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Chin v Thies & Anor (P50-2010) [2011] HCASL 25 (9 March 2011)
Last Updated: 11 March 2011NICHOLAS NI KOK CHIN
v
TIMOTHY ROBIN THIES & ANOR
[2011] HCASL 25
P50/2010
v
TIMOTHY ROBIN THIES & ANOR
[2011] HCASL 25
P50/2010
- The background to the present dispute stems back to November 2004, when the first respondent agreed to act on behalf of the second respondent, the son of the applicant, in proceedings in the District Court of Western Australia. It was common ground that the applicant and the second respondent were to be responsible for payment of the first respondent's fees and disbursements. A dispute arose concerning the fees and the first respondent commenced proceedings in the Magistrates Court claiming $24,685.61 pursuant to his retainer. Pursuant to a deed of settlement entered into on or about 12 April 2007, the applicant and the second respondent agreed to pay the first respondent $11,500. A consent judgment was entered on 7 June 2007 in the Fremantle Magistrates Court.
- On 20 August 2007, the applicant commenced proceedings in that Court against the first respondent seeking the return of (among other things) a portion ($6,000) of the settlement monies. Those proceedings were dismissed by Magistrate Musk on 9 January 2008 and an appeal to the District Court (Commissioner Heron) was dismissed on 28 May 2008. Commissioner Herron held that Magistrate Musk was correct in finding that she did not have the power to set the consent judgment aside.
- On 24 July 2008, the applicant filed an originating summons in the Supreme Court of Western Australia, seeking a writ of certiorari to quash the orders of Magistrate Musk, and certain other orders made in those proceedings, and prerogative relief directed to the dismissal of the applicant's appeal in the District Court.
- Hasluck J held that prerogative relief was not available but made orders for review pursuant to s 36 of the Magistrates Court Act 2004 (WA). His Honour made no order with respect to the decision of Commissioner Heron.
- Prior to the s 36 review the first respondent sought an order for security for costs of that proceeding. On 8 July 2010, Martin J ordered that the applicant pay the sum of $20,000 into court for security for the first respondent's costs in the proceedings in the Supreme Court. His Honour's view was that the applicant's case was inherently weak, but the first respondent was likely to incur significant costs in defending it. An application to the Court of Appeal (Pullin and Newnes JJA) for leave to appeal was unsuccessful. On 7 December 2010, the Court held that there was no substance to the allegation that the primary judge had exhibited bias and the applicant's allegations were otherwise without merit, unsupported, obscure, scandalous and prolix.
- An appeal to this Court would not enjoy any real prospects of success. Special leave is refused.
- Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
W.M.C. Gummow | S.M. Kiefel |
9 March 2011 |
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URL: http://www.austlii.edu.au/au/cases/cth/HCASL/2011/25.html
THE HIGH COURT HAS REFINED THE ONLY ISSUE LEFT FOR ME TO TAKE UP WITH THE COURT OF APPEAL, WITH THESE WORDS:
ReplyDeleteOn 7 December 2010, the Court held that there was no substance to the allegation that the primary judge had exhibited bias and the applicant's allegations were otherwise without merit, unsupported, obscure, scandalous and prolix.
IT IS NOW UP TO ME TO TAKE UP THIS ISSUE WITH THE COURT OF APPEAL.
LOOK AT THE HIGH COURT JUDGMENT IN PARAGRAPH 1:
ReplyDeletePursuant to a deed of settlement entered into on or about 12 April 2007, the applicant and the second respondent agreed to pay the first respondent $11,500.
THE HIGH DID NOT DECIDE ON THE ISSUE OF THE COERCED DEED OF SETTLEMENT THAT WAS THE SUBJECT OF THE DURESS EXERTED BY THE FIRST RESPONDENT AGAINST THE THE APPLICANT AND THE SECOND RESPONDENT. SO THIS ISSUE IS NOT RES JUDICATA AND CAN BE TAKEN UP AGAIN IN THE COURT BELOW.
LOOK AT PARAGRAPH 1 OF THE HIGH COURT JUDGMENT AGAIN:
ReplyDeleteA consent judgment was entered on 7 June 2007 in the Fremantle Magistrates Court.
THE HIGH COURT AGAIN DID NOT DECIDE ON THE ISSUE THAT REGISTRAR SUSAN WILDE WAS UNDER DURESS AND DID NOT ENTER INTO THAT CONSENT JUDGMENT OF HER OWN VOLITION. THIS IS EVIDENCED BY THE LETTER OF THE APPLICANT DATED 6.6.2007 WHICH CAUSED HER TO ENTER INTO THAT NON-CONSENSUAL VOID CONSENT JUDGMENT. THIS IS ANOTHER ISSUE THAT I COULD TAKE UP IN THE COURT BELOW ON THE GROUND THAT IT IS NON-RES JUDICATA.
LOOK AT PARAGRAPH 2 OF THE HIGH COURT JUDGMENT: Commissioner Herron held that Magistrate Musk was correct in finding that she did not have the power to set the consent judgment aside.
ReplyDeleteTHE HIGH COURT DID NOT DECIDE ON THE ISSUE OF REGISTRAR WILDE'S VOID NON-CONSENSUAL JUDGMENT IN FR417 OF 2007 GIVEN ON 7.6.2007. IF IT DID THEN IT WOULD HAVE REALISED THAT BOTH REGISTRAR WILDE'S NON-CONSENSUAL VOID CONSENT JUDGMENT IN FR417 OF 2007 MAGISTRATE MUSK DECISION IN FR944 OF 2007 ARE VOID JUDGMENTS BECAUSE THE LATTER IS BASED ON THE FORMER. IF THE FORMER IS VOID, THE LATTER MUST ALSO BE VOID. CONSEQUENTLY, COMMISSIONER HERRON'S DECISION IN DISTRICT COURT APPEAL NO.6 OF 2008 MUST ALSO BE VOID BECAUSE IT IS ALSO BASED ON REGISTRAR WILDE'S VOID NON-CONSENSUAL JUDGMENT.
LOOK AT PARAGRAPH 5 OF THE HIGH COURT JUDGMENT: Prior to the s 36 review the first respondent sought an order for security for costs of that proceeding.
ReplyDeleteTHE HIGH COURT MADE AN ERROR OF FACT:
1) THE S.36(1)REVIEW IN MICHELIDES NO.1 WAS BEGUN ON 24.7.2008 AND DECIDED BY HASLUCK J ON 7.11.2008.
2) THE S.36(4) REVIEW IN MICHELIDES NO.2 WAS SUPPLANTED BY A SECURITY COSTS ORDER TO OBSTRUCT JUSTICE BROUGHT ABOUT BY THE FIRST RESPONDENT THROUGH BARRISTER SCOTT ELLIS WHO MISLED KEN MARTIN J TO THE EFFECT THAT THERE IS NO EVIDENCE THAT REGISTRAR WILD WAS UNDER DURESS WHEN SHE DELIVERED THE NON-CONSENSUAL DURESS-VITIATED NULL CONSENT ORDER IN FR 417 OF 2007 (THE SUPPLANTED SECURITY COSTS ORDER).
3) THE SUPPLANTED SECURITY COSTS ORDER WAS HEARD BY KEN MARTIN J ON 17.6.2010 AND DELIVERED ON 8.7.2010 THUS CANNOT BE AN APPLICATION WHICH WAS MADE PRIOR TO THE S.36 REVIEW OF HASLUCK J (THE ERROR OF THE HIGH COURT).
THE SUBJECT MATTER OF THE SPECIAL LEAVE APPLICATION IN P50 OF 2010 IS NOT MAGISTRATE MUSK IS BIASED IN FAVOUR OF THE FIRST RESPONDENT BUT WHETHER KEN MARTIN J WAS CORRECT IN DECIDING WHETHER THE SECURITY COSTS SHOULD BE IMPOSED UPON TWO GROUNDS:
ReplyDeleteA) THE APPLICANT'S CASE IN MICHELIDES NO.1 IS INHERENTLY WEAK.
B) THERE IS A DEBT OWING TO THE FIRST RESPONDENT BY THE SECOND DEFENDANT ARISING OUT OF VOID COSTS ORDER OF COMMISSIONER HERRON'S IN DISTRICT COURT APPEAL NO.6 OF 2008 WHICH RESTS UPON THE VOID NON-CONSENSUAL DURESS-VITIATED CONSENT ORDER OF REGISTRAR WILDE IN FR417 OF 2007.
THE ISSUES CANVASSED IN THE SIX COMMENTS BY THE APPLICANT AS INDICATED ABOVE HAS NEVER BEEN DECIDED BY THE HIGH COURT NOR BY THE COURT OF APPEAL IN CACV 75 OF 2010. THOSE ISSUES ARE THEREFORE NEVER RES JUDICATA AND THEY THEREFORE CAN BE ADJUDICATED UPON AGAIN BY A SINGLE JUDGE OF THE SUPREME COURT OF WESTERN AUSTRALIA WHO MUST MEET THE CONDITIONS OF JUSTICE, NAMELY: INDEPENDENCE, INTEGRITY AND IMPARTIALITY.
ReplyDeleteTHE ISSUE WHETHER OR NOT MAGISTRATE MUSK WAS BIASED OR NOT AGAINST THE APPLICANT RESTS UPON THE CREDIBILITY OF THE COURT OF APPEAL IN CACV 75 OF 2010 I.E. THEIR HONOURS PULLIN JA AND NEWNES JA. THERE IS ABUNDANT EVIDENCE THAT MAGISTRATE MUSK IS BIASED AGAINST THE APPLICANT. HER HONOUR REFUSED TO ACCEPT THE RELEVANT CONSIDERATION THAT DURESS WAS BEING EXERTED UPON THE APPLICANT AND THE SECOND RESPONDENT AND UPON REGISTRAR SUSAN WILDE IN FR 417 OF 2007. NO REASONABLE PERSON WOULD DENY THAT MAGISTRATE MUSK WAS BIASED. EVEN HIS HONOUR JUSTICE HASLUCK HAD PUT A STAY ON HER ORDERS. WHY WOULD HIS HONOUR DO THIS, IF MAGISTRATE MUSK IS NOT BIASED.
ReplyDeleteTHE THEN STATE SOLICITOR, THE HONOURABLE TIMOTHY SHARP ALSO ADVISED MAGISTRATE MUSK IN FR944 OF 2007 AND MAGISTRATE MICHELIDES IN FR417 OF 2007 THAT BOTH OF THEM WERE BIASED. NOW EVERYONE SEEMS TO BE IN A CIRCUS. WHY IS JUSTICE BEING EVADED OR IS THE LEGAL SYSTEM A CLUB FOR THE ELITES ONLY?
ReplyDelete