SUBPOENA OF MAURICE LAW ISSUED BY THE STATE ADMINISTRATIVE TRIBUNAL IN VR 158 OF 2011

FURTHER SUBMISSIONS BY RESPONDENT IN VR87 OF 2009 BEFORE SAT ON 11.10.2011

THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

VR87 OF 2009

IN THE MATTER of an application under the Legal Profession Act, 2008 s. 428(1): Referral of matter to SAT by the Legal Profession Complaints Committee

Legal Profession Complaints Committee …………………………………Applicant

And

Ni Kok Chin (Nicholas) ………………………………………………….Respondent

Further written submission by the Respondent for hearing before His Honour Judge Sharp on 11^th day of October, 2011 at 10.00 am

Your Honour

1. I have received at 3.42 pm on 10.10.2011 the written communication from the LPCC by Mr. R.I Fletcher in 15 pages.  Their contents are an abuse of process[1], intended to cause delay and are frivolous and vexatious and consist of trivialities that does not cause any harm to any of the parties involved.  Neither are they characterized by any elements of dishonesty or misconduct or of a fraudulent nature of deceit where pecuniary advantage has been taken of any party involved.  I have thus not been given 48 hours notice and have been taken by surprise in accordance to Rule 22 of the Consolidated Practice Directions of the Supreme Court of WA 2009.  These rules are law and must be obeyed.  The court may therefore proceed without reference to these late documents. Therefore they must be impugned from the court records.
2. The current proceedings in VR 87 of 2009 is also an abuse of process as it is therefore  barred by the extended principle of the doctrine of res judicata derived from Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and recognised by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589[2].
3. The policy underlying res judicata and compromise is that there should be finality in the litigation[3]
4. I am seeking to strike out VR87 of 2009 because there already exists a compromise on 26.9.2007 before His Honour Steytler J in CACV 43 of 2007 on 25.9.2007.  The basis for doing this is the law of Compromise quoted by Corboy J in Rajanasaroj (supra) where His Honour said at para. 37 the following:

The effect of a compromise

37 A compromise represents the end of the disputes from which it arose and the court will not permit the compromised issues to be raised afresh in a new action. The disputes are disposed of by the compromise: The Law and Practice of Compromise at 601 and 602.

5. I am calling for the proper administration of justice and for preventing abuse of process by the LPCC just as Corboy J said at para 39:

…That is because the principle recognised in Henderson v Henderson and Port of Melbourne Authority v Anshun is concerned with preventing abuses of the court's processes. It is not a principle that operates by creating a true estoppel; that is, it is a principle of procedure concerning the proper administration of justice and not a matter of substantive law….”

6.      My claim against the LPB and the LPCC merges in the compromise in the same way that my cause of action merges in the consent judgment of CACV43 of 2007. The compromise consist of the setting aside Judge Eckert Judgment in VR137 of 2006.  This judgment makes a finding that the effect of a breach of that compromise by the LPB is explained in The Law and Practice of Compromise at 803 and 804 at para. 41:

... the usual consideration furnished in the context of a compromise is the promised or actual forbearance of one party to pursue a claim against another in return for some promised or actual act by the other. If the promised or actual forbearance to pursue the claim is construed as being in return for the promised performance of some act by the other party, such agreement will be regarded as one involving the immediate discharge of the claim. Where, however, the promised or actual forbearance is construed as being in return for the actual performance of some act by the other party, the claim foreborne will not be discharged until such performance takes place ...

Where there is a clear and unconditional discharge, abandonment or release of a claim by one party in return for the promised performance by the other of a series of acts, that original claim can never be revived. Where the agreement involves merely the suspension of the claim pending the carrying out of the acts by the other party then the claim may not be lost forever. (emphasis added)

 

Beech J said in STEWART -v- BIODIESEL PRODUCERS LTD [2009] WASC 145 (28 May 2009) at para.52:  

52 Anshun estoppel rests on the principle that parties to litigation should bring forward their whole case, so that the court will not permit a party to reserve a claim and make it later when it could and should have been made in the earlier proceedings. The starting point for the principle is the often cited statement of Wigram VC in Henderson v Henderson  [1843] EngR 917; (1843) 3 Hare 100, 115; [1843] EngR 917; (1843) 67 ER 313, 319 as follows:

 [W]here 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.

53 This principle was approved by the High Court in Anshun's Case (598).

54 Different views have been expressed on whether the principle in Henderson should be seen as relating to the scope of cause of action estoppel, or as espousing a separate principle. Handley JA (with whom the other members of the New South Wales Court of Appeal have agreed) has applied the statement in Henderson to cause of action estoppel: Zavodnyik [24]; Lee [22]. However, in Chamberlain (509) Deane, Toohey & Gaudron JJ stated that Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised 'which could and should have been litigated in the earlier proceedings'. Their Honours referred to Anshun's Case (598); see also Chamberlain (512) (Dawson J). Unless and until the High Court states otherwise, I propose to characterise an Anshun estoppel in the way stated in Chamberlain.

55 Anshun's Case considered the principle in Henderson in the context of a failure to plead a defence in an earlier action. The High Court rejected the proposition that it was an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings. Gibbs CJ, Mason & Aickin JJ said:

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few (602 - 603).

56 Their Honours emphasised the significance of the potential for conflicting judgments as an important factor in this context. They said as follows:

The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting' judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.

It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity (603 - 604).

Conclusion:

7.      The LPB abused the process of court and that is the reason why the Eckert Judgment is set aside.

8.      The Pseudo Board, the Consent Judgment, Timothy Robin Thies and David Taylor are the four issues where the LPCC abused the process of court.

9.      Why the LPCC refused to answer my questions regarding the abuse of process by LPB and LPCC on 8.4.2011 at the directions hearing before His HOnour Judge Sharp.  Is this inability to answer a confirmation that they have abused the process of court?

Signature of Respondent

Dated 11^th October, 2011.

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[1] In ROJANASAROJ -v- RACHAN [No 2] [2011] WASC 271 (30 September 2011) Corboy J quoted the Plaintiff in stating at para.25:

It was an abuse of process for the defendant to attempt to ventilate again assertions that had merged in the agreement to settle and dismiss the First Action, reference being made to Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431. In particular, Palmer J stated at [36] that the category of abuse of process represented by 'Anshun estoppel', in so far as it is applicable to a plaintiff, is concerned with the situation which arises when that plaintiff prosecutes a cause of action to its conclusion by judgment or settlement and later that plaintiff ... seeks to prosecute against the same defendant another cause of action which should reasonably have been prosecuted in the first proceedings.

[2] Ibid: at  para. 27 His Honour again said at para 30:

An odd aspect of the application is that it is the plaintiff who asserts that the defendant is estopped from now raising his claims notwithstanding that it was her action that was dismissed by the consent order made in the First Action. That does not necessarily mean that res judicata and its related doctrines do not apply. In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 the High Court observed that:

The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring an action at a later date ... but the principle of res judicata holds good in such a case (508).

[3] 35 Ibid: Corboy J at para. 35 said:

In Minero Pty Ltd v Redero Pty Ltd (Unreported, NSWSC, 29 July 1998) Santow J observed that the overlapping doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process reflect three related policy concerns: finality and litigation, the unfairness of being harassed twice for the same cause and the 'scandal' of conflicting judgments (and see D'OrtaEkenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 on the significance of finality to the administration of justice. Those policy concerns are also reflected in the law relating to compromise: see Foskett D, The Law and Practice of Compromise (6th ed, 2005) 6-02; Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, 31 (Lord Bingham of Cornhill).

HIS HONOUR JUDGE SHARP REQUEST FOR THE PRINCIPLE OF LAW THAT A SOLICITOR FATHER AS A LITIGANT IN PERSON ACTING PROBONO FOR HIS SON DOES NOT OWE PUBLIC DUTIES AS A LAWYER

SAT VR87 OF 2009 LPCC V CHIN - CASE LAW REQUEST BY MEMBERS OF THE SAT TRIBUNAL ON 13.10.2011 AS ATTACHED

1 message

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Nicholas N Chin	Thu, Oct 13, 2011 at 6:03 PM
To: Legal Profession Complaints Committee
Ms Associate Campell to His Honour Judge Sharp State Administrative Tribunal 12 St. Georges Terrace PERTH WA 6000   Ph: 08 9219 3111                                           BY FACSIMILE: Fax:(08) 9325 5099 The Legal Profession Complaints Committee  Perth WA  Atten: Ms. Folonie and Mr. Fletcher    BY EMAIL Dear Ms. Associate and Counsels for the LPCC:  I refer to the above matter.   His Honour Judge Sharp had requested for the Case Law I mentioned today to be sent to him by email to the SAT Panel. I am not able to to that so I am faxing it through. That case law is found at the first Foot Note No.1 below indicated as DIAGNOSTIC............ I though the two excepts of my submissions below which I prepared for my other case and which touches on the topic A: Centenary Lunch Bar would illustrate my point in my submission today to the SAT Panel.   Cheers NICHOLAS N CHIN:   387, Alexander Drive, DIANELLA WA 6059 Phone: 09 92757440 Mobile: 0421642735 Emails: nnchin@msn.com.   NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON  1. There is no professional relationship of client and solicitor between myself as the father and Paul as my son and it has always been so in all our mutual dealings except for our relationship with Mr. Thies who is our common solicitor.  There is therefore no conflict of interests existing between me and my son Paul because I do not play the public role of a solicitor between a father and a son but only the private role of safeguarding my son’s own interests just as though it was my own interests[1].   2. My own interests as a father of Paul merged into the interests of my son Paul in our common capacity as the owner, his being legal and mine being equitable of Paul’s own home at 29, O’Dell Street, Thornlie in the State of Western Australia which is the caveat property being the subject of Mr. Thies’ unlawful caveat.  His unlawful caveat is devoid of any caveatable interests with its concomitant equitable interests.  To qualify for an equitable interests in the Caveat Property, Mr. Thies no doubt has to be able to prove that we are ad idem with him in so far as the Caveat Property has been properly identified in the disputed costs agreement we had both entered into with him for his legal services which came to an abrupt stop as soon as he was seen to be reneging on the terms of that contract.  3. The evidentiary materials are before this Court is that Mr. Thies had been engaged in unconscionable conduct against me and my son by abusing his powers as a fiduciary to exploit the vulnerabilities of Paul and to threaten us with fantastic costs escalation procedures, yet unheard of for the purpose of intimidating fear into our hearts such that we both did succumb to his duress; they were unconscionably inflicted upon Paul on account of his ignorance and myself on account of my fear that my son might suffer illness of a specified kind as a result of stress.  These fears are real as they had occurred in the past caused by Mr. Thies and were and are still likely to recur.     [1]See the judgment of Asher J in the case of:  DIAGNOSTIC MEDLAB LTD V AUCKLAND DISTRICT HEALTH BOARD, WAITEMATA DISTRICT HEALTH BOARD, COUNTIES-MANUKAU DISTRICT HEALTH BOARD AND ORS HC AK CIV 2006-404-4724 [2007] NZHC 177 (20 March 2007) at paragraphs: 122 and 123 as indicted below: [122] A conflict of interest arises when a person carries out a particular function with two or more interests in conflict.  In administrative law, a conflict of interest exists when a person has a private interest in a decision where that person also has a public role. In such a case the person's public role and private interest are in conflict. The result can be a poor decision because private concerns that have nothing to do with the public duty have influenced the decision. [123] The concept of a conflict of interest is well known in the common law. It has developed particularly in the context of professional and fiduciary duties, the classic example being a solicitor's duty not to be in a conflict of interest with a client. It is also well understood in public law where its usual expression is under the heading of bias or apparent bias.  Also please find the attached document entitled:  A SOLICITOR FATHER ACTING IN SELF INTEREST NOT TO BE CONFUSED AS A SOLICITOR ACTING IN PERSON:  1. I refer to the Directions Hearing in both the Review Order Case (of CIV 1903 of 2008 cited as RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 made by me in accordance with my Application pursuant to s.36 of the Magistrates Court Act, 2004) and the Caveat Case in CIV 1112 of 2007, both cases coming before Your Honour on 30.4.2010.  Whence both parties were persuaded by Your Honour to study the transcript of that directions hearing before re-appearing for another directions hearing on 13.5.2010.   2. After serious consideration of the events that have transpired in that proceedings, I have today reached the irrefutable conclusion that it is a fact that Your Honour will need to recuse yourself from hearing both the Review Order Case and the Caveat Case in the interests of justice.   Your Honour should reach Your Honour’s own decisions with respect to recusal without calling on counsel to consent because a consent request of this nature would be "fraught with potential coercive elements which make this practice undesirable[1]." 3. This is based on the ground that having regard to the circumstances which I will take pains to outline below, there remains the fact that it would be impossible for Your Honour to bring an impartial mind[2] to the proceedings of these two cases as a judge.   4. As Your Honour should know that I am being made the Plaintiff of the further proceedings of the Review Order Case by His Honour Justice Hasluck on 17.6.2009 for obvious reasons; the fact that I have been appearing in this matter as a litigant in person for my own affairs with my son Paul C K Chin remaining in the background, right from the start.  There was never any requirement imposed upon me as an officer of the court to be impartial in these proceedings[3].  If there was, I would indeed be disqualified, just as any judge would be disqualified if he is indeed less than impartial.   5. I am the protagonist in this matter by virtue of my own rights as a litigant in person having a personal claim against the Respondent.  Consequently there are no issues of my being“hopelessly conflicted[4]” at all material times as I am my own boss looking after my own personal affairs as a litigant in person with my son appearing as the boss in legal terms remaining in the background under legally permissible circumstances.  5. At all material times, the interests of my son Paul as the legal owner coincides with my own interests as the equitable owner of his interests, just as any father would undoubtedly have equitable ownership over his son’s property.  I have never been my son’s solicitor although I am his solicitor father but I am entitled to use my label “barrister & solicitor” to indicate my social status although I have not applied for a current practice certificate, which I am entitled to with conditions imposed.  6. I have all the characteristics of a solicitor but at all material times, I am the father of Paul and have the natural inclinations just as any other natural father would have, to protect the interests of his own son. 7. This Honourable Court must divest my personality as a solicitor serving the interests of a member of a public who happens to chose me as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind.  The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense. 7. The only criteria for the concept of conflict of interests[5] to exist is to prevent the father from becoming impartial[6] in the execution of his duties as an officer of the court when advocating for his son.  Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.    [1] CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff found at http://www.mass.gov/courts/sjc/cje/92-1h.html quoting the relevant text as follows:   The relevant Canons of Judicial Ethics are Canons 3(C)(1) and (3)(D), which provide in relevant part: (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where: . . (d) . . . a person within the third degree of relationship …(ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . . . [2] Dawson J, in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) at para.2 said the following: “ See Kanda v. Government of Malaya (1962) AC 322, at p 337. It is the latter possibility which is important in this case because it is not suggested that the parties did not, in the events which transpired, have an opportunity to be heard. What is suggested by the husband is that he is reasonably entitled to entertain an apprehension of lack of impartiality on the part of the judge. If that is so, then it is enough to vitiate the proceedings because it is established that a judge ought not to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial mind  to the resolution of the questions involved in it: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294” [3] Id. [4] This is the word of Mr. Thies himself when he informed me that Ms. C. Coombs of the LPCC was telling him so in the context of my trying to act for my son in the proceedings in the District Court matter in relation to the Vendors of the Centenary Lunch Bar with whom I had acted as the common settlement agent for both Vendors and Purchaser who is my son with written informed consent from both parties.  In order to avoid the potential conflict of interests, I engaged Mr. Thies as our solicitors and it was like jumping from the frying pan into the fire for us.  Further, it must be understood that I am never “hopelessly conflicted” whenever I act for my son in both the Review Order Case and the Caveat Case.  See Footnote 8 below for an explanation of the meanings of “conflicts of interests” in administrative law as opposed to public law. [5]  Justice X cannot be correct when he said that I have a conflict of interests even if I have applied for a practice certificate which I have not.  I can still have my name as a barrister and solicitor because I am what I am irrespective of whether I am practicing law or not. There is a conflict of interests if: (a)  I owe separate duties to act in the best interests of my son Paul Chin if I were to be practicing law and if I were to be paid by my son Paul for my legal services rendered to him.  But to have a conflict of interests in relation to Mr. Thies, I must have agreed to act for  Mr. Thies in his best interests in relation to the same or related matters and he must have paid me. Then only such circumstance can I be said to be acting in conflict of duties or  those duties conflict, or there is a significant risk that those duties may conflict; or (b) My duty to act in the best interests of my son Paul as His Mc Kenzie friend does not  conflicts with the interests of Mr. Thies, nor there is a significant risk that it may conflict, with Mr. Thies’ interests in relation to the Review Order Case or the Caveat Case. (c) But we have been Mr. Thies clients or we have been his former clients and he owes us a duty to work in our best interests not to mislead this Honourable Court or tell lies to this Honourable Court and he must do so to protect  interests in relation to Paul’s interests and not to pillage and plunder Paul or to harass him or to harm him further. (d) If I have not applied for a practice certificate I am still not a judge in both the Review Order Case and the Caveat Case and I do not owe a duty to the public to be fair, but I still want to be fair to Mr. Thies when I pursuing justice for both myself and for my son’s own interests.  (d) As long as I did my work on a pro-bono basis as a MeKenzie friend for my son Paul in his Caveat Case, I cannot be faulted for practicing as a lawyer without a practice certificate.  [6] Id.