CALLING FOR JUSTICE KENNETH MARTIN TO RECUSE HIMSELF FROM HEARING CIV 1903 OF 2008 AND CIV 1112 OF 2007

Friday, 28 May 2010

The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street
PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
Atten: The Associate to the Honourable Justice Kenneth Martin

The Legal Profession Complaints Committee
Atten: Legal Officer Ms. Caroline Brookes PO Box: Z5293,
St. Georges Terrace, PERTH WA 6831 Facsimile: 9461 2265
Atten: Ms. Caroline Brookes: I shall send you by email a copy of my Affidavit in 21 pages, devoid of all annexure to keep the LPCC informed of the latest developments in this case.

Dear Sir

JUDGMENT OF JUSTICE KENNETH MARTIN IN CIV 1112 OF 2010: THIES V CHIN [2010] WASC 111 DELIVERED ON 13.5.2010 AND PUBLISHED ON 25.5.2010.

I am writing this letter to the Chief Registrar of the Supreme Court to settle an administrative matter of the Supreme Court.

I refer to the above judgment which crossed my Affidavit in 140 pages sworn and filed on 26.5.2010 filed in CIV 1903 of 2008 in response to the Affidavit of Mr. Thies sworn and filed the 12.5.2010.

In my Affidavit I have requested for His Honour to review his ruling in accordance with the common law with regard to his Honour’s refusal to allow me to represent my son Paul Chung Kiong Chin in CIV 1112 of 2007 for which I had posed an immediate objection to it at the time when that ruling was made.

Further in my Affidavit I have made an application for the two cases to be consolidated into one case for the purpose of quieting all claims that arose out of one transaction or event. This is a very cogent reason which the Court should heed having regard to the fact that since I have agreed for Paul to be made a Defendant in CIV 1903 of 2009 and similarly, Mr. Thies should trade it for my being made the Defendant in the CIV 1112 of 2007.

I am now asking for His Honour Justice Kenneth Martin to recuse himself from further hearing of the consolidated case on the ground that His Honour had taken into account irrelevant considerations and had refused to take into account relevant considerations and is deficient in his provision of the reasons of his decisions by paying scant regard to the written submissions of both myself and of my son Paul on inter alia, the following grounds:

a) There is no conflict of interests subsisting between my son’s interests and my own personal interests under the exhaustive circumstances which I have provided for in my Affidavit.
b) At all material times, I have not acted as a solicitor for Paul and I had only acted as a settlement agent for the vendor of the Centenary Lunch Bar with the written informed consent by both parties. The fact that I am divested of my practice certificate does it not mean that I can act as a free agent for anyone without the unnecessary restraints imposed on me.
c) If I had acted as a solicitor for Paul, I agree that I owe Paul legal obligations and public obligations as a solicitor to ensure that my own personal interests do not conflict with the interests of my son Paul.
d) The Acts governing the legal profession as extant in WA do not say that I am acting as a solicitor for my son Paul unless I am being paid a legal fee by my son.
e) The fact that there are two conflicting interests existing between the interests of the Vendors of the Centenary Lunch Bar and the interests of my son Paul does not mean that these conflicting interests cannot be stayed by both parties exercising their free own wills to provide me with a Written Informed Consent which is only limited to the settlement process and none other.
b) It is an error in law on the face of the record for the learned Justice to suggest that I or someone else cannot write on behalf of Paul those documents which he Paul had caused to be filed and served in CIV 1112 of 2007 and in which Paul represented himself as a litigant in person. This is tantamount to saying that Paul cannot obtain the services of a clerk or a scribe-writer.
c) There is no reason why I cannot use my label, Barrister and Solicitor, although I am not a certificated legal practitioner as long I made this fact known or as long as I am acting as a litigant in person in my own case or in the case where I have the sanction of the Supreme Court to represent my son as provided for in the transcript of the proceedings by Justice Hasluck on 17.6.2010 in which I had specifically posed those questions before Justice Hasluck.
d) Given that I am not allowed to act as a litigant in person for my son in CIV 1112 of 2007, Paul had taken note of that fact and had altered all those documents into his own name as a litigant in person. Why in this instance when Paul is being denied natural justice? This denial of natural justice by a judge is itself an abuse of power of the learned Justice himself who then in error sought to convert it into an abuse of process by Paul or by me, acting as litigants in person, without Paul being active, as promised by the opposing party. Paul and I are seeking the services of His Honour as an impartial judge. I cannot understand His Honour’s logic - as it is clear that His Honour is now descending into the arena of conflict and is being blinded by the dust of conflict as a result.
e) The unlawful caveat which my learned friend Mr. Thies had recalcitrantly refused to remove even after he had been paid the coerced settlement monies clearly cannot be based on an arguable interest in land in accordance with the learned Justice Ken Martin’s view.
f) How is it possible for the learned Justice Ken Martin to fall into error by attributing a zero sum debt with the qualities of caveatable interests when section 137 of the Transfer of Land Act, 1893 (WA) and the relevant common law clearly implies that such an interests must be concomitant with some equitable interests in the caveat land.
g) Surely, His Honour could not fall into the error that Mr. Thies can have an equitable interests in the Caveat land if he had never entered into a contractual relationship with Paul in which the nature of the caveat land is properly and exactly described in the varied Solicitor Costs Agreement which Paul entered into with him based on the pre-contractual terms of the my email dated 25.10.2004, having regard to the circumstances affecting the consensus ad idem of both parties to that contract.
h) How is it possible for His Honour to fall into this error unless His Honour is prone to make a pre-judgment of the whole issue and is therefore coming to judge the case with less than an impartial mind?

In view of the circumstances as explained above, the written judgment of His Honour in the
above case clearly indicates albeit strongly so, that it is in the interests of justice that His
Honour should now recuse himself from further hearing this case. If this does not happen, the
litigation is not going to end here, it is going further. In the interests of conserving the resources
or all parties concerned and the courts as well, an immediate abdication by the Learned Justice
is only and the best solution. This is despite my inclination to give the learned Justice the
benefit of the doubt.

Yours faithfully

NICHOLAS N CHIN
c.c.
Mr. Timothy Robin Thies
No.70 King Street,
EAST FREMANTLE WA 6158
(Please find this cover letter attaching to my Affidavit sworn and filed 26.5.2010 in 140 pages in response to your Affidavit sworn 12.5.2010, by way of service upon you).