NOTICE OF ORIGINATING MOTION CIV1981OF2010- CALLING FOR RECUSAL OF JUSTICE KENNETH MARTIN

IN THE SUPREME COURT OF WESTERN AUSTRALIA CIV NO:1981 OF 2010
HELD AT PERTH
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 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 Applicant, his natural
justice.


EX PARTE: NICHOLAS NI KOK CHIN
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Date of document: 28th June, 2010
Date of filing: 28th June, 2010
Filed on behalf of: The Ex parte Applicant
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059 Emails: nnchin@msn.com; nnchin09@tpg.com.au


NOTICE OF ORIGINATING MOTION FOR LEAVE TO APPEAL PURSUANT TO ORDER 67 R.5 OF THE RSC

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TAKE notice that the Supreme Court will be moved at [Perth] on Wednesday the 4th day
of August2010 at the hour of 11.00 in the fore noon, or so soon thereafter as counsel can be heard, by counsel on behalf of NICHOLAS NI KOK for Orders Nisi to be made absolute, in terms of the following:

a) Mandamus or Prohibition Orders Nisi in the subs. 36(4) of the Magistrates Court Act, 2004 (the MCA) proceedings, against the Justice Kenneth Martin (the Second Judge), in terms of the following:

a.1) The Applicant (the father) who is the Plaintiff of the Former case (CIV 1903 of 2008) be joined as the Second Defendant in the Caveat case (CIV 1112 of 2007) on a tit for tat basis: Reason - Since the First Defendant of the Former case being himself the Plaintiff of the Caveat case had been granted by the First Judge (Justice Hasluck) in the prior subs.36(1) of the MCA proceedings the favour of making the Paul CK Chin (the son) as the Second Defendant in the Former Case, the Second Judge (Justice Kenneth Martin) now in the current subs.36(4) MCA proceedings, should now return this favour to the Applicant by granting his request for the Applicant himself to be made the Second Defendant in the Caveat case to achieve the purpose of quieting all claims arising from one transaction in the ZERO SUM DEBT false claim of the First Defendant in FR417 of 2007 (ZERO SUM CLAIM).
a.2) The Caveat case be consolidated into the Former case such that only the Former case exist pursuant to Order 83 of the RSC. Reason – This consolidation is necessary for the purpose of quieting all claims that arise from one event or transaction that emanated from the ZERO SUM CLAIM.
a.3) The Second Judge do adopt the normal approach by exercising his discretion in favour of the Applicant, pursuant to the common law principle as enunciated in the case of Re An Application Under The Magistrates Court Act 2004; Ex Parte Brecker [2007] WASC 151 at para.58 because there are no justifying factors which could warrant a departure from that approach.
a.4) The Second Judge do seek from the First Defendant the reason for his failure to seek an extension of time based on the First Defendant’s failure to comply in a timely manner with the First Judge Orders in the prior subs. 36(1) MCA proceedings such that our justice system in WA is not seen to be favouring the First Defendant whilst at the same time discriminating the Applicant as he, the Applicant was already dissimilarly treated by His Honour Magistrate Michelides after he had explained the reason for his delay in his application for extension of time to appeal the involuntary Registrar Wilde Consent Judgment in the ZERO SUM CLAIM..
a.5) The Second Judge do abdicate himself from further hearing the subs.36(4) MCA proceedings on the grounds of his apprehended bias which had already been explained to him repeatedly by the Applicant on the ground of his interests, conduct, association, extraneous information, or the circumstance that he already made a prejudgment in his decision in Thies v Chin [2010] WASC 111 heard 13.5.2010 delivered the same day without taking into account the written submissions of both the Applicant and the Second Defendant dated 10.5.2010 ;

b) Certiorari Orders Nisi to review and quash the Second Judge’s jurisdictional errors under circumstances where His Honour took into consideration irrelevant matters and had refused to take into consideration relevant matters, thereby denying the Applicant his natural justice in the subs.36(4) proceedings, in the following terms:

b.1) he refused to allow the Applicant to be heard in the Caveat case under unfair circumstances, knowing that the Applicant had inadvertently exerted undue influence upon his son to cause him to enter into an involuntary and non-consensual Varied Solicitor Costs Agreement with the First Defendant who subsequently used the Caveat case as his weapon of duress against both father and son in conjunction with his ZERO SUM CLAIM to achieve the duress-vitiated Registrar Wilde involuntary Consent Judgment;
b.2) he refused to consolidate the Caveat case into the Former case under Order 83 of the RSC which has the force of law on the ground in that the consolidation is necessary to quiet all claims because the two cases came into being from one event or one transaction i.e. the single event of the ZERO SUM CLAIM;
b.3) he refused to recognise the fact and the law that the First Defendant never had any caveatable interests in the home property of the son at No.29 O’Dell Street, Thornlie (the Caveat Property) in the Caveat case pursuant to the common law interpretation of s.137 of the Transfer of Land Act, 1893 (WA) (the TL Act).
b.4) he refused to recognise the fact that the First Defendant had persistently, consistently and recalcitrantly refused to remove his unlawful caveat on the Caveat Property although he was so notified of the quantified damages of his liability for damages to the son pursuant to s.140 of the TL Act in the sum of $100.00 per day from the date when the unlawful caveat came into existence on 26.12.2006 until it was removed on the 16.6.2010.
b.4) he refused to recognise the fact that the First Defendant is guilty of blatant and consistent unsatisfactory conduct resulting in professional misconduct in accordance with ss. 402, 403 and 404 of the Legal Profession Act, 2008 (WA) because he was and is currently advancing his own personal interests instead of his own client’s (i.e. the son’s) interests by exploiting the son’s vulnerabilities and to the detriment of the father and the son;
b.6) he refused to accord the Applicant his natural justice to be heard as a father for his son first, rather than as a solicitor second, by implying that a father who by virtue of his being qualified as a solicitor is barred from and cannot ever help his son, in whatever circumstances.
b.7) he refused to recognise the fact that the Applicant did not play the public role of a solicitor for the son at all material times but was rather defending his own case in his own right as a solicitor litigant in person, even though his title as barrister and solicitor has been inadvertently displayed with a disclaimer.
b.8) he refused to recognise the fact that both the interests of the Applicant as the father and the interests of the son, being the Chin’s family interests are not in conflict with each other when the father is helping the son unless the father is found to be doing things which damages the son’s property interests in these proceedings.
b.9) he refused to recognise the fact that both the father’s and son’s interests being the Chin family interests are in conflict with the interests of the First Defendant who is playing the public role of a court officer for them as their former solicitor and who has a duty to protect them both but was not found not to be doing so when he was reasonably found to be advancing his own personal interests against the Chin’s family interests.
b.10) he refused to recognise the fact that the father can only be acting pro bono and as a solicitor litigant in person in accordance with the provisions of s.12 of the LP Act, 2008 under circumstances of adversity on the ground that the father is liable to the son for being the protoganist and the initiator of appointing a solicitor which turn out to be a trap set by the First Defendant which is the result of the subterfuge of the ZERO SUM CLAIM.

c) Costs of this Application and any other relief deem fit.

And Further take Notice, that the grounds of this application are:

1) The Applicant is made the Plaintiff in the former case by the First Judge (the learned Justice Hasluck) when His Honour granted the review Orders pursuant to the subs. 36(1) proceedings against Mr. Timothy Robin Thies.
2) Mr. Thies is consequently made the First Defendant by the First Judge in the former case. The First Defendant wanted to continue to exploit the vulnerabilities of the son of the Applicant who he claims to be his former client but the son is an unwilling and involuntary client caused by the undue influence of his father. The father seeks to retrieve the son’s untenable position by seeking to help his son out of the clutches of the First Defendant in these proceedings. The First Defendant successfully sought the First Judge’s permission to make the son the Second Defendant in the Former Case.
3) The Former Case came into existence as the result of the Applicant having sought prerogative reliefs under the s.36 proceedings of the MCA.
4) The s.36 proceedings is for the prerogative reliefs from the jurisdictional errors of four judicial offers in the courts below, as follows:
a. Registrar Wilde of the Fremantle Magistrates Court who entered into a involuntary consent judgment in the ZERO SUM DEBT false claim initiated by the First Defendant at the importunate promptings of the Applicant (the Involuntary Registrar Wilde Null Consent Order).
b. Magistrate Musk decision in FR944 of 2008 which is a Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 initiated by the Application to claim his own portion of the ZERO SUM DEBT false claim that is $6,000.00 which is part of the duress-vitiated Consent Judgment payment received by the First Defendant on 12.4.2007 of $11,500.00. Magistrate Musk dismissed this claim based on the Involuntary Registrar Wilde Null Cost Order (Magistrate Musk Null Order).
c. Commissioner Herron decision in DC Appeal No.6 of 2008 dismissed the Applicant’s Appeal against Magistrate Musk Null Order based on the irrationality that the learned Commissioner admitted that he had no jurisdiction to deal with Magistrate Musk Decision and yet he dismissed that Appeal and made a null order (Commissioner Herron’s Null Order).
d. The Applicant obtained the cue from Commissioner Herron and went down again to appeal the Registrar Wilde Null Cost Order to Magistrates Michelides in the ZERO SUM CLAIM of the First Defendant in FR 417 of 2007. Magistrate Michelides refused an extension of time although there was a reasonable explanation for the delay in that appeal (Magistrate Michelides Null Order).
5) The Second Judge, His Honour Justice Kenneth Martin in the subs.36(4) proceedings erred on the ground of his apprehended bias, his refusal to consolidate the former case and the Caveat case into one case for the purpose of quieting all claims which originate from one event or one transaction, his refusal to join the Applicant as the Second Defendant in the Caveat Case, his refusal to hear the Applicant in his own case in the Caveat case as the son has for good reasons been allowed to remain inactive by the First Judge and this was consented to by the First Defendant and his counsel barrister Mr. Scott Ellis.
6) The reason why the Applicant need to be heard in the Caveat Case is because the First Defendant had abused his powers as an officer of the court by using the ZERO SUM CLAIM together with the Caveat Case as his weapon of duress in order to obtain for himself the duress-vitiated Registrar Wilde Involuntary Consent Judgment which secured for him the payment of $11,500.00 made by the Applicant under duress to him. In the aftermath, he had recalcitrantly refused to remove his unlawful caveat and he has been using it as a weapon of duress for more monies but he was stopped by the Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 (the MCCPA).
7) The Second Judge erred by being irrational in his reasoning for stopping the Applicant from being heard in the Caveat Case. This should not be so on the ground that the Applicant is never the solicitor for his son but merely the son’s free agent and there is no justifying conflict of interests which can prevent him from so helping his own son as he has no public role as a solicitor even though he is a qualified solicitor in the circumstances.
8) The First Defendant had been unwittingly granted by Justice Templeman in the Caveat Case the right to sue the son for what he thought was unmet legal fees but the First Defendant abused his powers by what turned out to be the ZERO SUM CLAIM;
9) The Second Judge mistook an arguable interest in land to be an arguable caveatable interest in land but two concepts are different. For the latter to exist there must be either proprietary or equitable interests. Consensus ad idem between the debtor and creditor is a pre-requisite for the acquisition of equitable interests in the debtors land. Without that property being identified and specified in writing, the creditor cannot have equitable interests in the caveat land. Proprietary interests can be acquired if the creditor contributes to the upgrade of the value of the caveat property. If the creditor clogged up the caveat property, he has to pay for the damages as provided for under s.140 of the Transfer of Land Act, 1893 WA.
10) The Second Judge had refused to disqualify himself from hearing the subs.36(4) proceedings on the ground of his apprehended bias even after he was given the reason as to why he is found to be biased.
11) The Second Judge irrationally decided that the Applicant be barred from representing the son in the caveat case although it is clear that he did not play the public role of a solicitor but was acting as a litigant in person to pursue justice and to prevent his own son from being exploited by the plundering activities of the First Defendant.
12) The Second Judge refused to recognise the existence of a non-consensual varied solicitor costs agreement but is desirous of wasting the court resources by having the First Defendant cross-examined for two days when the unassailable evidence of the ZERO DEBT false claim is before it.
13) The Second Judge refused to deal with the subs.36(4) proceedings with the normal approach sans the ability of the First Defendant to show cause why this should not be so.
14) The First Defendant commenced frivolous and vexatious proceedings in a Zero Sum False Debt claim in FR417 of 2007 and used a duress “gun” in the Caveat CIV1112 of 2007 to facilitate the escalation of the ZERO debt to more than $24,000.00 so as to coerce the Applicant to settle it for $11,500.00.
15) The FR944 of 2006 that was dismissed by both Magistrate Musk and Commissioner Herron has come back through the institution by the Application of the s.36 MCA review which was granted by the First Judge pursuant to subs.36(1) of the MCA. The second stage in subs. 36(4) MCA proceedings under the direction of the Second Judge, the Learned Justice Kenneth Martin should proceed on the common law principle of the normal approach absent the justifying factors, but the trend of events as directed by the Second Judge is now veering off its projected course as set by the First Judge.
16) This Application for prerogative writs orders is to set the ship of these proceedings on an even keel so that justice is seen to be done.

DATED the 29th day of June, 2010.


………………………………………………………….
(Signed)

Applicant, as the solicitor litigant in person.

This NOTICE was taken out by the Applicant as the solicitor litigant in person and whose address for service is as indicated above.
FOOTNOTE:
RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 heard 19.8.2008; delivered 7.11.2008 per Justice Hasluck. The delay in the filing of the Affidavit by the First Defendant from 17.6.2009 when directions hearing Order was made till the 7.10.2009 is 13 weeks.
Id at para. 144 where Justice Hasluck said:
There is therefore an explanation for delay before Magistrate Michelides sufficient to justify an extension of time.
Id at para.56 where Justice Hasluck said:
….the consent documentation was signed in April 2007 but the judgment was not entered until 7 June 2007, being a breathing space or period of delay within which remedial action could have been taken, if thought to be necessary.
See Annexure NNC2A and NNC2B at pages 82 to 107 of the Affidavit of the Applicant filed, sworn and served and dated 26.5.2010 in 140 pages that crossed that pre-judgment. I also wrote a letter to the Principal Registrar dated 28.5.2010 called for Justice Kenneth Martin recusal which was never responded to.