THE CREDIBILITY OF THE COURT OF APPEAL ON 7.12.2010 - (THE BOLD WORDS) IN THE HIGH COURT JUDGMENT- NEWNES JA CREDIBILITY IS AT STAKE HERE?

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Chin v Thies & Anor (P50-2010) [2011] HCASL 25 (9 March 2011)

Last Updated: 11 March 2011

NICHOLAS NI KOK CHIN
v
TIMOTHY ROBIN THIES & ANOR
[2011] HCASL 25
P50/2010

1. The background to the present dispute stems back to November 2004, when the first respondent agreed to act on behalf of the second respondent, the son of the applicant, in proceedings in the District Court of Western Australia. It was common ground that the applicant and the second respondent were to be responsible for payment of the first respondent's fees and disbursements. A dispute arose concerning the fees and the first respondent commenced proceedings in the Magistrates Court claiming $24,685.61 pursuant to his retainer. Pursuant to a deed of settlement entered into on or about 12 April 2007, the applicant and the second respondent agreed to pay the first respondent $11,500. A consent judgment was entered on 7 June 2007 in the Fremantle Magistrates Court.
2. On 20 August 2007, the applicant commenced proceedings in that Court against the first respondent seeking the return of (among other things) a portion ($6,000) of the settlement monies. Those proceedings were dismissed by Magistrate Musk on 9 January 2008 and an appeal to the District Court (Commissioner Heron) was dismissed on 28 May 2008. Commissioner Herron held that Magistrate Musk was correct in finding that she did not have the power to set the consent judgment aside.
3. On 24 July 2008, the applicant filed an originating summons in the Supreme Court of Western Australia, seeking a writ of certiorari to quash the orders of Magistrate Musk, and certain other orders made in those proceedings, and prerogative relief directed to the dismissal of the applicant's appeal in the District Court.
4. Hasluck J held that prerogative relief was not available but made orders for review pursuant to s 36 of the Magistrates Court Act 2004 (WA). His Honour made no order with respect to the decision of Commissioner Heron.
5. Prior to the s 36 review the first respondent sought an order for security for costs of that proceeding. On 8 July 2010, Martin J ordered that the applicant pay the sum of $20,000 into court for security for the first respondent's costs in the proceedings in the Supreme Court. His Honour's view was that the applicant's case was inherently weak, but the first respondent was likely to incur significant costs in defending it. An application to the Court of Appeal (Pullin and Newnes JJA) for leave to appeal was unsuccessful. On 7 December 2010, the Court held that there was no substance to the allegation that the primary judge had exhibited bias and the applicant's allegations were otherwise without merit, unsupported, obscure, scandalous and prolix.
6. An appeal to this Court would not enjoy any real prospects of success. Special leave is refused.
7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow

S.M. Kiefel
9 March 2011


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