ALLANSON J DRAFT JUDGMENT DATED 5.11.2011 IN CIV 1491 OF 2010

ALLANSON J

DRAFT JUDGMENT

NICHOLAS NI KOK CHIN (ex parte)

1491 of 2011

ALLANSON J: By an application filed 24 March 2011 the

applicant Mr Chin applies for orders nisi for certiorari to

be returned before the Court of Appeal. It is not entirely

clear on the papers what decisions Mr Chin seeks to have

reviewed. There are five orders sought.

The decision at the root of Mr Chin's present

complaints is the decision of Kenneth Martin J in an

application by Mr Chin under section 36 of the Magistrates

Court Act 2004. That was an application to review a

decision of Magistrate Michelides and is court number 1903

of 2008.

In his decision Re Michelides ex parte Chin No 2

(2010) WASC 169 his Honour Kenneth Martin J made orders

requiring that Mr Chin pay $20,000 as security for costs;

that he pay that sum into Court and that if the amount was

not paid within 48 hours after publication of his reasons,

Mr Chin's action would be stayed.

Mr Chin sought leave to appeal from the decision of

Kenneth Martin J and the Court of Appeal refused leave to

appeal in the decision Chin v Thies (2010) WASCA 230.

The High Court refused an application for special

leave from that decision and that can be found at (2011)

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HCA SL 25.

The applicant's main complaint is that the security

for costs orders by Kenneth Martin J prevent him from

proceeding in a proper manner in his application to review

the decision of Magistrate Michelides. Mr Chin says the

decision of Kenneth Martin J is voidable for error. He

further says that his Honour's decision is affected by

apprehended bias and is void.

An order to show cause why a writ of certiorari to

quash the decision of Kenneth Martin J is the first order

that Mr Chin seeks from the Court. Orders 2 and 4 do not

on their face seek to set aside decisions of this or any

other tribunal. Rather, they appear to state the

consequences of a decision to quash the order for security

for costs: first, the application to review the decision

of Magistrate Michelides will continue before another Judge

and that is the subject of order 2 and, second, the earlier

application before the Court to set aside the decision of

Kenneth Martin J or for him to recuse himself - I am not

quite sure which - would not need to proceed. That appears

to be action 1981 of 2010.

The third order sought by Mr Chin is an order nisi

for certiorari to quash the decision of the Court of Appeal

on the application for leave to appeal the decision of

Kenneth Martin J, and order 5 seeks an order to show cause

or an order nisi for certiorari in relation to the decision

of two Justices of the High Court on the special leave

application.

The test for an applicant to meet at this stage has

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been variously formulated. It is generally accepted that

an applicant for an order nisi for certiorari must at least

demonstrate an arguable case for the relief sought. I

refer to the decision of Buss JA in Cazaly Iron Pty Ltd v

Bowler (2006) WASCA 282.

The first question that I need to deal with is

whether it lies within the power of this Court to grant the

relief sought. The position of a superior Court granting

certiorari against one of its own Judges has been

considered in several earlier decisions, including in

particular the decision of the High Court in Re Jarman ex

parte Cook (1996-1997) 188 CLR 595. I refer particularly

to the comments by Dawson J at page 610 where his Honour

said:

For a Court to grant prerogative relief against one

of its own Judges is for it to grant relief against

itself in the exercise of the same jurisdiction as

that exercised by the Judge, a situation which has

been described as rather ludicrous.

There is a similar decision from Drummond J in the

Federal Court in Bird v Free (1994) 126 ALR 475.

The creation of the Court of Appeal of this Court in

2004 does not in my opinion alter the position. There is a

single Supreme Court of Western Australia with its

jurisdiction divided between the General Division and the

Court of Appeal. That is provided in section 7 of the

Supreme Court Act. The General Division exercises all of

the jurisdiction of the Court, other than the jurisdiction

of the Court of Appeal set out in section 58. A Judge of

Appeal also holds office as a Judge of the Supreme Court.

In my opinion, it does not lie within the authority

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of the Court whether constituted by a Judge of the General

Division or the Court of Appeal to grant certiorari against

one or more of its members sitting as members of the Court.

I make that qualification because it is of course possible

for a Judge of this Court to sit as persona designata in

another capacity.

For those reasons in my opinion it does not lie

within the power of the Court to grant the orders for

certiorari against either Kenneth Martin J or the Court of

Appeal. Secondly, to the extent that the applicant seeks

orders regarding the exercise of the appellate jurisdiction

of the High Court, the supervision of the appellate

jurisdiction of the High Court does not lie within the

jurisdiction of the Supreme Court of this State. In any

event, there is nothing before me which goes any way

towards demonstrating that any of the decisions sought to

be impugned might be affected by any error of law or by an

error that goes to the jurisdiction of the Court which made

it. For those reasons, I would dismiss the application.

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