Court of Appeal (WA)|2011-05-04|Before: Newnes JA

CHIN -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2011] WASCA 110 (4 May 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CHIN -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2011] WASCA 110

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA (SAT), JUSTICE CHANEY; EX PARTE CHIN [2010] WASC 89

Appeal - Attempt to reargue issues - No merit in grounds of appeal - Abuse of process

British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2

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

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

Chin v Legal Practice Board of Western Australia [2010] HCASL 4

Chin v Legal Practice Board of Western Australia [2011] HCASL 25

Chin v Thies [2010] WASCA 230

Legal Profession Complaints Committee and Chin [2009] WASAT 219

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78

2 On the hearing of the appeal the appellant made an oral application that I disqualify myself on the ground that I had previously made decisions adverse to him in this court and would not bring an open mind to this appeal. The application was put on the grounds of both apprehended and actual bias. I refused to disqualify myself with reasons to be given later. These are the reasons.

3 The test to be applied in determining whether, in a case like the present, a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying that test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.

4 In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352, Mason J said that there may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he or she is likely to decide issues in a particular case adversely to one of the parties. But Mason J pointed out that this did not mean either that the judge will approach the issues in the case otherwise than with an impartial or unprejudiced mind in the sense in which that expression is used in the authorities, or that the judge's previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues in that way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established. Those comments were indorsed in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86, by Brennan, Gaudron and McHugh JJ.

5 Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].

6 It must be said, with respect, that the grounds upon which the appellant alleged that there existed either apprehended or actual bias were far from clear. His submissions were extremely difficult to follow. So far as I could understand them, he relied upon decisions in two previous appeals in which I was a member of the court which reached conclusions adverse to him, CACV 105 of 2008 and CACV 75 of 2010. The decisions in those appeals are reported as Chin v Legal Practice Board of Western Australia [2009] WASCA 117 and Chin v Thies [2010] WASCA 230 respectively.

7 In Legal Practice Board, the Court of Appeal, constituted by Pullin JA and me, refused the appellant's application for leave to appeal against a decision of the State Administrative Tribunal which had confirmed the decision of the Legal Practice Board to impose conditions on the appellant's practising certificate requiring that the appellant practice only as an employed solicitor and that his work be closely supervised. We concluded that the appellant's grounds of appeal had no reasonable prospects of success. The appellant's application for special leave to appeal to the High Court against that decision was dismissed: Chin v Legal Practice Board of Western Australia [2010] HCASL 4.

8 In Thies, the Court of Appeal, constituted by Pullin JA and me, refused the appellant's application for leave to appeal against an interlocutory decision of Kenneth Martin J of 8 July 2010 by which his Honour ordered the appellant to provide security for costs in proceedings by the appellant for a writ of certiorari. Again, we concluded that the appellant's grounds of appeal had no reasonable prospects of success. The appellant's application for special leave to appeal to the High Court against that decision was dismissed: Chin v Legal Practice Board of Western Australia [2011] HCASL 25.

9 The appellant's application that I disqualify myself appeared to be founded upon his contention that the decision in each appeal was wrong and that in Thies the court had wrongly permitted the respondent to be heard on the appellant's application for leave to appeal whereas the application should have been heard ex parte.

10 Notwithstanding his lack of success in the applications for special leave to appeal, the appellant is, of course, entitled to continue to hold those views. But they provide simply no basis at all for any inference that I might not bring an impartial and unprejudiced mind to bear on the issues in the current appeal. And the fact that in each case I was a member of the court which reached a decision adverse to him is incapable of establishing a reasonable apprehension of bias, much less making out actual bias. There is nothing in the reasons of the court or the circumstances of either appeal which might cause a reasonable observer to apprehend that I might not bring an impartial and unprejudiced mind to the determination of this appeal: cf British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2.

11 It was for those reasons that I refused the application to disqualify myself.

Background - Proceedings in the State Administrative Tribunal

13 The appellant, Mr Chin, was admitted as a legal practitioner in 2003. On 30 June 2009 the Legal Profession Complaints Committee (LPCC) made an application to the State Administrative Tribunal that Mr Chin be found guilty of professional misconduct pursuant to s 438, s 439 and s 441 of the Legal Profession Act 2008 (WA). In response to that application Mr Chin contended that the allegations had been the subject of determination in other proceedings brought against him previously by the Legal Practice Board. He contended that in these circumstances the doctrine of res judicata applied to prevent the LPCC from bringing the application alleging professional misconduct and that the application should be dismissed by the Tribunal.

14 The Tribunal decided that it would rule on Mr Chin's contention as a preliminary issue. Chaney J, sitting as the President of the Tribunal, determined the issue on the documents and delivered his decision on 4 November 2009. His Honour concluded that grounds for striking out the proceedings on the basis of res judicata had not been established. He therefore dismissed Mr Chin's application. In coming to that conclusion his Honour provided some detail of the issues in the pending proceedings and the issues that had arisen for determination in earlier proceedings: Legal Profession Complaints Committee and Chin [2009] WASAT 219.

15 The previous proceedings related to a decision by the Legal Practice Board to attach conditions to Mr Chin's practising certificate. The conditions in effect required that Mr Chin practise only as an employed solicitor and that his work be closely supervised. Mr Chin then sought a review of that decision in the Tribunal. The Tribunal considered the matters taken into account by the Board in reaching its decision and also Mr Chin's explanations for the conduct in question. The Tribunal concluded that the Board acted appropriately having regard to the protection of the public and the maintenance of professional standards by imposing the conditions on Mr Chin's practising certificate. Accordingly, his application for a review of the decision was dismissed: Chin and West Australian Legal Practice Board [2008] WASAT 252. I note that an application for leave to appeal against that decision to the Court of Appeal was dismissed: Chin v Legal Practice Board of Western Australia [2009] WASCA 117. An application for special leave to appeal to the High Court was also dismissed: Chin v Legal Practice Board of Western Australia [2010] HCASL 4.

16 Chaney J noted that some of the issues ventilated in the previous proceedings were also identified as issues for determination in the pending proceedings. However, his Honour concluded that the question for determination in the earlier proceedings was different to that raised in the pending proceedings. His Honour said:

The question in the earlier proceedings was whether or not it was appropriate for a condition to be imposed on the practitioner's practice certificate. The matter was dealt with in the Tribunal's review jurisdiction. Those proceedings did not involve any allegation of, or necessity to find, professional misconduct on the part of the practitioner.

The present proceedings invite findings of professional misconduct in respect to the various matters set out in the grounds. Many of the matters referred to in the allegations played no part in the earlier proceedings. Although there is some overlap in the subject matter of these proceedings with the subject matter of the earlier proceedings, no findings of unsatisfactory professional conduct or professional misconduct have been, or could have been, made in the earlier proceedings. In my view, it is open to the Complaints Committee to seek disciplinary penalties in relation to conduct of the practitioner, notwithstanding that the same conduct may have been considered by the Board in the context of performing its regulatory function [23], [24].

17 The material contained in the appeal books is a confused jumble of documents relating to several different proceedings. Many of the documents appear to be incomplete and some have handwritten additions or crossings-out which make it difficult to know what proceedings they relate to.

18 It would appear that on or about 7 December 2009 Mr Chin sought to file an application seeking prerogative writs against the chairperson of the LPCC, the chairperson of the Legal Practice Board, two members of the Court of Appeal and the president of the State Administrative Tribunal.

19 The documents were referred to a registrar who refused to accept them for filing on the basis that they were an abuse of process of the court: O 67 r 5 Rules of the Supreme Court 1971 (WA). Mr Chin then sought leave of a judge to file the papers. The application for leave was heard by Martin CJ on 14 December 2009. His Honour refused leave stating that it was not unfair to describe the documents as 'incomprehensible, prolix and replete with derogatory hyperbole which does not appear to be justified by any of the facts identified in the affidavit'.

20 On 29 December 2009 Mr Chin sought to file a further application, this time seeking a writ of certiorari against the president of the State Administrative Tribunal to quash the decision of Chaney J delivered on 4 November 2009. The documents were again refused for filing without there being a grant of leave by a judge.

21 On or about 6 January 2010 Mr Chin sought to file a document headed 'Orignating [sic] Motion for Leave to Appeal'. The purpose of this document was exceedingly obscure. In his chronology Mr Chin describes this as a 're-amended' application. The heading of the document was as follows:

In The Matter of an Application for Writs of Certiorari Orders Nisi dated 7.12.2009 to review and quash the decision of the learned President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney in his res judicata point judgment delivered on 4.11.2009 and the stay of his consequent orders: the res judicata proceedings commenced by the Legal Profession Complaints Committee in VR 87 of 2009 on 30.6.2009 BE STAYED pending the decision of this application (the original application).

And

In the matter of an Application under Order 67 r.5 of the Rules of the Supreme Court, 1971 (WA) for Leave to re-file the Amended Papers of the original application that were considered and refused by Martin CJ on 14.12.2009 on grounds that the notice of motion were in-comprehensible, prolix and replete with derogatory hyperbole and does not appear to be justified by the facts identified in the affidavit.

22 The body of the document stated that Mr Chin was seeking orders that:

Leave be granted to the Applicant to file and issue Certiorari Certiorari [sic] Orders nisi as per the terms of his Notice of Originating Motion dated the same day to be read together with his Affidavit of Nicholas Ni Kok Chin sworn the same day.
The Applicant has refurbished the original documents in line with the reasons of the decision given by the learned Martin Notice [sic] given on the 14.12.2009.
Any other Orders that this Honourable Court may deem fit.

23 The first order sought appears to relate to the reference in the heading to the decision of Chaney J concerning res judicata referred to above. It would appear that Mr Chin was seeking that a writ of certiorari be issued against Chaney J in his capacity as President of the State Administrative Tribunal in respect of that decision.

24 The second order sought apparently relates to the second paragraph of the heading. On its face it was not a proposed order at all but an assertion. It appears to relate to the decision of Martin CJ made on 14 December 2009 referred to earlier. It seems that Mr Chin was seeking to re-open the question of whether leave should be granted to file the earlier application documents.

25 The appellant's application first came before E M Heenan J on 6 April 2010. Although Mr Chin sought to make the application ex parte, his Honour thought it appropriate that notice of the proceedings be given to the LPCC and for the committee to have an opportunity to appear and be heard. Mr Chin did not object to that course and service of the papers was effected. However, the committee by its solicitor informed the court that although it had a degree of interest in the proceedings it did not intend to appear or seek to be heard on the application.

26 In these circumstances, the matter came back before E M Heenan J on 21 April 2010. On that day his Honour heard submissions from Mr Chin and said that he had read the voluminous materials provided in support of the application. His Honour then delivered judgment refusing the application.

It is evident from reading the papers that not only do they show great confusion of thought and, although I regret to have to say it, an extremely obsessional preoccupation with confused thinking, permeated by streaks of extreme and unjustified conclusions about the lack of good faith of administrative, judicial and other personnel involved in earlier proceedings, but they show a complete disregard for the principles upon which prerogative or review relief can be granted by this court.

Despite the extreme allegations contained in the materials, there is nothing of substance which would cause me to entertain any belief that there is any prospect of success in these proceedings or that relief of the kind sought would be given in the exercise of discretion. There are many authorities for the proposition that criminal proceedings, and by analogy professional disciplinary proceedings, should be allowed to run their course without interference by interlocutory injunctions, review orders or prerogative relief unless there are very clear reasons for a review court to act otherwise.

In this instance the matters which are complained of by Mr Chin have, so far as it is possible to see from the record, been carefully heard and determined by appropriate authorities; those decisions have withstood challenges by way of appeal to the Court of Appeal and to the High Court of Australia; that other proceedings are pending from which rights of appeal exist; and that no good purpose of any kind could possibly be served by this court intervening.

Furthermore, although it seems to me that Mr Chin has a conscientious belief in the justice of his cause, he seems to me, with all respect, to be quite impervious to any proper appreciation of the legal position. I therefore refuse his motion for leave to appeal or for leave to obtain orders nisi for certiorari for lack of merit, as I have indicated, and because the proceedings also appear to me to be the grossest abuse of process. The order will be that the application is refused [15] - [18].

28 Mr Chin filed a notice of appeal from the decision of E M Heenan J on 22 April 2010. It is that appeal that is the subject of this decision.

29 For the sake of completeness I note that by a further originating motion dated 29 April 2010 Mr Chin sought an order that a writ of mandamus be issued to compel Chaney J and E M Heenan J to do certain things. That motion related to the same issues as the other proceedings I have described. On 29 June 2010 Le Miere J held that the mandamus application had no prospect of success and was an abuse of process.

30 Mr Chin seeks to appeal from the decision of E M Heenan J to this court. His grounds of appeal extend over five pages. No useful purpose would be served by repeating in full those grounds here. Unfortunately, they suffer from many of the same deficiencies and problems identified by E M Heenan J in the original application.

31 It should be pointed out at the outset that the application for certiorari was completely devoid of merit and no other conclusion was reasonably open to E M Heenan J. No relevant jurisdictional error was identified that could possibly have formed a basis for the issue of a writ of certiorari. In any event, such relief is discretionary and that discretion would only be exercised in respect of the Tribunal in exceptional circumstances: Re Carey; Ex Parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 per Martin CJ [139]. In my view no such circumstances existed.

32 The other aspect of the application, which appears to have been an attempt to revivify the proceedings dismissed by the Chief Justice on 14 December 2009, was manifestly an abuse of process. There was no proper basis for seeking to persist with proceedings that had been finally disposed of.

33 In the first ground the appellant contends that E M Heenan J did not understand the nature of the application. Whilst I do not accept that this is so, the confusing nature of the application and the documents supporting it clearly made it challenging to understand what it was the appellant was seeking. However, it is apparent from the transcripts of 6 and 21 April 2010 that his Honour went to considerable effort to confirm with Mr Chin the nature and basis of his claims.

34 The appellant also refers in the first ground to being 'ambushed' in the Tribunal because he states that he had been notified that the hearing was to take place on 10 November 2009 but that, instead, 'the proposed trial took place in his [sic] absence on 4 November 2009'. If this is a complaint that the appellant was denied procedural fairness it is misconceived. Mr Chin had detailed the res judicata argument in a letter addressed to both the LPCC and the Tribunal on 2 July 2009. He had also raised it in his written response to the LPCC's complaint filed with the Tribunal on 20 August 2009.

35 Chaney J decided to determine that issue on the papers as he was entitled to do: s 60(2) State Administrative Tribunal Act 2004 (WA). Both parties were afforded an opportunity to make written submissions. There was no 'trial' on 4 November 2009. That was simply the date upon which Chaney J's decision was delivered.

36 On 10 November 2009 a directions hearing was held. His Honour noted that given that the preliminary point had been determined it was a matter of listing the substantive issues for a hearing. Mr Chin sought to reargue the res judicata issue and his Honour noted that there was no point in further discussions because there had been an opportunity for submissions and the ruling had been made. Mr Chin asked if he was entitled to appeal and was told that he could but that the time for appealing would lapse within 28 days. It is noteworthy that Mr Chin did not seek to exercise that right but rather brought the application that was heard by E M Heenan J. The matter was then listed by Chaney J for a final hearing to commence on 3 February 2010. In the circumstances, there is no basis for suggesting that the appellant was denied procedural fairness in regard to the determination of the res judicata issue.

37 The appellant next contends in ground 2 that E M Heenan J made an error in describing the proceedings. It is not apparent that this is so and even if it is, nothing turns on it. In his written submissions Mr Chin says that the confusion related to whether the application also related to the earlier proceedings before the Tribunal. Those proceedings arose as the suggested basis for the res judicata application. That fact was clearly appreciated by his Honour.

38 The appellant contends in ground 3 that there was a 'secret' communication by the respondent that caused E M Heenan J to change his position. The only possible communication that this could refer to is that identified by his Honour when he told the appellant that the LPCC had advised the court that although it had been served with the papers it did not wish to participate in the proceedings. The assertion in ground 3 is completely without foundation.

39 The appellant contends in ground 4 that E M Heenan J refused to provide the appellant with a copy of a draft judgment. It is not clear what implication is sought to be drawn from this. His Honour delivered his judgment orally and in the presence of Mr Chin. A written transcription of the judgment was published on 30 April 2010. All that need be said is that this ground fails to identify any error which could properly be the subject of an appeal.

40 Finally, the appellant raises a number of grounds (numbered 5 to 7) which contend that the Legal Practice Board was improperly using its powers and that Chaney J and E M Heenan J had failed to acknowledged this. These grounds are merely yet another attempt to reargue issues that have previously been raised and determined in earlier proceedings. They have no merit and are not proper grounds of appeal.

41 At the hearing of this appeal Mr Chin applied for Newnes JA to disqualify himself. That application was refused for reasons which Newnes JA has given. Mr Chin was then afforded an opportunity to address the court in respect of his grounds of appeal. He did so to a limited extent and then stated he did not wish to proceed further. It is to be noted that as with the original application, Mr Chin supported this appeal with voluminous materials including extensive written submissions.

42 In my view, the grounds of appeal fail to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4) in that they do not succinctly and concisely identify any errors on the part of the primary judge. In any event, having read all of the material provided by the appellant, it is apparent that the decision of E M Heenan J was plainly correct. Accordingly, I would dismiss this appeal.

Administrative Tribunal Act 2004

Court (Court of Appeal) Rules 2005

CHIN -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2011] WASCA 110 (4 May 2011)

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CHIN -v- LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2011] WASCA 110 (4 May 2011)

Legislation Cited (3)

Cases Cited (5)