CURRENT AUSTRALIAN GOVERNMENT HAS NO LEGAL BASIS BY SIR HARRY GIBBS, THE FORMER HIGH COURT JUDGE

The Right Honourable Sir Harry Gibbs GCMG, AC, KBE, QC                                     

8th Chief Justice of Australia

In office - 12 February 1981 – 5 February 1987

Nominated by -  Malcolm Fraser

Appointed by - Zelman Cowen

Preceded by - Sir Garfield Barwick

Succeeded by - Sir Anthony Mason

Puisne Justice of the High Court of Australia

In office - 4 August 1970 – 12 February 1981

                                            Appointed by - John Gorton

                                            Preceded by - Sir Frank Kitto

                                        Succeeded by - Sir Gerard Brennan

                                                        Personal details

                                                     Born 7 February 1917

                                                         Died 25 June 2005

                                                      Nationality Australian

Sir Harry Gibbs On the Australian Constitutional Crisis

 EXPLANATORY STATEMENT

I am a former member of the High Court and I wish to take this unusual method of informing you about a matter that is going to deeply affect us all. Unfortunately, a document such as this is too easily "lost" in the bureaucratic jungle in which we operate.

A group of Australian Citizens have taken it upon themselves to test the validity of our current political and judicial system. Like you, I have lived my entire legal career with the assumption that the basis for our legal and political system, state and federal, was written in stone. This group has undertaken to present this paper when they test the legal system.

The group is articulate, well educated and counts some of our best legal minds amongst its members. One of Australia's best known barristers is one of the group’s leading lights. It is far better informed with regard to international law than most members of the judiciary or for that matter, the legal academe. It has better international contacts than I would have thought possible.

After spending some time with the group leader, I was able to elicit its primary intentions. It is the introduction of a totally democratic system of government devoid of party politics operated by the will of the people incorporating a system of debit taxation which should go a long way to eliminating the current unemployment problem and also addressing other pressing social issues. An A.B.S. financial model supports the proposal.

The group has so far concentrated on matters relating to taxation, state and federal, minor industrial and motor traffic while undertaking not to present a criminal defence using their current presentation. I challenged the leader of this group to present any evidence he had with regard to the above defence so I could use my legal expertise to play the part of the devil's advocate. It should be brought to your attention that the group has access to documentation that we members of the judiciary have little knowledge. I refer to the British Parliamentary Papers for the Colony of Australia for the years 1860 through to 1922.

These are photocopies of all documents correspondence etc., between the states and later the Commonwealth of Australia, the British Crown and the British Government. They are very revealing documents and indicate the degree of chicanery in which the politicians of all shades were involved and as I can now see, at the expense of the legal academe and the judiciary. I present for your perusal the details of the group's presentation along with my comment on each major item. The group relies solely upon historical fact and rejects political rhetoric and legal opinion unless based upon historical fact.

1. "The Commonwealth of Australia Constitution Act 1900 (UK) is an act of the parliament of the United Kingdom. It did not contain any substance of sovereignty and was a colonial act centralising self-government of the six Australian Colonies. Australia remained a colony of the United Kingdom."

1a. although the late Lionel Murphy attempted to show that there was an element of sovereignty in this act he failed. The international definition of sovereignty has been espoused at length and the above

Act although important in the development of Australia, did not have the authority of sovereignty. The historical evidence that Australia remained a British Colony post 1901 is overwhelming.

2.  “Australia made an international declaration of its intention to become a sovereign nation when Prime Minister Hughes and his deputy; Sir Joseph Cook signed the Treaty of Versailles on June 28, 1919. On its cognisance of signing this treaty, Australia was granted a “C” class League of Nations mandate over former German territories in the Pacific. In effect, Papua New Guinea became a colony of Australia achieving its own independence on 16 September 1975. The League of Nations became part of International Law on 10 January 1920 with Article X of the Covenant of League of Nations guaranteeing the sovereignty of each member,”

2A. The Significance of Australia joining the League of Nations as a foundation member has never been addressed in Australia before. Strangely, only one book has ever examined the question of Australian independence. Written by W. J. Hudson and M. P. Sharp in 1988 "Australian Independence" printed by Melbourne University Press: As both were members of the Department of Foreign Affairs and Trade at the time of authorship and had access to the, British Parliamentary Papers, I find it most interesting they have avoided any mention of these papers in their book. Their conclusion that Australia became an independent nation via. the Statute of Westminster in 1931 flies in the face of contradictory evidence within the above mentioned papers and readily available historical fact.

Prime Minister Hughes address to the Commonwealth Parliament on 10 September 1919, “Australia has now entered into a family of nations on a footing of equality. Australia has been born in a blood sacrifice." demonstrates the politicians of the day were only too well aware of the change of status from a colony to that of sovereign nation while attempting to remain within the Empire.

Prime Minister Bruce made this reply to the British Government in 1922 after a request for troops against Kernel Ataturk in the Chanak crisis. Bruce’s reply is contained in the British Parliamentary Papers: “We have to try to ensure there shall be an Empire foreign policy which if we are to be in anyway responsible for it, must be one to which we agree and have assented. If we are to take any responsibility for the Empire's foreign policy, there must be a better system, so that we may be consulted and have a better opportunity to express the views of the people of this country. We cannot blindly submit to any policy which may involve us in war." This is a far cry from the declaration of war against Germany made on behalf of the British Colony of Australia by George V of the United Kingdom in 1914.

I have re-produced Bruce's reply in full as I believe this reply contains clear historical evidence of a Prime Minister who was well aware of the change of status from a. colony to a sovereign nation. The later Statute of Westminster 1931 was an acknowledgment of that status.

3.  "Paragraph 4 of the Statue of Westminster Act 1931 contravenes Article X of the Covenant of the League of Nations. Paragraph 1 of the Australia Act 1986 contravenes Article 2 paragraphs 1 and 4 of the Charter of the United Nations."

3A Paragraph 4 of the Statute of Westminster reads "No Act of Parliament of the United. Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that Dominion, has requested, and consented to the enactment thereof." Paragraph 1 of the Australia Act is very similar: “No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory."

I passed this one to the Federal Attorney General and asked him what was the source of this quite incredible authority that sought to overturn the authority legislated within the Covenant of the League of Nations in Article X and the Charter of the United Nations in Article 2 paragraphs 1 and 4. He is unable to provide any documentation to support these clauses, Article X of the Covenant of the League of Nations states: “The members of the League undertake to respect and preserve against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression, the Council shall advise upon the means by which this obligation shall be fulfilled."

It is appropriate that I now introduce a statement by Sir Geoffrey Butler KBE, MA and Fellow, Librarian and Lecturer in International Law and Diplomacy of Corpus Christi College, Cambridge author of “A Handbook to-the League of Nations" used as a reference to the League by virtually all nations at that time. He refers to Article 1 of the Covenant of the League of Nations.

"It is arguable that this article is the Covenant's most significant single measure. By it the British Dominions, namely New Zealand, Australia, South Africa, and Canada, have their independent nationhood established for the first time. There may be friction over small matters in giving effect to this internationally acknowledged fact but the Dominions will always look to the League of Nations Covenant as their Declaration of Independence.

Article 2 paragraph 1 of the United Nation’s Charter states "The Organisation is based on the principle of the sovereign equality of all its Members."

Article 2 paragraph 4 of the Charter states ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

In view of the above, the historical evidence for Australian Independence by 10 January 1920 when the League of Nations became part of International Law is overwhelming. When this evidence is reinforced with the contents of the Charter of the United Nations, the continued usage of any legislation that owes its very legitimacy to the parliament of an acknowledged foreign power cannot be supported by either legal opinion or indeed historical evidence.

I therefore have come to the conclusion that the current legal and political system in use in Australia and its States and Territories has no basis in law.

Following discussions with members of the British Government relating to the Letters Patent for the Governor General and State Governors I find that these documents no longer have any authority.

Indeed, the Queen of the United, Kingdom is excluded from any position of power in Australia by the United Nations Charter and is excluded under UK law from the issue of a Letters Patent to other than a British Subject.  A  Letters Patent must refer to an action to be taken with regard to British Citizens. The Immigration Act 1972 UK defines Australian Citizen as aliens.

The Governor General’s Letters Patent is a comedy of errors. We are greeted in the name of the Queen of Australia who suddenly becomes the Queen of the United Kingdom in the next paragraph of the Letters Patent. This Queen the gives instructions to the Governor General with reference to the Commonwealth of Australia Constitution Act 1900 UK. Here we have a clear breach of Article 2 paragraph 1 of the United Nation Charter. Under both UK and international law, the-Queen is a British Citizen.

State Governors are in a worse position as their authority comes from the late Queen Victoria of the United Kingdom. Regardless of the validity of the Commonwealth of Australia Constitution Act 1900 UK, if the authority of Governor General and the State Governors is invalid then so is the entire political and legal system of government.

When advised that the War Crimes Commission was taking an interest, I called them in Geneva. Under the 1947 Geneva Convention, they are empowered to look into cases here in Australia where it is alleged the law of a foreign country was enforced against a citizen of a member state of the United Nations. As they perceive that only the judiciary can actually enforce the law, the judiciary becomes their target. The group has already placed cases before them which they are currently investigating. If found guilty, the penalties are horrific and include the death penalty!

I could go on with more relevant information however I think now is the time for a summary. The group leader, a QC, states the obvious when he asked me how could a colony now acknowledged by all world nations to be a sovereign Nation retain exactly the same legal and political system it enjoyed as a colony without any change whatsoever to the basis for law. This point alone requires an answer.

The High Court has already answered with regard to the position held by treaties signed by the Commonwealth Government in the Teoh case of 1994. "Ordinary people have the right to expect government officials to consider Australia's international obligations even if those obligations are not reflected in specific Acts of Parliament: the rights recognised in international treaties are an implied limit on executive processes."

My advice is to adjourn any case "sine die" that that challenges the authority of the Letters Patent. Under no circumstances hear a case that challenges the validity of a State or the Federal Constitution. It is the politicians who are using us as pawns without them having to face the music. These matters are of concern to politicians, let them sort out these problems and accept any inherent risks themselves!

Article 36 of the Statute of the International Court of Justice is the correct reference for you to refuse to hear a matter when an international treaty is cited as a defence.

HIGH COURT OF AUSTRALIA

HAYNE J

21 December 1998

M65/1998

1                "Sovereignty" is a concept that legal scholars have spent much time examining.  It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used.  H L A Hart said of the idea of sovereignty that[1]:

     "It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective.  Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves.  In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules.  The question for municipal law is:  what is the extent of the supreme legislative authority recognised in this system?  For international law it is:  what is the maximum area of autonomy which the rules allow to states?"

For present purposes, what is critical is:  what is the extent of the supreme legislative authority recognised in this system and what are the rules for recognising what are its valid laws[2]?

2                          When one examines the history of Australia since 1788 it is possible to identify the emergence of what is now a sovereign and independent nation.  Opinions will differ about when sovereignty or independence was attained[3].  Some steps along that way are of particular importance - not least the people of the colonies agreeing "to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution"[4].  But when it is said that Australia is now a "sovereign and independent nation" the statement is in part a statement about politics and in part about what Stephen J in China Ocean Shipping Co v South Australia[5] called "the realities of the relationship this century between the United Kingdom and Australia".  What those realities were in 1900 can be gauged from the fact that the delegates negotiating with the Imperial authorities in 1900 about the terms in which the Imperial Parliament was to enact the Constitution were well content to seek to persuade the Colonial Office that the "Commonwealth appears to the Delegates to be clearly a 'Colony'"[6].  As the century moved on, further attention was given to the place of Imperial legislation in the self‑governing dominions.  The Imperial Parliament enacted the Statute of Westminster in 1931 but it was not until 1942 that the Commonwealth Parliament enacted legislation adopting the Statute of Westminster[7].  And then in 1986 the Australia Acts were passed.  All these Acts deal with the place of Imperial legislation in Australia.  Each can be seen as reflecting the then current view of the relationship between Australia and the United Kingdom.  In large part, then, each deals with an aspect of political sovereignty.

3                          Similarly, the way in which Australia has engaged in international dealings can be seen to have changed since federation.  And it may be that the Treaty of Versailles or some other international instrument can be seen as according Australia a place in international dealings which it may not have had before the instrument was signed.  But what is significant for the disposition of the present applications is not whether the Westminster Parliament could now, or at some earlier time might have been expected to, pass legislation having effect in Australia.  Neither is it whether Australia is treated by the international community as having a particular status.  The immediate question is what law is to be applied in the courts of Australia.  The former questions about the likelihood of Imperial legislation and of international status can be seen as reflecting on whether Australia is an independent and sovereign nation.  But they do so in two ways:  whether some other polity can or would seek to legislate for this country and whether Australia is treated internationally as having the attributes of sovereignty.  Those are not questions that intrude upon the immediate issue of the administration of justice according to law in the courts of Australia.  In particular, they do not intrude upon the question of what law is to be applied by the courts.

4                          That question is resolved by covering cl 5 of the Constitution.  It provides:

     "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State".

It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look.  And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution.  It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia.  Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth.  None of the points that the applicants seek to make touches the validity of any of the laws that are in question or would make those laws any the less binding on the courts, judges, and people.

5                          As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act.  As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change.  The fact is, it did not.  So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament.  So far as now relevant, s 58 governs.  It provides that the Governor‑General "shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name".  And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.

6                          The third element in the submissions made by the applicants, and the one to which greatest significance was given in oral argument, asserts that significance is to be attached to certain of Australia's international dealings.  These contentions fail to take account of certain basic principles.  First, provisions of an international treaty to which Australia is a party do not form part of domestic law unless incorporated by statute[8].  It follows that what one of the applicants referred to as various human rights instruments do not of themselves give rights to or impose obligations on persons in Australia.  Similarly, the Charter of the United Nations does not have the force of law in Australia[9].  Next, in so far as this limb of the argument sought to make some point about "sovereignty" it is again necessary to note the distinction between sovereignty in international law and sovereignty in the sense described by Hart as "the supreme legislative authority recognised in this system"[10].  The points which the applicants seek to make are points touching the first of these matters, not the second.  It is the second that is the critical question in the courts and it is the second that is resolved by having regard to covering cl 5.

7                          Lastly, it is necessary to deal with the contentions about the Commonwealth Electoral Act.  These contentions depend entirely upon acceptance of one or other of what I have earlier called the three main themes of argument.  Because I consider that they are not arguable, no separate question arises about the Commonwealth Electoral Act.  Nevertheless, it may be noted that it was established very early in the life of the federation that if there are any defects in the election of a member of a house of the Parliament the proceedings of that house are not invalidated by the presence of a member without title[11].  

  Kenneth Madison Hayne AC was appointed to the Court in September 1997. At the time of his appointment he was a judge of the Victorian Court of Appeal, having been appointed one of the foundation judges of that Court in 1995. He graduated in arts and law from the University of Melbourne. He was Victoria’s Rhodes Scholar in 1969 and graduated as a Bachelor of Civil Law from Oxford University.

He joined the Victorian Bar in 1971, and was appointed a Queen’s Counsel in 1984. He practised in State and federal courts principally in commercial, constitutional and general civil matters. He was appointed a judge of the Victorian Supreme Court in 1992. Justice Hayne AC was appointed a Companion in the General Division of the Order of Australia in 2002.

8                 

---

[1]      H L A Hart, The Concept of Law, (1961) at 218.  See also Wade, "The Basis of Legal Sovereignty", (1955) 13 Cambridge Law Journal 172; Heuston, "Sovereignty", in Guest (ed), Oxford Essays in Jurisprudence, (1961) at 198-222; Winterton, "The British Grundnorm:  Parliamentary Supremacy Re-examined", (1976) 92 Law Quarterly Review 591.

[2]      Hart, The Concept of Law, (1961) at 97-120.

[3]      China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 181 per Barwick CJ, 194 per Gibbs J, 208-214 per Stephen J, 240 per Aickin J; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ, 191-192 per Gaudron J.

[4]      Constitution - Preamble.

[5]      (1979) 145 CLR 172 at 209.

[6]      Quick and Garran, Annotated Constitution of the Australian Commonwealth, (1901) at 352.

[7]      Statute of Westminster Adoption Act 1942 (Cth).

[8]      Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480‑481 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.

[9]      Bradley v The Commonwealth (1973) 128 CLR 557 at 582 per Barwick CJ and Gibbs J.

[10]     Hart, The Concept of Law, (1961) at 218.

[11]     Vardon v O'Loghlin (1907) 5 CLR 201 at 208 per Griffith CJ, Barton and Higgins JJ.

THE REGULATOR IS INTIMATING ME THAT I MIGHT HAVE BREACHED MY UNDERTAKING WHEN I AM SURE I DID NOT.

APPLICATION - SPECIAL LEAVE - HIGH COURT OF AUSTRALIA IN P36 OF 2009

Form 23 Application for leave or special leave to appeal (rule 41.01.1)
IN THE HIGH COURT OF AUSTRALIA No.P36 of 2009
[PERTH REGISTRY]
BETWEEN:
NI KOK (NICHOLAS) CHIN Applicant
and
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA Respondent

APPLICATION FOR SPECIAL LEAVE TO APPEAL
1. The applicant applies for special leave to appeal the whole of the judgment of Justice Pullin JA and Newnes JA of the Court of Appeal of Appeal, Supreme Court of Western Australia given on 26.6.2009 and published on 7.7.2009 in CACV 105 of 2008. This case is also cited as CHIN V LEGAL PRACTICE BOARD WESTERN AUTRALIA [2009] WASCA 117 (the judgment below).
Grounds
2. The judgment below is wrong because it refused the Applicant’s Application for Leave to Appeal and unjustifiably dismissed the Appeal proper at the same time, on the following grounds:
i) It exceeded its jurisdiction by failing to make the necessary decision (on the issue of the legal effects as distinct from the practical effects) of the Applicant having been maliciously deprived of the independent practice of his vocation by the false full Board which usurped the rightful authority of the Respondent, contrary to subs.105(13) of the State Administrative Tribunal Act, 2004 (the Act), thereby denying him natural justice.
ii) It prejudged the incomprehensive coverage of the essential issues of the Applicant’s cause in the five-page Grounds of Appeal by utilizing his obvious obsequiousness to meet the court’s unreasonable demands for succinctness in the reformulation of the twenty-six page Grounds of Appeal through first inducing him to displace the latter for the former and subsequently it reasonably failed to fulfill its promise to the Applicant that the former will be used as submission to buttress the latter. It erred by incorrectly stating that the Applicant was unable to distinguish between evidence and submission (the Grounds).
iii) It did not apply the correct test as to whether the Applicant’s case has a reasonable prospect of success. Rather, it was merely narrowly thinking that the Applicant would not possibly succeed. Had the former been broadly applied, it would reasonably have arrived at the foregone conclusion that the Applicant’s Grounds are not merely fanciful, nor hopeless, nor entirely without merit. This broad interpretation of judicial discretion would have promoted the development of the law but instead the narrow interpretation it had injudiciously and unreasonably used had the effecting of chilling the development of the law. Thus this form of judicial reasoning runs counter to the very notions of the common law itself.

iii) It failed to appreciate that the tribunal in hearing de novo the Applicant’s case must be constrained by the statutory limitations of its public duty to seek and to promote the common and public good rather than by denigrating itself through being reasonably seen by the public to be pandering to some clandestine forces of the false full board of the Respondent to protect the some reasonably obvious intentional wrongdoings of some of its members who are reasonably seen to be promoting untruths and falsehoods to the detriment of the Applicant, in the following (the intentional wrongdoings):

a. s. 18 of the former LP Act protects the Respondent from liability to the Applicant’s claim for damages only in circumstances when it had not acted in bad faith (the bad faith);
b. S.91 of the State Administrative Tribunal Act, 2004 (the SAT Act) requires the tribunal to declare the obvious acts of bad faith of the false full Board of the Respondent even though it was without power to award the Applicant compensation for damages.
c. S.9 of the SAT Act imposes the statutory duty on the tribunal to solve this legal problem for the Applicant expeditiously, fairly, economically and according to the substantial merits of the case which it blatantly erred to do so.

iv) It failed to consider the intentional wrongdoings of the Respondent in the following:
a. It only considered the two grounds of the Respondent not having acted appropriately and having calumniously defamed the Applicant, shorn of their particulars (the Two Grounds);
b. It is not positively satisfied that the Two Grounds do have a rational and logical prospect of succeeding because it did not define them reasonably thus leading it to a fundamental error in judgment below in the following (the error):

a) they are not reasonably irrational,
b) they are not reasonably fanciful;
c) they are not reasonably absurd;
d) they have a real and reasonable prospect of success;
v) The error led it to commit a substantial miscarriage of justice against the Applicant in terms of the following (the miscarriage of justice error):
a. the error caused the simultaneous dismissal of the leave to appeal and the appeal proper.
b. the dismissal of the appeal proper prevents the proper determinations of the appeal.
c. The lack of proper determinations of appeal by a court of integrity is leaving the deliberate wrongdoings to the Applicant without a remedy.
d. Nothing can be vexatious if it is true and therefore good for the public and the intention to harass is missing;
e. Nothing can be offensive if it is true and therefore good for the public and it is used as a shield and not as a sword.
f. Nothing can be prolix if the words used by the Applicant are necessary for the purpose of conveying the desired meanings for his case to be established in a court of law which has the right to make judicial determinations of his case equitably and accord him with fair justice in accordance with the applicable laws as extant in Western Australia.
g. The error caused the Legal Profession Complaints Committee to re-persecute the Applicant by re-litigating res judicata matters under s.428(1) of the Legal Profession Act, 2008 in VR 87 of 2009 on 30.6.2009 and as such is an abuse of the process of the courts.
h. The error caused the Respondent to realize that it is against public policy that litigation be so prolonged; hence the reason why the tribunal ordered for a mediation process to begin by 14.9.2009 whilst at the same time, requiring the Applicant to respond to the re-persecuting process which the Applicant did in protest by 20.8.20009.
vi) It failed to consider the errors of the usurping false full board which encompasses “the six matters that involves the ultimate conclusion that the Applicant did not have a proper appreciation of and did not observe the standards of conduct expected of legal practitioners” (the six matters) in the following terms:

a. “the phantom deficiency syndrome” , “the particular issues considered by the tribunal” and the “value judgments”.
b. their essentialities are captured within items 1.4 of Ground 1, 2.03 of Ground 2 and 1.5 of Ground 1 respectively in the Optional Grounds.
c. their elaborations are in the twenty-six page Grounds promised to become the submission of the Applicant’s case by Pullin JA. When not considered in the judgment below it had resulted in the miscarriage of injustice in terms of the following:
 Ubi jus, ibi remedium - where there's a right, there must be a remedy. This has been ignored by a court of integrity.
 Forms must not be allowed to triumph over substance. The ends must not be justified by the means.


Order(s) sought
The Applicant seeks the grant of:
i) an Extension of Time to File an Application for Special Leave to appeal to the High Court;
ii) a Special Leave to Appeal to the High Court; and
if both Applications as described above were granted to the Applicant and if the Appeal were successful including special order as to costs, in terms of the following:
a) Set aside the decision of the Court of Appeal.
b) Remit the matter for reconsideration to the tribunal.


Dated this 28th day of August, 2009.

..................signed)...................... ( Applicant or Applicant's solicitor )

To: The Respondent
5th Floor, Kings Building
533 Hay Street, PERTH WA 6000
Telephone: (08) 6211 3600
Facsimile: (08) 9325 2743
Email: general@lpbwa.com

TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.
< End of Document>

RESPONSE LETTER TO LPCC DATED 15.3.2010

My ref: VR87OF2009

Your ref: S232/09

15^th day of March, 2010.

The Legal Profession Complaints Committee

Atten: Legal Officer: Ms. Caroline Brookes

PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265

Your ref: S232/09

Dear Sir

RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT

JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009

I refer to your letter dated 11.3.2010 requesting my consent for Mrs. Mathias evidence to be given in person in the week prior to the trial. I do not consent to this method of giving evidence as Mrs Matthias cannot then be cross-examined by me as my accuser should be confronting me. I have to summon all my trepidations in order to write this letter at my own peril although I am fearful of the repercussions. I also do not agree that the res judicata trial should proceed as it is already the subject of my Application for stay of execution and for review in CIV 1019 of 2010. The conduct of Justice Chaney in proceeding with the directions hearing on 16.2.2010 implies that he is aware, perhaps that the Supreme Court itself is already prejudging my Application for Certiorari Orders in CIV1019 of 2010. I do place my trust in the Supreme Court as I believe that there is still some vestige of fair justice left for me.

I fail to understand as to why the LPCC is continuing to persecute me or to witch-hunt me for no rhyme or reason. Why is the LPCC not catching those real people who are defrauding innocent people like Mr. Timothy Robin Thies and Mr. David Taylor who is causing court records to be falsified? What monies have I defrauded Mrs Mathias and what intentions do I have in defrauding her to warrant this persecution. Why is it chasing after shadows in order to protect the real wrong doers?

With due respect to the learned Justice Chaney, I would like to state that the res judicata proceedings in VR 87 of 2009 did not receive my consent to proceed as the orders of Justice Chaney is not in conformity with the law and they are null orders given without jurisdiction by His Honour in an “ambushed” trial; who had lost his independence, integrity and impartiality as a judge. This is despite the fact that I have a suppressed wish that if I had been prosecuted for professional misconduct instead of being persecuted for the nebulous “deficiency” of my professional knowledge, I would not have been “imprisoned” in the legal abyss that is not of my own making. Despite the admissive conduct of the pseudo Full Board which is usurping the lawful authority of the regulator of the legal profession of WA, Justice Chaney is avoiding that particular issue in his judgment in VR107 of 2008.

If at all there is a going to be trial, it is not I who is going on trial but the learned Judge himself. I would like to know why there is a conspiratorial link between the LPCC and the learned Justice Chaney by my asking him to respond to the following questions:

a) Why did Justice Chaney adopt a pre-judgmental attitude to the case of VR 107 of 2008 when compared with the stance adopted by the former President of SAT the learned Justice Barker, before the former took over that case from the latter?

b) Why does Justice Chaney twist the facts to suit his agenda and do not present the truth or lie in his judgment in VR 107 of 2008 and in his res judicata point judgment in VR 87 of 2009?

c) Why did Justice Chaney prejudged on 4.11.2009 before trial of VR87 of 2009, that I was guilty of professional misconduct in having allegedly acted in conflict of interests with regard to the vendors of the Centenary Lunch Bar; he ought to have accepted my argument that the vendors gave me a written voluntary informed consent for me to act for them?

d) Why does Justice Chaney prejudge the issue I did not treat Mr. Pino Monaco with fairness and courtesy on 4.1.2005 when he was guilty of plundering and pillaging Dr. Kheng Su Chan with impunity? Is it not a duty of a solicitor to act for his client faithfully?

e) Why does Justice Chaney prejudge the issues of facts and law of my having acting in conflict of interests for Mr. Tylor who is my client and his two companions who accompanied him to see me?

f) Why does Justice Chaney prejudge the issue that I made improper allegations against Mr. David Taylor when the facts are clear that the latter had falsified court records and committed perjury while doing so in collaboration with the learned Registrar Powell?

g) Why does Justice Chaney descend into the arena of conflict and was blinded by the dust of the affray when he denied me the defence of “issue estoppel” which he himself admits is a good defence for me in the res judicata proceedings?

h) Why does Justice Chaney refuse to accept the fact that there are no issues of facts or law before Her Honour Judge Pritchard for the proposed trial of the res judicata proceedings as they have already merged into the previous judgments[1]?

i) Why does Justice Chaney culpably maintain that it is okay to persecute me for professional misconduct this time again, as his contention is that I am never so persecuted on those issues of facts and law in the past; he ought to have known that the LPCC cannot have a “further remedies”[2] on a subsequent prosecution as such a “strategy” is barred by the defence of res judicata?

j) Why is Justice Chaney so eager to make wrongful administrative decision in “directions hearings” such that he could control the future of the res judicata proceedings which he knows ought not to be proceeded with as they are outside the jurisdiction of SAT?

k) Why does Justice Chaney prejudge the issues of facts and law regarding Mrs. Nalini Matthias when he ought to have known that I did not abuse my powers as her solicitor, did not exploit her vulnerabilities if any, but was exploited by her and did not defraud her of any monies?

l) Why did Justice Chaney prejudge the issues of facts and law with regard to my communication with Ms. Pryer who is the Associate of Justice Jenkins which was in turn expediently communicated to Mr. David Taylor, for the purpose of securing the rights of my client, the late Ms. Hall?

m) Why did Justice Chaney prejudge the issues of facts and law relating to “trust monies” when they were monies in transit acted upon by me in accordance with my client’s instructions?

n) Why does Justice Chaney prejudge the issues of facts and law with regard to the allegedly “scandalous” accusations in accordance with my client’s instructions in the Clohessy affair when they are true and relevant and therefore are never legally scandalous?

o) Why does Justice Chaney prejudge the issues of facts and law with regard to non-existent trust monies when legal fees were received by me from my clients after work had been completed for them?

p) Why does Justice Chaney order me to comply with his orders to respond to the res judicata Application of the LPCC which I did in protest, but he does not require it (the LPCC) to reply to my response as specifically ordered by him to do so, and as a result, he left me in a lurch?

q) Why does Justice Chaney after becoming aware as the judge in VR 107 of 2008 that the essential elements of professional misconduct are missing in the issues of facts and law that were before him, still insists that I be persecuted for the “further remedy” of the res judicata proceedings?

r) Why does Justice Chaney knowing that it is well-nigh impossible for him to convert his previous findings that I was not guilty of any professional misconduct now has a change of mind: his is the resolute will to impute dishonestly and unreasonably into very those self-same issues of facts and law he had found before, with the impossible qualities of my “substantial” and “consistent” failure to reach a standard of competence and diligence expected by members of a reasonable legal practitioner? He waves a magic wand and hey presto, the conversion is done according to his wishes?

s) Has Justice Chaney forgotten to do his duties as a duly appointed judicial officer to do fair justice?

t) Is Justice Chaney unaware as a judicial officer that he has abused the process of court in ordering for the abusive res judicata proceedings to be proceeded with?

u) Is Justice Chaney unaware that even SAT which is not a court has an inherent jurisdiction to stay the abused process of court because it sought to re-litigate issues that had already been disposed of by other proceedings[3]?

The High Court of Australia has refused my Application for Special Leave to Appeal in P36 of 2009 on

10.3.2010 upon the ground that the credibility of Justice Chaney remains un-impeached in VR 107

of 2008 but not in VR 87 of 2009[4]. Therefore it is logical for me to apply for a review in the High Court if

necessary, later, to impeach the credibility of Justice Chaney in the High Court only if the learned

Justice Chaney were to answer the questions enumerated from (a) to (u) above. If, however, those

questions remain unanswered, it would be reasonably presumed that the expected answers to those

questions are reasonably expected to be admitted by Justice Chaney.

As my final humble gesture of defiance of an order that is issued by SAT without jurisdiction, I respectfully quote Dean Alfange's Creed:

"I will not trade freedom for beneficence nor my dignity for a handout. I will never cower before any earthly master nor bend to any threat. It is my heritage to stand erect, proud and unafraid; to think and act for myself, enjoy the benefit of my creations and to face the world boldly and say - ‘This, with God’s help, I have done."

Yours faithfully

NICHOLAS N CHIN

c.c.

The Chief Executive Officer

The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099

Atten:

The Associate to the President of SAT: Ms. Toni Sherwood

The Associate to Deputy President of SAT: Ms. Alexandra Turner

The Principal Registrar

Mr. Keith Frederick Chapman

Supreme Court of WA Stirling Gardens, Barrack Street

PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350

Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin

The Chief Executive Officer

The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099

---

[1] It is well settled, so far as civil proceedings are concerned, that, if a "judicial determination directly involv(es) an issue of fact or of law ... that (issue) cannot afterwards be raised between the same parties or their privies" ((77) Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J (dissenting) first used the term "issue- estoppel". With regard to the development of the doctrine in English law, see Thoday v. Thoday (1964) P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue estoppel" as it is generally called, is different from "res judicata " or "cause of action estoppel" which occurs when a cause of action passes into judgment so that "it is merged and has no longer an independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.) and "no other proceedings can thereafter be maintained on (it)" ((79) Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597; Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 507.). The rule with respect to res judicata or cause of action estoppel is embodied in the Latin maxim transit in rem judicatam.

[2] See the "extended principle" in Henderson v. Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] Eng R 917; (67 ER 313 at 319).) which would allow that:
"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the
time".

[3] In Walton v. Gardiner ((130) [1992] HCA 12; (1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process:
"extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process ((131) ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings ((132) See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 (133) (1889) 14 App Cas 665.) is the paradigm example of such a case.”

[4] See the website of the High Court of Australia http://www.austlii.edu.au/au/cases/cth/HCASL/2010/4.html in Chin v Legal Practice Board of Western Australia [2010] HCASL 4 (10 March 2010) at para: 2 which states:

“The Tribunal rejected the applicant's submissions, including that the respondent did not have jurisdiction to impose the conditions without some finding of incapacity or unfitness or some disciplinary proceedings being successful against the practitioner and, alternatively, that the conditions were not necessary. The Tribunal concluded that the applicant did not have the proper appreciation of, and did not observe, the standards of conduct expected of legal practitioners.”