From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Monday, September 05, 2011 5:43 PM
To: 'fraud.desk@police.wa.gov.au'; 'simon.williams@police.wa.gov.au'
Cc: 'nicholasn.chin@gmail.com'
Subject: FW: CACV 75 OF 2010: APPLICATION TO STOP THE REGULARIZATION OF THE SECURITY COSTS ORDER OF REGISTRAR WALLACE IN APPEAL NO.6 OF 2008
Sent: Monday, September 05, 2011 5:43 PM
To: 'fraud.desk@police.wa.gov.au'; 'simon.williams@police.wa.gov.au'
Cc: 'nicholasn.chin@gmail.com'
Subject: FW: CACV 75 OF 2010: APPLICATION TO STOP THE REGULARIZATION OF THE SECURITY COSTS ORDER OF REGISTRAR WALLACE IN APPEAL NO.6 OF 2008
Senior Sergeant Gangin of the Fraud Squad of WA Police
Senior Constable Simon Williams of the WA Police
Dear Sirs,
I refer to the above matter. Please find a copy of email letter to the Chief Judge of the District Court of WA regarding the misappropriation of the court fees, I paid into the District Court in WA District Court Appeal No.6 of 2008 involving Mr. Timothy Robin Thies.
Cheers
NICHOLAS N CHIN
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Monday, September 05, 2011 3:39 PM
To: 'associate.judge.martino@justice.wa.gov.au'
Cc: 'nnkchin@msn.com'
Subject: CACV 75 OF 2010: APPLICATION TO STOP THE REGULARIZATION OF THE SECURITY COSTS ORDER OF REGISTRAR WALLACE IN APPEAL NO.6 OF 2008
Sent: Monday, September 05, 2011 3:39 PM
To: 'associate.judge.martino@justice.wa.gov.au'
Cc: 'nnkchin@msn.com'
Subject: CACV 75 OF 2010: APPLICATION TO STOP THE REGULARIZATION OF THE SECURITY COSTS ORDER OF REGISTRAR WALLACE IN APPEAL NO.6 OF 2008
The Associate to the Chief Judge Martino
District Court of WA
Dear Sir
I refer to above matter and the telephone call from one Leon Leon Leon Leon
I would like to state that the $100.00 that I paid was never intended as a security costs. The law requiring security of costs for an appeal to the District Court was repealed at the time when I made that payment. I would therefore appreciate if that sum of $100.00 is repaid to me at my address below.
Cheers
NICHOLAS N CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: 08 92757440
Emails: nnchin@msn.com; nnchin1@gmail.com
As Justice Hayne put it in ex parte Aala:at 163:
ReplyDelete"The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction... The former kind of error concerns departures from limits upon the exercise of power the latter does not."[25
The issue in FR944 of 2007: Is the learned Magistrate Musk in jurisdictional error when she awarded a summary judgement for the Claimant knowing full well that Registrar Wilde was aware of the duress situation when she entered into the Consent Judgement of FR417 of 2007 on 7.6.2007? To answer this question, we have to look at the powers and the functions conferred upon Her Honour.
ReplyDeleteHer Honour Magistrate Musk was deciding the issue of whether the Claimant was being defrauded or "robbed" under duress of $6,000.00 in FR944 of 2007. She knows that Registrar Wilde in a separate case in FR417 of 2007 was under duress. Therefore the Consent Judgement of Registrar Wilde is also under duress because her free will was being overborne. As a result, that Consent Judgement is a nullity. Therefore Magistrate Musk is conferred with the powers to return that "robbed" money to the Claimant. Her Honour therefore abandoned her duties as the judge of FR944 of 2007. Her Honour has the powers to decide and did not do her job. She went outside her powers to make that decision to dismiss the Claimant's claim for the "robbed" money. She has made an error within her jurisdiction as a Magistrate.
ReplyDeleteThe Within Jurisdiction Error of Magistrate Musk is appealed to the learned Commissioner Herron in DCA 6 of 2008. He decided that he had no jurisdiction to hear the appeal. He indeed has the jurisdiction to return the "robbed" money of $6,000.00 to the Appellant. He again did not do his job and abandoned his duties by dismissing the appeal. He made an error within jurisdiction. His is also not a jurisdictional error. Contradiction his own words, the learned Commissioner decided that there was no duress when the facts shows that there are. The will of the Appellant has been overborne and also the will of Registrar Wilde too.
ReplyDelete"I am of the view that the distinction between permissible and impermissible conduct, as manifest in the difference between jurisdictional and non-jurisdictional error is real, indeed fundamental"
ReplyDeleteFrom: JURISDICTION AND INTEGRITY, THE SECOND LECTURE IN THE 2004 NATIONAL LECTURE SERIES FOR THE AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW by THE HONOURABLE JAMES J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH WALES, ADELAIDE, 5 AUGUST 2004
A jurisdictional error of law raises issues of integrity. A non-jurisdictional error of law or of fact raises issues of competence and correctness. Jurisdictional error of law can take different forms. The power may be misinterpreted by the decision-maker. A jurisdictional fact, sometimes called a "collateral fact", may be absent. A procedural defect may be such as to invalidate the decision, which requirement was once described as "mandatory" rather than "directory"[35]. A consideration that a decision-maker was obliged to take into account may have been ignored[36]. All of these tests serve an integrity function: by THE HONOURABLE JAMES J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH WALES, ADELAIDE, 5 AUGUST 2004.
ReplyDeleteMagistrate Michelides heard the appeal from the decision of Registrar Wilde FR417 of 2007. Both are of the same heirarchy and the former has the right to hear that appeal. The former, a more senior judge, has the jurisdiction to hear the appeal from the decision of the latter the subordinate judge. This relationship is similar that of Commissioner Herron and Magistrate Musk because they came from the same hierarchy of the appeal process. On the other hand, the relationship between Magistrate Musk in relation to Registrar Wilde is different in that you do not appeal FR417 of 2007 to FR944 of 2007 as both are different cases whose Claimants are Thies and Chin respectively. BUT THE DISTINCTION IS NOT ONE OF JURISDICTIONAL ERROR AND ERROR WITHIN JURISDICTION.
ReplyDeleteA jurisdictional error of law raises issues of integrity. A non-jurisdictional error of law or of fact raises issues of competence and correctness. Jurisdictional error of law can take different forms. The power may be misinterpreted by the decision-maker. A jurisdictional fact, sometimes called a "collateral fact", may be absent. A procedural defect may be such as to invalidate the decision, which requirement was once described as "mandatory" rather than "directory"[35]. A consideration that a decision-maker was obliged to take into account may have been ignored[36]. All of these tests serve an integrity function:
ReplyDeleteby THE HONOURABLE JAMES J SPIGELMAN
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."[37]Craig v South Australia supra at 179. The position of inferior courts is much more restricted; see esp at 179-180.
ReplyDeleteIn the first lecture in this series[1] I proposed recognition of an integrity branch of government as a fourth branch, equivalent to the legislative, executive or judicial branches.
ReplyDeleteI noted that in any stable polity there is a widely accepted concept of how governance should operate in practice. The role of the integrity branch is to ensure that that concept is realised, so that the performance of governmental functions is not corrupt, not merely in the narrow sense that officials do not take bribes, but in the broader sense of observing proper practice:by THE HONOURABLE JAMES J SPIGELMAN
Australian administrative law continues to adhere to the proposition that there is no error of law in making a wrong finding of fact[4], unless the fact is jurisdictional:Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [44].
ReplyDeleteWhen the courts review matters which do not give rise to integrity issues, it is likely, I said, that they have gone too far. The issue is one of "judicial legitimacy", to adopt Chief Justice Gleeson's phrase[3]: Murray Gleeson "Judicial Legitimacy" (2000) 20 Aust Bar Rev 4
ReplyDeleteMagistrates Musk and Michelides and Commissioner Herron and Martin J are making errors within their respective jurisdictions. BUT they are making jurisdictional errors of law that has got to do with institutional integrity:
ReplyDeleteLord Griffiths' formulation in Page[45] is even more clearly confined to the performance of an integrity function (as quoted by THE HONOURABLE JAMES J SPIGELMAN)states:
"... the purpose of judicial review ... is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, insofar as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law ... ." [Emphasis added.]
By enforcing legality in governance the judiciary plays a critical role in maintaining institutional integrity. Constitutional law is the performance of an integrity function with respect to the legislature. This form of judicial review is a well-known feature of the Australian legal system. In the first lecture in this series I advanced the proposition that administrative law should also be seen as the performance of an integrity function. That was the main focus of the lecture and I develop the idea further in this second lecture: by THE HONOURABLE JAMES J SPIGELMAN
ReplyDeleteTheir Honours Magistrates Musk, Michelides and Commissioner Herron and especially Martin J in Michelides No.2 in CIV 1903 of 2008 and in CIV1112 of 2007 or the Mandate Exclusion Caveat Case have not performed the integrity function of the judiciary of Western Australia. That is a fact.
One indicator that a fact is not to be regarded as jurisdictional is if the formulation includes terminology relating to the mental state of a decision-maker such as "opinion", "belief" or "satisfaction". However, the existence of that state of mind may itself be a particular kind of jurisdictional fact, albeit subject to judicial review only on the limited grounds authoritatively stated by Gibbs J in Buck v Bavone[59]: See (1976) 135 CLR 110 at 118-119. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276; Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303; Minister for Immigration & Ethnic Affairs v Eshetu (1999) 196 CLR 611 at [128]-[145], note esp [130].
ReplyDeleteOne indicator that a fact is not to be regarded as jurisdictional is if the formulation includes terminology relating to the mental state of a decision-maker such as "opinion", "belief" or "satisfaction". However, the existence of that state of mind may itself be a particular kind of jurisdictional fact, albeit subject to judicial review only on the limited grounds authoritatively stated by Gibbs J in Buck v Bavone[59]:See (1976) 135 CLR 110 at 118-119. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276; Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 303; Minister for Immigration & Ethnic Affairs v Eshetu (1999) 196 CLR 611 at [128]-[145], note esp [130].
ReplyDeleteThere is no error of law for Magistrates Musk, and Michelides, Commissioner Herron and Martin J to make wrong findings of fact provided those facts are NON-jurisdictional. Jurisdictional means within the authority conferred upon as members of the judiciary by the law. If they outside of their powers to find irrelevant facts, they are non-jurisdictional facts. For example: Theirs Honours decided not to find the facts of the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 (WA) as limiting costs to allowable costs only and not to indemnity costs. This findings relates to the disproportionate amount of Security Costs of $20k to what would be claimable if they were only out of pocket expenses reasonably incurred for court fees etc. This is what I call errors of law which must be expunged from the court records. The errors of law is contained in the written judgments and the transcript of the proceedings.
ReplyDelete....maintaining the integrity of government in the way I have identified, that is to ensuring that powers are exercised for the purposes for which they were conferred, in the manner in which they were expected and/or required to be performed.
ReplyDeleteThe Parliament also has the ultimate authority to remove judicial officers for proved misbehaviour. In this regard, also, the Parliament performs an integrity function with respect to the judicial branch of government:by THE HONOURABLE JAMES J SPIGELMAN
Recently, Lord Hoffman rejected the language of deference, in a passage which is consistent with the High Court's reasoning in City of Enfield:
ReplyDelete"My Lords, although the word 'deference' is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts.
...
The principles upon which decision-making powers are allocated are principles of law. ... [W]hen a court decides that a decision is within the proper competence of the legislature or executive, it is not showing deference. It is deciding the law."[74]R (Prolife Alliance) v British Broadcasting Corp [2003] EMLR 23 at [75]: I MEAN TO SAY: MAGISTRATES MUSK, MICHELIDES, COMMISSIONER HERRON AND MARTIN J MUST NOT RESPECT A PERSON LIKE MR. THIES OR GIVE DUE DEFERENCE TO HIS FRIEND BY COMPROMSING ON THE LAW OR BY DISREGARDING THE LAW AND MAKE A DECICISION THAT IS NOT BASED ON THE LAW.