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>

MINUTE -AMENDED GROUNDS OF APPEAL - CACV 105 OF 2008

SUPREME COURT OF WESTERN AUSTRALIA CACV 105 OF 2008
COURT OF APPEAL MINUTE OF AMENDED GROUNDS OF APPEAL

Parties to the NI KOK (NICHOLAS) CHIN APPELLANT
Appeal
LEGAL PRACTICE BOARD, WESTERN AUSTRALIA RESPONDENT

Filed the 18th day of May, 2009

Prepared and Filed by:
NICHOLAS NI KOK CHIN - Solicitor-litigant in person
No. 387, Alexander Drive Phone & Fax: 08- 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
------------------------------------------------------------------------------------------------------
OPTIONAL MINUTE OF THE PROPOSED RE-AMENDED GROUNDS OF APPEAL PURSUANT TO THE ORDERS OF JUSTICE PULLIN IN COMPLIANCE WITH R.32(4)(B) OF THE SUPREME COURT (COURT OF APPEAL) RULES, 2005, GIVEN ON 15.5.2009 TO BE FILED AND SERVED BY 29.5.2009.
Index Page No.
GROUND 1: 1
1.2. PARTICULARS OF THE SEVEN INHIBITIONS: 2
1.3. PARTICULARS OF PERSECUTING MALICE OF THE RESPONDENT: 3
GROUND 2: 4
2.1. PARTICULARS OF DETRIMENT SUFFERED BY APPELLANT AS A CONSEQUENCE OF BEING DEFAMED BY THE BOARD: 5

The Appellant appeals the decision of the State Administrative Tribunal in VR 107
of 2007 heard before the Panel comprising of His Honour Justice Chaney (then Judge J
Chaney and Acting President) and the Honourable Members, Ms M Jordan and Mr B
Hunt (both Senior Sessional Members). The Panel heard the Appellant on 25.9.2008
and delivered its judgment on 28.10.2008. The Grounds of Appeal are as follows:
GROUND 1:
1. The Tribunal erred in mixed law and facts by wrongly concluding that the Respondent Board had acted appropriately in the public interests under circumstances when it ought, instead, to have arrived at the reasonably legitimate conclusion that the Respondent Board had sought to trifle with the independent law practice of the Appellant on seven successive occasions (the seven inhibitions) under unjustifiable circumstances, to wit: the Board having been involved in a deliberate wrongdoing by having acted in contumelious disregard of the rights of the Appellant, as follows:
1.1. Re-constituting itself into a false Full Board by Four members acting clandestinely, to go on a frolic of its own, as the agent of the Respondent Board, without the knowledge of the rest of its members, to achieve a private purpose.
1.2. By abusing its discretionary powers under s. 40 of the LP Act for an improper and illegal purpose at the behest of some interested persons, the knowledge of which lies peculiarly within the members of False Full Board.
1.3. By denying the Appellant of his human rights to work and his freedom to choose his own profession.
1.4. By falsely labelling the appellant with the phantom deficiency syndrome which it knows would have its accompanying ostracization and discriminatory effects on the Appellant on grounds of his race, age and personal circumstances?
1.5. By failing to dispense fair economic and blind justice with objective judgments by making value pronouncements of twisted facts of trivialities such that they are taken out of context to represent half-truths and passing them as whole truths (value judgments).
1.6. By failing to use its declarative powers under s. 91 and s.18 of the State Administrative Tribunal Act, 2004 for a proper purpose when it is reasonably apparent to it that the false Full Board had acted in bad faith.
1.7. By so acting in the manner as described in the foregoing sub-paragraphs with persecuting malice.

1.2. PARTICULARS OF THE SEVEN INHIBITIONS:
1.2.1. Ms. F.H. Walter as a member of the Professional Affairs Committee (PAC) activated the Legal Practitioners Complaints Committee (LPCC) to make false allegations for an improper recommendation to the PAC in her ambulatory roles as judge and jury for both bodies, resulting in the PAC acting as agent of the Respondent Board, abusing its discretionary powers to trifle with the independent law practice of the Appellant through the seven inhibitions (the first inhibition).
1.2.2. Judge Eckert in the First SAT Decision in VR 137 of 2006 pandered to the whims of the Respondent Board, did unreasonably and illogically confirm the first inhibition on 12.9.2006 and based it on its value judgment, without regard to the need for the provision of a reasoned statement to the Appellant (the First SAT Decision).
1.2.3. Master Sanderson’s erred in disposing of the Appellant’s Appeal of the First SAT Decision in CIV 2110 of 2006 by an unconscionable expunging of the evidentiary materials before him followed by a “devastating” costs order that was subsequently forgiven by the real Full Board by its deciding not to enforce it (the rectifiable procedural error).
1.2.4. The rectifiable procedural error was caused by the human error of the Appellant in making that First SAT Decision Appeal through the General Division of the Supreme Court instead of its proper forum at the Court of Appeal (the latter coming into being with the introduction of the Supreme Court (Court of Appeal) Rules, 2005). Master Sanderson erred in refusing the Appellant the timely chance to correct that rectifiable error which resulted in the Appellant becoming traumatised and hence his consequent delay in his subsequent achievement of a successful Leave to Extend time to Appeal in CACV 43 of 2007 (the Leave to Extend Time).
1.2.5. The Leave to Extend Time materialised into the appearance of a Consent Judgment achieved through Justice Steytler on 25.9.2007 resulting from the false Full Board being then cornered into what it could reasonably be expected to believe that it was then in an untenable situation due to the fact that its very existence as the false Full Board was then imminently at risk of being exposed or uncovered.
1.2..6. The false Full Board resurrected itself (in the aftermath of the Steytler Consent Judgment by refusing to honour that consent judgment because the implied compromise had not been properly arranged), into the Inquiry Panel which sat on 3.4.2008 for the purpose of abusing its discretionary powers again using s. 40 of the LP Act through the improper formulation of value judgments as its calumnious attacks on the Appellant by producing the Calumnious Report (the calumny).
1.2.7. Three New members amalgamated with the false Full Board to form a Six-member Approving Committee which clandestinely sat in May 2008 to “stamp its approval” on the usurping False Full Board’s Calumnious Report. They (the three new members) thus duplicate their respective roles as the tainted prosecutor and judge without realising that they also do not form an adequate quorum of the required four members to constitute the false Full Board; they therefore effectively failed to give their intended authenticity and integrity to that “stamp of approval”.
1.2.8. The Second SAT Decision in VR 107 of 2008 erred again in not reversing the calumny of the False Full Board that is reasonably apparent to it as no reasonable decision maker would have arrived at the decision it did.

1.3. PARTICULARS OF PERSECUTING MALICE OF THE RESPONDENT:

1.3.1. Ms. F. H. Walter acted with gross bias and malice at the behest of one Pino Monaco resulting in the seven inhibitions being pursued unrelentingly by the False Full Board which re-incarnated itself in its many shapes and forms, the particulars of which lies peculiarly within the knowledge of the members of the false Full Board of the Respondent.
1.3.2. The false Full Board admitted to its persecuting malice when it was not able to produce its “validating minutes” to show the bona fide of its intentions, its integrity and its authenticity, repeatedly, to the effect that it was indeed not the real Full Board that had acted with the knowledge of all the other 48 members of the Respondent Board.
1.3.3. The six- member Approval Committee of the false Full Board knew that its mission was tainted with gross bias as they do not form the required quorum but they were bent on achieving their ulterior purpose to the detriment of the Appellant.
1.3.4. The wrongs of fellow practitioners complained of by the Appellant were never investigated by the Respondent Board through the LPCC but instead was labelled by the False Full Board as “frivolous allegations against fellow practitioners”. Neither were any positive actions taken by the Respondent Board after the LPCC were intimated by the Appellant as to the falsity of their false allegations. Those false allegations are in terms of the following:
a) Mr. Pino Monaco manipulated Dr. K.S. Chan and caused her present predicament;
b) Mr. Timothy Robin Thies caused trauma to the family of the Appellant by making frivolous demands for monies that was never owed to him as vindicated in CIV 1903 of 2008;
c) Mr. David Taylor admitting to the facts that CIV 1131 of 2006 was never filed on time in accordance with the Orders of Justice Jenkins in CIV 1142 of 2005.
1.3.5. Commissioning officers of the LPCC like Ms. Coombs and Ms. Cahon to persecute the Appellant by finding faults with him on trivialities.
1,3.6. Erred by deflecting the course of the procedurally-wrong First SAT Appeal in CIV 2210 of 2006 through the General Division of the Supreme Court instead of allowing its correct course through the CACV 43 of 2007 at the Court of Appeal so as to save a lot of heartache for the Appellant.
1. 3.7. Obstruction of justice through the creation of an artificial “institutionalized wall” of the justice system by its attempts to bar rightful complaints to legitimate authorities such as the chief magistrates or the chief justice, that serves as a “substitute for a Notice of Appeal” by utilizing the value judgment of professional deficiency syndrome using the excuse of disrespect to members of the judiciary.
GROUND 2:
2. The Tribunal erred in mixed law and facts when it failed to reach the reasonably expected conclusion after it had been reasonably apprised of the factual circumstances of the Appellant’s case (by not making a declaration under s.91 of the SAT Act to the effect that the Appellant has been calumniously defamed and injured in his reputation and character by the false Full Board; the false Full Board having been reasonably found to have acted in bad faith under s.18 of the SAT Act) when it was so found to have been usurping the powers of the real Full Board for the oblique purpose of abusing the discretionary powers of the Respondent as conferred by s. 40 of the LP Act, in terms of the following:

2.0.1 By denying the Appellant natural justice through its irrelevant rationalization that it had no powers to award compensation on the defamation issue.
2.0.2. By irrationally and illogically respecting persons instead of respecting the law thereby breaching the fundamental principle of the rule of law; by refusing to tamper with the status quo thereby failing to fulfil its statutory functions to achieve an economic settlement of the issues before it, (fairly: according to the substantial merits of the case; speedily and with less formality and technicality) as required by s.9 of the SAT Act.
2.0.3. By failing to distinguish between the normal and natural “defects” of a new legal practitioners by ascribing the Appellant with the phantom professional deficiency syndrome through entertaining illusions of trivialities, in terms of the following:
2.0.3.1. The Appellant does not appreciate that he could be acting in conflict of interests-situations in his relations with his clients and potential clients.
2.0.3.2. The blurring of the distinction between monies in transit and trust monies kept by the Appellant for MTC;
2.0.3.3. Without realizing the fetish desire of the Board to inappropriately label the appellant as a professional having the proclivity to make false allegations against fellow practitioners like Mr. Timothy Robin Thies, Mr. David Taylor and Mr. Pino Monaco.
2.0.3.4. By imagining that the Appellant has the capacity to disrespect members of the judiciary who are obviously on the wrong path and thereby needs corrections by calling a “spade a spade”; which cannot be solved by mere euphemism.
2.0.3.5. Imagining that Alessandro Bertini is not a victim of the justice system as vindicated by the filed papers in CIV 1764 of 2009 for a s.36 Certiorari Review Order.
2.0.3.6. Imagining that truth and falsehoods are compatible for the ends of justice.
2.0.3.7. Imagining that the SAT Decisions are not free from prejudice and value judgments and that Judges can do away with the essential philosophy for Objective judgments.

2.1. PARTICULARS OF DETRIMENT SUFFERED BY APPELLANT AS A CONSEQUENCE OF BEING DEFAMED BY THE BOARD:
2.1.1. Appellant deprived of his human right to earn his livelihood since the 19.7.2006 and this state of affairs is still continuing without abatement, the quantum of which has been established elsewhere by the Appellant and he also prays for damages for the defamation to be assessed by this Honourable Court together with such other relief as it deems fit.
2.1.2. Appellant is frustrated of his “legitimate expectations” in that his licence as a legal practitioner is reasonably expected to be re-issued to him; his licensor is not reasonably expected to act illegally or unconscionably nor is a public body like the Respondent reasonably expected to be so fickle as to be seen to be blowing “hot and cold” at the same time.
2.1.3. The Appellants suffers mental anguish and trauma for the unjust punishment of the False Full Board unconscionably abusing its discretionary powers unrelentingly using s.40 of the LP Act by requiring him to perform the impossible and yet denies him justice by not prosecuting him faithfully using s.39 of the LP Act instead; at the same time unreasonably refusing to issue him with a Certificate of Fitness for him to go away to another jurisdiction so as to avoid the calamities of having to tolerate the false Full Board deliberate wrongdoings.
2.1.4. The Appellant suffers racial and age discrimination by the false Full Board as provided for under s.42 and s.66ZB of the Equal Opportunity Act, 1984(WA) which has a traumatic scarring effect on his psyche for life.
2.1.5. The Appellants suffers the mental anguish of seeking single-handedly to unravel the calumnious untruths of the value judgments of the seven inhibitions, fearing for his life and his reputation and his maintenance of cordial relations with his professionally elite colleagues.
2.1.6. The whole gamut of sufferings: “whole truths” of rationally derived factual trivialities utilized by the false Full Board maliciously and irrationally turning them into half-truths, innuendos and wilful misrepresentations of concocted “facts”, for the purpose of their formulating value judgments such that a false picture of reality has been hitherto achieved; thus enabling the perpetrators to escape and causing the innocent Appellant to be imprisoned in a legal abyss. The Appellant shed tears many times before the SAT tribunals to appease his emotional upheaval at the grave injustice done to him by an enlightened Australia.
2.1.7. The Appellants suffers the harrowing experience of seeing innocent people around him becoming victims of the officers of the court through the justice system of WA and was forlornly expressing his sufferings through people like his son Paul and Alessandro Bertini who are being harassed by people knowledgeable in law “to no ends”, to the extent that they can be “cowering and shivering in fear” of what the courts have in store for them. The false Full Board cannot go about doing the “right thing” by doing the wrong thing first. This is simple logic that every regulator of the legal profession of integrity will understand. In the words of Mr. Bertini: “I believed in the past there was no law in WA, is mafia is the same in Italy where poor people don’t have defence, but now I believe the justices of the supreme court are there to correct the injustice.”


Signature of the Appellant: ………………………………………………..