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 11th day of October, 2011 at 10.00 am
Your Honour
- 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.
- 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].
- The policy underlying res judicata and compromise is that there should be finality in the litigation[3]
- 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.
- 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
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 New South Wales Court of Appeal have agreed) has applied the statement in Henderson Henderson Dawson
55 Anshun's Case considered the principle in Henderson
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: 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).
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 11th October, 2011.
[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).
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