SUBS.13(1) OF THE LEGAL PROFESSION ACT, 2008 IS NOT A STRICT LIABILITY OFFENCE

My ref: CIV1981 of 2010 & CACV41 of 2010.

October 20, 2010

The Chairperson

The Legal Practice Board

Atten:

Mr. Shung Kee Neoh, Legal Officer.

5^th Floor, Kings Building, 533 Hay Street                                                      

PERTH WA 6000

Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743

Dear Sir                                          FACSIMILE TRANSMISSION

TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008

I refer to the above matter and to my facsimile letter to you dated 11.10.2010.  I would now like to clarify the following:

a)      Upon my study of the relevant sections 12, 13 and 14 of the Legal Profession Act, 2008 and the Table of r. 5(2) of the Legal Profession Regulations 2009, my mind is now clearer as to my past mistakes in representing myself as a “barrister and solicitor” in my court documents and correspondence through using my stamp which has these words.

b)      I was always arguing the point that I would be entitled to use as my title “barrister and solicitor” because I am an Australian lawyer who had been so admitted by the Supreme Court of Western Australia and my name has not been struck off the roll for any professional misconduct or unprofessional conduct.

c)      I now realize that although I am still an Australian Lawyer who has not applied for a current practicing certificate due to the conditions restraining my status as an independent legal practitioner; I am only entitled to use the title “Lawyer” to my name.

d)      When I spoke last to your legal officer Mr. Shung Kee Neoh on 11.10.2010, I found that he is a kindly person and as a result I asked for his help to clarify this confusing matter of my being prosecuted for my having allegedly representing that I was entitled to be engaged in legal practice pursuant to subs.13(1) of the Act.  I would now like to retract my earlier statement that Mr. Shung said that the Board would resile from prosecuting me further as it is not quite accurate. 

e)      What I intended to say in that letter was that Mr. Shung said  that he agreed to try and help me to seek and persuade the Board to re-consider its position to prosecute me further provided I write a written confirmation to the effect that I will refrain from the subs 13(1) representation in future. 

f)       I must say that I have a genuine belief that I was entitled to represent my son as his counsel in the duress-handmaid case of CIV1112 of 2007 due to the mandate that I received from the learned Justice Hasluck on 17.6.2009 to the effect that I could protect my son in all the Prerogative Relief Proceedings to its final conclusion in my capacity as a lawyer with my son being inactive and being absolved from appearing in court and his bearing no responsibility even though his name is included as the Second Defendant. 

g)      I take it to mean that the Prerogative Relief Proceedings instituted by me include the duress-handmaid case instituted by Mr. Thies to intimidate my son and to facilitate the sham compromise which only has my son as a party because it affects my son’s home that was being unlawfully caveated by Mr. Thies who had no caveatable interests.

h)      The difficulties of removing the caveat were exacerbated by Mr. Thies refusing to loosen his grip on this strangle-hold clogging of Paul’s equity for a very long time.  This finally led to the Second Judge ordering its removal without a consequential costs order in June, 2010 and despite this, Mr. Thies continue to threaten my son for his legal costs for the removal of that Caveat and this caused my son to become ill again when he returned to Malaysia sometime in July, 2010.

i)        Before I embarked on preparing the Chamber Summons in my name purporting to act for my son Paul in that duress-handmaid case, I wrote to both the Chief Registrar of the Supreme Court of Western Australia as well as the LPCC informing it of my decisions to so act and I should have received a reprimand if I was not so entitled.  I am sorry for all the mistakes that have occurred so far.

j)        My defence to the subs.13(1) representation is that I was labouring under a mistake to a non-strict liability offence by virtue of the existence of the words “rebuttal presumption” in subs.14(1) of the Act.

k)      I have since appeared before Justice Newnes of the Court of Appeal in my CACV 75 of 2010 and have been granted leave to amend my Appellant’s Case so that it is confined to the issues of the Security Orders Judgment dated 17.6.2010 and the Mandate Exclusion Decision Judgment of the duress handmaid case dated 13.5.2010 by His Honour Justice Kenneth Martin. 

l)        His Honour is the second judge in the s.36(4) Magistrates Court Act, 2004 proceedings under circumstances when the First Judge, His Honour Justice Hasluck had already granted his Review Order in the Prerogative Relief Proceedings in subs.36(1) of the Act.  As such, the Second Judge should have adopted a normal approach by exercising his discretion to withhold the Prerogative Relief only if there are justifying circumstances and His Honour erred in his jurisdictional excess in that he was reasonably apprehended to be biased against me in the second stage of the Prerogative Proceedings for which I had to make repeated oral and written calls for his recusal which was noted by the Court of Appeal. 

m)    Further the Second Judge erred by taking into account irrelevant considerations and ignored the pointed given by the First Judge as to how the future proceedings should have been proceeded with having regard to the fact that Mr. Thies did not obey Justice Hasluck wishes that that Show –Cause Affidavit should have been complied with timeously so as to enable the mediator Registrar Rimmer to perform his job satisfactorily.  It so transpired that the Show Cause Affidavit did not comply with the requirements of Justice Hasluck, particularly it did not confine itself to the core issues of why the legal costs had been found to be unreasonably escalated disproportionately in terms of the solicitor cost agreement having been terminated timeously and in terms of the pre-contractual emails that have passed between the parties.  Instead a lot of red herrings had been introduced in the Show-Cause that was intended to mislead the Second Judge and it did mislead His Honour.        

Yours faithfully

NICHOLAS N CHIN