Bashford v Bashford

Supreme Court of WA|2010-05-25|Before: Martin J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THIES -v- CHIN [2010] WASC 111

Legal practitioner - No practice certificate - Debarred from practising on own account - Conflict of interest - Abuse of process - Allegation of bias

First Defendant : Mr N K Chin (refused leave to appear)

Bashford v Bashford [2008] WASC 138

Chin and West Australian Legal Practice Board [2008] WASAT 252

Chin v Legal Practice Board Western Australia [2009] WASCA 117

1 KENNETH MARTIN J: This matter has been referred to me for programming. It was the subject of an appointment on 30 April 2010, at which time Mr Nicholas Ni Kok (Mr N K Chin) purported to appear on behalf of his son, who is the first defendant in this matter. Mr N K Chin is not a party to this action.

2 On 30 April 2010 I ordered that a transcript of what had been said that day be provided to the parties - so that various matters which I had identified as seemingly requiring attention by the parties be addressed. I did not make any orders other than that this matter and another matter involving Mr N K Chin personally as plaintiff, CIV 1903 of 2008, be entered into the CMC list and adjourned for further directions until 13 May 2010.

3 Reviewing the materials in this action, I saw an affidavit of 8 October 2009 by Mr N K Chin which had been filed by him purportedly acting as barrister and solicitor on behalf of the first defendant, that is, his son Mr Paul Chung Kiong Chin (Mr Paul Chin). So also was a defendant's chamber summons of 8 October 2009. The face pages of those 2009 materials both show Mr N K Chin acting in the capacity of 'Barrister and Solicitor' and 'Solicitor for the Defendant', from 387 Alexander Drive, Dianella.

4 Mr N K Chin should not be holding himself out as a practising barrister and solicitor, operating from an address as identified on the chamber summons of 8 October 2009. Mr N K Chin in fact does not hold a current local practising certificate: see s 5(a) and s 12(2) Legal Profession Act 2008 (WA). He accepted this when the matter was called on before me, having purported to appear for his son on 30 April 2010.

5 Mr N K Chin is also, and remains, the subject of orders of the Legal Practice Board since May 2008 which prevent him from practising as a legal practitioner on his own account, even if he did hold a current practice certificate: see Chin and West Australian Legal Practice Board [2008] WASAT 252 and Chin v Legal Practice Board Western Australia [2009] WASCA 117. Materials filed in this action indicate that Mr N K Chin is not respecting those constraints. It is apparent that those obstacles against Mr N K Chin acting are clear enough. I put both to Mr N K Chin. They were not challenged in terms of their continued existence. The fact that Mr N K Chin strongly wishes to represent his son Mr Paul Chin, the first defendant, who he says suffers from a disability, makes no difference. In fact, it lies at the root of a problem over the continuance of this litigation which began in 2007 as an application to continue the life of a caveat over Mr Paul Chin's property lodged by the plaintiff in respect of unmet legal fees said to be secured by a charge over the first defendant's property.

6 My perusal of the affidavit of Mr Paul Chin of 8 February 2007 also indicates to me, as one evaluates the issue of an arguable basis to sustain the caveat over Mr Paul Chin's property (initially lodged in 2006 by the plaintiff), that there are matters of conflict which arise as between Mr Paul Chin and his father. So even if the two obstacles I have earlier identified in respect of Mr N K Chin's capacity to act as a barrister and solicitor in his own right were overcome, nevertheless no legal practitioner would have sensibly sought to act in the circumstances that prevail. Mr N K Chin, of course, disputes all this, but his loud protests are in merit, wholly untenable.

7 What has occurred between 30 April 2010 and today, 13 May 2010 (the date to which I adjourned the matter for further directions in the CMC List), is that further materials have been filed, purportedly now by Mr Paul Chin himself, including what purports to be an amended chamber summons of 10 May 2010 with an affidavit in support of Mr Paul Chin. These fresh materials were accepted today as having been prepared by Mr N K Chin.

8 There is a third document filed, namely an outline of written submissions of 10 May 2010, for Mr Paul Chin. Mr N K Chin told me today that this document had been prepared by 'a friend' of his son. But he declined my request to identify this 'friend'. It is readily apparent from the typeface, layout and content of that written submission document that once again, Mr N K Chin has also been heavily involved in its preparation, albeit the so-called 'friend' remains unidentified.

9 It seems to me that in all the circumstances the amended summons in chambers purportedly by Mr Paul Chin (and wrongly expressed as filed pursuant to my orders of 30 April 2010) and the other recently filed materials said to be by Mr Paul Chin, are merely attempts by Mr N K Chin to circumvent the core difficulties that he finds himself constrained by in acting as his son's legal representative in this matter.

10 The obstacles I have raised with Mr N K Chin both now and on the previous occasion, and with the benefit of the transcript of 30 April 2010 which was provided to him, have obviously been considered by Mr N K Chin. Regrettably, a period of consideration has only led to a filing of the most recent amended summons in chambers purportedly by Mr Paul Chin, but in truth, by his father. That action also violates, I find, the impediments which Mr N K Chin seems unable to accept as a would-be legal representative for his son. Mr N K Chin must not act as a barrister and solicitor on his own account. He holds no current practice certificate. Even if these obstacles did not apply, he would suffer here from a clear conflict of interest in seeking to represent his son's interests in this caveat extension action. The materials filed also betray a failure to comprehend that what merely needs to be established to sustain a caveat or its continuance is an arguable interest in land - which was the basis of Templeman J's original order of 8 February 2007: see generally Bashford v Bashford [2008] WASC 138 (Beech J). Templeman J also ordered that the underlying dispute over legal fees said to be secured by a charge in favour of the plaintiff, be substantively resolved in another forum.

11 Accordingly, the amended summons in chambers of 10 May 2010 will now be stayed on my order, as an abuse of process.

12 Mr N K Chin orally made an application today that I disqualify myself on the basis of either actual or apprehended bias. I decline that application as wholly misconceived. It seems to me that Mr N K Chin strongly resents, or is offended by, the observations that I have recently made as to the reality of his situation debarring him as a would-be legal representative of his son in this matter.

13 But necessarily Mr N K Chin must accept in this matter that he cannot act on behalf of his son in any capacity without my leave, which he does not have. I perceive Mr N K Chin to be acting in violation of s 12(2) the Legal Profession Act 2008 (WA) in respect of the earlier chamber summons of 8 October 2009, on which today, I made no orders. Mr N K Chin has sought to circumvent difficulties in acting for his son as legal representative by filing the further materials I have identified under his son's name - yet the real position has not changed. The most recent chamber summons carrying Mr Paul Chin's name, is an abuse of process.

14 A rational assessment of these matters does not indicate any degree of actual or apprehended bias, on my part. It indicates merely an identification of some stark realities for both sides as to their respective positions.

15 Mr N K Chin should have confronted those obstacles long before now, but seems to be at pains not to accept them. Rather, it seems he seeks to do whatever he sees fit to press an untenable position.

16 That is simply unacceptable and I will not allow Mr N K Chin to be heard in any capacity in these proceedings.

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