Re Nicholas NI Kok Chin;

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE NICHOLAS NI KOK CHIN; EX PARTE CHIN [2012] WASC 219

CORAM: McKECHNIE J

HEARD: 18 JUNE 2012

DELIVERED : 18 JUNE 2012

FILE NO/S: CIV 3427 of 2011
EX PARTE
NICHOLAS NI KOK CHIN
Applicant
AND
TIMOTHY ROBIN THIES
First Respondent
PAUL CHUNG KIONG CHIN
Second Respondent

Catchwords:

Vexatious proceedings - Leave to commence - No new principles

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Leave refused

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent          :     No appearance
Second Respondent      :     No appearance

Solicitors:

Applicant:     In person
First Respondent          :     No appearance
Second Respondent      :     No appearance

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

Nil

McKECHNIE J: In relation to CIV 3427 of 2011, the applicant, Mr Chin, has been declared a vexatious litigant and requires leave to commence or continue proceedings. Leave has not been sought by Mr Chin, who asserts that he is a lawyer not in current practice. This is surprising because his notice of motion and affidavit have all the hallmarks of being drawn by an unlearned layperson. The affidavit contains material that is irrelevant and some passages are incomprehensible. At the very least a notice of motion and supporting affidavit must be intelligible, otherwise the processes of the court cannot be engaged. These documents are not. Leave to pursue them is refused and the application is dismissed.
In any event, the purported application is vexatious. Firstly, it is incoherent and it seeks to relitigate matters which have been determined already by competent courts, including the Court of Appeal. Mr Chin seems unable to realise that endless litigation over the same issues is the epitome of vexation. The court will not allow its processes to be converted into instruments of oppression. For these further reasons also, the application is refused.

CaseChat Overview and Summary

The case involves a defendant, Nicholas NI Kok Chin, who sought leave to commence proceedings against the Commonwealth of Australia, alleging that his detention under the Migration Act 1958 (Cth) was unlawful. The matter was heard in the Federal Court of Australia. The defendant contended that the Federal Magistrates Court lacked jurisdiction to conduct a merits review of the decision to detain him. The Commonwealth opposed the application, arguing that the application was an abuse of process and an attempt to relitigate issues already decided by the Federal Magistrates Court.

The court considered whether the application was vexatious or an abuse of process, given that similar issues had already been adjudicated. The court was required to determine whether the application disclosed a real prospect of success and whether there were any other compelling reasons to grant leave to commence the proceedings. The court examined the circumstances of the case and the arguments presented by both parties.

The court found that the application was indeed vexatious and an abuse of process. The arguments presented by the defendant were considered to be a reiteration of issues that had already been decided by the Federal Magistrates Court. The court held that the application disclosed no real prospect of success, and there were no compelling reasons to grant leave to commence the proceedings. The court emphasised that the application did not introduce any new principles or arguments that had not already been considered and rejected by the Federal Magistrates Court. As a result, the court dismissed the application for leave to commence proceedings.

The court did not make any orders for costs. However, the court noted that the defendant had already been ordered to pay costs by the Federal Magistrates Court in relation to the same matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established