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THE SUPREME COURT OF
WESTERN AUSTRALIA
1491 of 2011
NICHOLAS NI KOK CHIN
ex parte
ALLANSON J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 11 MAY 2011, AT 2.15 PM
The applicant appeared in person.
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THE ASSOCIATE: CIV 1491 of 2011, Mr Nicholas Chin.
ALLANSON J: Mr Chin, you appear in person.
CHIN, MR: Good afternoon, your Honour. Yes, I am
appearing in person, your Honour. Before I begin,
your Honour, I have provided a copy of these written
submissions which your Honour has received dated 2 May. It
has got 11 pages.
ALLANSON J: I have your application. I have 11 pages of
submissions and I have an affidavit. I am not sure of the
date of the affidavit - 18 March 2011.
CHIN, MR: My application, the notice of originating
motion, plus my affidavit in support contains 128 pages,
your Honour.
ALLANSON J: The affidavit, yes.
CHIN, MR: Your Honour, I have most recently filed written
submissions, an outline of submissions, which are dated
2 May which are 11 pages.
ALLANSON J: Yes.
CHIN, MR: Your Honour, I would like to draw your
attention to some extra documents I am providing by way of
photocopy just now. I have got a three page document - a
complaint against counsel Timothy Robin Thies, three pages,
dated Saturday, 27 November, your Honour.
ALLANSON J: This one, yes. I have that.
CHIN, MR: I have this document dated 15 November that was
posted to Mr Thies on 14 November which is the letter,
together with my memorandum erratum, the amended erratum to
the chronology filed 1 November. It contains altogether
six pages, your Honour.
ALLANSON J: This is the letter to the Court of Appeal
registrar.
CHIN, MR: Yes, your Honour.
ALLANSON J: I have that
CHIN, MR: This document here that is dated June 25, 2007
is my email to Mr Tim Thies. It contains 10 pages of the
communication with Registrar Susan Wilde in FR 417 of 2007
in which she has been communicated the fact that my son
Paul was then suffering from a mental delusion which caused
him to lose his mind as a result of having been oppressed
and intimidated by Mr Timothy Robin Thies. My son lost his
mind. He booked an air ticket. He wanted to go to
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Malaysia and he could not go. It was cancelled, and this
is the communication that I sent to Registrar Wilde on
6 June 2007 to tell her that the consent judgment that was
entered on 7 June is affected by duress. She knew about it
and her hand was forced to enter into that consent judgment
in order for me to obtain relief for my son; otherwise my
son would be in worse shape than he was, because there was
that continuing escalation of costs for mysterious reasons
which my son was not able to comprehend and which many
other people are not able to comprehend.
We are just scared that we have to pay and keep
paying him more and more for very mysterious reasons and we
do not understand why. That is the reason why we agreed to
pay him $11,500 which we paid to him since 12 April, but
because Registrar Wilde was informed of the continuing
intimidation and duress, she refused to enter into any
consent judgment until we pestered her to do so, only on
7 June 2007.
Your Honour, I have here an additional three-page
document which is the transcript before his Honour
Ken Martin J which happened on 17 June 2010. It is on this
day that barrister Scott Ellis informed Ms (indistinct) -
Ken Martin J that there was no evidence at all that
Registrar Susan Wilde entered into that consent judgment
under duress when it is not true because this document is
filed in February. That was presented before Ken Martin J
and that was delivered to Mr Timothy Robin Thies.
This is a state of affairs where I say that my
learned friend, with due respect to him, barrister Scott
Ellis, misled Ken Martin J. That is page 33 of CIV 1981,
which is a CIV which has not been listed and which has not
been decided for hearing as yet, because that is the CIV in
which I asked his Honour, with due respect to his Honour
Ken Martin J, to recuse himself because Ken Martin J was
showing signs of favouring apprehended - my apprehension,
and it is the real likelihood that Ken Martin J was biased
against me. This is CIV 1981 which has not been listed by
the court. Whether or not the court will list it for
hearing, it is an application where I asked for
Ken Martin J to recuse himself. I informed Ken Martin J
that he should recuse himself and not decide on the two
cases, CIV 1012 of 2007 and CIV 1903 of 2008, but
Ken Martin J refused to accede to my request to recuse
himself and his Honour, with due respect to him, went
through this case and decided this case upon my apprehended
bias of himself.
Your Honour, if you look at pages 93 and 94, and I
have just given you a photocopy, your Honour has got this
letter dated 28 May 2010 which I sent to Ken Martin J. I
asked Ken Martin J - a copy of which has already been sent
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to (indistinct) at the same time. I asked Ken Martin J to
please answer my questions as to why he is not biased
against me.
ALLANSON J: Sorry. What page are we - - -
CHIN, MR: I have given you the photocopy. It is pages 93
and 94.
ALLANSON J: Thank you. Sorry; I was looking at a
different page.
CHIN, MR: Your Honour, these are the questions which have
never been answered by Ken Martin J. Ken Martin J favoured
Mr Thies to my detriment by refusing to listen to my case
and reprimanded me and said that I cannot speak up for my
son's case where my son's house was the subject of the
unlawful caveat which Mr Thies has lodged on my son's
property. Mr Thies was escalating his cost and wanted to
sell my son's home. I was at a loss - of how I need to
help my son. Ken Martin J refused to allow me to have
demanded to speak on my son's behalf, although Hasluck J
has agreed that my son no longer be a plaintiff in his case
and that I be able to pursue his case. That is contained
in the transcript of the proceedings that were in the first
part of the section 36 review.
The section 36 review is divided into two parts. The
first part is by Hasluck J and the second part is by
Ken Martin J. Hasluck J has delivered his review order,
has granted the review orders, and Hasluck J has ordered
Timothy Robin Thies, my learned friend Timothy Robin Thies,
to submit his affidavit. Mr Timothy Robin Thies refused to
comply, to submit his affidavit, until 6 October.
Hasluck J made time of the essence but he complied only
with it two months later, but the affidavit that was
required by Hasluck J is not of the type that was supposed
to have been filed by Mr Timothy Robin Thies.
Hasluck J wanted him to confine only to the issue of
why his cost has been escalating from a zero sum to $25,000
for no reason. That is what he should be addressing. He
went rambling about, giving - burying all the vital
information into voluminous - two piles of documents which
confused Ken Martin J.
The only issue that was before him was: why was the
cost escalating? Your Honour, the gist of my argument
today, as presented in this book, is to stop the security
for costs order that was wrongly imposed. That security
for costs order by Ken Martin J is to stifle the second
stage of the section 36 proceedings. The second stage of
the section 36 proceeding was not proceeded with but was
stifled by a security for costs order given upon invalid
grounds.
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There were only two grounds given by his Honour. The
two grounds are - one is that I have got a debt to pay and
the second ground is that I have an inherently weak case.
These two grounds are absolutely incorrect because there is
never any debt to pay. He is saying that there is
Herron C's order that I had to pay the costs order, but
Herron C's cost order is never a valid order because it
rested upon Magistrate Musk's work decisions.
If Magistrate Musk's work decision has been voided,
then there is no longer Herron C's cost order. Besides
that, I have already explained why Herron C's order is not
correct at all because Herron C's work order is based on
the duress-vitiated Registrar Wilde consent order dated
7 June. If the duress-vitiated consent cost order is void,
everything is void.
There are only two decisions that were given by
Ken Martin J - only two reasons. One reason is that I have
an inherently weak case, which is wrong. The other is that
I have got a costs order that I should have paid. That is
wrong.
I went to the Court of Appeal. The Court of Appeal
decided on something else. The Court of Appeal, although
it was given the facts of the case, never decided the
issue. The Court of Appeal decided - avoided the issue and
decided on something else and said there is a lack of
probability that I will be able to succeed in the case.
I went to the High Court. The High Court in its
wisdom always invariably denies any applicant for special
leave to appeal unless there are special circumstances.
Exceptionally it will allow - but the High Court gave its
reasons for judgment. In the High Court reasons for
judgment I can discern that it is wise in saying something
- for me to come back to the Supreme Court again to have
the matter straightened out. The High Court is saying
this: there was a security for costs order before the
section 36 review of Hasluck J. It never happened. It
came only after Hasluck J has granted that review order.
It is not for the second judge to rerun the review order.
That had already been granted by Hasluck J. The second
judge's function is to see whether there are justifying
circumstances to recall the granting of the order that has
already been granted.
There is here no jurisdiction for Ken Martin J to
rerun an order that has already been granted and there is
no justification for Ken Martin J to impose the stultifying
costs order - the security for costs order, to stop the
progress of the section 36 grant. There is no
justification for justice to be defeated.
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Your Honour, I am a victim. My son is a victim. I
am the principal person involved because it is I who forced
my son to get into the solicitor-client relationship with
Mr Timothy Robin Thies. It is I who arranged for all the
terms and conditions for his employment. It is I who got
him to sign and say, "This is the term that we agreed
upon". It is he who wants to have a written solicitor
costs agreement signed and it is he who said that he wanted
Paul's home property to be mortgaged to him, but there is
no specification of which property needs to be mortgaged to
him. His lawyer said, "All your personal property or real
property may be mortgaged to me if you don't pay" but there
is no debt to pay him.
Also I started the action - my first provision - to
claim my part of the money which Tim has robbed from me. I
claim $6000 plus all other costs of $7500 is within the
minor case provision, so although the proceedings according
to the legislative intent of the minor cases provision of
the Magistrates Court Act say that all those proceedings,
to whichever level it is, will not incur any legal costs
which Mr Thies is entitled to - which means that there is
no justification for the security for costs order.
All that I want, your Honour, is to fight for the
public good. The public good that I am serving is that no
lawyer must pillage and plunder his client and get away
scot-free and no barrister must mislead the court and tell
the court lies. That is the function of the law. I am an
officer of the court, and for doing all this, this is one
of the factors which caused the Legal Practice Board to
take away or withhold my licence as a lawyer. I have no
professional misconduct. I have no unsatisfactory
misconduct. Judge Eckert in VR 137 of 2006 on 12 September
2006 made the findings that recused the Timothy Robin Thies
case - that I have no answer to (indistinct) conduct but
there is a deficiency in my professional knowledge. There
is an alleged deficiency in my professional knowledge.
The law and the rules do not allow my licence to be
withheld if only I have a deficiency in my knowledge
because I am professionally qualified to be an independent
lawyer and, your Honour, the Legal Practice Board comprises
52 members and four members are entitled to become the full
board and the four members who have decided on the case
against me to withhold my licence for deficiency in my
professional knowledge have not been able to provide the
need to lend authority to their decision to impose
conditions on my practice certificate and to take away my
independence as a lawyer. There are only four issues that
I am fighting against the Legal Practice Board.
ALLANSON J: Mr Chin, the Legal Practice Board issues
aren't before me today, are they?
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CHIN, MR: Sorry, your Honour?
ALLANSON J: The question of your dispute with the Legal
Practice Board is not before me today.
CHIN, MR: It is not, your Honour. It is that this matter
is dragging me down. I must have - it is not what
Ken Martin J says, a matter of $6000; that I want to pull
Mr Timothy Robin Thies down. It is not that. It is the
public good I am serving as an officer of the court. It is
the fact that I need to regain my independence as a lawyer.
There are only four factors which are pulling me down. One
of them is the Timothy Robin Thies case. I must get a
clarification from this court that Mr Thies has unlawfully
caveated my son's property and stopped him from exercising
his rights as a property owner, and that he is claiming his
damages under section 140 of the Transfer of Land Act for
the damage that has been caused to him.
ALLANSON J: But the application that you have got before
me today is an application for me to make an order nisi for
certiorari against the decision of Kenneth Martin J. It is
that decision that you are challenging before me today.
That is the first decision you are challenging.
CHIN, MR: This is the one that is CIV 1981, your Honour.
This is the one - that I have made the application. With
this application, your Honour, once your Honour grants me
this application, then I can ask for this to be made - for
CIV 1981 to be made.
ALLANSON J: But the application that you have got before
me today is for an order nisi to go to the Court of Appeal.
CHIN, MR: The order that I ask for in this application is
five orders.
ALLANSON J: Yes, but the first one is an order nisi in
relation to the order by Kenneth Martin J to order security
for costs. That is the first one.
CHIN, MR: Yes, so that I can proceed with my CIV 1903 and
then I want the decision of Ken Martin J in Michelides No 2
and the amended exclusion clause to be voided.
ALLANSON J: The first order is that you want the security
for costs order to be - - -
CHIN, MR: Yes.
ALLANSON J: You are challenging that.
CHIN, MR: Yes.
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ALLANSON J: The second order that you want seems to be
that you want the decision of Hasluck J to go back. I am
sorry; the second order you want is that you want the
decision of Hasluck J reinstated. Is that right?
CHIN, MR: The first order - the security for costs order
of Ken Martin (sic) to be expunged.
ALLANSON J: Be set aside, yes.
CHIN, MR: The second order is that I want Michelides No 2
which is the decision of Ken Martin J also to be expunged.
ALLANSON J: That is the same decision, isn't it?
Michelides No 2 is the same decision.
CHIN, MR: Yes, sir.
ALLANSON J: Is it right that in order number 3 you want
an order for certiorari against the Court of Appeal?
CHIN, MR: Yes.
ALLANSON J: Am I getting it right?
CHIN, MR: Order number 2 - - -
ALLANSON J: No, number 3, order number 3.
CHIN, MR: Order number 3?
ALLANSON J: Yes.
CHIN, MR: Order number 2. Order number 3 is - before the
Court of Appeal, order number 3 is to be voided.
ALLANSON J: So you want me to make an order for an order
nisi for certiorari against the Court of Appeal.
CHIN, MR: Yes. Order number 4 is for Ken Martin's (sic)
decision to be voided. Order number 5 is - - -
ALLANSON J: So order number 4 is the decision of
Kenneth Martin J in - - -
CHIN, MR: In Michelides No 2.
ALLANSON J: - - - 1981 of 2010. Is that the same
decision as order number 1?
CHIN, MR: Order number 1 is the security order decision.
Order number 4 means I want CIV 1981 to be considered and
Ken Martin J's recusal to take effect.
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ALLANSON J: So 1981 is an application for
Kenneth Martin J to recuse himself.
CHIN, MR: Yes.
ALLANSON J: Then in order number 5 are you asking me to
make an order nisi for certiorari against two members of
the High Court?
CHIN, MR: Yes.
ALLANSON J: That is a big ask, Mr Chin.
CHIN, MR: I know, sir, but the High Court never made any
adverse order against me. The High Court merely said, "I
refuse you leave and you go back and do the right thing in
the court below".
ALLANSON J: The first thing I am going to have to
consider with all of the orders you are asking for is
whether I have got power to make them.
CHIN, MR: I believe the Supreme Court has got the powers
under section 23 and 24, the inherent jurisdiction, and
that whatever has happened in England happens here.
ALLANSON J: But the High Court is superior to me.
CHIN, MR: The High Court never made any decision bad
against me.
ALLANSON J: Yes, but when we are looking at the powers
that I can exercise as a judge of the general division of
this court or that the Court of Appeal could exercise, they
don't include the power to supervise the High Court of
Australia. It is the supreme court of Australia.
CHIN, MR: The High Court - it is clear that the High
Court never allows special leave to appeal, except on a
very, very rare occasion, but the High Court gives reasons.
The High Court gave the reason, "You have finished your
career", I would say. Ken Martin J granted the security
for costs order before the review took place and this is
not the case. The review has already taken place.
ALLANSON J: I understand the point you are making, but
the question that I have to consider is: this court has
power to supervise courts which are inferior to it, but the
High Court is not inferior to the Supreme Court.
CHIN, MR: Yes, but you can take away order number 5
without affecting the other orders.
ALLANSON J: Let's go back one stage then. The Court of
Appeal and another judge of this court - I have to consider
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whether this court has got power to grant certiorari
against another judge of this court or two judges of the
court in the Court of Appeal. There is High Court
authority that says that we don't.
CHIN, MR: Yes, but if the Court of Appeal makes a
technical mistake, then section 33 of the Supreme Court Act
allows a technical mistake to be corrected.
ALLANSON J: You are asking the court to grant an order
for certiorari. That is what you are after, isn't it?
CHIN, MR: Yes, your Honour, but if you grant the
certiorari orders and then it is the order nisi stage, you
issue a nisi and then the Court of Appeal judge confirms
it.
ALLANSON J: But the question is that either me as a judge
of the general division or the Court of Appeal - do they
have power to grant certiorari against the Supreme Court?
What I am saying, Mr Chin, is: there is actually High
Court authority that says that there is no power. The
power to grant certiorari is a power to supervise courts
which are inferior to the Supreme Court. The Supreme Court
is not inferior to the Supreme Court.
CHIN, MR: Your Honour, the law is that if the High Court
or the Court of Appeal - a court which is higher than the
Supreme Court - were to make a decision and if the decision
is not borne out by a statement of reasons, if there is a
deficient statement of reasons, that judgment is void.
ALLANSON J: I can't think of any principle of law that
would support what you say, Mr Chin.
CHIN, MR: I have got case law on that. If a judge were
to give a deficient reason for decision, that decision is
void because there is a Latin maxim - - -
ALLANSON J: If a judge fails to give sufficient reasons
for decision, that can be a ground of appeal. Appeals are
statutory, but you are asking me to exercise not an
appellate jurisdiction but a supervisory jurisdiction and I
cannot supervise my own court.
CHIN, MR: The law is that where all avenues of appeal
have been closed, then I have to approach it by way of
certiorari. The Latin maxim says ubi jus ibi remedium.
There is no such thing as no remedy. Where there is a law,
there's a remedy.
ALLANSON J: Yes. Where there is a right there is a
remedy, but you have to find the right. Mr Chin, the High
Court and the Federal Court in relation to itself have
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quite clearly said that the remedy of certiorari that you
are after is a remedy for supervising an inferior court and
that a superior court like the Supreme Court does not
exercise that remedy with regard to members of its own
bench. I raise this because it is something that affects
whether I can make any orders such as the orders that you
are asking for. You need to convince me that I have got
power to make the orders that you ask for.
CHIN, MR: I will try to convince you, your Honour. If
your Honour gives me time to do that, I will find the law -
how your position as a Supreme Court justice can supervise
the errors of the Court of Appeal or the High Court - but I
think I am quite clear on this point, your Honour, because
there is a law which says that if a judge gives a decision,
that decision must have a statement of reasons. If the
statement of reasons is not correct, then that judgment
cannot stand.
ALLANSON J: But the judgment can be appealed.
CHIN, MR: If there is no longer any avenue for appeal and
if I have appealed and the judges refuse to decide on the
issue that I am appealing. When the judge refused to
decide on the particular issues that I am appealing, they
could have given judgment on a frolic of its own and took
into account irrelevant consideration and refused to take
into account relevant consideration. When that happens,
that judgment is a nullity. In the same way, if I appear
before the court and the court refers to accord me
procedural fairness, that also renders the judgment a
nullity.
Therefore an ordinary justice of the Supreme Court is
empowered under the inherent jurisdiction of the court to
find a solution to this problem and to write a statement of
reasons that accounts for all the facts.
ALLANSON J: Mr Chin, in a decision of the High Court that
was given in 1997 - it is a decision called Re Jarman ex
parte Cook - one of the judges of the High Court said this:
The jurisdiction of a superior court of record
exercised by a single judge is still the jurisdiction
of the court. There are not two courts, one
comprising the single judge and one comprising all
the judges. Nor does the provision of an appeal from
a single judge to a full court alter the situation
for an order made on appeal is made in the exercise
of the jurisdiction which is different from that of
the judge at first instance. 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
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judge and that situation has been described as rather
ludicrous.
As I have said, there is a decision of the High Court
which quite clearly tells me that I do not have
jurisdiction to grant an order - or this court doesn't have
jurisdiction to grant certiorari against a member of the
court.
CHIN, MR: Your Honour, if the High Court made an error of
fact, therefore the High Court has no jurisdiction to make
that decision because it based its judgment on an error of
fact. For example, the High Court says I'm guilty of
murder when the facts say I never murdered someone; that it
is another person, Mr Black, who murdered someone. The
High Court has made an error of fact. The High Court
delivered its judgment and that judgment is made without
jurisdiction and therefore that judgment is void.
ALLANSON J: Mr Chin, there is a difference between being
made without jurisdiction and being wrong. It's the case
that courts can be wrong but still be acting within their
jurisdiction.
CHIN, MR: But, your Honour, can the court allow an
injustice to occur? For example, Mr Beamish was not found
to have murdered that person and years later then they
found that the truth is out and the court is regretting
that it has convicted the wrong person, but here the facts
have been proven. Can the injustice be allowed to go on?
There is the law; there is the law, your Honour, which says
that if there is fraud, fraud must unravel itself. The
court must never allow fraud to continue.
ALLANSON J: I accept that is a proposition recently
confirmed in the High Court - that fraud unravels
everything. I accept that, but where does it take me?
CHIN, MR: Do you accept that point, your Honour?
ALLANSON J: I accept that fraud vitiates everything, but
where does it take me in this case?
CHIN, MR: Do you mean to say, your Honour, that I have no
justice? Do you mean to say, your Honour, that I must
forever be condemned as the person who has been wrong and
there is no justice for me? Equity says - the question of
equity prevails over the law.
ALLANSON J: Yes, but you are asking me not to exercise an
equitable remedy. You are asking me to exercise a
jurisdiction which is quite limited. It is the
jurisdiction of this court to grant prerogative relief
against a court or tribunal which is inferior to this court
and you are asking me to exercise that against the Supreme
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Court, against two judges of the Court of Appeal and
against the High Court. They simply don't lie within my
supervisory jurisdiction, as I understand it. That is the
problem that I am having with what you are saying.
CHIN, MR: But where do I go from here, your Honour? I
cannot have my life spoiled by this. I cannot - I am
qualified to be a lawyer and now I am not entitled to be a
lawyer.
ALLANSON J: That is not the decision you are asking me to
deal with. You are asking me to deal with a decision about
security for costs.
CHIN, MR: I sent another case. That is the law laid down
by Kirby J in Ex parte Skyring, Re Attorney-General,
Commonwealth, ex parte Skyring. In that case Kirby J said
that any court, the Court of Appeal or the Supreme Court,
must have its mind open, just in case amongst the rubbish
of the argument there is a point which the court below has
missed.
ALLANSON J: That is why I am listening to you very
carefully to see if there is something in the case you are
putting before me, but I have to raise these points so that
you have a chance to meet them.
CHIN, MR: The second point is that the court must not
allow a litigant - must not prevent the litigant to invoke
his rights for remedy. The third point is that the court
must never shy away from a point that is relevant to the
issue. It must never shy away from the point that is
required by the litigant to be decided upon. In my case
the Court of Appeal refused to decide on the point that I
asked it to decide on. What I asked it to decide on is
this security costs order, whether it is right or wrong.
That is the issue. The Court of Appeal decided on another
issue. The High Court also decided on other issues. It
did not decide on the issue. We are all human and we make
errors.
The last point is that it is for the court to point
out to the litigant who seeks justice for certiorari cost
orders and so on whether that is correct and set him on the
right path.
Your Honour, I am before this court. I seek
your Honour's help because I am in a fix. Why are they
doing this to me? I do not understand. I am just another
human being.
ALLANSON J: Mr Chin, I can only make orders that the law
permits me to make. If you wish me to make orders in terms
of your application for orders nisi for certiorari, I have
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to be satisfied that they are orders that I can make. The
law requires that I be satisfied that there is at least an
arguable case for the relief sought before I can grant an
order nisi. That is a requirement of the law, that I be
satisfied that there is at least an arguable case for the
relief sought.
CHIN, MR: There is at least an argument - - -
ALLANSON J: An arguable case.
CHIN, MR: An arguable case?
ALLANSON J: Yes.
CHIN, MR: Does your Honour say that Ken Martin J's
decision, the two factor decision, is right and that I
do not have an arguable case and that I have got an
inherently weak case?
ALLANSON J: Mr Chin, what I am saying is that on the
authorities which I regard as binding me, this court does
not have the power to grant certiorari against one of its
own judges.
CHIN, MR: You mean to say, your Honour, that I should ask
the High Court to grant certiorari.
ALLANSON J: I doubt that the High Court would consider
that the Supreme Court of Western Australia is amenable to
certiorari but that's not a question for me. You have come
before me asking for five particular orders and I have to
decide whether those orders can be made.
CHIN, MR: Your Honour, how do you respond to my issue
that the Supreme Court has got the inherent jurisdiction?
What has happened in England also can happen here.
Sections 23 and 24 provide the inherent jurisdiction to the
Supreme Court. A Supreme Court justice has got the
jurisdiction to grant equitable relief to any litigant who
appears before him, irrespective of whether he has been to
the High Court or not, because the issue that was supposed
to have been decided by the High Court and the Court of
Appeal has never been decided but by the principles of res
judicata are to be decided again by your Honour, an
ordinary justice in the Supreme Court.
ALLANSON J: What you are asking me to do is make orders
nisi for certiorari in relation to those decisions. You
are not asking me to decide them again. I have got no
power to decide them again because they have been decided.
CHIN, MR: I am asking your Honour to grant me the orders
nisi, the orders to review nisi.
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ALLANSON J: I understand that.
CHIN, MR: Say again?
ALLANSON J: I understand that.
CHIN, MR: The orders to grant a review nisi on issues
that have never been decided in the past. Ken Martin (sic)
did not decide that issue. The Court of Appeal has not
decided the issue. The High Court has not decided that
issue.
ALLANSON J: Mr Chin, I think you need to move the hearing
aids apart. They are interfering with the microphone.
CHIN, MR: Do you want to take off the battery?
ALLANSON J: That is okay now.
CHIN, MR: Yes, your Honour. What I am fighting for is
the principle of res judicata issues, the things that have
never been decided. If they have never been decided and I
appear before you, your Honour, and I want you to make your
review orders subject to confirmation by another Court of
Appeal judge to make it absolute, I think you can do that,
your Honour, because these are issues that have never been
decided before. The issue is whether the issue has been
decided wrongly by Ken Martin J. It is whether I should be
stopped from proceeding in CIV 1903 after the review has
been granted. The issue is the security for costs order
that was imposed on invalid grounds. That issue has never
been decided before. The Court of Appeal didn't decide it.
The High Court didn't decide. It was not decided by
Ken Martin J because Ken Martin J was biased against me so
his decision is void altogether.
If his decision is void altogether, the High Court
and the Court of Appeal decisions are also void because if
I asked Ken Martin (sic) to recuse himself and he didn't
recuse himself and there is evidence that he was biased
against me, therefore he made a decision without
jurisdiction and therefore there was never a decision made
by him and therefore the High Court didn't have anything to
decide on. The Court of Appeal didn't have anything to
decide on. We start from ground zero.
ALLANSON J: I understand your argument.
CHIN, MR: If your Honour please. This is the only thing
you can help me with, your Honour, because this is the only
way I can get back to my legal profession again. I want to
do the public good. I want the poor people there, outside
there, to know I have been robbed and pillaged and
plundered, because I stood up, because I was a
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whistleblower. Now, this has happened to me. I want to
get away from this jurisdiction. I can go and be a
practitioner somewhere else. I just want to get back. I
spent my whole life studying. I wanted to be a lawyer to
help people.
ALLANSON J: Is there anything further that you want to
say on the application?
CHIN, MR: Yes, your Honour.
ALLANSON J: Is there anything further you want to say on
your application?
CHIN, MR: I didn't get your Honour - - -
ALLANSON J: Is there anything further that you want to
say on your application?
CHIN, MR: I beg the indulgence of your Honour to grant me
the privilege of being able to start my practice again
because I was never found guilty of any wrongdoing and I
have been victimised because I was doing my duty as an
officer of the court and because I learned in theory that
is what I should do, but the practical world is so cruel to
me. In practice they don't do it. In practice they allow
lawyers to do the wrong thing and get away with it. This
happened - is happening. I cannot be fighting them all my
life. I want to get away. Your Honour, I have not done
anything wrong.
ALLANSON J: Is there anything further, Mr Chin?
CHIN, MR: Yes, your Honour. I know, your Honour - I know
you hate injustice, your Honour. I know. I have taken
some pains to study about your Honour and I have faith in
you, your Honour, that you can do me justice.
ALLANSON J: Thank you, Mr Chin.
CHIN, MR: Nicholas Hasluck J has done me justice.
Barker J has done me justice but what can they do? They
tried. They are the wisest people, but there are people in
this world who do not want to do the right thing,
your Honour. I am sorry to say this. I still believe that
your Honour can start from ground zero and make the
decision and render me a statement of reasons that is
correct according to the law and the facts of the case.
Your Honour knows that there is case law, High Court
case law, which says that if a justice were to make a
decision, an irregular decision, that is not based on the
fact and the law, that decision is not a proper judgment
and that judgment is void because no-one is above the law.
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No judge can make a law - can deliver a judgment that he
knows to be incorrect or untrue or not based on the correct
facts and with no proper statement of reasons. You cannot
twist the facts. You cannot twist the truth. We all
believe in the truth. The truth is what makes us good or
bad. A person is truthful and he is good. A person lies
and he kills.
If you study the philosophy of what is good and bad
and what is the truth and no good, you will know that
righteous justice will make the right decision that is
based on the truth and not based on falsehood. You can
deliver a judgment that is based on falsehood but
ordinarily you can accept that. God does not accept it.
That is all.
ALLANSON J: Do you have anything to say on the relief
that you seek today, Mr Chin? You are straying into very
general areas.
CHIN, MR: Have I anything to say - what, your Honour?
ALLANSON J: About the specific orders you are asking for
today? You are straying into very general areas.
CHIN, MR: The specific order I am asking is that
Ken Martin J's security for costs order is to be expunged
from the court records.
ALLANSON J: Yes, I understand that.
CHIN, MR: That I have a fresh trial in the second part of
the section 36 review before another judge. Hopefully
another judge is righteous enough to base the decision on
the facts and the law and on the truth of the matter and
does allow me to access justice.
I was thinking that my friend Timothy Robin Thies, a
lawyer who is so good, so nice, so soft spoken - and I
agreed to pay him his fees in accordance with our agreement
which he put into writing and he changed his mind and
started asking for more money, more new money, which we
could not afford to pay because we would not throw good
money after bad money. We were being cheated by the vendor
of a business and that is what we wanted to get back and
that is how - the terms we wanted to engage a lawyer. The
lawyer turned around and tried to get money from us, which
is so hard-earned. We came from another country. We came
from Malaysia. We are of Chinese ethnic origin. We are
hard working. We are very, very careful with our money.
We wanted a good life in Australia.
We came from a country which practices positive
discrimination against the Chinese people and we came here.
It was so difficult for me to land myself in a teaching
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job. I was on the top of the scale as a teacher. I was a
secondary schoolteacher. My qualification was recognised
and I got top pay as a teacher but there were so many
Australians that wanted to compete with me for a job, they
put a stop to me because I am a migrant from another
country.
ALLANSON J: Mr Chin, you are straying away from what I
need to decide.
CHIN, MR: Yes. Your Honour, we tried working very, very
hard. My son kept asking me, "Why are you asking me to
sign this document?" I say, "Don't worry. He can't take
your house because your house is not in the written
agreement. To have a caveatable interest, your house must
be specified".
ALLANSON J: Mr Chin, we have gone through this part of
it. Unless there is something that you haven't already
said that you want to say to me - - -
CHIN, MR: Yes. We paid Mr Thies the sum of $11,500.
ALLANSON J: Mr Chin, we have been through that. If there
is something new that relates to the application before me
today, please tell me.
CHIN, MR: About the orders?
ALLANSON J: The order that you are seeking today, if
there is something that you have not already said.
CHIN, MR: Hasluck J granted me the right to represent my
son in his caveat case but Ken Martin J refused to give me
that right, based on the misconception that the right was
only for the purpose of negotiating with Timothy Robin
Thies to reach an amicable settlement. That is not correct
because the right that was granted to me was to pursue the
whole case until its final conclusion, so they are able to
get away with that fact. I was not allowed to represent my
son. Even if I could represent my son, even as his next
friend or even as a friend of the court - I wasn't allowed
to do this. I represented my son because it is in my own
interest, your Honour - my own interest. It is not my
son's interest - my own interest. I brought my son there
and my son was in trouble and I put him into trouble.
ALLANSON J: This is something that you have already
spoken to me about.
CHIN, MR: I do not have - I am not practising as a lawyer
representing my son. If I represent my son as his lawyer,
then I am a court officer. Then I have got public duties,
but in this case I am stepping into my son's feet. I am
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like a litigant in person picking up on behalf of my son
and was stopped from doing that. The security for costs
order has got that stultifying effect. All along I tried
to do justice and I was stopped from doing justice. My
access to justice has been stopped.
Also there was no justification for any costs order
because all the proceedings - Mr Thies will not be entitled
to any costs from me because of the minor case provisions,
so why should there be a security for costs order to stop
me from proceeding the matter further? I want to proceed
the matter further until I obtain justice.
ALLANSON J: I understand that.
CHIN, MR: Mr Thies did not file or did not comply with
Hasluck J's order.
ALLANSON J: Yes. You have already dealt with that. He
was late with the affidavit and it didn't deal with the
matters that Hasluck J said it should deal with.
CHIN, MR: Yes.
ALLANSON J: You are going over things that you have
already told me, Mr Chin.
CHIN, MR: I think that is all I have.
ALLANSON J: I have read all of your papers.
CHIN, MR: You have read - including the other cases?
ALLANSON J: I'm sorry?
CHIN, MR: You have not read the cases. You have not read
the 1981 - - -
ALLANSON J: I have read everything in your affidavit.
CHIN, MR: Everything in 1491?
ALLANSON J: Yes. I have read it all.
CHIN, MR: I think that should be enough, your Honour.
That should be enough.
ALLANSON J: Thank you, Mr Chin. You can sit down please.
CHIN, MR: Thank you, sir.
ALLANSON J: I will give brief reasons for my decision.
(Judgment delivered)
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