Re Justice Kenneth Martin; Ex parte Chin
[2010] WASC 212
•11 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212
CORAM: EM HEENAN J
HEARD: 4 AUGUST 2010
DELIVERED : 4 AUGUST 2010
PUBLISHED : 11 AUGUST 2010
FILE NO/S: CIV 1877 of 2010
MATTER :The wrongful removal of the Applicant's Caveats in the Hazelmere and Mt Lawley Properties of late Ms Nancy Cloonan Hall by Master Sanderson in CIV 1775 of 2008.
And
The falsifications of the court records in CIV 1131 of 2006 by David Taylor Solicitor.
And
The judgment of the Court of Appeal of the Supreme Court of Western Australia in CACV 107 of 2008, particularly at paras 54 and 55 relying on the letter of Registrar Powell dated 11.6.2009.
And
The rationale of the High Court in Special Leave Dispositions of the High Court of Australia in P1 of 2010 of 2010 providing the legal basis for the causal connection between the Applicant's Solicitors Work in CIV 1142 of 2006 and the removal of the caveats of Spunter's Pty Ltd in order to enable the Applicant to establish a statutory first charge over the salvaged properties under s 224 of the former Legal Practice Act, 2003
EX PARTE
NICHOLAS NI KOK CHIN
Applicant
FILE NO/S :CIV 1981 of 2010
MATTER :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 descending into the area of conflict by taking sides with the opposite party and was thus blinded by the dust of conflict; he consequently denied the Applicant his natural justice
BETWEEN :NICHOLAS NI KOK CHIN
Applicant
Catchwords:
Certiorari, prohibition and mandamus, applications for prerogative remedies against judicial officers of Supreme Court - Avenue of appeal exhausted - No appearance by applicant
Legislation:
Nil
Result:
Adjourned sine die
Category: B
Representation:
CIV 1877 of 2010
Counsel:
Applicant: No appearance
Solicitors:
Applicant: No appearance
CIV 1981 of 2010
Counsel:
Applicant: No appearance
Solicitors:
Applicant: No appearance
Case(s) referred to in judgment(s):
Application of Cannar Re Eubanks [2003] NSWSC 802
Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255
Barton v Walker [1979] 2 NSWLR 740
Chin v Hall [2009] WASCA 216
Chin v Hall [2010] HCASL 104
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Mayor of London v Cox (1867) LR 2 HL 239
Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351
Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595
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
Re Western Australian Industrial Appeal Court; Ex parte Carter (1992) 7 WAR 348; (1992) 44 IR 171
Thies v Chin [2010] WASC 111
EM HEENAN J: There are two originating motions listed for hearing, one seeking an order nisi for certiorari, the other an order nisi for certiorari prohibition and mandamus. Each concerns decisions of another judicial officer of this court.
In proceedings number CIV 1877 of 2010 the applicant, Mr Nicholas Ni Kok Chin, seeks an order nisi for certiorari in relation to a series of matters which it is difficult to identify with precision because of the varied and obscure relief which is sought but on reading the supporting affidavit, it is obvious that what is sought to be quashed is a final decision of Master Sanderson in the cause of Audrey Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin [2008] WASC 255, given in October 2008. The record also shows that an appeal from that decision to the Court of Appeal was dismissed on 9 December 2009 by a court comprising McClure P, Owen and Buss JJA: Chin v Hall [2009] WASCA 216 It also shows that a subsequent application for special leave to appeal to the High Court of Australia was dismissed by order of the High Court made by Heydon and Bell JJ on 26 May 2010: Chin v Hall [2010] HCASL 104. It follows that all avenues of appeal from the decision which is sought to be quashed by this present application have been fully exhausted without success.
In cause CIV 1981 of 2010, Mr Chin is applying for orders nisi for mandamus, prohibition and certiorari to quash certain decisions taken in the course of other proceedings, pending in this court. The proceedings are two causes, Thies v Chin [2010] WASC 111, CIV 1112 of 2007, and Re Michelides; Ex parte Chin [No 2] [2010] WASC 169, CIV 1903 of 2008, which were before Kenneth Martin J on 13 May 2010 and 17 June 2010 respectively and in the course of which Kenneth Martin J declined to accept a submission from Mr Chin that his Honour should not hear that litigation because of alleged or apparent bias.
There is no appearance by the applicant today. In the ordinary event that would usually result in a simple order and direction adjourning both sets of proceedings sine die. I have decided that I will adjourn both sets of proceedings sine die but the occasion requires some explanation, hence these observations.
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 to investigate, 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.
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.
In passing, however, 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 Mayor 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.
Subject to any submissions from Mr Chin addressing those decisions, it seems likely that these applications are doomed to failure, but I will not dismiss them at this stage. I will simply adjourn them sine die.
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