Our Ref: CIV1689 OF 2011.
Your Ref: SSO 3289-10
Thursday, April 21, 2011
The State Solicitor for Western Australia
141 St. Georges Terrace
Atten: Ms. Kah Yee Loh, Solicitor.
Fax: 08 9264 1670 BY FACSIMILE
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of Western Australia
Fax: 08- 9221 4436 BY FACSIMILE
Dear Sir
CIV 1689 OF 2011: THE PRINCIPAL REGISTRAR OF THE SUPREME COURT OF WESTERN AUSTRALIA V NICHOLAS NI KOK CHIN
I refer to your having served me with a Notice of Originating Motion under s. 4 of the Vexatious Proceedings Restrictions Act, 2002 yesterday. I refer to my telephone conversation with your Solicitor Ms. Kah Yee Loh this morning, in which I had broached the subject of the State Solicitor having misconceived this action. The misconception refers to what I would consider is a fanciful idea that I am a vexatious litigant under circumstances where I can truly vouched that I have never ever abused the process of court of tribunal, nor ever started or conduct any action with the intention to annoy, harass or to cause delay or detriment to the regulator of the legal profession in WA for the purpose of achieving any wrongful purpose; as all my actions are based on reasonable grounds.
I am pinpointing to the fact that what I am faced with is not a dark conspiracy, but a real conspiracy in “life and blood” proportions, of the malicious prosecution of me by the LPCC and the Pseudo Board working hand in hand with members of the judiciary, a member of which is Registrar Powell who has already resigned and the matter is now under police investigation. The problem is that the Pseudo Board is reasonably seen to be acting without authority to protect their cronies in the persons of Solicitor David Taylor and Timothy Robin Thies etc. The Real Board is unaware that its legal authority has been usurped by a Pseudo Board going on a frolic of its own. I have managed to put up my website which is accessible by any member of the public at my blogspot by Googling my name “NICHOLASNCHIN” where you read for more details, which may not be obtainable from the 16 volumes of court documents delivered to me by you.
All my troubles started through my having responded to my duties as an officer of the court, to the court first and to my former client Dr. Kheng Su Chan, second, when I unwittingly offended a former President of the Law Society of Western Australia, Mr. Pino Monaco. The trail of evidence points literally to the fact that all my troubles emanates from the portals of the Law Society of Western Australia wielding its clandestine influence over its former Presidents in the persons of their Honours Judge Eckert, the then Judge and now Justice Chaney and Justice Ken Martin, who adopted a belligerent attitude towards me and who were not willing to do their duties to uphold justice by respecting the three pillars of justice namely: INTEGRITY, INDEPENDENCE and IMPARTIALITY. I have also my learned friends misleading the court, unscathed, like barrister Peter Quinlan submitting before Judge Eckert that it is “okay” to create falsehoods about me so that I could be restrained in my independent law practice based on the false notion of a perceived deficiency of my professional knowledge and barrister Scott Ellis telling Ken Martin J telling the untruth that there is no evidence before the court that the consent judgment of Registrar Susan Wilde in FR417 of 2007 was caused by the duress of solicitor Timothy Robin Thies, in CIV 1903 of 2008, exerted upon that learned registrar. Indeed the Pseudo Board does not have the public good intention of promoting better governance of Western Australia
I have been through all the actions which you are thinking of considering them as an abuse of process of court, and they are now nearly at their completion stages. Although I have made mistakes in the process I have not, however, abused the process. The issues for trial may have been avoided by Chaney J, Pullin, Newnes JJA and Ken Martin J but they have now become clearer; they have since been tried before the Court of Appeal in CACV41 of 2010 comprising of Newnes, Murphy JJA and Hall J: my two disputes with fellow solicitors David Taylor and Timothy Robin Thies, the Pseudo Board and the President Steytler Consent Judgment in CACV 43 of 2007. Once these four issues are fully tried they will be in the form of a written judgment. If it is deficient, I will have the issues that are wrongly judged be corrected by a Review Process and if they are being left out or avoided and then I will have it litigated again in another forum as they are not barred by the principles of res judicata. Surely, this cannot be an abuse of process.
All I can say is that I had depended on the various Justices in the past to decide only on those issues that were before them, but not every Justice was willing to fulfill their duties arising from their respective oaths of office, either inadvertently or purposefully. It all boils down to one fact, if they have been on a frolic of their own, the evidence is in their respective reasons for decision in their written judgment. If they are deficient they cannot be used to enforce the rights of the respective parties, let alone the rights of the Legal Practice Board. It is not until the written judgments reached the acme of their perfections that I will have to stop the legitimate process of re-litigation on non-res judicata issues.
The complexity of my case caused by my ambition to reach “finesse” in my current litigation has sent heads reeling, like Ms. Le Miere who was recently unable to answer my eight questions as contained in my letter dated 21.3.2011 to the LPCC. Her inability to answer those questions means that she is admitting to the facts as contained in the many associated letters and this means that there are no longer any issues to be tried in VR87 of 2009 which are scheduled before Judge Sharp, the former State Solicitor and the Deputy President of SAT. The reason is that the VR87 of 2009 is a malicious persecution of me by the LPCC who are either acting in ignorance or in complacency with those members of the judiciary involved in the conspiratorial links of the Pseudo Board (the persecution). The persecution is re-litigating the issues that had already been litigated before Judge Eckert in VR137 of 2006, whose decision had already been set aside by the Steytler Consent Judgment in CACV 43 of 2007 on 26.9.2007. What should have happened thereafter, is that I should have been returned to my former position but the Pseudo Board is continuing its wrong-doings to me, which had caused me to go through the High Court in my Application for Special Leave to Appeal in P36 of 2009. It is usual for the High Court to dismiss Special Leave Applications and it is only the rare circumstances that that this Special Leave would be allowed. But the High Court does not neglect me on each of the three occasions why my Special Leave Applications were dismissed by it as it gives me pointers to enable me to solve my problems with the Supreme Court of Western Australia. Everything I have explained in this letter is being carefully manifested in my actions as contained in my blogspot.
My case against Timothy Robin Thies is now clear as it approaching towards the point of its perfection as I have taken Certiorari Review Orders Application in CIV1491 of 2011 reviewing the decision of Newnes and Pullin JJA after the High Court had given me the pointers. My case against David Taylor is also clear as Pullin JA and Newnes JA have been pointed out to be wrong in their recent judgment in CACV 107 of 2008 [No.2] that the fresh evidence of the 20 cents false story of Registrar Powell to cover-up the fraud of David Taylor Solicitor in CIV 1131 of 2006 can be admissible into the Court of Appeal contrary to the judgment of Owen JA in paragraph 57 in CACV 107 of 2008 [No.1]. This also happens after the High Court had given me its pointers. My case against the Pseudo Board is clear because the Pseudo Board had on three occasions admitted liability that it usurped the legal authority of the Real Board by being unable to produce the necessary minutes signifying the legally-required majority consent of the Real Board in imposing the unconscionable constraint upon my freedom to practice law as an independent lawyer. This also happens after the High Court had given me its pointers. My case against the LPCC is clear because it refused to perform its statutory duties with regard to the enforcement of my rights after the Steytler Consent Judgment had set aside the wrongful decision of the Judge Eckert in VR137 of 2006 through its malicious persecution of me in VR87 of 2009 that was executed by Chaney J in stealth (and he was not able to answer my queries as to his integrity) but this wrong was retrieved by His Honour when he graciously recused himself. We hope that this matter is now headed for a happy conclusion before Judge Sharp who is the former State Solicitor. His Honour, a steadfast judge, true to his duties has raised his concerns with the LPCC that I should be returned to my former position on 26.11.2010 as soon as possible, and we hope for a fair settlement by the trial date scheduled for 11.10.2011. Ms. Le Miere of the LPCC was errant in her ways most recently and I hope the proposed settlement is not being derailed by any influential member of the conspiracy, which is currently under police investigation. See an example of the many wrongdoings of the LPCC and the Pseudo Board in my blogspot at: http://nicholasnchin.blogspot.com/2011/04/ms-le-miere-representing-on-842011-did.html.
I would like to conclude that it would be too onerous for the State Solicitor to go through the rigmarole of the process of the futile prosecution of me for the non-purpose of myself being a Vexatious Litigant as it would be a repeat of those processes that have been handled by the Court of Appeal in CACV 41 of 2010 and Commissioner Sleight in CIV 1877 of 2010 recently and the judicial process that is being set down for a three day trial before Judge Sharp in VR 87 of 2009 on 11.10.2011. This is a waste of governmental resources and it should be done away with, unless there exists a secret purpose of the Principal Registrar of the Supreme Court to aid the conspirators to use unfair tactics to defeat justice against me contrary to s. 135 of the Criminal Code Act, 1913 WA, which I believe there is not. Ms. Braesich had secretly contacted Heenan J in CIV 1019 of 2010 and this cause his turnabout decision which led to my Appeal in CACV 41 of 2010. Recently, the Pseudo Board also tried to fix his Honour Newnes JA in CACV 41 of 2010. The Pseudo Board had indicated its intention not to be involved in the Appeal in CACV 41 of 2010 yet it is seen to be meddling in the affairs of the hearing of that appeal by Newnes JA which I tried to request His Honour to recuse himself on the ground of conflict of interests which are clearly explained in my blogspot.
Having regard to the above, I would propose that if the State Solicitor still insists on persecuting me to no purpose, I would like to request for a forum of a panel of some five judges from the New South Wales judicial system to hear these proceedings under the Vexatious Proceedings Act, 2002 and that I am giving you NOTICE that I shall not be liable for any costs as a result as I would not be the culpable person. Unless you read my documents in the 16 volume of documents, you will not be able to find the needle of my rights in the haystack.
Yours faithfully
NICHOLAS N CHIN
THE REASON FOR MY ASKING HIS HONOUR KEN MARTIN J TO RECUSE HIMSELF STEMS FROM HIS REFUSING TO ANSWER ALL MY QUESTIONS REGARDING HIS BIAS AGAINST ME.
ReplyDeleteKirby J in Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323 wrote:
ReplyDelete"First, it is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specifically required where that person is not legally represented; secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this Court to use the power, whether under the inherent power or .....to require leave before a person may commence proceedings invoking the court's jurisdiction; thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications. .....I should not be reluctant to provide relief on the legal grounds ...simply because to provide relief would be to attack both the banking and taxation and other economic systems of this country. The history of this Court since its establishment in 1903, including recently, has shown that the court does not refrain from offering relief where the law requires it simply because its decisions may have large consequences for the nation or particular interests in it; fourthly, ...seeking relief by way of the writs of certiorari and mandamus. It is not necessary for me, in the decision which I have arrived at, to determine whether they are in each case, or in any of the cases, the appropriate process of the court to invoke its jurisdiction. ....today unrepresented. If he had commenced proceedings by an irregular process which had any separate or different merit from the matters which have already been determined by the court, I would endeavour to assist him to get such proceedings into proper form or require him to commence again in proper form. I would not dispose of his application upon such a formal basis; ... "
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 Yeldham J said:
ReplyDelete"When a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such a decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not its form."
IN MY CASE: I AM NOT RE-LITIGATING AN ISSUE THAT HAS BEEN LITIGATED. I AM LITIGATING THOSE ISSUES THAT HAVE BEEN AVOIDED BY THE JUSTICES AS THEY HAVE NOT BEEN DECIDED. IF THEY WERE DECIDED IT WOULD BE CONTAINED IN THE REASONS FOR JUDGMENT.
Dixon J in Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720 to stress the special and extreme features of the jurisdiction which should be confined to cases which, where there is no improper motive by the litigant, must on a purely objective assessment be utterly hopeless. Dixon J said:
ReplyDelete"The inherent jurisdiction of the court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender."
Attorney General v Wentworth (1988) 14 NSWLR 481), Roden J formulated the following tests for the determination of whether or not proceedings are vexatious (at 491):
ReplyDelete"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
(i) Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
(ii) They are vexatious if they are brought for collateral purposes, and not for the purpose of
having the court adjudicate on the issues to which they give rise.
(iii) They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
Heenan J in GRANICH PARTNERS -v- YAP [2003] WASC 206 at para 47 said:
ReplyDeleteIn Western Australia under the Vexatious Proceedings Restriction Act (2002) the requirement for habitual and persistent institution of vexatious proceedings has, as already explained, disappeared. Furthermore, the necessity for the proceedings to be "utterly hopeless" was said to be too narrow a test by Anderson J in Attorney General v Michael [1999] WASCA 181 in a judgment in the Full Court with which Pidgeon and Steytler JJ expressed agreement.
Attorney General v Wentworth (1988) 14 NSWLR 481, Anderson J said:
ReplyDelete"With all respect, if this means that, absent male fides in one form or another, proceedings will not be vexatious unless they are 'so obviously untenable or manifestly groundless as to be utterly hopeless', I think that test is too narrow as a test of general application under our Act. I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being 'utterly hopeless' which I take to mean plainly devoid of any merit whatever. The litigant who seeks dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy..... Whilst it is not possible to say that the claim of nuisance in respect of the loud playing of music is 'utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section."
Childs v. Painewebber, Inc. (1994), 29 Cal.App.4th 982:
ReplyDeleteAppeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final
First Western Development Co. v. Superior Court, (1989) 212 Cal.App.3d 860, 864, 261 Cal.Rptr. 116:
ReplyDeleteA judgment is final for all purposes when all avenues for direct review have been exhausted
Holcomb v. U.S. Bank Nat. Ass'n, (2005), 129 Cal.App.4th 1494, 29 Cal.Rptr.3d 578:
ReplyDeleteInterlocutory decisions before a judgment cannot be considered “final determinations”
Morton v. Wagner, (2007) 156 Cal.App.4th 963, 67 Cal.Rptr.3d 818:
ReplyDeleteRepeated motions must be "so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants."
Cartwright v. Wexler, Wexler & Heller, Ltd., 369 N.E.2d 185, 187 (Ill. App. Ct. 1977):
ReplyDeleteThe elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: (1) the existence of an ulterior purpose or motive underlying the use of process, and (2) some act in the use of the legal process not proper in the regular prosecution of the proceedings
ABUSE OF PROCESS: Johnson v. Gore Wood & Co[4] [2000] UKHL 65; [2002] 2 AC 1, per Lord Bingham at 30-1:
ReplyDeleteHenderson -v- Henderson – 1843 – Sir James Wigram VC – Litigation Practice
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
THE PRINCIPAL REGISTRAR OF THE SUPREME COURT OF WESTERN AUSTRALIA ALSO MAKES A REQUEST FOR THE SECOND ORDER IN THE NOTICE OF ORIGINATING MOTION IN CIV 1689 OF 2011. THE SECOND ORDER WANTS THE CIV 1981 OF 2011 TO BE STAYED. THIS CASE CONCERNS MY APPLICATION FOR THE PREROGATIVE ORDERS FOR KEN MARTIN J TO RECUSE HIMSELF FROM HEARING MY CIV 1903 OF 2008. HIS HONOUR REFUSED WHEN I CALL HIM TO DO SO SO I HAD TO APPLY FOR THIS MANDAMUS ORDERS. BUT HIS HONOUR WENT ON TO MAKE THE DECISION OF THE SECURITY COSTS ORDER AGAINST ME ON TWO INCORRECT GROUNDS: THAT MY CASE WAS WEAK AND THAT I OWED MONIES TO THIES UNDER THE VOID COST ORDER OF COMMISSIONER HERRON IN DC APPEAL NO.6 OF 2008. THAT JUDGMENT IS NOT CORRECT AND WAS TAKEN OFF FROM THE WEBSITE OF THE DISTRICT COURT OF WESTERN AUSTRALIA
ReplyDelete