WRITTEN SUBMISSIONS BY APPEALLANT IN CACV 41 OF 2010

SUPREME COURT OF WESTERN AUSTRALIA NO.: CACV: 41 OF 2010
COURT OF APPEAL
Parties to the NICHOLAS NI KOK CHIN Appellant
Appeal THE LEGAL PRACTICE BOARD
OF WESTERN AUSTRALIA Respondent
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OUTLINE OF WRITTEN SUBMISSIONS BY APPELLANT FOR APPELLANT’S CASE

Date of document: 27 May, 2010
Date of filing: 27 May, 2010.
Filed on behalf of: The Applicant
Prepared by:
Nicholas N Chin Phone: 08 9275 7440
Barrister & Solicitor Fax: 08 9275 5729
387, Alexander Drive Email: nnchin@msn.com;
nnchin09@tpg.com.au
DIANELLA WA 6059 Mobile: 0421642735

INDEX PAGE NUMBERS
OUTLINE OF WRITTEN SUBMISSIONS BY APPELLANT 1
FOR APPELLANT’S CASE 1
MISINTERPRETATION OF THE CASES FOR REVIEW BEFORE JUSTICE HEENAN 2
JUSTICE HEENAN ERRED BY APPROBATING AND REPROBATING 3
JUSTICE HEENAN ERRED BY BECOMING A STALKING HORSE FOR EXCESSES OF JUDICIAL POWER 4
JUSTICE HEENAN ERRED BY GIVING DEFICIENT REASONS FOR HIS DECISION: 6
JUSTICE HEENAN ERRED BY NOT TAKING INTO ACCOUNT RELEVANT CONSIDERATIONS FOR THE GIVING OF PROPER REASONS FOR HIS JUDGMENT: 7
JUSTICE HEENAN ERRED BY NOT PROTECTING ME FROM BEING TORTURED AND HARMED BY THE PSEUDO BOARD 9
JUSTICE HEENAN ERRED BY REFUSING TO DO HIS DUTIES IN ACCORDANCE WITH HIS OATH OF OFFICE AS A JUDICIAL OFFICER 10
JUSTICE HEENAN ERRED IN NOT TAKING INTO ACCOUNT RELEVANT CONSIDERATIONS BUT TOOK INTO ACCOUNT IRRELEVANT CONSIDERATIONS; 13
CONCLUSION 14

Your Honour:
1. The decision I as the appellant am appealing against is the decision of the Learned Justice E M Heenan’s dismissal that did not meet my legitimate expectations .
MISINTERPRETATION OF THE CASES FOR REVIEW BEFORE JUSTICE HEENAN
2. Justice Heenan had misinterpreted my Application by referring to the First Judgment as the one dated 4.11.2009 and the Second Judgment dated 10.11.2009; this reference is contrary to what is contained in my Amended Minute of Proposed Certiorari Orders filed and dated 25.3.2010.
3. The First judgment sought to be reviewed and quashed by me is VR 108 of 2009 or CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 heard on 25.9.2008 and delivered on 27.10.2009 by the President of SAT, the learned Justice Chaney.
4. The Second judgment sought to be similarly reviewed and quashed by me is VR87 of 2009 cited as LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2009] WASAT 219 which I refer to as the “ambushed” judgment heard and delivered by Justice Chaney on 4.11.2009.
5. Justice Heenan in his draft judgment delivered extempore on 21.4.2010 in my Application did show that he erred by virtue of His Honour’s confused mind over the actual identity of one the two judgments that was sought by to be reviewed by me. His Honour was indeed referring to the First and Second Judgments in VR87 of 2009 dated 4.11.2009 and 10.11.2009 respectively. As a result of His Honour’s confusion, the written judgment of Justice Heenan cited as RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA ( SAT ), JUSTICE CHANEY; EX PARTE CHIN [2010] WASC 89 published only on 30.4.2010 is based on incorrect premises and is liable to error because the judgment was misconceived by His Honour at its inception and therefore it cannot reasonably be correct at the written stage when it was published. A request was made for a copy of the draft judgment by me and it was refused.
JUSTICE HEENAN ERRED BY APPROBATING AND REPROBATING
6. Further, the decision-maker Justice EM Heenan had earlier required the Legal Profession Complaints Committee to comply with his Orders issued on 6.4.2010 to answer my Claim for the Certiorari Orders Nisi applied for by me in terms of my Amended Proposed Orders for Certiorari filed and dated 25.3.2010. In his judgment, there was no adequate explanation of this sudden reversal of His Honour’s decision as a step in the due process of court as is being borned out by His Honour’s statement in his judgment at para. 7, in terms of the following:
“7 I am satisfied that in the fortnight since that hearing, service of the papers on the Legal Practitioners Complaints Committee was effected as ordered but, as I said at the commencement of this hearing, the committee by its solicitor has since informed the court that although it has been served and although it has a degree of interest in these proceedings, it does not intend to appear or seek to be heard on this application. It is necessary therefore that I proceed to deal with the application on the materials presently before me.”
JUSTICE HEENAN ERRED BY BECOMING A STALKING HORSE FOR EXCESSES OF JUDICIAL POWER
7. Justice EM Heenan is under an obligation to accord me with procedural fairness by not making an about-turn decision to refuse the due compliance by the LPCC of his own Orders without any reasonable explanation to this effect as explained above. Justice EM Heenan therefore erred by becoming a stalking horse for excesses of judicial power .
8. Justice EM Heenan erred by abusing his powers by making that about-turn decision on the 21.4.2010 without warning and explanations just because he had been contacted by telephone by Ms. Breisch of the Legal Practice Board of Western Australia, the Respondent to this Appeal on the 20.4.2010.
9. Justice E M Heenan by virtue of his being appointed a Justice of the Supreme Court of Western Australia has authority which is a power that derives from a social accord or convention, such as the laws or customs of the people of Western Australia.
10. Justice EM Heenan erred by abusing his powers by making an illegitimate use of his power as a judge in my Application for Certiorari Orders Nisi by dismissing it although he has the capacity to impose his will on the Pseudo Board by virtue of his superior mental dexterity, social position or the trusts that others have in him; and he unjustifiably uses that power to the effect that he lost the scope of the jurisdictional excess of Justice Chaney in that the latter due to his lack of independence failed to see that I was exploited or harmed through his lack of action knowing that the Pseudo Board by their own admissive conduct are protecting their cronies and in doing so they are usurping the real authority of the real regulator of the legal profession in WA to harm me against the public interests.
11. Justice E M Heenan ought to have known that the only principle of human ethics and morality available to him is for him to avoid this abuse of his power by the Pseudo Board and he did not do so. He knows that it is extremely unethical to put himself into a position of conflict of interests by aligning himself with the wishes of the Pseudo Board i.e. where his benefit or profit depends on my being harmed and exploited .
JUSTICE HEENAN ERRED BY GIVING DEFICIENT REASONS FOR HIS DECISION:
12. Justice Heenan simply dismissed the Appellant’s application but he does not fulfill the need to give reasons for his decision on the all important issue of the Pseudo Full Board causing me and the public harm by injuring my reputation and not upholding the public interests, as can be seen in para.10 of judgment as follows:
“10 He alleges that the Legal Practitioners Disciplinary Tribunal was not properly convened, did not have authority to act and was a 'pseudo tribunal'. He alleges that proceedings in the State Administrative Tribunal were affected by bias, that subsequent proceedings have been affected by malice, that it will not be possible for him to have a hearing according to law in the proceedings still pending and that if an order nisi is granted and the decisions are called up for review by this court, not only should they be quashed but orders effectively preventing either the Legal Practitioners Complaints Committee or the State Administrative Tribunal from proceeding further should be made.”
JUSTICE HEENAN ERRED BY NOT TAKING INTO ACCOUNT RELEVANT CONSIDERATIONS FOR THE GIVING OF PROPER REASONS FOR HIS JUDGMENT:
13. There are many practical reasons as to why Justice Heenan should not have erred in giving deficient reasons :
13.1. The rationale of the obligation to provide reasons for administrative decisions is that they amount to a:
"salutary discipline for those who have to decide anything that adversely affects others."
13.2. They encourage :
"a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making."
13.3. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made.
13.4. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so.
13.5. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power.
13.6. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions.
13.7. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons.
13.8. By giving reasons, the repository of public power increases :
"public confidence in, and the legitimacy of, the administrative process".
JUSTICE HEENAN ERRED BY NOT PROTECTING ME FROM BEING TORTURED AND HARMED BY THE PSEUDO BOARD
14. Justice Heenan erred by failing to protect my human rights and has condoned the Pseudo Board unconscionable actions to harm and torture me by failing to check Justice Chaney’s error in failing to instruct members of the Panel in SAT properly regarding the policy of SAT . As a consequence, I have written on 3.5.2010 to all members of our parliament in the government urging them to use their conscience to allow a fellow Australian like me to be accorded my human rights and not to subject me the Appellant to torture and harassment in accordance with the provisions of the Declaration of Human Rights .
15. The State of Western Australian must not inflict torture upon me the Appellant by closing all avenues for me to appeal or to deny me access to the Crime Corruption Commission or the Parliamentary Inspector or to stop me from getting redress for my grievances contrary to the provisions of Torture, according to the United Nations Convention Against Torture .
16. The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II. Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
JUSTICE HEENAN ERRED BY REFUSING TO DO HIS DUTIES IN ACCORDANCE WITH HIS OATH OF OFFICE AS A JUDICIAL OFFICER
17. Justice Heenan erred in failing to see an error of law of Justice Chaney in not instructing the SAT Panel who sat together with him in VR 107 of 2008 to take into account relevant considerations which explains the existence of the Live issue of Pseudo Board. See the law in this context with regard to the comments of Sir John Donaldson in Reg. v. Immigration Appeal Tribunal, Ex parte Khan (Mahmud) (1983) QB 790, where Lord Lane C.J. said, at p 794 :
18. Sensing that I do not have justice from Justice Heenan, I have written to the Chief Registrar of the Supreme Court who is overseeing my Application for Mandamus Orders Application in CIV 1604 of 2010. I wish to inform this Honourable Court as the Court of Appeal of the Supreme Court of Western Australia to take over the progress and supervision of this Mandamus Orders Application instead of allowing it to remain within the General Jurisdiction of the Supreme Court of Western Australia.
19. This is because there is repugnance both in law and in practice for Justices of the General Division to judge His Honour Justice Heenan because they are at of the same level of hierarchy with him. This is caused by the non-reflexive nature of prerogative Writs which allows a Justice of the General Division to judge the President of SAT but not His Honour Justice Heenan.
20. My letter to the Chief Registrar is outlining a simple solution to my problem in these terms (with some necessary modifications):
“a.1. a determination on the live issue that was never litigated at all levels of proceedings so far, concerns the unlawful authority of the Pseudo Board which represents the Legal Practice Board which did not act in good faith to impose a constraint on my independent legal practice for the secret agenda of protecting their cronies. Everyone in the courts so far that I have been to, is trying to avoid this issue and is refusing to face reality but is putting the blame only on me.
a.2. the res judicata issues of facts and law enveloped by the current action of the Legal Profession Complaints Committee in VR 87 of 2009 that ought never to have been proceeded with because there is never going to be any FURTHER REMEDY of my non-existent professional misconduct on those res judicata issues as they are being proscribed by a common law principle of law, that has been accepted by the High Court of Australia . However, the learned Justice Chaney is insistent on committing this judicial activism by even making a prejudgment of the whole issue on 10.11.2009 but this judgment has since been taken off the website of SAT.
b) Based on the above premise, the Deputy President of the State Administrative Tribunal, Her Honour Judge Pritchard who has since taken over the case as the Judge after the learned Justice John Chaney had recused himself, had considered that it is pointless for any hearing of the malicious persecution case of VR87 of 2009 scheduled on 18.5.2010 to be proceeded with and had fixed 13.8.2010 as the date for a further directions hearing.
c) The res judicata issues already dealt with by Justice Chaney’s first judgment in VR 107 of 2008 cannot be litigated again in VR87 of 2009 and Justice Chaney’s decision in the latter case on 4.11.2009 and 10.11.2009 is clearly an abuse of power and judicial activism because the Applicant of the latter cases the LPCC is trying to persecute me for the FURTHER REMEDY of a non-existent professional misconduct upon the same facts and issues that had been decided previously by the learned Justice Chaney himself in his First Judgment .
d) I apologize to Justice Heenan for being outspoken, but it is a fact that the learned Justice did not put his heart and soul into understanding and thereby deciding CIV11019 of 2010 equitably; this has caused me to lodge an Appeal Notice in the Court of Appeal of the Supreme Court of Western Australia in CACV41 of 2010 on the 22.4.2010.
c) I have also lodged documents with the Chief Registrar of the Supreme Court to take Mandamus Orders proceedings against the learned Justice Chaney and the learned Justice Heenan so as to compel them to do their duties in accordance with their oath of Office in CIV1604 of 2010.
d) If I were to receive tremendous resistance in my pursuit of the truths and justice as I have been much maligned, I would just have to give it up and retire and never touch law again. All I am fighting for is for the public interests that lawyers NOT be allowed to plunder and pillage innocent members of the public and get away with it. If I am not allowed to do this by our government, then I would just resign and retire and let others fight these thankless tasks.
e) If you need further information, I will be constantly updating my blogspot, access to which, you can always obtain by Googling my name: nicholasnchin.”

JUSTICE HEENAN ERRED IN NOT TAKING INTO ACCOUNT RELEVANT CONSIDERATIONS BUT TOOK INTO ACCOUNT IRRELEVANT CONSIDERATIONS;
21. Neither Justice Heenan nor Justice Chaney would want to make a legal determination or to provide a final resolution or conclusion to the controversy regarding the Live Issue of the Pseudo Board. This constitutes an improper use of their respective authorities, one as a President of SAT and other as the Justice who ought to supervise an inferior tribunal by the prerogative Writs of Certiorari Orders Nisi.
22. In legal use, a determination implies the conclusion of a dispute or a lawsuit by the rendering of a final decision. They need to make a ruling or adjudication or a judgment on this issue and they are avoiding it at all costs. It does not matter even if I have made my Application for Leave to the Court of Appeal in CACV 105 of 2008 against Justice Chaney’s decision in VR107 of 2008 or I have subsequently made an Application for Special Leave to Appeal to the High Court of Australia .
23. If this Live Issue of the Pseudo Board was never decided by His Honour Justice Chaney in VR108 of 2008, and with due respect to His Honour, it can never be barred on the grounds of issue estoppel or res judicata in the current proceedings as he as the trial judge had failed to take into account relevant considerations but has taken into account irrelevant considerations .
CONCLUSION

24. There should therefore be no controversy with regard to the issues that is contained in the Amended Minute of the Proposed Certiorari Orders dated and filed 25.3.2010 and with due respect to the learned Justice Heenan, His Honour should have taken into consideration but it seems to me that he is confused about what His Honour is being required to do.


Signed by the Appellant: ………………………………………….
(NICHOLAS NI KOK CHIN)