NOTICE OF APPEAL THE DECISON OF JUSTICE KENNETH MARTIN IN CIV1112 OF 2007 AND CIV1903 OF 2008

COURT OF APPEAL, SUPREME COURT OF WESTERN AUSTRALIA No: CACV: OF 2010
Appeal notice
Parties to the appeal Appellant : NICHOLAS NI KOK CHIN
First Respondent: TIMOTHY ROBIN THIES
Second Respondent: PAUL CHUNG KIONG CHIN
Primary court’s decision: Registrar
Primary court
Case number
Parties
Date of decision
Judicial officer SUPREME COURT OF WESTERN AUSTRALIA
CIV 1117 OF 2007 & CIV 1903 OF 2008
NICHOLAS NI KOK CHIN v TIMOTHY ROBIN THIES &
PAUL CHUNG KIONG CHIN
13.5.2010 & 8.7.2010 respectively.
JUSTICE KENNETH MARTIN (the Second Judge).
Decision details 1. The Appellant not being allowed to be heard in his own cause in the subsection 36(4) Magistrates Court Act, 2004 (the second stage of the MCA) proceedings in the Second Respondent’s or his son’s caveat case of the CIV 1112 of 2007 (the caveat case) as a litigant in person, contrary to the orbitur dicta of the orders of Justice Hasluck given on 17.6.2009 in CIV 1903 of 2008 (the First Judge) under circumstances where the two cases should have been consolidated into the latter as one case for the purpose of quieting all claims arising from the one event or transaction (of the fraudulent ZERO SUM FALSE DEBT CLAIM of the First Respondent) pursuant to Order 83 of the RSC.
2. The unjustified stifling of the Appellant’s prosecution of the second stage of the MCA proceedings caused by the unwarranted and unilateral Order for Security of Costs of $20,000.00 by the Second Judge, to be paid by the Appellant into Court, as a condition for the Appellant to continue those proceedings, absent the justifying factors for the court’s departure from the normal approach, which principle of law should have been adopted by the Second Judge in obeisance to the First Judge’s grant of s.36(1) review orders (the first stage of the proceedings); which principle is distilled from the case of Re:In the Application of s.36 of the Magistrates Court Act, 2004; Ex parte Brecker [2007] WASC 151 per Beech J (the ex-parte Brecker principle).
3. The Second Judge erred by his unjustified grant of liberty to the First Respondent to apply further to vary the First Judge’s order 5 to his orders of 7.11.2008 under circumstances that he knew or ought to have known that it would re-open the flood-gates for further litigation of the Null Costs Orders of Magistrate Musk in FR944 of 2008, Magistrate Michelides in FR417 of 2007 and Commission Herron in DC Appeal No.6 of 2008 (the courts below), after that Security Costs Order Gag had already been put on that case by the Second Judge purportedly to prevent further litigation; thus he is reasonably seen to be advantaging the First Respondent but disadvantaging the Appellant.
4. The error of the grant of Liberty to vary Order 5 is reasonably seen to be operating as a veiled threat to stop the Appellant from further prosecuting the First Respondent for his professional misconduct for pursuing the fraudulent ZERO SUM FALSE DEBT claim using the Caveat case as his “gun” of duress to obtain the Duress-Vitiated Registrar Wilde Consent Order in FR417 of 2007 to achieve the disputed compromise which is the bone of contention for CIV1903 of 2008. The Second Judge is erroneously viewing the “appearance of consent” by the Appellant and the Second Respondent to the Consent Judgment as real consent. The public interest is thereby being reasonably undermined.

Appeal details:
Notice of appeal 1) The Appellant appeals to the Court of Appeal against the above decisions in the second stage of the proceedings of the Second Judge.
2) The Appellant’s appeal is subject to the hearing and disposal of the Applicant’s Application for Mandamus and Prohibition Orders for the Second Judge’s recusal, by way of Notice of Originating Motion in CIV1981 of 2010 dated and filed 28th day of June, 2010 and scheduled for hearing on 4th day of August, 2010 at not before 11.00 am for which the Second Judge had been notified in Court in the presence of the First Respondent on 8.7.2010.
Act that allows the appeal 1 Supreme Court Act, 1935 subs. 58(1)(a), (c) and (d).
Grounds of appeal 2 The Second Judge in the second stage of the proceedings erred in terms of the following:
1. by virtue of his being in dereliction of his judicial duties when he contradicted the First Judge’s findings (that the Appellant has a strong case which explains the reason why the s. 36(1) review orders were granted by the First Judge) without any reasonable basis, under circumstances where the Second Judge owes a duty to the court not to depart from the normal approach of the Ex-parte Brecker principle.
2. by his refusal to allow the Appellant to represent his own case and in his own cause in the caveat case knowing that it had been used by the First Respondent as his “gun” for the Duress-Vitiated Registrar Wilde Consent Judgment compromise and that his son was never a willing party to the Non-consensual Varied Solicitor’s Cost Agreement entered into by the Appellant with the Respondent.
3. by his refusal to recognize the fact that at all material times the Appellant never play the public role of solicitor for his son the Second Respondent but only as his helper or McKenzie friend or his scribe and as such the Appellant has no legal obligations as a court officer to be fair to the Respondent; that wrong concept of the Second Judge that the Appellant can ever be in conflict of interests (in acting in his own cause to sue the First Respondent or even when he had acted a settlement agent for the Vendors of the Centenary Lunch Bar with written their informed consent) should therefore be abrogated by this Court.
4. by his refusal to allow the consolidation of the Caveat case into the CIV1903 of 2008 case for the purpose of quelling all claims arising from one transaction or event of the fraudulent ZERO FALSE DEBT CLAIM of the First Respondent first started by him in FR417 of 2007.
5. by his refusal to allow the Appellant to be joined as the Second Defendant in the caveat “gun” case in order to enable him to fight for his own cause, in exchange for the Appellant having readily acceded to the First Respondent’s request (for the Second Respondent to be joined as the Second Defendant in CIV 1903 of 2008 under the auspices of the First Judge) knowing that the caveat case is the Appellant’s own case on the ground that the Second Respondent was never a willing party to the Non-consensual Varied Solicitor Costs Agreement.
6. by not providing any justifications for ordering the payment of Security Costs by the Appellant knowing that the circumstances suits a two-way process for the Order of Security Costs, on the ground that the legislative intention of the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 does provide for the non-cost-disadvantaging of any litigant who had complied with those Minor Case provisions.
7. by not recognizing that there are no profit costs entitlements to the First Respondent even if he were to win the second stage of these proceedings as dictated by the terms of the Minor Cases Provisions except for out of pocket expenses reasonably incurred by the First Respondent for which the Appellant had guaranteed to pay to the First Respondent should he finally win his case in CIV 1903 of 2008.
8. by not recognizing that Security of Costs Orders should work both ways in the light of the facts that there never exists any unmet legal costs in the courts below as they were non-enforceable costs orders of those courts originating from a fraudulent ZERO SUM FALSE DEBT CLAIM unlawfully advanced by the First Respondent in FR417 of 2007 using the Case as his duress “gun”.
9. by his refusal to accept the significance of the evidence of the First Respondent in his own Affidavit sworn and filed the 6th day of October, 2009 in which the First Respondent had specifically admitted to those facts of the pre-contractual terms of 25.10.2004 thus precipitating the legal existence of the Non-Consensual Varied Solicitor’s Costs Agreement between the Appellant and the First Respondent exacerbated by the fact that the Second Respondent was a non-willing participant to that NON-CONSENSUAL CONTRACT.
10. by his refusal to accept the fact of the existence of the ZERO SUM FALSE DEBT CLAIM advanced by the First Respondent which he had unconscionably used to mislead the courts below resulting in their jurisdictional errors in pronouncing their Null Costs Orders which cannot be legally enforced by any courts of law acting within the confines of their own jurisdictions.
11. by his refusal to recognize the fact that it is in the public interests that the First Respondent should be reasonably found to have been culpable in the commission of professional misconduct by advancing his own interests first instead of advancing the interests of his own clients in the person of the Appellant and the Second Respondent by exploiting the latter’s vulnerabilities; the First Respondent should reasonably therefore be recommended by the Second Judge for disciplinary action to the LPCC, failing which the Appellant suffers the peril that he will suffer the fate of being wrongly persecuted by the LPCC in VR87 of 2009 which is currently in process.
12. by his refusal to recognize the fact that the zealous pursuit of the second stage of the proceedings by the Appellant is not a personal vengeance but is a public interests ligation to prevent unwitting solicitors clients from being falsely prosecuted for a no debt claim, resulting in much trauma, hardship and harm to non-consenting members of the public whenever they enter into a contractual relationship with a lawyer for legal services but instead of receiving the benefits of those services, they would inevitably found that they have landed themselves into more trouble but who nevertheless regards these services of lawyers as a necessary evil.
13. by his refusal to recognize the fact and the law that public interests litigations carried on by the Appellant should not be unjustly stifled by a Security Costs Order Gag for an ulterior purpose contrary to the relevant statutory provisions but for some lawful purposes which must be disclosed.
14. by his not recognizing the fact that the pervasive duress situation caused by the “gun” caveat case prevails with the continuing mysterious and inexplicable escalation of legal costs even at the time when the Appellant sought the pro-bono assistance of his former mentor Mr. Ozich who did not play the role of a solicitor but just acted as a friendly helper to fathom the conscience of the First Respondent when a figure of $10,500.00 was suggested to him and it was not taken seriously by him as he refused to act upon it.
15. by his failing to recognize the fact that this is not the case of any unmet legal fees owing to the First Respondent as he has no such entitlements on the ground that there was no consensual agreement, irrespective of whether he held any such bona fides belief to it or not.
Notice to the First Respondent If you want to take part in this appeal you must lodge a Form No. 85 under the Rules of the Supreme Court 1971 within 7 days after you are served with this notice and serve it on the appellant.
Last date for appealing Last date: 22.7.2010
Is an extension of time needed? No
Leave to appeal Is leave to appeal needed? No
If yes, state the Act and section requiring leave:
Legal representation Is the appellant legally represented in this appeal? No 3
Is the appellant applying for legal aid? No
Appellant’s details
Appellant’s geographical address 3 387, Alexander Drive, DIANELLA WA 6059
Appellant’s service details 3 NICHOLAS N CHIN
387, ALEXANDER DRIVE, DIANELLA WA 6059
Phone: 08 92767440, Mobile: 04212642735 Emails: nnchin@msn.com;
Nnchin09@tpg.com.au; nnchin1@gmail.com
Ref: CIV1903OF2008(36(4).
Signature and date
Signature of appellant or lawyer
Appellant/Litigant in Person Date: 11.7.2010