THE PRINCIPAL REGISTRAR OF THE SUPREME COURT -v- CHIN [2012] WASC 7 (10 January 2012)

90 At a chambers hearing on 17 June 2009, Hasluck J made further orders, including that Mr Thies be joined as a defendant to the proceedings, and various other orders of a procedural nature.

91 The matter again came to the court on 30 April 2010, where Kenneth Martin J heard it, along with another action, CIV 1112 of 2007, which will be discussed in detail later.

92 At this hearing Martin J raised the issue of the respondent appearing as the legal representative for both himself and his son. The discussion took place as follows [ts 4 - 6]:

Kenneth Martin J: Yes. You would be aware then that both those documents carry the description that they were prepared by you as a barrister and solicitor.

Chin, Mr: The fact is, sir, I am a barrister and solicitor in the rules of the barristers and solicitors in the Supreme Court. I have never been struck off.

Kenneth Martin J: You are on the roll?

Chin, Mr: Yes, sir.

Kenneth Martin J: But you don't hold a practice certificate.

Chin, Mr: I do not hold a practice certificate because I am disputing with the Legal Practice Board because there exists a - - -

Kenneth Martin J: Not interested, Mr Chin. Listen to this: section 36 of - sorry, I withdraw that. The Legal Profession Act provides that you must hold a practice certificate and if you don't hold a practice certificate - this is the Legal Profession Act 2008, section 12(2):

A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Penalty a fine of $20,000.

Chin, Mr: I understand that, sir. Section 12 also says that if I do it on a pro bono basis there is no reason why I cannot do it, sir. I humbly apologise.

Kenneth Martin J: Well, that's the first problem. You don't hold a practice certificate. Second problem is even if you did hold a practice certificate, as I understand it you are the subject of an order which you've challenged unsuccessfully in various courts to the effect that you cannot act by yourself. In other words as a sole practitioner. You can only act under supervision.

...

Kenneth Martin J: Third point, even if you weren't labouring under the lack of a practice certificate, and even if you weren't labouring under the fact that you can't practice other than in a supervised practice, my perusal of the materials in the caveat action, 1112 of 2007, indicates that you have an appalling conflict of interest on the basis that the materials that your son deposes to in his affidavit indicate that you are a protagonist in that dispute. So even if you didn't suffer from difficulties, you would be conflicted from acting in any event. So that is a problem.

93 His Honour subsequently refused to hear the respondent on the caveat matter CIV 1112 of 2007. Concerning CIV 1903 of 2008, Kenneth Martin J made it very clear that the respondent 'cannot get certiorari, prohibition or mandamus against a magistrate, full stop'. Rather, that under s 36 of the Magistrates Court Act, the respondent could seek a review of the magistrate's decision.

94 The respondent also argued that by Hasluck J's order for a review, his Honour had ruled that, 'it was found that [his] son was robbed'; and that, 'it was found that there was fraud [ts 9].' Kenneth Martin J explained to the respondent very carefully that this was not the case and then adjourned the matter for case management on 13 May 2010.

95 On 10 May 2010 the respondent filed an outline of submissions objecting to Martin J's ruling that he would not hear the respondent in the caveat matter CIV 112 of 2007.

96 In a document dated 12 May 2010, Mr Thies issued a summons for security for costs, to be heard before Martin J in conjunction with the other issues. The respondent subsequently filed submissions in opposition to security for costs. These matters were discussed at the hearing on 13 May 2010 and Martin J eventually adjourned proceedings until 17 June 2010.

97 On 17 June 2010, his Honour again heard the matter in relation to Mr Thies' application for security pursuant to O 25 of the RSC under its chamber summons of 13 May 2010, in which he sought orders that:

1. [T]he [Respondent] do give security for [Mr Thies] costs of the proceedings in the sum of $38,000 by payment of that amount into Court, and that in the meantime all further proceedings be stayed.
2. Order 5 of the Orders made by Hasluck J on 7 November 2008 staying Magistrates Court proceedings FR 944 of 2007 be discharged to the extent necessary to enable [Mr Thies] permit finalisation of the taxation of [his] bill of costs in those proceedings and enforcement of [his] entitlement to recover costs.

98 The respondent's application for review under s 36 of the Magistrates Act was also referred to. On 8 July 2010 his Honour published reasons: Re Michelides; Ex Parte Chin [No 2] [2010] WASC 169.

99 In his reasons, Martin J described submissions filed by the respondent in relation to his s 36 application as being:

in many places utterly incomprehensible. Aside from being prolix and repetitive, they are couched in emotive language inappropriate to be used by any person, let alone a legal practitioner [23].

100 His Honour granted the application for security in the amount of $20,000 and outlined his reasoning at [39]:

I consider it necessary and proper here to protect to some extent [Mr Thies] against the costs generated by resisting any further progression of this application under s 36 which, on the face of it, currently seems to me to be threadbare in terms of potential merit. I am well cognisant of a policy consideration against stifling a party's rights via a security application, but the oppressive nature of the convoluted materials routinely assembled and filed by this [Respondent], the relatively small amount, $6,000, at issue and the doggedly obsessive nature of the [Respondent's] approach to this litigation (notwithstanding the court's efforts to facilitate a resolution by mediation) strongly suggest to me that this is an appropriate case for security to be ordered.

101 This matter was heard before the court often in conjunction with CIV 1903 of 2007 and has been discussed in part above.

102 On 8 October 2009, the respondent filed a chamber summons which sought an order for Mr Thies to 'release Caveat K17968 which he had illegally and without the necessary caveatable interests placed on the home property of the [respondent's son].' He further sought damages in the sum of $95.50 and costs.

103 The summons was accompanied by a supporting affidavit of 58 pages in length. The content of the affidavit was similar to all the affidavits and submissions previously filed by the respondent in his other proceedings.

104 On 30 April 2010, Martin J heard the matter along with CIV 1903 of 2008. As I have noted, his Honour subsequently refused to hear the respondent on the caveat matter CIV 1112 of 2007. His Honour ordered that a transcript of what had been said that day be provided to the parties - so that various matters which he had identified as seemingly requiring attention by the parties, be addressed.

105 An amended chamber summons, affidavit and submissions on the caveat matter, were filed on 10 May 2010. This amended summons was purportedly filed by the respondent's son and other recently filed materials were also said to be by respondent's son. But Martin J found these to be mere 'attempts by [the respondent] to circumvent the core difficulties that he finds himself constrained by in acting as his son's legal representative in this matter.'

106 The application was heard on 13 May 2010 by Martin J. At the hearing, the respondent made an oral application that his Honour disqualify himself on the basis of either actual or apprehended bias. His Honour declined to do this on the basis that the application was wholly misconceived. In a decision published on 25 May 2010 his Honour dismissed the summons as an abuse of process: Thies v Chin [2010] WASC 111.

107 The respondent filed a notice of originating motion in the following terms:

In the matter of the apprehended bias of the Learned Justice Kenneth Martin and his jurisdictional errors in dealing with CIV 1903 of 2008 and CIV 1112 of 2007 through his refusal to take into account relevant matters and in taking into account irrelevant matters; just as though His Honour was reasonably seen to be descending into the arena of conflict by taking sides with the opposite party and was thus blinded by the dust of conflict; he consequently denied the [respondent], his natural justice.

108 The motion was accompanied by a supporting affidavit. Both were filed with the court on 28 June 2010. The motion purported to seek orders nisi for mandamus or prohibition against the judgment of Kenneth Martin J.

109 Along with CIV 1877 of 2010, the application was heard before EM Heenan J on 4 August 2010. The respondent was not present at the hearing and the matters were adjourned sine die: Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212. His Honour outlined his reasons for adjourning the matters rather then dismissing them outright, at [5] [8]:

Yesterday, on 3 August 2010, my associate had cause, at my direction, to attempt to contact Mr Chin to alert him to a small change in the time for the hearing. An email has since been received from Mr Chin in reply which I will mark exhibit 'A' as part of the record. By this email Mr Chin asks that the proceedings should not go ahead today and, in the process, submits that I should not hear his matter because he apprehends that I am not capable of delivering fair justice on account of apprehended bias, having dismissed another case in which Mr Chin was involved, CIV 1019 of 2010.

My reasons for dismissing that other matter have been published, Re President of the State Administrative Tribunal of Western Australia (SAT), Justice Chaney, Ex parte Chin [2010] WASC 89, and are presently the subject of an application for leave to appeal to the Court of Appeal. The email goes on to assert a number of other reasons for the suggested apprehended bias, essentially relating to what Mr Chin regards as the unwillingness of myself and other members of the Court to investigate, in a manner which he would consider satisfactory, his alleged complaints about the course of the litigation involving Mr Thies. I see no reason why I should not hear and determine these applications.

It is a matter of record that those matters identified by Mr Chin have been investigated, have been the subject of judicial determinations and have been dismissed on the merits. Mr Chin concludes with an observation that he is temporarily away from Perth on an emergency to be with his son who was taken ill in Malaysia. He attempts to associate this illness with the course of the litigation in which he is involved but I disregard that.

The absence of the applicant because of the illness of a close member of the family would, if it had been properly explained, be a reason to adjourn these proceedings. I will therefore overlook the lack of any formal attempt to seek an adjournment, and the general tenor of the email, and grant the adjournment.

110 After the delivery of Heenan J's decision, the respondent went on to file a further affidavit in CIV 1981 of 2010 and CIV 1877 of 2010 on 30 September 2010. No new information was provided by this affidavit other then further reiteration of the fact that the respondent was unable to attend court before Heenan J on 4 August 2010 due to his son and himself becoming sick and the need for him to travel to Malaysia.

111 The respondent filed an Appeal Notice on 12 July 2010 against the decision of Kenneth Martin J in Re Michelides; Ex Parte Chin [No 2]. Newnes JA heard the application for leave to appeal on 15 October 2010 and gave the respondent leave to amend his appeal grounds. His Honour specifically said:

Mr Chin, I am - and I must say with reluctance - going to give you one further opportunity to put the appellant's case in order. I will give you leave to file and serve an amended appellant's case within a time which we will discuss in a moment, but I do need to make it absolutely clear that it will take very special circumstances to enable you to obtain any further opportunity to put the case in order.

You should for all practical purposes proceed upon the basis that it is essential that you put it in proper order the next time or it is most likely that your application for leave to appeal will be dismissed. So it must be in a proper form on the next occasion.

You will have to pay particular attention to the grounds of appeal. You will also have to pay attention to the submissions and to the other material ... but the principal attention must be directed to the grounds of appeal and the submissions (ts 8 - 9).

113 The matter was adjourned until 23 November 2010.

114 The amended grounds (seven pages) were filed by the respondent on 3 November 2010. On 10 November 2010, the respondent was given notice that at the hearing on 23 November he would also be required to show cause why the appeal should not be dismissed under r 43(2)(g)(i), on the basis that none of the grounds of appeal had a reasonable prospect of success, or r 43(2)(g)(ii), on the basis that the respondent had failed to comply with r 32(4) or r 32(5). The latter rules deal with the requirements as to the form and content of the grounds of appeal and submissions in the respondent's case.

115 The matter came before the Court of Appeal on 23 November 2010, Pullin and Newnes JJA. Their Honours published reasons on 7 December 2010: Chin v Thies [2010] WASCA 230. In the reasons, they stated that the grounds of appeal in the amended respondent's case were preceded by what was described as, 'an obscure and irrelevant preamble, for which there is no provision in the Court of Appeal rules.' They went on to say that:

The grounds of appeal themselves suffer from similar deficiencies to the earlier grounds and are certainly no closer to being in compliance with the Rules. They border on the incomprehensible and, again, a number of the grounds appear to relate to the decision of the primary judge in CIV 1112 of 2007 in Thies v Chin. The submissions were equally deficient [26].

116 Their Honours' opinion as to the general disposition of the respondent's case was given at [33]:

The primary judge referred in his reasons for decision to the [Respondent's] 'doggedly obsessive' pursuit of proceedings against [Mr Thies]. This appeal seems to be consistent with that approach. It is a matter of concern that proceedings in which the amount in issue is $6,000 should ever have been pursued to the point that these proceedings have. Be that as it may, the [Respondent] has had two opportunities to file an [Respondent's] case which complied with the Rules. Not only has neither of the [Respondent's] cases he has filed done so, but they have fallen so far short that there is no reason to believe that he would be able to do so if given a further opportunity, and every reason to believe the contrary. In the meantime, at least on the [Mr Thies'] side, costs out of all proportion to the amount in issue are mounting up. On the material before us, the appeal is manifestly hopeless and it should now be brought to an end.

Application for Special Leave to the High Court P50 of 2010

117 An application for Special Leave was filed with the High Court on 17 December 2010. The respondent sought leave to appeal the judgment of Pullin and Newnes JJA in Chin v Thies [2010] WASCA 230.

118 The respondent referred to the judgment of the Court of Appeal as a 'travesty of justice'. The language contained in the application was often emotive, obscure and irrelevant, including phrases like, 'I humbly say that the courts below know that although the sense of moral values may differ between different societies, morality here means justice and fair play and being able to distinguish between what is right and what is wrong.' The application continued in this vein for 13 pages.

119 The High Court delivered short reasons on 9 March 2011 stating that the respondent had no 'real prospects of success', refusing leave and dismissing the application.

120 On 24 March 2011, the respondent filed a notice of originating motion with the Supreme Court. The motion sought orders nisi for certiorari in respect of the decision of the High Court in P50 of 2010, the Court of Appeal in CACV 75 of 2010, and a further application that appears to have been refused filing, having been declared an abuse of process by the Principal Registrar. The motion was accompanied by a 113 page affidavit and submissions. Nothing in any of these documents varied substantially from the papers previously filed by the respondent in his other actions. The application came before Allanson J on 11 May 2011, and his Honour dismissed it.

121 In response to the 16volume affidavit sworn by Ms Kah Yee Loh, the respondent provided to the court a two page facsimile document dated 25 May 2011, an outline of submissions dated 26 August 2011, and he handed up a series of letters and other articles that he had previously sent (in various forms) to the SAT.

122 On 4 October 2011, the respondent further emailed twenty pages of submissions entitled, 'Written submission by the respondent for hearing before His Honour Judge Sharp on 11th day of October 2011 at 10.00am, copied to Associate of Murray J and State Solicitors Office in relation to CIV 1689 of 2011' and an unsigned document purporting to be a statutory declaration.

123 On 27 and 28 November 2011, the respondent emailed my associate a document referring to a speech by Mr Gordon Turriff QC, President of the Law Society of British Columbia. His submissions make a series of allegations, including that, 'the Learned President Chaney of SAT is biased and prejudiced'; and he makes repeated references to the 'malicious intent' of the LPCC.

124 The respondent disagrees with the view expressed by some of the judges who have heard his matters, and by the applicant in this matter, that he has made many attempts to 're-litigate' matters previously decided. He argues that, '[t]hey are not multiple attempts to re-litigate the same issues as the trial judge did not decide the issues that were before him and therefore they are not res judicata and the situation necessitates their being brought up before another two judges.' He further states that, 'I shall abide by the decision of the court if it stands to reason and logic and the issue has been properly decided.'

The vexatious litigation restriction proceedings

125 The application in this matter came before the court on 29 August 2011. The applicant relied generally on the 16volume affidavit of Ms Loh, written submissions and an aidememoire in the form of a chronology of proceedings instituted by the respondent.

[It] is often the case in these sorts of proceedings where a respondent has an honest belief that their position has not been vindicated and if they keep litigating somehow their position will be vindicated, but that any decision that is made that doesn't suit his perception of events or of what should have been the answer, he has extreme difficulty accepting and so he just keeps trying.

He has the legal knowledge to know that it's completely inappropriate to commence certiorari proceedings or mandamus proceedings after a matter has been appealed to the High Court. That doesn't stop him. You also see that is just one aspect about which he is litigating, and there is the amount of time and resources that this takes, of the court, and where private litigants are concerned, the expenses involved for them: ts 6.

It is noted that the respondent has instituted seven certiorari and mandamus proceedings in the Supreme Court.

127 The applicant submitted that the main grounds relied upon for the respondent's proceedings to be classified as 'vexatious' were under pars (a) and (c) of the definition of 'vexatious proceedings' in s 3 of the Act. The applicant further relied on the fact that the proceedings instituted by the respondent are conducted in a manner so as to harass or cause delay or detriment within the meaning of par (d) of the definition of 'vexatious proceedings'.

128 The respondent's oral argument at the hearing concentrated on defining 'justice'. He did, however, outline his version of the events leading up to his instigation of various court proceedings. I will briefly summarise what he said.

Proceedings relating to imposition of conditions on practice certificate

129 The respondent claimed that at the time he 'came out as a lawyer' he was asked by a wealthy Malaysian doctor to act on her behalf, as she was, 'in the midst of being plundered by a former president of the WA Law Society'. It was after he aided this woman that his freedom to practise was restricted, 'by an initiative of the Law Society'. He further claims that the LPCC is, 'acting at the behest of someone'; and is making a, 'decision that it has got no reason to make' [ts 21] The respondent submitted that this is an issue that had never been decided.

130 The respondent argued that his action against Mr Thies is not concerned with the recovery of the $6,000 cited in his legal documents filed in relation to the matter, but rather it is the 'public interest' he is fighting for, for himself, his wife and, 'all other members of the public [who] have been intimidated, have been bullied and have been asked to pay money that is never owed to Mr Timothy Robin Thies and the money and the demand keep on increasing by the week.' [ts 23]

131 The respondent submitted that he has never conducted 'one' vexatious proceeding and further reiterated that he is not likely to in the future. He conceded that, 'I may be wrong procedurally in some cases and it is only human nature for me to make mistakes. But I am a trained lawyer, I have been through the mill.'

Order under s 4 of the Vexatious Proceedings Restriction Act 2002

1. That the respondent has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings.
2. That the court should exercise its discretion to make an order under the Act.
3. The appropriate terms of any order made under the Act.

133 As to the question of the establishment, in proceedings such as this, of the fact that the respondent has instituted or conducted vexatious proceedings or is likely to do so, careful attention must be given to the definition of 'vexatious proceedings' in s 3 of the Act. I have set out the relevant provisions at the commencement of these reasons.

134 It will not necessarily be the case that for proceedings to be held to be vexatious, any mental element on the part of the respondent will need to be proved, although proceedings which might be properly grounded and which might constitute a legitimate process seeking the exercise of the jurisdiction of the court may, under par (b), be held to be an abuse of process, having regard to the motivation for their institution.

135 Further, it is made clear by par (d) of the definition that whatever may be the intention or motivation of the party bringing the proceedings, if they are conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose, then they will held to be vexatious, even though the motivation of the litigant who brings the proceedings may be a genuine desire to ventilate a cause of action which, in other circumstances, would be held to be a legitimate process seeking the exercise of the court's jurisdiction.

136 Paragraph (c) of the definition includes as vexatious proceedings those proceedings which are instituted or pursued without reasonable ground, factually or in law, and so it is that it has been held that proceedings which seek to mount what is effectively a collateral attack upon the judgment of the court previously given, adverse to the interests of the party bringing the proceedings, will be vexatious because, given the earlier judgment, the litigant can be seen to be simply hoping for a favourable result in a case where it has formerly been held that there is no reasonable ground for the litigation.

137 A proper challenge to the correctness of a decision is, of course, the subject of the appellate process, where that is available in the sense that the right of appeal remains one which may be exercised with some reasonable prospect of success. The judgment of Heenan J in Commonwealth Bank of Australia v Bride [2004] WASC 177 [127] brings these propositions together in a useful way.

138 Finally, it is noteworthy that under par (a) of the definition in s 3 of the Act, proceedings which are, for any reason, held to be an abuse of the process of the court or tribunal will be held to be vexatious. This provision has a capacity to operate not only in circumstances which might otherwise fall within pars (b) (d) of the definition, but also more widely. There is and can be no closed list of proceedings which will properly be held to be vexatious in character for the purposes of enlivening the discretion conferred by s 4(1) of the Act.

139 That the Act operates in that way is consistent with the general law in relation to staying proceedings upon the ground that they constitute an abuse of the process of a court: Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 (French CJ, Gummow, Hayne & Crennan JJ) 92 94 [25] [28] (Heydon J) 103 105 [56] [58].

140 I have described in some detail the proceedings upon which reliance is placed in this application. Overwhelmingly they may be characterised as proceedings which constitute an abuse of the process of the court or tribunal concerned, not because of a wrongful motive on the part of the respondent, but because of their character. They are repetitious and seek, time and again, to ventilate matters upon which there have been clear decisions showing that whatever process is employed to bring the matter before the court, the matters sought to be ventilated are without merit.

141 In some cases the grounds advanced are and have been held to be incomprehensible. The opposing party is harassed and put to expense and detriment without cause. Further, although the applicant is often polite and respectful in the approach made to the court (and was always so before me), there have been a number of occasions where he has indulged in distracting hyperbole and where he has made allegations against judicial officers and others which are obviously without justification.

142 In that way, not only has he caused harm to the litigants who are the targets of his proceedings, but he has harmed the process of the court or tribunal in question itself by consuming time, often to an inordinate degree, which might usefully be put to the resolution of legitimate disputes brought and resisted by litigants genuinely seeking the assistance of the court or tribunal.

143 The respondent is amply demonstrated by the evidence to have instituted and conducted vexatious proceedings and the history of his activities in approaching the court or tribunal concerned shows that it is likely that, unchecked, he will continue to institute and conduct vexatious proceedings. Both of the limbs of s 4(1)(a) and (b) are amply made out in this case.

144 In determining whether the court has the discretion to declare the respondent a vexatious litigant under s 4 of the Act, a number of factors must be considered. In Attorney General v Michael [2005] WASC 203, Le Miere J succinctly described some of the rights of a person to be taken into account:

The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification [143].

145 Le Miere J outlined factors that support the making an order under s 4(1)(d) of the Act, as follows:

[T]he nature and frequency of the litigation...without reasonable ground, the distress and aggravation that such litigation must have caused to the persons against whom it has been brought and the amount of time that it has occupied the various courts, together with the likelihood that such conduct will continue [146].

146 The respondent in this case has demonstrated on numerous occasions a singleminded willingness to litigate and relitigate the same issues. It may be that he has an 'honest belief' that he has reasonable grounds to bring proceedings, but objectively there is no reasonable prospect of success. The other aspect of his actions is that the papers filed and the oral arguments he presents often contain material of an inflammatory or scandalous nature. He has made allegations against four judges of this court and numerous other members of the legal community.

147 The right of an individual to commence proceedings to enforce or defend their rights is a fundamental right in a free society and while to declare a person a vexatious litigant does, of necessity, put a limit on this right, it remains protected under s 6(1) of the Act, upon an application for leave to instigate court proceedings. Under s 6(7), leave is not to be granted unless the court or tribunal is satisfied that:

(a) the proceedings are not vexatious proceedings; and

(b) there is a prima facie ground for the proceedings.

148 For the reasons set out above, this court can be satisfied that the respondent has instituted or conducted vexatious proceedings as defined under the Act, and is likely to institute or conduct vexatious proceedings in the future if not restrained from doing so. The case is one which both justifies and requires the making of an order under s 4(1)(c) of the Act in relation to proceedings of any kind.

Stay of the Supreme Court proceedings in CIV 1981 of 2010

149 The applicant also seeks a stay of the Supreme Court proceedings in CIV 1981 of 2010. It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed. In Attorney General v Michael (Le Miere J), it is stated that the court can only make such an order if it is:

satisfied that the actions so stayed have no legal merit. The court must be astute to ensure that it does not prevent a litigant from pursuing a claim that may have legal merit [147].

150 This matter was originated by a motion filed on 28 June 2010. The motion purported to seek orders nisi for mandamus and prohibition against the judgment of Kenneth Martin J. As has been discussed above, the matter was adjourned sine die by EM Heenan J on 4 August 2010 after the respondent failed to attend court. Despite his Honour not dismissing the matter outright, he did state in his judgment:

It is a matter of record that those matters identified by Mr Chin have been investigated, have been the subject of judicial determinations and have been dismissed on the merits.

151 It is for this reason that a stay of the whole of the Supreme Court proceedings in CIV 1981 of 2010 should be granted.

152 Finally, the applicant should have the costs of the application, to be taxed.