THE PRINCIPAL REGISTRAR OF THE SUPREME COURT -v- CHIN [2012] WASC 7

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 7
Case No:	CIV:1689/2011	Heard:	29 AUGUST 2011
Coram:	MURRAY J	Delivered:	10/01/12
No of pages:	38	Judgment Part:	1 of 1
Result:	Order that respondent is prohibited from instituting any proceedings in any Western Australian court or tribunal without the leave of that court or tribunal Order that whole of Supreme Court proceedings CIV 1981 of 2010 are stayed Respondent pay appellant's costs of the application to be taxed
Category:	B
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Parties:	THE PRINCIPAL REGISTRAR OF THE SUPREME COURT NICHOLAS NI KOK CHIN
Catchwords:	Vexatious litigants Application for orders to stay a particular proceeding and prohibiting the respondent from instituting proceedings without leave Turns on own facts
Legislation:	Nil
Case References:	Attorney General v Michael [2005] WASC 203 Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255 Chin v Hall [2009] WASCA 216 Chin v Legal Practice Board of Western Australia [2011] WASCA 110 Chin v Legal Practitioners Board Western Australia [2009] WASCA 117 Chin v Thies [2010] WASCA 230 Chin v West Australian Legal Practice Board [2008] WASAT 252 Commonwealth Bank of Australia v Bride [2004] WASC 177 Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 Legal Profession Complaints Committee v Chin [2009] WASAT 219 Ni Kok (Nicholas) Chin v Legal Practice Board of Western Australia [2010] HCASL 4 Nicholas Ni Kok Chin v Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall & Ors [2010] HCASL 104 Re Hall; Ex Parte Chin [No 2] [2011] WASC 155 Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212 Re Michelides; Ex parte Chin [2008] WASC 256 Re Michelides; Ex Parte Chin [No 2] [2010] WASC 169 Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin [2010] WASC 89 Spunter Pty Ltd v Hall [No 2] [2007] WASC 239 Thies v Chin [2010] WASC 111

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : THE PRINCIPAL REGISTRAR OF THE SUPREME COURT -v- CHIN [2012] WASC 7 CORAM : MURRAY J HEARD : 29 AUGUST 2011 DELIVERED : 10 JANUARY 2012 FILE NO/S : CIV 1689 of 2011 BETWEEN : THE PRINCIPAL REGISTRAR OF THE SUPREME COURT

Applicant

AND

NICHOLAS NI KOK CHIN

Respondent

Catchwords:

Vexatious litigants - Application for orders to stay a particular proceeding and prohibiting the respondent from instituting proceedings without leave - Turns on own facts

Legislation:

Nil

Result:

Order that respondent is prohibited from instituting any proceedings in any Western Australian court or tribunal without the leave of that court or tribunal

Order that whole of Supreme Court proceedings CIV 1981 of 2010 are stayed

(Page 2)

Respondent pay appellant's costs of the application to be taxed

Category: B

Representation:

Counsel:

Applicant : Ms L Eddy

Respondent : In person

Solicitors:

Applicant : State Solicitor for Western Australia

Respondent : In person

Case(s) referred to in judgment(s):

Attorney General v Michael [2005] WASC 203
Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255
Chin v Hall [2009] WASCA 216
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Chin v Legal Practitioners Board Western Australia [2009] WASCA 117
Chin v Thies [2010] WASCA 230
Chin v West Australian Legal Practice Board [2008] WASAT 252
Commonwealth Bank of Australia v Bride [2004] WASC 177
Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Legal Profession Complaints Committee v Chin [2009] WASAT 219
Ni Kok (Nicholas) Chin v Legal Practice Board of Western Australia [2010] HCASL 4
Nicholas Ni Kok Chin v Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall & Ors [2010] HCASL 104
Re Hall; Ex Parte Chin [No 2] [2011] WASC 155
Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212
Re Michelides; Ex parte Chin [2008] WASC 256
Re Michelides; Ex Parte Chin [No 2] [2010] WASC 169
Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin [2010] WASC 89
Spunter Pty Ltd v Hall [No 2] [2007] WASC 239
Thies v Chin [2010] WASC 111
(Page 3)

INDEX
The Act 5
Solicitor's Lien proceedings 6
CIV 1775 of 2008 6
CACV 107 of 2008 7
CIV 3086 of 2009 9
Application for Special Leave to the High Court P1 of 2010 10
CIV 1877 of 2010 11
Proceedings relating to imposition of conditions on practice certificate 12

State Administrative Tribunal Matter VR 107 of 2008 12

CACV 105 of 2008 13

Application for Special Leave to the High Court P36 of 2009 14

CIV 1604 of 2010 15

Disciplinary Proceedings 15
State Administrative Tribunal Matter VR 87 of 2009 15
CIV 3068 of 2009 16
CIV 1019 of 2010 17
CACV 41 of 2010 19
CIV 1604 of 2010 20
Proceedings relating to dispute with Mr Thies 21
Magistrates Court matter FR 417 of 2007 21
Magistrates Court matter FR 944 of 2007 22
District Court matter 6 of 2008 24
CIV 1903 of 2008 25
CIV 1112 of 2007 29
CIV 1981 of 2010 30
CACV 75 of 2010 31
Application for Special Leave to the High Court P50 of 2010 33
CIV 1491 of 2011 33
The respondent's case 33
The vexatious litigation restriction proceedings 34
Proceedings relating to imposition of conditions on practice certificate 35
Proceedings relating to dispute with Mr Thies 35
Order under s 4 of the Vexatious Proceedings Restriction Act 2002 36
Discretion 38
Conclusion 39
Stay of the Supreme Court proceedings in CIV 1981 of 2010 39

(Page 4)

1 MURRAY J: This matter is brought to the court by way of an originating motion dated 15 April 2011 primarily seeking an order under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) that the respondent be prohibited from instituting any proceedings in any WA court or tribunal without the leave of that court or tribunal. The applicant's motion is supported by a 16-volume affidavit sworn by Ms Kah Yee Loh.

2 A stay of the whole of the Supreme Court proceedings in CIV 1981 of 2010 is also sought by the applicant.

The Act

3 Section 4 of the Act provides:

(1) If a Court is satisfied that -

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings,

the Court may make either or both of the following orders -

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).

(2) An order under subsection (1) may be made by the Court on its own motion or on the application of -

(a) the Attorney General;

(b) the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or

(i) a person against whom another person has instituted or conducted vexatious proceedings; or

(ii) a person who has a sufficient interest in the matter.

(Page 5)

(3) The Court must not make an order under subsection (1) -

(a) staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or

(b) prohibiting a person from instituting proceedings, or proceedings of a particular class,

without hearing that person or giving that person an opportunity of being heard.

4 Under s 3 of the Act, 'proceedings' includes:

(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal.

5 Section 3 also defines 'vexatious proceedings' to mean proceedings:

(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

Solicitor's Lien proceedings

CIV 1775 of 2008

6 The first matter instituted by the respondent to these proceedings was in February of 2006. He lodged a caveat over properties in order to protect a solicitor's lien. The respondent subsequently went on to institute five other proceedings in relation to this solicitor's lien.

7 The initial solicitor's lien lodged on 7 February 2006 was instigated by the respondent after being appointed by Ms Nancy Hall (deceased) to represent her in opposing an application to extend caveats lodged by Spunter Pty Ltd (Spunter) over her properties. A succinct outline of the

(Page 6)

history of the matter is given by Commissioner Sleight in

Re Hall; Ex Parte Chin [No 2]

[2011] WASC 155 [3] - [5]:

Ms Nancy Hall was the registered proprietor of two Perth properties, one in the suburb of Hazelmere and one in the suburb of Mount Lawley. The properties were subject to a registered mortgage in favour of Engineering Facilities Pty Ltd arising from a mortgage dated and stamped 23 December 1992. The benefit of the mortgage was transferred to Mr Kenneth Duncan Hill (now deceased) and this transfer was registered on 19 March 2002.

On 26 July 2002, Spunter lodged caveats against the Hazelmere and Mount Lawley properties, claiming an interest as 'equitable chargee' arising from a deed dated 1 November 2000. Nancy Hall disputed the entitlement of Spunter. Spunter made an application under s 138 of the Transfer of Land Act 1983 (WA) seeking an extension of its caveats over the two properties. On this application, Nancy Hall was represented by Mr Chin. On 20 January 2006, Jenkins J made an order that the caveats be extended subject to Spunter commencing proceedings and prosecuting those proceedings in a timely manner: Spunter Pty Ltd v Hall [2006] WASC 6. The order required Spunter to commence proceedings within 21 days (that is, by 10 February 2006).

The question of whether Spunter commenced proceedings within the 21-day period is critical to Mr Chin's current application. The court records show that on 10 February 2006 (21 days after Jenkins J's order), Spunter commenced proceedings (CIV 1131 of 2006) against Nancy Hall, claiming, by way of relief, a declaration of an equitable interest in the two properties.

8 On 11 May 2006 the respondent filed a notice of having ceased to act for Nancy Hall and, on 30 June 2008, Ms Audrey Hall, the first registered mortgagee of Ms Nancy Hall's properties, sought the removal of the caveats lodged by the respondent and Spunter (CIV 1775 of 2008).

9 On 14 August 2008, Ms Audrey Hall applied for summary judgment against the respondent and Spunter. On 29 October 2008, Master Sanderson granted Ms Hall's summary judgment application in Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin[2008] WASC 255.

CACV 107 of 2008

10 On 6 November 2008, the respondent filed a notice for leave to appeal against the decision of Master Sanderson. The grounds of appeal were filed on 6 January 2009. The respondent appealed generally, 'the decision of the learned Master Sanderson in CIV 1775 of 2008 when he erred in ordering for the removal of the appellant's caveat and the

(Page 7)

consequent costs orders to be paid by the appellant'. The particular grounds were set out as 13 points.

11 The grounds of appeal are confusing and contain references to unrelated matters, such as a complaint against the respondent before the Legal Practice Board. Specifically, the respondent states that the Board is 'tainted by its persecuting malice on the appellant (respondent in these proceedings)'.

12 The grounds further contained reference to matter CIV 1131 of 2006, heard by Jenkins J, and the judgment of Simmonds J in Spunter Pty Ltd v Hall [No 2] [2007] WASC 239.

13 Amended Grounds of Appeal were filed by the respondent on 15 January 2009. They appear not to have been substantively changed. A further minute of amended grounds of appeal was filed on 23 January 2009, pursuant to the order of Pullin JA. These grounds of appeal were significantly shorter.

14 On 27 January 2009, the respondent then went on to file an application for a stay of execution of the orders of Master Sanderson to remove the respondent's caveat and costs. This application was heard before Pullin JA on 6 February 2009. It was adjourned sine die with the decision (as to stay) reserved. Leave was also given to amend the minute of amended grounds of appeal filed on 23 January 2009.

15 On 19 June 2009, the respondent sought to adduce new and fresh evidence in affidavit form and, on 9 December 2009, the appeal was dismissed: Chin v Hall [2009] WASCA 216 (McLure P, Owen JA & Buss JA). The respondent was further ordered to pay costs to be taxed.

16 Costs were found by the taxing officer to total $13,983.26. The court record shows that on 3 November 2010, after the costs were taxed, the registrar advised that the allocatur was to be signed on 10 November, unless a request for review and objection was filed before that date. It seems that there was an application for a review because, on 17 December 2010, there is a note from the registrar stating:

Review dismissed as not being a review of objections to taxation. Allocatur signed.

17 The taxing officer then signed a certificate and, pursuant to O 66 r 57, the costs so certified are deemed to be a judgment of the court and recoverable accordingly.

(Page 8)

18 The respondent applied for a suspension order of the costs judgment under the Civil Judgments Enforcement Act 2004 (WA). This application was heard by Pullin JA and Newnes JA on 1 April 2011. Reasons were delivered on the same day.

19 The respondent filed an affidavit in support which Pullin JA found was simply an attempt to re-argue matters argued in the Court of Appeal. The application was dismissed and his Honour stated (Newnes JA agreeing) that:

The

Civil Judgments Enforcement Act

2004

(WA) states that special circumstances have to be shown before a suspension order may be granted: s 15(3). The principles in

Eastland Technology Australia Pty Ltd v Whisson

[2003] WASCA 307; (2003) 28 WAR 308 apply where a person is appealing against a judgment. In this case, there is no appeal against the decision; those appeal rights having been exhausted. There is no reason to suspend the judgment of the court, no special circumstances have been shown, and the application should be dismissed [8].

CIV 3086 of 2009

20 A notice of originating motion was filed by the respondent on 10 December 2009, seeking writs of certiorari against the decision in Chin v Hall. The grounds outlined in the respondent's motion are reproduced below:

1. The learned Justice Owen erred in accepting the fiction of the filing of CIV 1131 of 2006 on the within-time date of 10.2.2006 instead of the actual and out-of-time date of 16.2.2006 by David Taylor Solicitors as truths can only have absolute values but not relative values (the determinative error).

2. The determinative error has the legal effects of preventing the Applicant from being recognised in law as the salvor of the Hazelmere and Mt. Law Properties of the late Ms. Nancy Cloonan Hall, thereby depriving him of his legal fees and costs for legitimate works done on her behalf in CIV 1142 of 2005 which the learned Justice McLure and Justice [Buss] are sympathetic to and have respectively reserved their judgments thereto.

3. The determinative error has the legal effect of not vindicating the rights of the Applicant for his assertion of the truths that my learned friend Mr. David Taylor was guilty of a 'sleight of hand' which has now become a dispute between the Legal Practice Board and the Applicant in CACV 105 of 2008 currently appealed to the High Court in P36 of 2009 and is also the subject matter of CIV 3068 of 2009.

(Page 9)

4. The determinative error has the legal effect of exposing my learned friend Mr. David Taylor to become guilty of contempt of court should he continue to persist and insist in difficulty to the Applicant in his independent law practice thereby harassing him and causing him harm and detriment.

5. The determinative error has the legal effect of stifling my human rights to the fruits of my labour for my further acts as the posthumous salvor in the further preservation of the Mt. Lawley and Hazelmere Properties for the beneficiaries of the late Ms. Nancy Cloonan Hall.

6. Assuming the determinative error is not being corrected by the Honourable Court, the Applicant should still not have been punished by an unreasonable costs order of the learned Justice Owen having regards to the circumstances that the Applicant was acting in the public interests as an officer of the court under conditions of necessity; as such the principle that 'costs to follow the event' is improper and should have been adapted to suit the circumstances. Accordingly, the costs order be reviewed.

7. The undertaking given by the First Respondent dated 10.2.2009 NOT be discharged.

8. Costs: The costs of and incidental to the Application for Certiorari Orders be taken from the estate of the late Ms. Nancy Cloonan Hall as comprised of the Hazelmere and the Mt. Lawley Properties.

21 On 22 December 2009, the matter was heard before Martin CJ, who rejected the application and gave an ex tempore decision. In doing so he described the grounds upon which relief was sought as being 'incoherent and unintelligible'.

Application for Special Leave to the High Court P1 of 2010

22 Special leave to the High Court was sought by the respondent against the decision of the Court of Appeal in Chin v Hall. The application for leave was filed with the High Court on 4 January 2010.

23 On 26 May 2010 the High Court refused the respondent's application for special leave and reasons were published in Nicholas Ni Kok Chin v Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall & Ors [2010] HCASL 104. This decision stated that:

The papers filed in support of the applicant's application for special leave to appeal do not focus on that crucial aspect of the Court of Appeal's reasoning and did not show error in it.

(Page 10)

CIV 1877 of 2010

24 On 11 June 2010, the respondent filed a notice of originating motion, seeking an order nisi for certiorari for nine matters, one of which was 'Master Sanderson's summary judgment in CIV 1775 of 2008 therefore did not remove the Spunter's caveat', and, '[t]he Costs Orders of Master Sanderson.'

25 The application was heard before EM Heenan J on 4 August 2010, along with CIV 1981 of 2010, to be discussed later in these reasons. The respondent was not present at the hearing and the matters were adjourned sine die: Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212. Heenan J said at [9]:

I do not wish to be taken as acknowledging that there is potential merit in either of the pending applications. There is, it would seem, an insuperable obstacle to both of them. It is that the prerogative remedies of certiorari, prohibition and mandamus do not lie to courts of general jurisdiction against a decision of another Judge or judicial officer of the same court. Putting aside matters arising under federal jurisdiction and the constitutional writs of prohibition and mandamus, which do not arise here, the established principle is that judicial review by prerogative remedies does not lie against a State Supreme Court or against a Judge of a State Supreme Court by another Judge of the same court. Authority for that includes

Craig v State of South Australia

[1995] HCA 58; (1995) 184 CLR 163, 174 – 175

(Brennan, Deane, Toohey, Gaudron & McHugh JJ), and a recent decision of the Supreme Court of New South Wales in

Application of Cannar Re Eubanks

[2003] NSWSC 802 (Bell J). The rule is set out in a passage

from the reasons of Deane J in

Re Gray; Ex parte Marsh

[1985] HCA 67; (1985) 157 CLR 351, 385 quoted at [22] of her Honour's judgment in

Application of Cannar Re Eubanks

. Other decisions to the same effect

are

Re Western Australian Industrial Appeal Court; Ex parte

Carter

(1992) 7 WAR 348, 354; (1992) 44 IR 171;

Barton v Walker

[1979] 2

NSWLR 740, 755; and May

or of London v Cox

(1867) LR 2 HL 239. The same principle applies to applications for mandamus and prohibition:

Re Jarman; Ex parte Cook (No 1)

[1997] HCA 13; (1997) 188 CLR 595.'

26 The motion was re-listed and heard by Commissioner Sleight on 4 April 2011 and, on 15 June 2011, it was dismissed: Re Hall; Ex Parte Chin [No 2]. The judgment of Commissioner Sleight supports the decision of EM Heenan J, at [18]:

27 The fact that Mr Chin's application does not comply with the Rules of the Supreme Court 1971 (WA)(RSC) and the Supreme Court Common Forms is indicative of the fact that Mr Chin's application is misconceived,

(Page 11)

as pointed out by EM Heenan J on 4 August 2010, when Mr Chin's application first came before the court.

Proceedings relating to imposition of conditions on practice certificate

28 The background to the imposition of conditions on the respondent's practice certificate begins with the respondent's admission as a legal practitioner in Western Australia on 19 December 2003. In mid 2006, he became the subject of an investigation by the Legal Practitioners Complaints Committee and, on 19 July 2006, the Board, by its professional affairs committee, resolved to impose conditions upon the applicant's practice certificate pursuant to s 40(3) of the LP Act.

State Administrative Tribunal Matter VR 107 of 2008

29 On 28 May 2008, the respondent applied to the State Administrative Tribunal (the SAT) for a review of the decision of the Western Australian Legal Practice Board. The conditions imposed on the respondent's practising certificate were, essentially, that the respondent practice only as an employed solicitor and that his work be closely supervised.

30 The respondent sought a review of that decision from the SAT on the basis that the Board did not have the jurisdiction to impose the conditions, in the absence of some finding of incapacity, unfitness or some disciplinary proceedings being successful against the practitioner. Alternatively, the respondent argued that the conditions were not necessary, having regard to the matters upon which the Board had relied.

31 On 25 September 2008, the application was heard by the SAT. At this hearing the respondent raised a number of issues in oral submissions, including the suggestion that 'the Board's conduct was motivated by racial prejudice'. But the SAT ruled that there was 'no apparent foundation for that serious allegation'.

32 On 28 October 2008, the respondent's application was dismissed, with the SAT confirming the Board's decision: Chin v West Australian Legal Practice Board [2008] WASAT 252. The decision of the SAT upheld a number of conclusions reached by the Board; and stated that [at 84]:

Where the public interest and the maintenance of appropriate professional standards require a particular course of action, that requirement must outweigh the personal interests of the practitioner concerned. That is the case here.

(Page 12)

33 Reference was also made to comments made by the respondent to the Board, specifically in relation to a judgment by Jenkins J in an appeal against a criminal conviction where the respondent to this matter had represented the applicant. The respondent said:

It is my personal belief that (the client) would have won his appeal on the following grounds:

(a) If the appeal judge hearing his case had been a man instead of a woman, Mr Powell would have gained (sic) more sympathy from a man who would understand a man's problem instead of a woman who is simply not equipped to understand a man's problem [71].

The judgment of the SAT described this as demonstrating an 'extraordinary and illogical prejudice' [74].

CACV 105 of 2008

34 The respondent commenced an appeal against the SAT decision by a notice of appeal filed on 3 November 2008. The grounds of appeal, filed on 29 December 2008, were ten pages in length and contained a large number of allegations against the Board and the SAT. Among other accusations, the respondent alleged that he had been deprived of his 'human rights' and he said that the Board:

ended up in stigmatizing the [respondent] for allegedly tampering with the impartialities and independence of these founts of justice without proffering any evidence to this effect, ostensibly through the plausible excuse of a false accusation aimed at the [respondent] with regard to his non-existent or 'phantom' deficiency of the [respondent's] professional knowledge (the calumny).

35 The respondent went on to accuse the Board of having 'vested interests to practice "whim-worship"', and that they had taken part in a 'witch-hunt' against the respondent.

36 On 22 January 2009, at a directions hearing before Pullin JA, the respondent was ordered to file and serve a minute of proposed amended grounds of appeal and proposed amended submissions within 21 days. The respondent filed a minute of proposed amended grounds of appeal on 9 February 2009, and then a further re-amended minute of proposed grounds of appeal on 6 May 2009.

37 At a directions hearing on 15 May 2009, the respondent was given leave to file a further re-amended minute of proposed grounds of appeal

(Page 13)

and, on 18 May 2009, the respondent filed an 'optional' minute of proposed re-amended grounds of appeal.

38 The application was heard on 26 June 2009 before Pullin JA and Newnes JA. Leave to appeal was refused and the matter dismissed, with reasons of the court published on 7 July 2009: Chin v Legal Practitioners Board Western Australia [2009] WASCA 117. In relation to the respondent's grounds of appeal, the court observed:

At a directions hearing on 22 January 2009, deficiencies in the appellant's grounds of appeal were pointed out to him. The matter was adjourned to 15 May 2009 so that he could bring in shorter reformulated grounds of appeal. Amended grounds were filed. The reformulated grounds of appeal had grown in length to 26 pages. The document revealed that the appellant appeared not to understand the distinction between grounds of appeal and submissions in support of them. The proposed grounds were prolix and contained vexatious, argumentative and offensive material [9].

39 The final re-amended grounds of appeal ultimately relied upon by the respondent were reformulated into two grounds. Ground 1 was concerned to demonstrate that the Board was involved in some form of 'deliberate wrongdoing'. Ground 2 alleged that the SAT erred by not making a declaration that the appellant had been 'calumniously defamed and injured in his reputation and character by the false full board'.

40 The reformulated grounds were still found by Pullin JA and Newnes JA to contain 'vexatious and offensive material' and 'neither ground of appeal raised any doubt about the correctness of the tribunal's decision, nor any other basis for granting leave in the interests of justice' [18].

Application for Special Leave to the High Court P36 of 2009

41 The respondent filed an application for special leave to appeal to the High Court in relation to the decision of the Court of Appeal inCACV 105 of 2008. This application for leave was filed out of time on 28 August 2009. It was accompanied by a draft notice of appeal and a summary of argument, both filed on 16 September 2009.

42 On 10 March 2010, the High Court provided a decision on the application in Ni Kok (Nicholas) Chin v Legal Practice Board of Western Australia[2010] HCASL 4. The respondent was refused leave to appeal out of time, and Hayne and Crennan JJ said that:

the [Respondent's] written submissions raise no arguable ground for the grant of special leave. We see no reason to doubt the correctness of the

(Page 14)

conclusions reached by the Court of Appeal and any appeal would have insufficient prospects of success.

CIV 1604 of 2010

43 The respondent filed a notice of originating motion on 3 May 2010, seeking:

Mandamus orders to compel the President of the State Administrative Tribunal of Western Australia (SAT) as the judge in the Applicant's Application in VR 107 of 2008 (the First Judgement) who refused to make the finding that the Pseudo Full Board exist by its very own admissive conduct and is found to be usurping the lawful functions of the real regulator of the Legal Profession in WA without the legal authority of the majority consent of the Legal Practice Board of Western Australia, to perform his duties as a judicial officer in good faith and in accordance with his Oath of Office.

An order of mandamus (to which I shall refer later) was also sought in relation to another matter.

44 An application in support of the motion was filed on 3 May 2010 and submissions on 25 May 2010. The application was heard before Le Miere J on 29 June 2010, who delivered an ex tempore judgment. His Honour described the application before him as having 'no prospect of success and is an abuse of process'.

Disciplinary Proceedings

State Administrative Tribunal Matter VR 87 of 2009

45 The Legal Profession Complaints Committee (LPCC) brought disciplinary proceedings against the respondent on 30 June 2009. The proceedings involved an allegation that the respondent's conduct amounted to professional misconduct, and orders were sought under s 438, s 439 or s 441 of the Legal Profession Act 2008 (WA).

46 The respondent applied to the SAT to strike out the LPCC proceedings. He sought the dismissal of the application on that basis that the allegations had been the subject of determination in other proceedings brought against him previously by the Legal Practice Board (LPB), and that the defence of res judicata was available to him.

47 The SAT examined the earlier proceedings brought before the LPB and determined that, while the earlier proceedings did involve consideration of some of the conduct relied upon in the proceeding in question, they did not involve allegations of professional misconduct.

(Page 15)

Accordingly, on 4 November 2009, the tribunal concluded that the defence of res judicata was not available:

Legal Profession Complaints Committee v Chin

[2009] WASAT 219

CIV 3068 of 2009

48 On 14 December 2009, the Martin CJ heard an ex parte application by the respondent. He sought leave to file an application for writs of certiorari, orders nisi to review and to quash the decision of the SAT in Legal Profession Complaints Committee v Chin [2009] WASAT 219. The registrar of the Supreme Court refused to accept the respondent's application, which he attempted to file on 30 November 2009, on the basis that it constituted an abuse of process.

49 During the hearing of the application for leave to issue proceedings on 14 December 2009, Martin CJ made a number of attempts to inform the respondent of the correct avenue for appeal. These exchanges followed:

Chin, Mr:

The Legal Practitioners Complaints Committee have got no reason to prosecute me for professional misconduct.

Martin CJ: But they have, and the matter has gone to the Tribunal and the Tribunal has made its decision and you have appealed from that to the Court of Appeal.

And further –

Martin CJ: Mr Chin, if you have got a complaint with the decision of the Court of Appeal, then the avenue of redress is by way of application for special leave to appeal to the High Court, isn't it?

Chin, Mr: Sorry, sir?

Martin CJ: If you have got a complaint with the decision of the Court of Appeal, then the avenue of redress is by way of application for special leave to appeal to the High Court of Australia, isn't it?

Chin, Mr: I have made - - -

Martin CJ: Why would you have certiorari – why could certiorari or mandamus be granted against the Court of Appeal? How could it by the Court of Appeal? How could this court grant mandamus or certiorari against its own court?

50 Martin CJ gave ex tempore reasons, refusing the respondent leave to file papers and stating that it was 'not unfair to describe the documents as incomprehensible, prolix and replete with derogatory hyperbole which
(Page 16)

does not appear to be justified by any of the facts identified in the affidavit'. During his reasons, Martin CJ also stated that:

It is impossible to identify any cause or causes of action from the papers that have been filed which, as I say, are unintelligible. There is no particular stream of thought or argument that is coherently presented through those papers and they would not provide any stable basis for any litigation of any kind [ts 8].

CIV 1019 of 2010

51 On 6 January 2010, the respondent filed an originating motion for leave to appeal. That application, although entitled 'Motion for Leave to Appeal', sought orders for leave for the applicant to have the court issue orders nisi for certiorari as per the terms of a notice of originating motion dated that same day. An accompanying affidavit, also filed on 6 January 2010 said:

In the Matter of an Application for Writs of Certiorari Orders Nisi dated 7.12.2009 to review and quash the decision of the learned President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney in his res judicata point judgment delivered on 4.11.2009 and the stay of his consequent orders the res judicata proceedings commenced by the Legal Profession Complaints Committee in VR 87 of 2009 on 30.6.2009 BE STAYED pending the decision of this Application (the original application)

And

In the matter of an Application under Order 67 r 5 of the Rules of Supreme Court, 1971 (WA) for Leave to re-file the Amended Papers of the original application that were considered and refused by Martin CJ on 14.12.2009 on grounds that the notice of motion were in-comprehensible, prolix and replete with derogatory hyperbole and does not appear to be identified by the facts identified in the affidavit.

52 In his accompanying affidavit, the respondent asserts:

It is reasonably inferable from the facts that the Principal Registrar has been directed by unseen forces to reject my original applications in whatsoever form or shape it might take, as long as it is from me. … I thought the learned Chief Justice would be fair to me but some strange things are happening to me. Upon the documents presented by me, it is impossible for a reasonable judge to come to the conclusion that my arguments are incoherent or unarguable.

53 Finally, the respondent concludes:
(Page 17)

If I am not granted this permission [to file a motion for Certiorari and mandamus], I will go into a state of shock and will not be able to do anything more to defend myself.

The stake is great here: either the Supreme Court is going to enforce the law against a court officer who has committed perjury and a judicial officer who had helped him in the cover-up. Otherwise, Western Australia is going to be a lawless state. Help me God and do not allow me to fear to fight for justice. The law is no respecter of persons and everyone who is there to uphold the law must not compromise it.

54 The respondent also filed a supplementary affidavit, sworn on 28 March 2010, which contained many annexures, a minute of proposed certiorari orders nisi prepared pursuant to the notice of originating motion dated 20 January 2010 and, finally, a minute of proposed certiorari orders nisi pursuant to the originating motion filed 6 January 2010.

55 EM Heenan J heard the application on 21 April 2010 and published reasons on 30 April 2010: Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin[2010] WASC 89.

56 Heenan J introduced his reasons by stating:

To describe the application presently before the court as unusual and difficult to identify in any meaningful character would be something of an understatement. The proceedings which have been instituted and which [the respondent] wishes to pursue are unusual in many respects and contain much confused thinking [1].

57 His Honour went on to say:

It is evident from reading the papers that not only do they show great confusion of thought and, although I regret to have to say it, an extremely obsessional preoccupation with confused thinking, permeated by streaks of extreme and unjustified conclusions about the lack of good faith of administrative, judicial and other personnel involved in earlier proceedings, but they show a complete disregard for the principles upon which prerogative or review relief can be granted by this court [15].

58 The application was refused and EM Heenan J expressed the belief that there was:

nothing of substance which would cause me to entertain any belief that there is any prospect of success in these proceedings or that relief of the kind sought would be given in the exercise of discretion [16].

(Page 18)

59 His Honour further said that, 'the proceedings also appear to me to be the grossest abuse of process' [18].

CACV 41 of 2010

60 By a notice of appeal filed on 22 April 2010, the respondent sought to appeal against the decision of his EM Heenan J in Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin [2010] WASC 89. On 21 May 2010, the respondent filed the grounds of appeal, submissions and legal authorities, orders wanted, draft chronology and draft appeal book indexes. The grounds of appeal were six pages in length and very much a repetition of matters the respondent had previously submitted to the court in various other actions.

61 The appeal was heard on 11 March 2011 before a coram consisting of Newnes JA, Murphy JA and Hall J. A decision was delivered on 4 May 2011: Chin v Legal Practice Board of Western Australia [2011] WASCA 110.

62 At the hearing of the appeal, the respondent made an oral application that his Newnes JA disqualify himself on the ground that he had previously made decisions adverse to the respondent in this court and would not bring an open mind to this appeal. The application was put on the grounds of both apprehended and actual bias. His Honour refused to disqualify himself and gave reasons.

63 Hall J dismissed the appeal, with Newnes JA and Murphy JA agreeing. Hall J commented upon the merit of the appeal:

It should be pointed out at the outset that the application for certiorari was completely devoid of merit and no other conclusion was reasonably open to EM Heenan J. No relevant jurisdictional error was identified that could possibly have formed a basis for the issue of a writ of certiorari. In any event, such relief is discretionary and that discretion would only be exercised in respect of the Tribunal in exceptional circumstances:

Carey; Ex Parte Exclude Holdings Pty Ltd

(2006) 32 WAR 501 per Martin CJ [139]. In my view no such circumstances existed.

The other aspect of the application, which appears to have been an attempt to revivify the proceedings dismissed by the Chief Justice on 14 December 2009, was manifestly an abuse of process. There was no proper basis for seeking to persist with proceedings that had been finally disposed of [31] - [32].

(Page 19)

CIV 1604 of 2010

64 The respondent filed a notice of originating motion on 3 May 2010 seeking orders of mandamus in two matters. The first of those matters has been discussed previously. The second sought:

an application for Mandamus Orders to compel Justice EM Heenan in the Applicant's Application for Certiorari Orders Nisi in CIV 1019 of 2010 to review and quash the First Judgement and Second Judgement of Justice Chaney; the latter being his ambushed

res judicata

judgment delivered on 4.11.2010 in VR 87 of 2009 for the common law-debarred Further Remedy of a Non-Existent Professional Misconduct; both the judges, to respond to their duties in the public interests in accordance with their respective Oath of Office as Justices of the Supreme Court of Western Australia.

65 The motion contains a number of submissions by the respondent, including reference to the 'secret agenda' and 'continuous usurpation of the real powers' for the 'purpose of protecting their cronies who are erring lawyers and who are constantly pillaging and plundering innocent members of the public for advancing their own interests, and as such, they are not acting in the public interests'.

66 As described previously, an application in support of the motion was filed on 3 May 2010 and submissions on 25 May 2010. The application was heard before Le Miere J on 29 June 2010. His Honour delivered an ex tempore judgment. He described the application before him as having, 'no prospect of success and is an abuse of process'.

Proceedings relating to dispute with Mr Thies

Magistrates Court matter FR 417 of 2007

67 The background to this action concerns a dispute involving the respondent, his son Mr Paul Chin and a Mr Timothy Robin Thies. By the terms of a written retainer dated 3 November 2004, Mr Thies agreed to act on behalf of the respondent and his son in relation to District Court action 2065 of 2004. The written retainer states that both the respondent and his son were responsible for payment of Mr Thies' fees and disbursements, although it seems the written retainer was only acknowledged in writing and signed by the respondent's son. Subsequently, a dispute arose between the parties regarding the liability of the respondent and his son to pay Mr Thies' fees.

68 On 11 December 1986, Mr Thies lodged a caveat against the son's property on the basis of cl 18 of the written retainer by which the son

(Page 20)

agreed to charge his property with payment of the fees. The respondent's son caused a notice under s 138B of the

Transfer of Land Act

1893

(WA) to be issued. Mr Thies then commenced proceedings in the Supreme Court of Western Australia. The caveat was extended by Templeman J in CIV 1112 of 2007, subject to Mr Thies commencing an action in the Magistrates Court to recover the alleged debt.

69 Mr Thies commenced the action for debt recovery in the Fremantle Magistrates Court against the respondent and his son, facilitated by a registrar of that court.

70 On 4 April 2007, by written offer of settlement - Form 39 - Mr Thies offered to settle his action in FR 417 of 2007 in terms of a settlement deed, (the offer is mistakenly dated 4 March 2007). On 11 April 2007, the respondent completed and filed a written acknowledgement of receipt of Offer of Settlement – Form 40. The settlement deed was signed and executed by both the respondent and his son. The son signed on 10 April 2007.

71 On 3 June 2008, the respondent applied to the Magistrates Court to appeal against the decision of the registrar. He made a claim against Mr Thies for the return of $6,000 which was a component of a compromise payment of $11,500 (the subject of the deed of agreement) received by Mr Thies. The appeal notice was accompanied by a supporting affidavit sworn by the respondent before a justice of the peace on 3 June 2008.

72 The respondent provided three pages of grounds for appeal. He claimed that the payment was 'extorted' from his son and that:

[His son] is too frightened of the continuing threats of the Claimant who has evinced an intention to take away his home property …

73 The specific orders sought by the respondent were as follows:

The Claimant [Mr Thies] return the 'exorted' monies of $6,000.00 to the [Respondent] together with interests at the rate of 6.00 % p.a.;

The Claimant do compensate the [Respondent] for all of his reasonable out of pocket expenses in the sum of $2,500.00 inclusive of the costs of seeking legal advice, lawfully incurred by him in the pursuit of this injustice;

The Claimant do remove the Caveat he unlawfully caused to be lodged on [the Respondent's son's] home property in accordance with order 4 of Justice Templeman's Order given on 8.2.2008 within 48 hours;

(Page 21)

[The Respondent's son] be exempted from making a further application in CIV 1112 of 2007 to the Supreme Court of Western Australia for the removal of the Caveat as he had so on the 15.5.2008 before Master Sanderson and this was objected to by the Claimant who had evinced no serious intention of ever removing the impugned caveat as [the Respondent's son] is incapable of doing so and should not be frustrated further. This is despite the fact that [the Respondent's son] was ready and willing to pay the promised $650.00 sum but the Claimant is demanding far more monies.

74 The respondent further filed an application for an order to suspend the enforcement of the decision of the registrar pending the outcome of the appeal. The appeal was heard before Magistrate Michelides on 2 July 2008 and the decision was reserved. On 17 July 2008, Magistrate Michelides handed down the decision and ultimately dismissed the respondent's appeal. Costs were awarded against the respondent, to be taxed.

Magistrates Court matter FR 944 of 2007

75 On 18 August 2008, the respondent filed by facsimile a statutory declaration attaching a 'Statement of Minor Claim Case' with the Fremantle Magistrates Court.

76 The statement of claim contains four pages of facts and it is difficult to ascertain what the respondent claims. It is stated that Mr Thies 'wrongfully' joined him as the second defendant in FR 417 of 2007. On the final page the respondent outlines the remedy or relief claimed as:

The [Respondent] claims from the Defendant:

The extorted sum of $6,000.00

General and special damages of $1,500.00

Costs of this Action: $49.90

Further appropriate orders for [the Respondents son] which this Honourable Court deems necessary

77 The respondent filed two interlocutory applications in relation to this matter. The first, dated 10 September 2007, set out a number of arguments, but the only specific orders sought were to transfer the matter to the general division of the Magistrates Court and to have the judgment entered on 7 June 2007 (in FR 417 of 2007) set aside. On 3 October 2007, orders were made by Magistrate Michelides to transfer the action to
(Page 22)

the general division and adjourn the balance of the matter sine die. Programming orders were also made.

78 The second application, received by the court on 31 October 2007, sought summary judgment to be entered and also seemed to seek an adjournment of the applications.

79 The matter was brought before Magistrate Musk on 28 November 2007. The application to have the judgment entered on 7 June 2007 (in FR 417 of 2007) set aside, was discussed. Her Honour made it clear that she did not have the power to set aside judgment in other proceedings. Mr Thies' legal representative alleged that it was an attempt by the respondent to 're-agitate issues which [had] already been determined in other proceedings' and sought an adjournment to lodge an application to strike out the respondent's claim. Magistrate Musk adjourned the applications to a hearing on 2 January 2008.

80 The matter was adjourned administratively on a number of occasions and finally came before the court on 17 July 2008. In the preceding months between hearings, the respondent had filed a number of documents, including: a response to application (objecting to Mr Thies' application to strike out the respondent's claim), a supporting affidavit and annexures, written submissions, a further affidavit complete with annexures, and further written submissions in response.

81 At the conclusion of the hearing, Magistrate Musk gave ex tempore reasons. In her reasons she described the respondent's claim as 'misguided' and 'improper' rather then 'vexatious or frivolous'. Her Honour ordered that the respondent's application for default judgment be dismissed; the whole of the respondent's case be struck out pursuant to s 17(1)(e) Criminal Procedure Act 2004 (WA) (CPA) on the basis that it was improper; and the respondent's claim be summarily dismissed under s 18 CPA. The respondent was further ordered to pay Mr Thies' costs of the application and the action to be taxed if not agreed, and an order was made pursuant to s 31(3)(b) CPA in relation to all or any professional costs incurred by Mr Thies in this matter, on the basis that the unsuccessful party's claim was wholly without merit.

82 Prior to the court rising, the respondent stated that, 'I want it on record that I am objecting to this decision and I want this decision to be reviewed because it is not made in accordance with the law.'

(Page 23)

District Court matter 6 of 2008

83 On 23 January 2008, the respondent filed a notice of appeal in the District Court against the decision of Magistrate Musk, seeking that the decision be set aside in toto. On 8 April 2008, Deputy Registrar Hewitt made orders in chambers that the appeal be amended in terms of the amended notice of appeal provided on 8 April, the matter be heard before a Judge on 12 May 2008 and that costs be reserved.

84 An appeal book, which ran to some 128 pages, was filed by the respondent on 17 April 2008. Mr Thies also filed an appeal book, totalling 72 pages.

85 The appeal came before Commissioner Herron on 12 May 2008, as ordered on 8 April. The decision was reserved and delivered on 20 May 2008. In his decision, Commissioner Herron stated:

In both his oral and written submissions, and also in the voluminous documentation which has been filed, both for the purposes of this appeal and in the Magistrates Court, the [Respondent] uses quite colourful language such as, 'improper motive for action by the respondent', that the threats of [Mr Thies] consisted of 'unlawful demanding for monies for which he is not entitled', that the threats are unlawful or illegitimate, that there were illegal threats made by [Mr Thies] which were unconscionable in nature. In my view those allegations are without foundation, lack substance and are unmeritorious [68].

He ultimately upheld the decision of the magistrate and dismissed the respondent's appeal.

CIV 1903 of 2008

86 The respondent filed an originating motion with the Supreme Court of Western Australia on 24 July 2008. The motion sought an order nisi for a writ of certiorariin respect of the various decisions and orders given in FR 944 of 2008, FR 417 of 2008 and District Court Appeal 6 of 2008. The specific orders sought by the respondent were five pages in length.

87 The general gist of the motion was that the settlement, the subject of FR 944 of 2008, FR 417 of 2008 and District Court Appeal 6 of 2008, between the parties, reflected in the settlement deed and subsequent court orders, was vitiated by duress and undue influence on the part of Mr Thies, having regard to the psychiatric condition of the respondent's son and the consequential pressures upon the respondent and his family at that time. The suggestion is that Mr Thies took advantage of his former

(Page 24)

clients by arranging for them to sign the settlement deed and the related court documents.

88 These allegations were discussed by Mr Thies at length in the material he filed with the court. At par 169 of his affidavit dated 6 October 2009, he said:

From my perspective, the settlement which I reached with Mr Chin and Paul was a genuine compromise of my entitlement to remuneration under the retainer agreement. $11,500 was less than I considered I was entitled to, although I also recognised the risks associated with litigation and the effort and expense to which I would be put if I took the matter to hearing. Another factor in my decision to compromise FR 417 of 2007 was Mr Chin's behaviour in making what I considered to be baseless and improper allegations about me to the Legal Practitioners Complaints Committee, the Police, the judiciary, its staff and others. (I note that the Legal Practitioners Complaints Committee dismissed Mr Chin's complaint, as discussed above, and I have not been interviewed by the Police). These complaints caused me distress and inconvenience, even though I considered that the complaints and allegations were without foundation and I was confident that I had done nothing wrong. I compromised the claim in an attempt to bring finality to my dealings with Mr Chin.

89 The matter came before Hasluck J on 19 August 2008 and his Honour delivered judgment on 7 November 2008 in Re Michelides; Ex parte Chin[2008] WASC 256. At the conclusion of his reasons, Hasluck J made the following orders:

1. The application for review is granted and a review order is made in respect of each of the following decisions; that is, the decision of her Honour Magistrate Musk in the matter of FR 944/07 and that of his Honour Magistrate Michelides in the matter of FR 417/07 of the Magistrates Court at Fremantle, with the review order to be heard by a judge of the Supreme Court in chambers on a date to be fixed.

2. For the time being no order is made as to the decision of Commissioner Herron in the matter of APP 6/08 in the District Court.

3. A copy of the notice of motion for review order, a copy of the reasons for judgment and these review orders are to be served upon the judicial officers referred to in Order 1 within 56 days from the date hereof. The affidavits of the applicant specified in the reasons for judgment are to be served on them if they so require.

4. The proposed respondent, Timothy Robin Thies, is to be served either personally or by registered mail with the notice of motion for review and all subject affidavits together with a copy of these

(Page 25)

orders and the reasons for judgment granting the review order within 56 days either personally or by registered mail.

5. This review order operates as a stay of the proceedings specified in Order 1 until further order by this Court.

6. These proceedings in the Supreme Court and the review orders specified in Order 1 be adjourned for further consideration by a judge in chambers on a date to be fixed, but not earlier than 28 days after service is effected in accordance with these orders.

7. The applicant and the proposed respondent mentioned in Order 3 above or either of them shall have liberty to apply to have the proposed respondent joined as a party to the proceedings.

8. There shall be general liberty to apply on 7 days notice to any party affected or likely to be affected by the application.

90 At a chambers hearing on 17 June 2009, Hasluck J made further orders, including that Mr Thies be joined as a defendant to the proceedings, and various other orders of a procedural nature.

91 The matter again came to the court on 30 April 2010, where Kenneth Martin J heard it, along with another action, CIV 1112 of 2007, which will be discussed in detail later.

92 At this hearing Martin J raised the issue of the respondent appearing as the legal representative for both himself and his son. The discussion took place as follows [ts 4 – 6]:

Kenneth Martin J:

Yes. You would be aware then that both those documents carry the description that they were prepared by you as a barrister and solicitor.

Chin, Mr: The fact is, sir, I am a barrister and solicitor in the rules of the barristers and solicitors in the Supreme Court. I have never been struck off.

Kenneth Martin J: You are on the roll?

Chin, Mr: Yes, sir.

Kenneth Martin J: But you don't hold a practice certificate.

Chin, Mr: I do not hold a practice certificate because I am disputing with the Legal Practice Board because there exists a - - -

Kenneth Martin J: Not interested, Mr Chin. Listen to this: section 36 of – sorry, I withdraw that. The Legal Profession Act provides that you must

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hold a practice certificate and if you don't hold a practice certificate – this is the Legal Profession Act 2008, section 12(2):

A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Penalty a fine of $20,000.

Chin, Mr: I understand that, sir. Section 12 also says that if I do it on a pro bono basis there is no reason why I cannot do it, sir. I humbly apologise.

Kenneth Martin J: Well, that's the first problem. You don't hold a practice certificate. Second problem is even if you did hold a practice certificate, as I understand it you are the subject of an order which you've challenged unsuccessfully in various courts to the effect that you cannot act by yourself. In other words as a sole practitioner. You can only act under supervision.

…

Kenneth Martin J: Third point, even if you weren't labouring under the lack of a practice certificate, and even if you weren't labouring under the fact that you can't practice other than in a supervised practice, my perusal of the materials in the caveat action, 1112 of 2007, indicates that you have an appalling conflict of interest on the basis that the materials that your son deposes to in his affidavit indicate that you are a protagonist in that dispute. So even if you didn't suffer from difficulties, you would be conflicted from acting in any event. So that is a problem.

93 His Honour subsequently refused to hear the respondent on the caveat matter CIV 1112 of 2007. Concerning CIV 1903 of 2008, Kenneth Martin J made it very clear that the respondent 'cannot get certiorari, prohibition or mandamus against a magistrate, full stop'. Rather, that under s 36 of the Magistrates Court Act, the respondent could seek a review of the magistrate's decision.

94 The respondent also argued that by Hasluck J's order for a review, his Honour had ruled that, 'it was found that [his] son was robbed'; and that, 'it was found that there was fraud [ts 9].' Kenneth Martin J explained to the respondent very carefully that this was not the case and then adjourned the matter for case management on 13 May 2010.

95 On 10 May 2010 the respondent filed an outline of submissions objecting to Martin J's ruling that he would not hear the respondent in the caveat matter CIV 112 of 2007.

96 In a document dated 12 May 2010, Mr Thies issued a summons for security for costs, to be heard before Martin J in conjunction with the other issues. The respondent subsequently filed submissions in opposition

(Page 27)

to security for costs. These matters were discussed at the hearing on 13 May 2010 and Martin J eventually adjourned proceedings until 17 June 2010.

97 On 17 June 2010, his Honour again heard the matter in relation to Mr Thies' application for security pursuant to O 25 of the RSC under its chamber summons of 13 May 2010, in which he sought orders that:

1. [T]he [Respondent] do give security for [Mr Thies] costs of the proceedings in the sum of $38,000 by payment of that amount into Court, and that in the meantime all further proceedings be stayed.

2. Order 5 of the Orders made by Hasluck J on 7 November 2008 staying Magistrates Court proceedings FR 944 of 2007 be discharged to the extent necessary to enable [Mr Thies] permit finalisation of the taxation of [his] bill of costs in those proceedings and enforcement of [his] entitlement to recover costs.

98 The respondent's application for review under s 36 of the Magistrates Act was also referred to. On 8 July 2010 his Honour published reasons: Re Michelides; Ex Parte Chin [No 2] [2010] WASC 169.

99 In his reasons, Martin J described submissions filed by the respondent in relation to his s 36 application as being:

in many places utterly incomprehensible. Aside from being prolix and repetitive, they are couched in emotive language inappropriate to be used by any person, let alone a legal practitioner [23].

100 His Honour granted the application for security in the amount of $20,000 and outlined his reasoning at [39]:

I consider it necessary and proper here to protect to some extent [Mr Thies] against the costs generated by resisting any further progression of this application under s 36 which, on the face of it, currently seems to me to be threadbare in terms of potential merit. I am well cognisant of a policy consideration against stifling a party's rights via a security application, but the oppressive nature of the convoluted materials routinely assembled and filed by this [Respondent], the relatively small amount, $6,000, at issue and the doggedly obsessive nature of the [Respondent's] approach to this litigation (notwithstanding the court's efforts to facilitate a resolution by mediation) strongly suggest to me that this is an appropriate case for security to be ordered.

(Page 28)

CIV 1112 of 2007

101 This matter was heard before the court often in conjunction with CIV 1903 of 2007 and has been discussed in part above.

102 On 8 October 2009, the respondent filed a chamber summons which sought an order for Mr Thies to 'release Caveat K17968 which he had illegally and without the necessary caveatable interests placed on the home property of the [respondent's son].' He further sought damages in the sum of $95.50 and costs.

103 The summons was accompanied by a supporting affidavit of 58 pages in length. The content of the affidavit was similar to all the affidavits and submissions previously filed by the respondent in his other proceedings.

104 On 30 April 2010, Martin J heard the matter along with CIV 1903 of 2008. As I have noted, his Honour subsequently refused to hear the respondent on the caveat matter CIV 1112 of 2007. His Honour ordered that a transcript of what had been said that day be provided to the parties - so that various matters which he had identified as seemingly requiring attention by the parties, be addressed.

105 An amended chamber summons, affidavit and submissions on the caveat matter, were filed on 10 May 2010. This amended summons was purportedly filed by the respondent's son and other recently filed materials were also said to be by respondent's son. But Martin J found these to be mere 'attempts by [the respondent] to circumvent the core difficulties that he finds himself constrained by in acting as his son's legal representative in this matter.'

106 The application was heard on 13 May 2010 by Martin J. At the hearing, the respondent made an oral application that his Honour disqualify himself on the basis of either actual or apprehended bias. His Honour declined to do this on the basis that the application was wholly misconceived. In a decision published on 25 May 2010 his Honour dismissed the summons as an abuse of process: Thies v Chin [2010] WASC 111.

CIV 1981 of 2010

107 The respondent filed a notice of originating motion in the following terms:

(Page 29)

In the matter of the apprehended bias of the Learned Justice Kenneth Martin and his jurisdictional errors in dealing with CIV 1903 of 2008 and CIV 1112 of 2007 through his refusal to take into account relevant matters and in taking into account irrelevant matters; just as though His Honour was reasonably seen to be descending into the arena of conflict by taking sides with the opposite party and was thus blinded by the dust of conflict; he consequently denied the [respondent], his natural justice.

108 The motion was accompanied by a supporting affidavit. Both were filed with the court on 28 June 2010. The motion purported to seek orders nisi for mandamus or prohibition against the judgment of Kenneth Martin J.

109 Along with CIV 1877 of 2010, the application was heard before EM Heenan J on 4 August 2010. The respondent was not present at the hearing and the matters were adjourned sine die: Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212. His Honour outlined his reasons for adjourning the matters rather then dismissing them outright, at [5] - [8]:

Yesterday, on 3 August 2010, my associate had cause, at my direction, to attempt to contact Mr Chin to alert him to a small change in the time for the hearing. An email has since been received from Mr Chin in reply which I will mark exhibit 'A' as part of the record. By this email Mr Chin asks that the proceedings should not go ahead today and, in the process, submits that I should not hear his matter because he apprehends that I am not capable of delivering fair justice on account of apprehended bias, having dismissed another case in which Mr Chin was involved, CIV 1019 of 2010.

My reasons for dismissing that other matter have been published, Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin [2010] WASC 89, and are presently the subject of an application for leave to appeal to the Court of Appeal. The email goes on to assert a number of other reasons for the suggested apprehended bias, essentially relating to what Mr Chin regards as the unwillingness of myself and other members of the Court toinvestigate, in a manner which he would consider satisfactory, his alleged complaints about the course of the litigation involving Mr Thies. I see no reason why I should not hear and determine these applications.

It is a matter of record that those matters identified by Mr Chin have been investigated, have been the subject of judicial determinations and have been dismissed on the merits. Mr Chin concludes with an observation that he is temporarily away from Perth on an emergency to be with his son who was taken ill in Malaysia. He attempts to associate this illness with the course of the litigation in which he is involved but I disregard that.

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The absence of the applicant because of the illness of a close member of the family would, if it had been properly explained, be a reason to adjourn these proceedings. I will therefore overlook the lack of any formal attempt to seek an adjournment, and the general tenor of the email, and grant the adjournment.

110 After the delivery of Heenan J's decision, the respondent went on to file a further affidavit in CIV 1981 of 2010 and CIV 1877 of 2010 on 30 September 2010. No new information was provided by this affidavit other then further reiteration of the fact that the respondent was unable to attend court before Heenan J on 4 August 2010 due to his son and himself becoming sick and the need for him to travel to Malaysia.

CACV 75 of 2010

111 The respondent filed an Appeal Notice on 12 July 2010 against the decision of Kenneth Martin J in Re Michelides; Ex Parte Chin [No 2]. Newnes JA heard the application for leave to appeal on 15 October 2010 and gave the respondent leave to amend his appeal grounds. His Honour specifically said:

Mr Chin, I am - and I must say with reluctance - going to give you one further opportunity to put the appellant's case in order. I will give you leave to file and serve an amended appellant's case within a time which we will discuss in a moment, but I do need to make it absolutely clear that it will take very special circumstances to enable you to obtain any further opportunity to put the case in order.

You should for all practical purposes proceed upon the basis that it is essential that you put it in proper order the next time or it is most likely that your application for leave to appeal will be dismissed. So it must be in a proper form on the next occasion.

112 …

You will have to pay particular attention to the grounds of appeal. You will also have to pay attention to the submissions and to the other material … but the principal attention must be directed to the grounds of appeal and the submissions (ts 8 - 9).

113 The matter was adjourned until 23 November 2010.

114 The amended grounds (seven pages) were filed by the respondent on 3 November 2010. On 10 November 2010, the respondent was given notice that at the hearing on 23 November he would also be required to show cause why the appeal should not be dismissed under r 43(2)(g)(i), on the basis that none of the grounds of appeal had a reasonable prospect of

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success, or r 43(2)(g)(ii), on the basis that the respondent had failed to comply with r 32(4) or r 32(5). The latter rules deal with the requirements as to the form and content of the grounds of appeal and submissions in the respondent's case.

115 The matter came before the Court of Appealon 23 November 2010, Pullin and Newnes JJA. Their Honours published reasons on 7 December 2010: Chin v Thies [2010] WASCA 230. In the reasons, they stated that the grounds of appeal in the amended respondent's case were preceded by what was described as, 'an obscure and irrelevant preamble, for which there is no provision in the Court of Appeal rules.' They went on to say that:

The grounds of appeal themselves suffer from similar deficiencies to the earlier grounds and are certainly no closer to being in compliance with the Rules. They border on the incomprehensible and, again, a number of the grounds appear to relate to the decision of the primary judge in CIV 1112 of 2007 in

Thies v Chin

. The submissions were equally deficient [26].

116 Their Honours' opinion as to the general disposition of the respondent's case was given at [33]:

The primary judge referred in his reasons for decision to the [Respondent's] 'doggedly obsessive' pursuit of proceedings against [Mr Thies]. This appeal seems to be consistent with that approach. It is a matter of concern that proceedings in which the amount in issue is $6,000 should ever have been pursued to the point that these proceedings have. Be that as it may, the [Respondent] has had two opportunities to file an [Respondent's] case which complied with the Rules. Not only has neither of the [Respondent's] cases he has filed done so, but they have fallen so far short that there is no reason to believe that he would be able to do so if given a further opportunity, and every reason to believe the contrary. In the meantime, at least on the [Mr Thies'] side, costs out of all proportion to the amount in issue are mounting up. On the material before us, the appeal is manifestly hopeless and it should now be brought to an end.

The appeal was dismissed with costs.

Application for Special Leave to the High Court P50 of 2010

117 An application for Special Leave was filed with the High Court on 17 December 2010. The respondent sought leave to appeal the judgment of Pullin and Newnes JJA in Chin v Thies [2010] WASCA 230.

118 The respondent referred to the judgment of the Court of Appeal as a 'travesty of justice'. The language contained in the application was often emotive, obscure and irrelevant, including phrases like, 'I humbly say that

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the courts below know that although the sense of moral values may differ between different societies, morality here means justice and fair play and being able to distinguish between what is right and what is wrong.' The application continued in this vein for 13 pages.

119 The High Court delivered short reasons on 9 March 2011 stating that the respondent had no 'real prospects of success', refusing leave and dismissing the application.

CIV 1491 of 2011

120 On 24 March 2011, the respondent filed a notice of originating motion with the Supreme Court. The motion sought orders nisi for certiorari in respect of the decision of the High Court in P50 of 2010, the Court of Appeal in CACV 75 of 2010, and a further application that appears to have been refused filing, having been declared an abuse of process by the Principal Registrar. The motion was accompanied by a 113 page affidavit and submissions. Nothing in any of these documents varied substantially from the papers previously filed by the respondent in his other actions. The application came before Allanson J on 11 May 2011, and his Honour dismissed it.

The respondent's case

121 In response to the 16-volume affidavit sworn by Ms Kah Yee Loh, the respondent provided to the court a two page facsimile document dated 25 May 2011, an outline of submissions dated 26 August 2011, and he handed up a series of letters and other articles that he had previously sent (in various forms) to the SAT.

122 On 4 October 2011, the respondent further emailed twenty pages of submissions entitled, 'Written submission by the respondent for hearing before His Honour Judge Sharp on 11^th day of October 2011 at 10.00am, copied to Associate of Murray J and State Solicitors Office in relation to CIV 1689 of 2011' and an unsigned document purporting to be a statutory declaration.

123 On 27 and 28 November 2011, the respondent emailed my associate a document referring to a speech by Mr Gordon Turriff QC, President of the Law Society of British Columbia. His submissions make a series of allegations, including that, 'the Learned President Chaney of SAT is biased and prejudiced'; and he makes repeated references to the 'malicious intent' of the LPCC.

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124 The respondent disagrees with the view expressed by some of the judges who have heard his matters, and by the applicant in this matter, that he has made many attempts to 're-litigate' matters previously decided. He argues that, '[t]hey are not multiple attempts to re-litigate the same issues as the trial judge did not decide the issues that were before him and therefore they are not res judicata and the situation necessitates their being brought up before another two judges.' He further states that, 'I shall abide by the decision of the court if it stands to reason and logic and the issue has been properly decided.'

The vexatious litigation restriction proceedings

125 The application in this matter came before the court on 29 August 2011. The applicant relied generally on the 16-volume affidavit of Ms Loh, written submissions and an aide-memoire in the form of a chronology of proceedings instituted by the respondent.

126 The applicant argued at the hearing that:

[It] is often the case in these sorts of proceedings where a respondent has an honest belief that their position has not been vindicated and if they keep litigating somehow their position will be vindicated, but that any decision that is made that doesn't suit his perception of events or of what should have been the answer, he has extreme difficulty accepting and so he just keeps trying.

He has the legal knowledge to know that it's completely inappropriate to commence certiorari proceedings or mandamus proceedings after a matter has been appealed to the High Court. That doesn't stop him. You also see that is just one aspect about which he is litigating, and there is the amount of time and resources that this takes, of the court, and where private litigants are concerned, the expenses involved for them: ts 6.

It is noted that the respondent has instituted seven certiorari and mandamus proceedings in the Supreme Court.

127 The applicant submitted that the main grounds relied upon for the respondent's proceedings to be classified as 'vexatious' were under pars (a) and (c) of the definition of 'vexatious proceedings' in s 3 of the Act. The applicant further relied on the fact that the proceedings instituted by the respondent are conducted in a manner so as to harass or cause delay or detriment within the meaning of par (d) of the definition of 'vexatious proceedings'.

128 The respondent's oral argument at the hearing concentrated on defining 'justice'. He did, however, outline his version of the events

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leading up to his instigation of various court proceedings. I will briefly summarise what he said.

Proceedings relating to imposition of conditions on practice certificate

129 The respondent claimed that at the time he 'came out as a lawyer' he was asked by a wealthy Malaysian doctor to act on her behalf, as she was, 'in the midst of being plundered by a former president of the WA Law Society'. It was after he aided this woman that his freedom to practise was restricted, 'by an initiative of the Law Society'. He further claims that the LPCC is, 'acting at the behest of someone'; and is making a, 'decision that it has got no reason to make' [ts 21] The respondent submitted that this is an issue that had never been decided.

Proceedings relating to dispute with Mr Thies

130 The respondent argued that his action against Mr Thies is not concerned with the recovery of the $6,000 cited in his legal documents filed in relation to the matter, but rather it is the 'public interest' he is fighting for, for himself, his wife and, 'all other members of the public [who] have been intimidated, have been bullied and have been asked to pay money that is never owed to Mr Timothy Robin Thies and the money and the demand keep on increasing by the week.' [ts 23]

131 The respondent submitted that he has never conducted 'one' vexatious proceeding and further reiterated that he is not likely to in the future. He conceded that, 'I may be wrong procedurally in some cases and it is only human nature for me to make mistakes. But I am a trained lawyer, I have been through the mill.'

Order under s 4 of the Vexatious Proceedings Restriction Act 2002

132 The court must be satisfied of the following:

1. That the respondent has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings.

2. That the court should exercise its discretion to make an order under the Act.

3. The appropriate terms of any order made under the Act.

133 As to the question of the establishment, in proceedings such as this, of the fact that the respondent has instituted or conducted vexatious
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proceedings or is likely to do so, careful attention must be given to the definition of 'vexatious proceedings' in s 3 of the Act. I have set out the relevant provisions at the commencement of these reasons.

134 It will not necessarily be the case that for proceedings to be held to be vexatious, any mental element on the part of the respondent will need to be proved, although proceedings which might be properly grounded and which might constitute a legitimate process seeking the exercise of the jurisdiction of the court may, under par (b), be held to be an abuse of process, having regard to the motivation for their institution.

135 Further, it is made clear by par (d) of the definition that whatever may be the intention or motivation of the party bringing the proceedings, if they are conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose, then they will held to be vexatious, even though the motivation of the litigant who brings the proceedings may be a genuine desire to ventilate a cause of action which, in other circumstances, would be held to be a legitimate process seeking the exercise of the court's jurisdiction.

136 Paragraph (c) of the definition includes as vexatious proceedings those proceedings which are instituted or pursued without reasonable ground, factually or in law, and so it is that it has been held that proceedings which seek to mount what is effectively a collateral attack upon the judgment of the court previously given, adverse to the interests of the party bringing the proceedings, will be vexatious because, given the earlier judgment, the litigant can be seen to be simply hoping for a favourable result in a case where it has formerly been held that there is no reasonable ground for the litigation.

137 A proper challenge to the correctness of a decision is, of course, the subject of the appellate process, where that is available in the sense that the right of appeal remains one which may be exercised with some reasonable prospect of success. The judgment of Heenan J in Commonwealth Bank of Australia v Bride [2004] WASC 177 [127] brings these propositions together in a useful way.

138 Finally, it is noteworthy that under par (a) of the definition in s 3 of the Act, proceedings which are, for any reason, held to be an abuse of the process of the court or tribunal will be held to be vexatious. This provision has a capacity to operate not only in circumstances which might otherwise fall within pars (b) - (d) of the definition, but also more widely. There is and can be no closed list of proceedings which will properly be

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held to be vexatious in character for the purposes of enlivening the discretion conferred by s 4(1) of the Act.

139 That the Act operates in that way is consistent with the general law in relation to staying proceedings upon the ground that they constitute an abuse of the process of a court: Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 (French CJ, Gummow, Hayne & Crennan JJ) 92 - 94 [25] - [28] (Heydon J) 103 - 105 [56] - [58].

140 I have described in some detail the proceedings upon which reliance is placed in this application. Overwhelmingly they may be characterised as proceedings which constitute an abuse of the process of the court or tribunal concerned, not because of a wrongful motive on the part of the respondent, but because of their character. They are repetitious and seek, time and again, to ventilate matters upon which there have been clear decisions showing that whatever process is employed to bring the matter before the court, the matters sought to be ventilated are without merit.

141 In some cases the grounds advanced are and have been held to be incomprehensible. The opposing party is harassed and put to expense and detriment without cause. Further, although the applicant is often polite and respectful in the approach made to the court (and was always so before me), there have been a number of occasions where he has indulged in distracting hyperbole and where he has made allegations against judicial officers and others which are obviously without justification.

142 In that way, not only has he caused harm to the litigants who are the targets of his proceedings, but he has harmed the process of the court or tribunal in question itself by consuming time, often to an inordinate degree, which might usefully be put to the resolution of legitimate disputes brought and resisted by litigants genuinely seeking the assistance of the court or tribunal.

143 The respondent is amply demonstrated by the evidence to have instituted and conducted vexatious proceedings and the history of his activities in approaching the court or tribunal concerned shows that it is likely that, unchecked, he will continue to institute and conduct vexatious proceedings. Both of the limbs of s 4(1)(a) and (b) are amply made out in this case.

Discretion

144 In determining whether the court has the discretion to declare the respondent a vexatious litigant under s 4 of the Act, a number of factors

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must be considered. In

Attorney General v Michael

[2005] WASC 203, Le Miere J succinctly described some of the rights of a person to be taken into account:

The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification [143].

145 Le Miere J outlined factors that support the making an order under s 4(1)(d) of the Act, as follows:

[T]he nature and frequency of the litigation…without reasonable ground, the distress and aggravation that such litigation must have caused to the persons against whom it has been brought and the amount of time that it has occupied the various courts, together with the likelihood that such conduct will continue [146].

146 The respondent in this case has demonstrated on numerous occasions a single-minded willingness to litigate and re-litigate the same issues. It may be that he has an 'honest belief' that he has reasonable grounds to bring proceedings, but objectively there is no reasonable prospect of success. The other aspect of his actions is that the papers filed and the oral arguments he presents often contain material of an inflammatory or scandalous nature. He has made allegations against four judges of this court and numerous other members of the legal community.

147 The right of an individual to commence proceedings to enforce or defend their rights is a fundamental right in a free society and while to declare a person a vexatious litigant does, of necessity, put a limit on this right, it remains protected under s 6(1) of the Act, upon an application for leave to instigate court proceedings. Under s 6(7), leave is not to be granted unless the court or tribunal is satisfied that:

(a) the proceedings are not vexatious proceedings; and

(b) there is a prima facie ground for the proceedings.

Conclusion

148 For the reasons set out above, this court can be satisfied that the respondent has instituted or conducted vexatious proceedings as defined under the Act, and is likely to institute or conduct vexatious proceedings in the future if not restrained from doing so. The case is one which both

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justifies and requires the making of an order under s 4(1)(c) of the Act in relation to proceedings of any kind.

Stay of the Supreme Court proceedings in CIV 1981 of 2010

149 The applicant also seeks a stay of the Supreme Court proceedings in CIV 1981 of 2010. It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed. In Attorney General v Michael (Le Miere J), it is stated thatthe court can only make such an order if it is:

satisfied that the actions so stayed have no legal merit. The court must be astute to ensure that it does not prevent a litigant from pursuing a claim that may have legal merit [147].

150 This matter was originated by a motion filed on 28 June 2010. The motion purported to seek orders nisi for mandamus and prohibition against the judgment of Kenneth Martin J. As has been discussed above, the matter was adjourned sine die by EM Heenan J on 4 August 2010 after the respondent failed to attend court. Despite his Honour not dismissing the matter outright, he did state in his judgment:

It is a matter of record that those matters identified by Mr Chin have been investigated, have been the subject of judicial determinations and have been dismissed on the merits.

151 It is for this reason that a stay of the whole of the Supreme Court proceedings in CIV 1981 of 2010 should be granted.

152 Finally, the applicant should have the costs of the application, to be taxed.

Principal Registrar of the Supreme Court v Chin

[2012] WASC 7

10 JANUARY 2012

THE PRINCIPAL REGISTRAR OF THE SUPREME COURT -v- CHIN [2012] WASC 7