent, 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 should and 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. On 8.2.2007, Templeman J ordered the wrongful caveat of the First Respondent dated 11.12.2006 to remain provided he started an action to end the dispute of his allegedly ZERO DEBT vexatious claim against the Second Respondent which the First Respondent knows was for his secret purpose of advancing his own interests over the interests of his own client the Second Defendant by exploiting his vulnerabilities.  He was hindered in his efforts because the Applicant exists as the Second Defendant’s father.
3.1.1.2.  After having misled Templeman J on the account of the fact that the Second Respondent had appeared in person and was without knowledge of the law, the First Respondent commenced legal proceedings against both the Second Respondent and his father the Applicant in FR417 of 2007 for the constantly escalating sum of some
$25k under circumstances where he had admitted that he was owed the sum of $3,500.00 at the time of the termination of his retainer on 21.2.2005, thus breaching his pre-contractual terms that he was to be paid $500.00 for his advocacy works whilst the quantum of his solicitors costs was to be separately agreed upon and approved by the Applicant as each new situation arises.  This modifies the costs agreement he had caused to be signed both the father and son with him.  Each time an agreement was reached on the quantum, the First Respondent was promptly paid for his services as soon as they were incurred.  There was therefore never any debt owing which justifies the writ in FR417 of 2007.
3.1.1.3. Under the terms of the settlement agreement, there was indeed a compromise reached between the Applicant and the First Respondent for the sum of $11,500.00 to be paid to him on 12.4.2007 which was indeed paid under duress.  The psychiatrist for the Second Respondent was also under duress just as the Applicant and his spouse who were present before the psychiatrist were also under duress.  The issue of the existence of the duress situation is undeniable as per the circumstances.  The Second Respondent was there to decide and of course he was also under duress;
3.1.1.4. Registrar Susan Wilde’s Consent Judgment of the Fremantle

Magistrates Court
in FR417 of 20007, dated 7.6.2007 is involuntary, as she had 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).
3.1.1.5.  The Sham Consent Judgment is the basis for the improper costs order  dated 20.5.2008 of Commissioner Herron in District Court Appeal No.6 of 2008, notwithstanding the fact that the Applicant has never appealed that decision as there was no necessity to do so under the circumstances (Commissioner Heron’s Order).
3.1.1.6.   Commissioner Herron’s Order is the basis for the Michelides No.2 judgment of Ken Martin J at [38] to stultify the righteous judgment of Hasluck J in Michelides No.1.  Hasluck J was subject to the improper influence of the former solicitor of the
First Respondent having written to His Honour and seeking to influence him against the Applicant.  But His Honour remained steadfast and true to his judicial oath of office to do justice to all parties.  Upon this being revealed to the Applicant, this matter became the subject of a complaint currently being dealt with by the LPCC.  This situation stands in contrast to what is palpably seen in the aftermath of these proceedings before Ken Martin J. The evidence before the court below speaks for itself.  
3.1.1.7.   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 in order to enable him to found 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.  The Applicant points out that a taxing master has legal scope to disagree with the judge who is higher in the echelon of service than himself to contradict a cost order which is plainly wrong and this cue is later taken up by Registrar Hewitt in a later proceedings in a different case affecting Mr. Alessandro Bertini in a District Court Appeal No.36 of 2008 by Judge Sullivan.  His Honour taxed the bill at zero costs.[1]
3.1.2. The court below is purported to have dismissed the Applicant’s Application for leave to appeal under Rule 43(2)(g)(i)[2] because none of the grounds of appeal have a reasonable prospect of succeeding or under Rule 44(2)(g)(ii)[3] for failure to comply with Rule 32(4)(b)[4] or that his submissions fail to comply with Rule 32(5)(1)[5]. 
3.1.3. 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’S 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 (Single Ground of Appeal)
If there is such failure to comply with the Rules, I humbly say that 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 Applicant is certain that the High Court would agree that the purpose of the court below is to provide fair justice and its mind should therefore not have been complicated by mere technicalities.
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[6]. 
3.1.5.2. The Rules involved in this case are directory Rules, the compliance with which is optional for the Applicant[7].
3.1.5.3. The Rules set out duties and procedures which the legislature intends or expect to be obeyed[8]. 
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[9].  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 having come to the court below without clean hands is therefore reasonably seen to be 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. I humbly say that the courts below know that although the sense of moral values may differ between different societies, morality here means justice and fair play and being able to distinguish between what is right and what is wrong.  This means that the courts below should never deign itself to 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[10] for determination by Ken Martin J in Michelides No.2 but it was not done (only the good law must be administered).  This is despite the fact that the Applicant agrees that the issue of morality cannot be advanced in any court of law per se but morality is recognized as a component of the law on the ground that Australian values may differ from the moral values of an Asian society. But do Australian values condone extortion by a member of the legal profession who is an officer of the court and whose very existence is to do justice to the common people and who has a bounden duty not to mislead the court.  The answer is self evident.   
3.1.5.6. The court below 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.   As an officer of the court, he has to uphold the integrity of the courts below and cannot subject his client to improper advice when he knows that his client was at fault.  Mr. 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 below, must in the circumstances, 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 below 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.  These continuing events may be summarized thus: Hasluck J has done his duties faithfully under s.36(1) of the Act to grant the statutory relief in the nature of the prerogative orders of Certiorari and it was up to Ken Martin J to similarly cope with his official duties in good faith under s.36(4) of the Act i.e. to adopt the normal approach - not to withhold that relief already granted by Hasluck J unless there are unjustifying circumstances for His Honour to do so.
3.1.5.9. The court below 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 in a unlawful manner and knowing that he had no caveatable interests to sustain his caveat. 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 below 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 for which a common law precept was also advance by the Applicant.
3.1.5.11. The court below 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 JA at the first hearing denied the Applicant his natural justice by refusing to make a legal determination through inviting a formal application from the First Respondent explaining his reasons and the circumstances as to why he should have been made a party to the subject application contrary to the provisions of the Rules and of the statute law governing it.  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 below 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[11].  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 merely directory and leads to the conclusion that the judgment below is wrong.
3.1.5.13. The court below knows that the First Respondent did not comply with 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 for hearing on 23.11.2010 at .  There is no two clear working days before the hearing date and time and the Applicant suffered a detriment as he was taken by surprise.  The court below is therefore inconsistent in implementing its own rules.
3.1.5.14.  The court below 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 integrity, impartiality and independence of the court below is clearly being compromised because it discriminates the Applicant 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 was seeking the court below to review the judgment below and informed it that it shall be away from the jurisdiction for the duration of December, 2010, January, 2011 until mid-February, 2011. The Applicant hoped that the court below would repair its own technical slip through s.33 of the Supreme Court Act, 1935 without causing the Applicant having to go through an appeal process in the High Court of Australia.  The court below for mysterious reasons finally delivered its written reason for its decision on 7th day of December, 2010 after a delay of 15 days without publishing it on the website of the Supreme Court of Western Australia despite requests by the Applicant.  The Applicant finally received the unpublished judgment only by email on 8th December, 2010 and by mail on 13.12.2010.   The last day for filing this Application is 19.12.2010 i.e. within 28 days counting from the date the judgment was delivered.
PARTICULARS OF THE ERRORS OF THE COURT BELOW IN THE BELOW JUDGMENT:
4.1. At [4], the First Respondent’s Caveat was unlawfully entered into the Second Respondent’s property without any reasonable basis either factual or legal for predicating a caveatable interests, which argument was accepted by Ken martin J in the mandate exclusion case as there was never any monies owing to the Applicant at all material times, on 11 December, 2006 (sic 1986).  Clause 18 of the retainer agreement does not confer a caveatable interest on the First Respondent as the purported charge cannot be effective when two essential conditions have not been fulfilled:
4.1.1. the charge, whether legal or equitable simply cannot exist when the retainer agreement does not identify the property to be so charged.
4.1.2. the First Respondent did not contribute to the rise in value of the caveat property in order to confer on himself an equitable interests on the caveat property for his alleged rights or entitlement to a caveatable interest of that particular property.
4.2. At [6] as from 8.2.2007, the First and Second Respondent agreed upon the payment of a non-debt of $5,500.00 in accord and satisfaction for his removal of his illegal caveat but the former was never serious nor sincere in settling that agreement.  Instead he was finding his unlawful caveat a useful “gun” for the criminal offence of extortion against the Applicant and the vulnerable Second Respondent who had to suffer a relapse of his drug induced psychosis caused by the escalating demands of the First Respondent for more and more monies for mysterious reasons even in circumstances when the First Respondent’s legal services had already been terminated by the Second Respondent as soon as he was seen to be reneging on his pre-contractual email correspondence contents, which was subsequently supplemented by a specific undertaking signed by him, the whole of which was included in the evidence before the courts below.    
4.3. At [7] and [8] the settlement deed is vitiated by duress and all parties involved including Registrar Wilde was aware of the duress situation despite the fact that a compromise had been reached between the parties on 12.4.2007 when $11,500.00 changed hands.   Registrar Wilde would not agree to enter this Sham Consent Judgment for the parties as she knew at all material times that the Applicant and the Second Respondent were acting under duress.  Therefore she delayed entering into that Sham Consent Judgment which she knew was voided by duress but she only did so upon the importunating conduct of the Applicant caused by the exigency of the circumstances as explained to her in his final letter dated 6.6.2007.  The Applicant was then experiencing some unbearable events and excruciating pain to see that his son the Second Respondent was suffering and had lost his mind.  This is the natural reaction of any father who was seeing that his son was being tortured by the First Respondent caused by his advantageous position as a solicitor and his superior knowledge of the law; any family members of the Applicant who are not professional lawyers would cower to the dictating and extortionate terms of the First Respondent and would have pressured the spouse or their father to settle this ZERO SUM DEBT quickly and efficaciously and not to allow anything to chance.   This situation is coupled with the fact that the law is so uncertain and that a legal professional is likely to know better that he can make magical claims for false debt and the courts are likely to reward him for his efforts.  Why the Applicant decided to settle with the First Respondent is caused by his then perception that the First Respondent is involved in a mysterious ability to make a ZERO SUM DEBT which has a magical ability to escalate to the sum of some $25k.  To be able to settle it for $11,500.00 appears like a boon to him, then. That torture and stress for all the family members of the Applicant became unbearable on the 6.6.2007 which occasioned that duress vitiated Sham Consent Judgment of Registrar Wilde on 7.6.2007.
4.4. At [9] barrister Scott Ellis was first consulted by the First Respondent when the Applicant started FR944 of 2007 before Magistrate Musk of the Fremantle

Magistrates Court
.   The former was paid the sum of $6,000.00 by the First Respondent for tendering him the wrong legal advice and therefore he knew that he would be sued by the First Respondent as he is not insured for solicitor’s work.   The former therefore persists in acting in a conflict of interest situation by misleading Ken Martin J in Michelides No.2 on 17.6.2010 to the effect that Registrar Wilde was not subjected to any form of duress by the First Respondent when she entered the Sham Consent Judgment on 7.6.2007, despite clear affidavit evidence to the contrary, that was presented before that learned trial judge.
4.5. At [10], Magistrate Michelides did not order the FR944 of 2007 to be transferred to the General Division of the

Magistrates Court
so as to escape the jurisdiction of the Minor Case Provisions of the
Magistrates Court
(Civil Proceedings) Act, 2004.  This event did not happen.  Indeed, the learned Magistrate Michelides was dealing with FR417 of 2007 and it was Magistrate Musk who dealt with the former case at all material times.   The latter case has always been a General Division Case and not a Minor Case, at all material times.
4.6 At [11] and [12] the First Respondent applied to have the Musk case of FR944 of 2007 dismissed which was made without jurisdiction by Magstrate Musk and not by Magistrate Michelides.  This is explained in Michelides No.1.
4.7. At [14] Commissioner Herron of the District Court Appeal No.6 of 2008 made a prejudgment when he admitted that he had no jurisdiction to deal with duress-vitiated Sham Consent Judgment in one breath but on the other hand, His Honour was siding with the wrongdoer who is the First Respondent and his error is palpably seen by his efforts to protect him.  That is the reason for his written judgment which appeared and then disappeared from the website of the District Court of Western Australia.  It was taken down by the authorities.  
4.8. At [16] Hasluck J pointed out that the s.36 Magistrates Court Act relief for review of the

Magistrates Court
at Fremantle decisions was in the form of a Certiorari Relief that has been coded into that Act, although Magistrates are not subject to mandatory orders under s.35 of that Act.  The then State Solicitor acting as the legal advisor for both Magistrates Michelides and Musk advised them to comply with Hasluck J Orders, which they did.  
4.9. At [18] Hasluck J ordered for the Affidavit Evidence to be filed by the First Respondent in response to the s.36 Orders granted by the former to the Applicant upon terms that the CIV1903 of 2008 proceedings be made inter-partes as it was begun ex-parte by the Applicant.  Hasluck J made time of the essence for that Order and further that the Responding Affidavit Evidence be precise and concise and be focused upon the pre-contractual correspondence between the Applicant and First Respondent.  At the same time, that document should be explaining the reasons why there had been mysterious escalations of legal costs despite the disputed retainer of the First Respondent having been terminated by the Second Respondent since the 21.2.2005.   The First Respondent failed to comply with those Orders to be implied from the wordings of His Honour expressed in those transcripts of those proceedings and as a consequence the conciliation proceedings between the parties before Registrar Rimmer failed.
4.10.  At [18] Ken Martin J was biased against the Applicant in every step of the way and a series of letters had been written to him requesting him to abdicate the role of the trial judge in Michelides No.2 but His Honour had not heeded.  This culminated in the Applicant’s Application in CIV1981 of 2010 seeking Mandamus Orders for his recusal.  This Application was made to the court below upon the directions of the Court of Appeal Registrar is pending and is separate from the subject of this Appeal of CACV 75 of 2010.  The Appellant’s case is based on firm legal grounds and the consumption of time and court’s resources is brought about by the First Respondent’s recalcitrant behaviour and criminal extortion (my due respect to him).  The Consent Judgment is void for want of jurisdiction arising from the duress situation and therefore the Musk, Michelides and Herron decisions are also void as they arise from same duress situation of the Sham Consent Judgment of Registrar Wilde.
4.11. At [19] The Commissioner Herron’s costs order in the sum of $5,921.42 is without jurisdiction and therefore void on the ground that the Minor Case Provisions of the Magistrates Court (Civil Proceeding)  Act, 2004 simply does not allow a ZERO SUM debt claim to be subject to any form of profit costs orders by the First Respondent.  The touchstone for recoverability of that void judgment simply does not exist. The First Respondent could sue the Applicant for the enforcement of that costs order and he did not.  There was never any need under the circumstances for the Applicant to appeal the decision of Commissioner Herron.  There is no basis for making that security costs order other than to stultify the just proceedings as ordered by the righteous judgment of Hasluck J.
4.12. At [20] it is not a dogged perseverance of the Applicant to pursue what is considered a paltry sum of $6,000.00 but the sum of $11,500.00 extorted from the Applicant himself and not from his son who is all too vulnerable.   It is not about money but it involves the conspiracy of the Pseudo Board of the regulator of the legal profession of WA who are covering up for their cronies one of which is the First Respondent and the second one is David Taylor Solicitor who falsified court records in CIV 1142 of 2005.  This matter is now the subject of an Application to rectify a technical error of the court below pursuant to s.33 of the Supreme Court Act, 1935 (WA) in CIV1877 of 2010 currently pending before a Court of Appeal judge.  Both committed criminal offences against the Applicant and the general public.   The Pseudo Board is conspiring to defeat justice contrary to s.135 of the Criminal Code 1913 (WA) to protect their cronies who are plundering and pillaging innocent and unsuspecting members of the public like Dr.Kheng Su Chan, Mr. Alessandro Bertini and many others.   Incidentally, Pullin JA and Newnes JA did refuse the Applicant leave to appeal once before against the Pseudo Board’s decision in CACV 107 of 2008 but the Applicant is now able to have the issue of the Pseudo Board, the Thies and Taylor purportedly false allegations by the Applicant to be decided in a pending appeal before the Court of Appeal in CACV 41 of 2010 after the Applicant having had to go through the roundabout way through Mandamus Orders against Heenan J and also after he had applied for Special Leave to appeal to the High Court.  The two meritorious reasons for judgments of High Court of Appeal in dismissing both the Special Leave in Appeal No.36 of 2009 and Appeal No. 1 of 2010 have given the Applicant better light and better scope for seeking justice in the court below.  
4.13 At [22] the court below must not concern itself with mere technicalities and forms and procedures to deny justice to the Applicant.  But it should focus on the issues that bear relevantly on the substantive law, namely that there was never any debt owing to the First Respondent by the Applicant arising out of the void judgments and null costs orders which are never enforceable.
4.14. At [25] the Applicant when notified by the Court of Appeal Registrar to show cause why that Application for Leave to Appeal in CACV 75 of 2010 should not be dismissed, the Applicant was misled in the belief acquired by him in a telephone conversation with the Associate, to the effect that there was no longer a need to amend the Appellant’s Case for the second time.
4.15 At [26], the issues are complicated and it would naturally be incomprehensible if no effort is made to understand it.  The Applicant believes that all his papers are reasonably comprehensible and he has taken pains to create an exhaustive preamble which is quite unorthodox.  On top of that he had prepared a Statement of Chronology which explains the series of events that occurred before Ken Martin J. 
4.16 At [27] Hasluck J had never ordered for the null costs orders and the void judgment of Commissioner Herron to be stayed as it is plain to the court below that the learned judge had no jurisdiction to do so under s.36 of the Magistrates Court Act, 2004.  It suffices to say that the Court of Appeal should be able to see only one GOLDEN THREAD through all the various sub-grounds of the Single Ground of Appeal- the issue of the SHAM CONSENT JUDGMENT.
4.17. At [29] , [30] and [31] the recusal of Ken Martin J is the subject of a separate application for Mandamus Orders in CIV 1981 of 2010 which is pending before a Court of Appeal Judge.
4.18. At [34], the appeal is caused by the fact that the law simply cannot exist in a vacuum without morality.  Morality is akin to the equitable aspect of justice and a sense of fair play and the judge must be able to distinguish between what is right and what is wrong and what is good and what is bad.  The law exists for the professed aims of the contending parties to obtain justice in a court of law.  The judge must therefore side with the wronged party against the wronging party.  How can the Applicant be subjected to torture and to duress by a ZERO SUM debt claim of the First Respondent using the Second Respondent’s vulnerability[12] as a conduit to facilitate his false claims against vulnerable persons which he knew all along would succumb to his threats wrought about by his superior knowledge of the law?  How can a court of law allow him to escape justice if it is for the reason of protecting its cronies.  The Court below has not applied the facts to the law and has therefore ended in having wrongly dismissed the Applicant’s Application for Leave.  
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 16th day of December, 2010.
                                                                    ..................(signed)..................                                                                 ( Applicant or Applicant's solicitor )

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.
< End of Document>




[1] See the website of the Applicant by Googling NICHOLAS N CHIN at http://nicholasnchin.blogspot.com/ in OBJECTION TO REGISTRAR POWELL AS TAXING MASTER OF BILL OF COSTS OF THE COURT OF APPEAL IN CACV 107 OF 2008 RESULTING FROM A TECHNICAL ERROR THAT WAS ORIGINALLY CAUSED BY REGISTRAR POWELL.

[2] 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:
"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 ..."
[3] The Subrule under r.43(2)(g)(ii)further provides:
"the appellant has not obeyed these rules or any order made under them". 
[4] 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] (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

[7] Id.
[8] Id.
[9] Id.
[10] The court below did not disagree with Hasluck J’s Order that the First Defendant do comply with Hasluck J in Michelides No. 1.  Hasluck J’s Order was disobeyed by the First Respondent.  Hasluck J made time the essence for the First Respondent to file his Defence Affidavit and delineated its quality in terms of the following:
a)       It should have been precise and concise;
b)       It should focus on the issue as to why his legal costs have been escalated astronomnically and unreasonably and without any legal basis despite his retainer being terminated since 21.2.2005.
c)       It should also focus also on the issue of the pre-contractual email correspondence between the Applicant and the First Respondent.
d)       It should be in time to be used for the purpose of achieving a negotiated settlement and compromise under Registrar Rimmer.  
[11] See footnote 6 above.
[12]  (1) Tern v McArthur, 1988 165 CLR at 489 - Taking advantage of vulnerability; (2) Bridge v Waters Leahy 1998, 194CLR at 457.-  If disability is demonstrated, the stronger party must show the transaction was fair; (3) Commercial Bank of Australia Ltd v Amadio 1983, 151 CLR 447 – The vitiation of the will has been the traditional concern of the courts in the law of undue influence;  (4) Johnson v Buttrest 1936, 56 CLR 113 – The two rationales of the “overborne will theory” and that of fiduciary obligationship must be taken into account.  The two rationales should go hand in hand;  (5) Legionaire v Hateley 1983 152 CLR 292 – A person with a legal right cannot exercise it in an unconscionable manner; and (6) Blomley v Ryan 1956, 99CLR362 – An unconscionable dealing may give rise to an independent ground of equitable relief.   
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