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THE SUPREME COURT OF
WESTERN AUSTRALIA
COURT OF APPEAL
CACV 41 of 2010
NICHOLAS NI KOK CHIN
and
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
NEWNES JA
MURPHY JA
HALL J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 11 MARCH 2011, AT 10.30 AM
The appellant appeared in person.
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(s&c)
THE ASSOCIATE: In the Supreme Court, Court of Appeal, Chin v Legal Practice Board of Western Australia, CACV 41 of 2010.
NEWNES JA: Yes, Mr Chin? You are appearing on your own behalf today.
CHIN, MR: Good morning, sir.
NEWNES JA: Mr Chin, did you want to say something?
CHIN, MR: Sir, I am here today to object to your Honour Newnes JA on the ground of apprehended bias and conflict of interest that your Honour recuse yourself from hearing this case. It is a very, very important matter for me, your Honour, and your Honour has made a few mistakes in the past and despite my persuasion, my great efforts in persuading your Honour to the contrary, your Honour insists on making those mistakes.
NEWNES JA: The grounds of your application, as I understand it, are that I have decided prior matters against you and in particular CACV 105 of 2008 and CACV 75 of 2010. Is that correct?
CHIN, MR: Yes, sir. Can I please put on my earphone? As for CACV 105, your Honour was involved in the interim decisions. Your Honour did not make any comment, and the final decision was made by his Honour Pullin JA. Pullin JA struck out my leave for appeal on a technical ground and that shouldn't have been the case - - -
NEWNES JA: Mr Chin, I just want to understand - - -
CHIN, MR: - - - because Pullin JA told me to appeal, to go against all the grounds of Chaney J and asked me to write everything in detail. I did that and he said it is too long. Then he struck it off, but the barrister who was present at that time arguing against my special - - -
NEWNES JA: Mr Chin, what has that got to do with your application that I disqualify myself?
CHIN, MR: I can't hear your Honour.
NEWNES JA: What has that got to do with your application that I disqualify myself from hearing this appeal today?
CHIN, MR: We will go to - your Honour I think was present in CACV 107 at the interim decision, together with Pullin JA. Finally that case was dismissed by the Court of Appeal consisting of McLure P, Owen JA and Buss JA but in the interim proceedings, I could not find any fault. Really the fault that I can find is in CACV 75 of 2010. That is my case against Timothy Robin Thies. Your Honour
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made the decision in admitting - that was an ex parte application but your Honour allowed Timothy Robin Thies to be made a party, contrary to the rules and regulations of the Supreme Court, contrary to the relevant section of the Supreme Court Act. That is an ex parte application and the other party should not be admitted unless I have the opportunity of rebutting his admission. After your Honour allowed Mr Timothy Robin Thies to be admitted, the rules make it mandatory that Mr Timothy Robin Thies must - must - reply or answer my appellant's case and he did not have to reply. As a result, the case was dismissed on a technicality. It is not the substance of law that my case was dismissed but it was on a technicality.
NEWNES JA: Just to understand your submission, you object to my sitting on this matter because in CACV 75 of 2010, I think it was, I decided the matter against you and made certain rulings as a question of law. Is that the proposition?
CHIN, MR: Your Honour, if you had allowed Mr Thies to enter as a party to that ex parte application, the law clearly states that as an ex parte application I should have the chance to rebut that but you didn't give me a chance.
NEWNES JA: I understand the grounds of your application now. Is that what you wanted to say in support of it?
CHIN, MR: There are some more things that I need to say, sir. The other thing is the case of CIV 1981 where I asked for prerogative orders against Ken Martin J. The evidence is very clear that Ken Martin J - - -
NEWNES JA: Perhaps you can start by explaining how you say it is that some involvement that I may have had would lead to a reasonable apprehension of bias in respect of those proceedings.
CHIN, MR: Yes, your Honour. I am sorry to say that to you but, your Honour, I am very, very frightened what will happen to me because I want justice. I don't want to go through the process again of having to appeal to the High Court and coming back where the High Court avoided the issue because the lower court has avoided those issues. I just want to get on with my life. I cannot go on because it is causing me so much trauma.
NEWNES JA: But can I go back to the matter you just raised a moment ago? There was an application you made for prerogative relief regarding a decision of Kenneth Martin J.
CHIN, MR: Yes, sir.
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NEWNES JA: What is the ground upon which you say I should qualify myself arising out of those proceedings?
CHIN, MR: Yes, sir. There is another point.
NEWNES JA: No. Just tell me that. What is the basis upon which you say that some involvement that I apparently had which you haven't yet explained - - -
CHIN, MR: Yes. Ken Martin J ordered against me on two things. One is the second stage of the 1903 of 2008 case where Hasluck J had already made a pronouncement in my favour. Ken Martin J made a pronouncement in my disfavour without any basis of the law. Ken Martin J disregarded a very, very important thing. Barristers Court Ellis misled Ken Martin J on the point.
NEWNES JA: Mr Chin, you will have to come to the point.
MURPHY JA: What is the connection between Martin J making an error and your application to have Newnes JA recuse ‑ ‑ ‑
CHIN, MR: My case was dismissed by his Honour Newnes JA. Newnes JA should have seen that point regarding Ken Martin J.
NEWNES JA: I understand those grounds.
CHIN, MR: Also, sir - I haven't finished, sir. Newnes JA did not see - and I tried to make Newnes JA see - that Barristers Court Ellis misled Ken Martin. He misled him to the effect that the order of Registrar While of the Fremantle Magistrates Court in FR 417 of 2007 was a judgment made under duress. That was proven by the letter that was sent to everybody including the Supreme Court registrar, including the Supreme Court judges.
MURPHY JA: Do you say that Newnes JA is actually biased against you or just that there is a reasonable apprehension of bias? Do you assert an alleged actual bias?
CHIN, MR: There is a real possibility of bias, sir.
MURPHY JA: Actual bias or just an apprehension?
CHIN, MR: There is actual bias.
MURPHY JA: Against you?
CHIN, MR: Against me.
MURPHY JA: By Newnes JA?
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CHIN, MR: Yes. Newnes JA refused to see that Barristers Court Ellis had misled the court and I have complained to the LPCC and the evidence is before the court. Ken Martin J just ignored that the barrister has flouted the law. That is a very, very important thing. Barristers Court Ellis should never be allowed to do that because he has evidence before him, and yet he misled the court in saying that Registrar While never made a duress judgment.
MURPHY JA: Forget about what the barrister did. Your allegation is that Newnes JA is guilty of actual bias against you, is it?
CHIN, MR: Both actual bias and apprehended bias, sir.
NEWNES JA: Very well. Those are the grounds upon which you seek that I should disqualify myself.
CHIN, MR: There is another one, sir.
NEWNES JA: All right. Deal with that.
CHIN, MR: Can I say - - -
NEWNES JA: Yes. Deal with that.
CHIN, MR: Ken Martin J said that I cannot act for my son. It is true that I cannot act for my son as his lawyer, but at all relevant times I never acted for my son as his lawyer but I am the spokesperson for my son. I was standing up for my son in my own case. I was never - and therefore I wasn't a public officer. I wasn't a lawyer. Because I wasn't a lawyer, there is no conflict of interest. It is my own personal interest and Newnes JA refused to see that point, sir.
NEWNES JA: Very well. Thank you, Mr Chin. I will not disqualify myself, so your application is refused and I will provide reasons in due course. We need to turn to the substantive appeal.
CHIN, MR: Sir, let me finish one more point - the decision by Ken Martin J asking me to pay a security for costs order on two grounds. Ground number 1 is that I owe a debt to Timothy Robin Thies which I never owed him at all, because that District Court decision was based on the void judgment of Registrar While and if Registrar While's judgment is under duress and void, therefore that District Court judgment cannot stand on its own feet and must also be void.
NEWNES JA: I am sorry. What are you now submitting - that there is another ground?
CHIN, MR: There is another ground, sir.
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NEWNES JA: All right. Go on. Just complete it.
CHIN, MR: The other ground is that my case is an inherently weak case. My case is never inherently weak because Timothy Robin Thies did not comply with Hasluck J's order which made time of the essence. He did not comply within the time. Hasluck J also made the order that the affidavit of Timothy Robin Thies must contain details specific - specific - to why his costs have been escalating and why, after his services have been terminated, he can still ask for costs as a solicitor. That point was raised many times and Newnes JA still did not take heed of that point.
NEWNES JA: Thank you, Mr Chin. The position remains the same. I refuse to disqualify myself, so your application is dismissed. Can we turn to the appeal which is CACV 41 of 2010?
CHIN, MR: Sir, I have got to raise another point. The point is that I have been telling about the pseudo-board. The pseudo-board - - -
NEWNES JA: Mr Chin, I am going to stop you there. Are these submissions in relation to the appeal or do they go to something else?
CHIN, MR: Yes, sir.
NEWNES JA: Before you start, let me tell you that you can proceed on the basis that we have read the judgment of Heenan J, the grounds of appeal and the submissions that you have put before us. You don't need to go back over that material but this is an opportunity for you to explain or elaborate upon things that you think you need to explain or elaborate upon in relation to the matters raised in the grounds of appeal. We have your submissions both in the white appeal book and in the oral submissions - I am not sure that is dated. Yes, they are - 11 March. We have read all that material. There is no need to go back over that in and of itself but you can now deal with any other matters you think you need to.
CHIN, MR: Sir, there is one more point that I want to make upon why you need to recuse yourself, sir. That point is about the two persons who wrote a letter on 9 March to me. That two person never signified or identified himself - who he is.
NEWNES JA: I am sorry, Mr Chin. I don't follow what you are referring to. What are you referring to now?
CHIN, MR: Whether he is a solicitor. He said he is a counsel but he never identified his name, so I don't know who that two person is. That two person is writing on
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behalf of Miranda Breisch. Miranda Breisch is the person who has already - who is the subject of my complaint to the LPCC.
NEWNES JA: Mr Chin, I am sorry; I am going to have to stop you.
CHIN, MR: Sir, let me finish it please.
NEWNES JA: I am going to have to stop you please.
CHIN, MR: Sir - - -
NEWNES JA: I don't understand at the moment and I need to understand what you are now addressing. You have referred to a letter. From whom is the letter and to whom is the letter?
CHIN, MR: That letter was faxed to me, to Ms Breisch, the acting Court of Appeal registrar and was addressed to me and faxed to me at my home. That letter bears two signatures.
MURPHY JA: Is that in the appeal papers that we are looking at?
CHIN, MR: Say it again, sir.
MURPHY JA: Is that in the appeal papers before us?
CHIN, MR: No, sir.
MURPHY JA: You are addressing a letter that we don't have, are you?
CHIN, MR: I have got the letter, sir.
NEWNES JA: What does this go to? What is the point you are seeking to make about that letter?
CHIN, MR: The point is Ms Breisch - that letter is purported to have been written on behalf of Ms Breisch.
NEWNES JA: What is the point you are seeking to make though?
CHIN, MR: Ms Breisch is in conflict of interest because Ms Breisch is the person who had contacted Heenan J secretly.
NEWNES JA: Mr Chin, I am sorry; you will have to tell me: what is the point that you are seeking to make arising out of the letter?
CHIN, MR: That letter is claiming the right for the Legal
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Practice Board to decide that it has got the right to decide who the judges are going to be.
NEWNES JA: If the letter is the one I understand it to be, a letter was sent to the Legal Practice Board by a Court of Appeal registrar inquiring whether the Legal Practice Board was aware of any conflict of interest which would prevent any of the current members of this quorum from sitting on this appeal and the letter from Ms Breisch of 9 March said that to her knowledge there was no conflict of interest which would have that effect. Is that the correspondence you are referring to?
CHIN, MR: Yes.
NEWNES JA: Now, what is the point you seek to make?
CHIN, MR: The point I seek to make is that Breisch cannot act as a solicitor for the Legal Practice Board any more because she was responsible for contact Heenan J secretly and that had cost me - - -
NEWNES JA: Mr Chin - - -
CHIN, MR: Heenan J did take an abrupt about-turn decision and that is - - -
NEWNES JA: Mr Chin, I am going to stop you.
CHIN, MR: - - - the cost of my appeal.
NEWNES JA: Mr Chin, will you please stop when I ask you to? Mr Chin, unless there is some substantive point arising out of that correspondence we will move on to the appeal. We are not here to hear the complaints you may have about Ms Breisch. We are here to deal with your appeal.
CHIN, MR: Sir, the successive point is that Ms Breisch has admitted and Heenan J himself has admitted that he was secretly communicated with by Ms Breisch which cost - - -
MURPHY JA: This is point 3 of your grounds of appeal, is it?
CHIN, MR: That is part of the grounds of appeal, sir.
MURPHY JA: Do you have the grounds of appeal there?
CHIN, MR: Yes, sir.
MURPHY JA: Can you get them out please? Mr Chin, you have to make submissions with reference to the grounds of appeal. You can't just stand there and talk without directing your submissions to the grounds of appeal or
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having any focus to your submissions. Are you making a submission now about point 3 of your grounds of appeal on page 8 of the white book?
CHIN, MR: Yes, 3.0, sir, about the decision of Heenan J:
MURPHY JA: Mr Chin, we can read that. You needn't read it out to us. We can read the ground of appeal. You tell us what you say this letter has to do with this ground of appeal?
CHIN, MR: There is correspondence to the effect - and also in the transcript - that Heenan J was contacted on 20 April secretly and as a result on 21 April I was in attendance before Heenan J when he dismissed my case but on 6 April Heenan J has ordered that the LPCC answer my case and the LPCC has not answered my case. Heenan J gave 10 days for the LPCC to answer my case. Because the LPCC did not answer my case within 10 days, he was secretly contacted on the 20th and as a result Heenan J made an about turn.
MURPHY JA: So that's the error in point 3.
CHIN, MR: Yes, sir.
NEWNES JA: Mr Chin, you were referring to the correspondence in March this year, a few days ago.
CHIN, MR: Yes, sir.
NEWNES JA: That doesn't relate to this ground.
CHIN, MR: I'm saying that because Ms Breisch had secretly been involved in contacting Heenan J, she should never be the solicitor for the Legal Practice Board. Also those two people who signed for Ms Breisch - they are the people who should disclose their identity and tell me who they are, because lawyers as officers of the court have to be honest. They cannot say something dishonest and hide behind Ms Breisch - who don't have the authority to speak on behalf of the Legal Practice Board.
NEWNES JA: Mr Chin, is there anything else that you want to deal with in relation to your grounds of appeal that you haven't sufficiently dealt with in the sets of written submissions that you have filed?
CHIN, MR: Therefore, your Honour, my objection that his Honour Newnes JA should not be hearing this case must be sustained and must not be affected by the letter of 9 March. Further - - -
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NEWNES JA: Mr Chin, stop. I have already ruled that I will not disqualify myself. You need to move on to the substantive issues on the appeal.
CHIN, MR: Sir, if you do not disqualify myself (sic) I am feeling very, very sick now and I am about to collapse. I cannot have this case go on.
NEWNES JA: If you would like to sit down to make your submissions, you may do that.
CHIN, MR: I'm sorry, your Honour, that your Honour does not want to recuse. It is very clear that the Legal Practice Board has already abdicated from participating in this appeal. The Legal Practice Board no longer wants to participate. The Legal Practice Board does not have the right to say, "I want Newnes JA to be here".
MURPHY JA: Mr Chin, you are shouting at us.
CHIN, MR: Say again, sir?
MURPHY JA: You are shouting at us.
CHIN, MR: Sorry, sir. I am so sorry.
NEWNES JA: Mr Chin, is there anything else you want to say in support of your grounds of appeal that is not contained in the written material that you have provided to us?
CHIN, MR: What I want to say is to repeat - - -
NEWNES JA: No, don't repeat things.
CHIN, MR: - - - the Latin axiom. The Latin axiom is that he who does not deny, admits it. The Legal Practice Board never denied their contempt of all my documents filed in CACV 41 of 2010.
MURPHY JA: Is that a Latin maxim?
CHIN, MR: Yes - qui non negat fatetur, sir: he who does not deny, admits it, your Honour. Your Honour, I just cannot proceed. I just cannot proceed because the consequences of Heenan J being involved further in this matter will cost me further torture and will cost me further mental harm. In the interests of justice, justice must be seen to be done because his Honour Newnes JA is not being very rational in refusing to recuse himself. I am so sorry, your Honour Newnes JA, but that is my position. I believe there is no longer any doubt in my mind - - -
NEWNES JA: Mr Chin, you have made your submissions.
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CHIN, MR: - - - that Newnes JA has been fixed and therefore I as a party who is going to suffer injustice will not proceed with this matter.
NEWNES JA: Mr Chin, you have made your application. It has been refused - that I disqualify myself. It has been refused. I am now saying to you: are there any further oral submissions that you want to put in support of your grounds of appeal that you don't consider have been adequately dealt with in the written material?
CHIN, MR: Yes.
NEWNES JA: You need to focus on the grounds of appeal now.
CHIN, MR: Yes, sir.
NEWNES JA: There is no need to repeat what you have already said.
CHIN, MR: If I make the submission to you, your Honour, your Honour is going to continue to be biased against me. That will not do because I am not getting justice. You know what happened to me when I got that letter of 9 March, when I apprehended that the Legal Practice Board is trying to fix the judges to hear this case? As it happened in the past, it will happen again and again, because there are powerful members of the pseudo-board. The pseudo-board consists of any four members and these members can change, but these four members - they can secretly do something. They can secretly get together and say something and do something.
NEWNES JA: Mr Chin - - -
CHIN, MR: They can sit down and then decide to do something. That is what I am talking about.
NEWNES JA: Mr Chin - - -
CHIN, MR: That is what has been happening so far.
NEWNES JA: Mr Chin, will you please - - -
CHIN, MR: My argument is that the pseudo-board exists and the pseudo-board must not be allowed to fester (sic) the real regulator of the legal profession. The real regulator of the legal profession consists of 52 members.
NEWNES JA: Mr Chin, you are shouting again.
CHIN, MR: And they must, your Honour - they must sit down and deliberate and decide - - -
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HALL J: Mr Chin, have you got your hearing aid turned on?
CHIN, MR: Say it again, sir?
HALL J: Have you got your hearing aid turned on?
CHIN, MR: Have I - - -
HALL J: - - - got your hearing aid turned on?
CHIN, MR: Yes, sir.
NEWNES JA: Mr Chin, are you addressing the grounds of appeal now and, if so, which ground of appeal are you addressing?
CHIN, MR: Sir, I cannot go on. I cannot go on. I know what is going to happen to me. I just can't go on. I cannot go on.
NEWNES JA: Mr Chin, we have heard what you have had to say in relation to the appeal and we have had the benefit of the extensive written material that has been provided. We will reserve our decision. The court will now adjourn.
CHIN, MR: Sir, if it please the court.
AT 11.02 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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