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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