Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260
• Hearing dates: On the papers
• Decision date: 23 August 2012
• Before: Allsop P; Beazley JA; Meagher JA

Decision

1. Notice of motion filed 26 April 2012 dismissed;

2. Should the applicant file any further notice of motion in this matter pursuant to UCPR, r 36.16, the applicant must at the same time file a document, comprising no more than five pages, showing cause why this Court should not, in Chambers, summarily dismiss the notice of motion as vexatious and an abuse of process;

3. No other document is to be filed in support of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - Application for leave to reopen proceedings - Applicant re-agitating same issue dealt with in previous applications before Court - No fresh argument - No new circumstances justifying reopening initial decision refusing leave to appeal - Vexatious and abuse of process - Application dismissed - Uniform Civil Procedure Rules 2005 (UCPR), r 36.16; PRACTICE AND PROCEDURE - Application for stay of costs orders - Dependent upon outcome of application pursuant to UCPR, r 36.16 - Application fails
• Legislation Cited: Uniform Civil Procedure Rules 2005
• Cases Cited: House v R [1936] HCA 40; 55 CLR 499; Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121, 167 LGERA 432; Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75; Teoh v Hunters Hill Council [2008] NSWLEC 263
• Category: Principal judgment
• Parties: Elaine Teoh (Applicant); Hunters Hill Council (First Respondent); Ross Ernest Williams (Second Respondent)
• Representation: Solicitors: In person (Applicant); HWL Ebsworth Lawyers (First Respondent); Ronald S Czinner & Co (Second Respondent)
• File Number(s): 2009/298486
• Publication restriction: No

Decision under appeal

• Citation: Teoh v Hunters Hill Council and Another (No. 3) [2009] NSWLEC 121
• Date of Decision: 2009-07-31 00:00:00
• Before: Sheahan J
• File Number(s): 40246/2008

Judgment

1 THE COURT: By notice of motion filed on 26 April 2012, the applicant sought an order pursuant to the Uniform Civil Procedure Rules 2005 (UCPR), r 36.16 that leave be granted to reopen "the proceedings ... so that the applicant may adduce fresh evidence and new facts" (para 1 of the notice of motion). The applicant also sought orders seeking leave that the applicant be able to advance a new argument on a question of law and that leave be granted to adduce the new facts (paras 2 and 3 of the notice of motion).

2 Alternatively, the applicant sought an order granting leave to re-open the proceedings to argue the costs orders made in this Court and in the court below and a stay of execution of the certificate of determination of costs "until the determination of the renewed proceedings in the court below" (paras 4 and 5 of the notice of motion).

3 The notice of motion was supported by an affidavit of the applicant sworn the same date, 26 April 2012.

4 This is the fifth occasion that the applicant has utilised the provisions of r 36.16 to review this Court's judgment. The first application sought a review of the dismissal of the applicant's summons for leave to appeal from the decision of Sheahan J in Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121, 167 LGERA 432 (Sheahan J No 2). In that decision, Sheahan J dismissed the applicant's application to set aside the final orders he had made in the original proceedings brought by the applicant against Hunters Hill Council: see Teoh v Hunters Hill Council [2008] NSWLEC 263 (Sheahan J No 1). The present application continues the applicant's attempts to have Sheahan J's decision in Sheahan J No 2 reversed on appeal. (The references to Sheahan J No 1 and No 2 continues the identification of those proceedings in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324.)

5 In its judgment: Teoh v Hunters Hill Council (No 4), the Court reviewed the various proceedings that have been brought in this Court, all of which related to Sheahan J No 2. As Handley AJA observed in Teoh v Hunters Hill Council (No 4), the applicant has not sought to appeal from the decision in Sheahan J No 1.

6 On 8 May 2012, Beazley JA made a direction that the applicant be invited to show cause why the Court should not, in chambers, dismiss the proceedings as vexatious and as an abuse of process. By letter of that date, the Registrar of the Court wrote to the applicant informing her of the direction. The Registrar then stated in his letter:

"You are therefore directed to show cause by 5 PM on Thursday 31 May 2012 by filing any further written submissions or affidavit evidence in support of your notice of motion of 26 April 2012. You should treat this time limit seriously as the Court may not consider material filed after that date."

7 This direction was made in circumstances where, in its judgment of 12 April 2012: see Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75, the Court had stated, at [37], that the following order, made on 18 October 2011 in Teoh v Hunters Hill Council (No 4) was still in force:

"(2) The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 [2009] NSWLEC 121, to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing by the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process."

8 The applicant did not file any further written submissions or affidavit by 31 May 2012, being the time specified in the Registrar's letter of 8 May 2012.

9 Subsequent to that date, the applicant has filed the following documents:

(1) An affidavit sworn by her on 13 June 2012 and filed on that date.

(2) Written submissions comprising 31 pages dated 13 June 2012 and filed on that date.

(3) An affidavit sworn by the applicant on 22 June 2012 and filed on that date.

(4) Revised submissions under cover of a letter dated 22 June 2012.

(5) Affidavit of Vivienne Lowe sworn on 26 April 2012 and filed on 27 June 2012.

(6) "Addendum to Submissions for Judge in Chambers" dated 6 July 2012 and filed on that date.

10 In addition, the applicant has written to the Court on the following occasions:

(1) By letter dated 31 May 2012, received by the Court on 1 June 2012, in which the applicant advised that she had been unable to meet the due date of 31 May 2012 for her submissions, as she had experienced a power failure at her home and was unable to complete the submissions. She added in this letter that she was "prepared to go back down to the LEC for fraud, and in fact that is part of my submission instead of a grant of leave to appeal".

(2) By letter dated 8 June 2012 enclosing two medical certificates. In the body of the letter, which was headed "Submissions Extension of Time", the applicant stated that she was trying to follow doctor's orders to rest her arm. She also said that she was "now contacting another expert ... in order to corroborate an argument which will simplify one of the complex issues in the debate", noting the Court's comment that the issues were complex and also advising that she had been "troubled by yet a further bill of costs from the second respondent's solicitor", which was a factor in elevating her stress levels.

The first medical certificate enclosed with the letter was dated 2 June 2012 and stated that on that day she was unfit to continue her usual work. The diagnosis was "medical illness". The second certificate was dated 4 June 2012 and stated that the applicant "will be unfit to use her arm from 04/06/12 to 22/06/12" and that "I believe her symptoms started almost 2 weeks ago and got worse later on".

(3) By letter dated 22 June 2012, which was a covering letter to the further affidavit and submissions of that date. In this letter, the applicant stated that some of the evidence that she required related to the proceedings in the court below and therefore she had ordered the file from the archives in the Land and Environment Court. She said that the file had not been produced and that she was notifying the Court "for the record and so that the necessary adjustments can be made". She said that she would inform the court when she had "news from the LEC".

(4) On 6 July 2012, the applicant filed a further document of 18 pages entitled "Addendum to Submissions for Judge in Chambers".

11 The Court has not granted leave to file any of this material. Parties who appear before this Court must understand that the directions of the Court require compliance. We also wish it to be clear that parties are not free to file multiple written submissions in support of the claim they have brought in the court. The Court of Appeal rules provide for a 20 page limit on written submissions, unless leave is given to file submissions of a greater length: see UCPR, r 51.36.

12 Although this rule does not apply to an application under UCPR, r 36.16, the Court is entitled to control its own processes. The Court is not obliged to read submissions of a party that are filed after the expiry of the time directed for the filing of written submissions, or that are additional to, or repetitious of submissions already filed, if it considers that those submissions themselves are an abuse of the processes of the Court.

13 In our opinion, the Court should only grant leave for the applicant to rely upon her first affidavit and submission, being those filed on 13 June 2012. The later submissions were filed outside the time directed and are in large part repetitious. The applicant's affidavit of 26 April 2012 filed in support of the notice of motion is also read by the Court for the purposes of determining whether the notice of motion should be dismissed as vexatious and an abuse of process of the Court.

14 In her affidavit of 26 April 2012, and by way of summary only, the applicant deposed to:

(at para (2)):

(a) A conversation she had with the acting DCU manager of the respondent on or about 13 December 2007 to ascertain the methods used by the respondent Council in measuring solar access.

(b) Her opinion "as a lay person with specialised knowledge" that the Council officer could not have used the "whole of site" method as had been deposed to an affidavit of a Council officer in the original proceedings and her reasons for that opinion relating to a comparison with the method used at another address.

(c) That she had used the Development Application in respect of the other address in the hearing on 2 August 2010 before Young JA and the first and second hearings before this Court.

(at para (3)):

(a) Her attempts to engage a solar expert on various occasions and her more active search for such an expert recently.

(b) Her difficulties in finding someone to act as a McKenzie friend.

(at para (4)):

(a) The resolution of financial difficulties of a relative, such that the burden of decision making in relation to this matter has been lifted from him.

(at paras (5) and (6))

(a) That the applicant had not intended to be disrespectful to the Court, but that complexities in the matter had been engendered by ad hominem arguments introduced by the respondent Council.

(b) Other complaints were made in respect of comments made by counsel as far back as 2009 and by counsel attempting to direct Young JA's attention away from the real point.

(at para (7)):

(a) Mr Czinner, solicitor for the second respondent, had stated on an occasion in 2011 that he did not understand the document served upon him, which the applicant described as a "Lay Opinion" with specialised knowledge.

(b) That the applicant had been stressed by being served with costs assessment documents in this period.

(at para (8)):

(a) That she intended to pursue an action in fraud against the Council in any event.

15 It is apparent from this material that the notice of motion seeks to challenge either the findings made by Sheahan J in Sheahan No 1 or in Sheahan No 2. If it is the former, the applicant has never appealed from that judgment. If it is the latter, the applicant has not raised any new matter that has not been adverted to in her earlier application. The material upon which the applicant seeks to rely was all material that ought to have been adduced in the original proceedings. We reiterate that there has never been an appeal from the decision in the original proceedings. Nor has the applicant referred to any factual matter relating to either of those proceedings, in one forum or the other, that has not been raised in previous applications before the Court.

16 In her affidavit of 13 June 2012, the applicant raised matters under the following subject headings, "A litigant-in-person's disadvantages"; "Procedural Unfairness/Opportunity to Prepare"; "Fraud had been raised one month Prior to hearing"; and "Hardship/Stay of Bankruptcy".

17 None of the matters raised in this affidavit provides a cogent reason why the Court should not dismiss the present application as an abuse of process. This is apparent from the brief overview of the applicant's submissions which follows.

18 In the "Introduction" to her written submissions dated 13 June 2012, the applicant contended she was seeking a different remedy in her notice of motion than in her previous applications. At section II(i), she stated that the new remedy was sought on the grounds of apprehended bias. The applicant stated alternatively that she relied on the costs issue, for which she needed more time. The applicant next submitted, by way of "Preliminaries", that she would need to rely on all previous papers she had filed in the matter. At this stage, the Court file contains hundreds of pages of documents. The applicant did not identify the documents upon which she intended to rely. In Teoh v Hunters Hill Council (No 4), Handley AJA pointed out, at [33]:

"This Court is fully aware of the circumstances in Mrs Teoh's last two applications and we are broadly familiar with the circumstances in Sheahan J No. 2 and Court of Appeal No. 1. This material, all on the public record, forms the basis for my conclusion that a fourth application by Mrs Teoh based on the same materials is likely to be an abuse of process and vexatious."

It is an abuse of process to require the Court to read this material yet again.

19 The applicant next stated that the issue of bias was closely linked with the fraud allegations in the proceedings. In addition, she contended that the 2009 hearing (that is, the original proceedings) was also concerned with the procedural failure in the 2008 hearing in which she alleged that her barrister acted:

"... with flagrant negligence, and in breach of his fiduciary duty so that Sheahan J's treatment of these issues is also under scrutiny. The inherent jurisdiction of the court was then engaged as it is still."

20 The applicant next submitted that there were new facts regarding Sheahan J's conduct not previously found. She alleged that his Honour "cut short her time" and made "comments on the respondents not needing to bring in evidence". Of their nature, these could not be new facts.

21 The applicant further alleged that the Council file was not in evidence before Sheahan J, so that contrary to what "it seemed to the applicant Sheahan J had stated at the time of the costs hearing", his Honour had not read that file. Again, this cannot be a new fact even if the applicant's perception was correct. However, as is apparent from the remainder of this allegation: viz "[a] possible inference may be made that Sheahan J made an intentional representation when he replied to the applicant that he had 'all files and documents'", this is mere conjecture on the part of the applicant.

22 In the paragraphs that follow, the applicant referred to "Another New Fact". The new fact was a ground referred to in the original (draft) notice of appeal which she contended was contained in the "(lost then found)" incomplete White Book. This allegation related to the question whether fraud had been particularised in the proceedings before Sheahan J. However, the question of fraud has been already addressed by this Court: see the judgment of the Court in Teoh v Hunters Hill Council (No 5).

23 The applicant raised the following further issues: pre-judgment of the applicant's case; conduct showing bias in favour of the respondents; an allegation that Sheahan J conducted an unfair hearing, which included an allegation that his Honour overlooked material facts (in this regard, the applicant again made particular reference to the allegation that the Council file was not before his Honour at the time that he made his costs order) and abuse of process.

24 The applicant further contended that there have been material errors in each of this Court's previous judgments of the kind referred to in House v R [1936] HCA 40; 55 CLR 499; that her case did not involve mere repetition and that there were "possibly rather serious anomalies with the files and court documents". In her footnote to this allegation, the applicant states:

"The 23.11.09 gives one explanation which tend to show more than ostensible bias of Sheahan J and another which supports the allegation that the opposing parties are implicated and may be engaged in sharp practice and is also circumstantial evidence of collusion of the legal practitioners."

25 The applicant next and for a further time made an allegation of apprehended bias on the part of Tobias and Campbell JJA.

26 These issues have already been dealt with by the Court in earlier applications: see Teoh v Hunters Hill Council (No 4), especially at [21]-[22] and Teoh v Hunters Hill (No 5), especially at [7]-[8]. These paragraphs are set out below.

27 In Teoh v Hunters Hill Council (No 4), Handley AJA (Allsop P and Beazley JA agreeing) stated, at [21]-[22]:

"21 In her written submissions she either alleged or hinted at incompetence, failure to obtain instructions, and collusion on the part of her counsel in Sheahan J No. 1, fraud and incompetence on the part of Council officers, unfair procedural directions in the Land & Environment Court prior to the trial in Sheahan J No. 1, sharp practice by the opposing barristers and legal representatives, apprehended bias on the part of Sheahan J and, for the first time on this application, apprehended bias by Tobias and Campbell JJA (t 25/7/11 p 9).

22 Most of her oral submissions were directed to alleged errors by Council officers and Sheahan J in the first case in their interpretation and application of the relevant Development Control Plan. She was particularly concerned that her evidence, which 'was vital', (t 25/7/11 pp 11-17) about the resulting shadowing had not been put before the Court by her counsel. This may be why she has never directly challenged Sheahan J No. 1 in this Court."

28 In Teoh v Hunters Hill Council (No 5), the Court (Allsop P, Beazley JA and Handley AJA) stated:

"7 The grounds in the notice of motion include (1) the Court erred in finding that fraud had not been raised, (2) in holding, for various reasons (2), (3), (4), (7)(i), (ii), (iii), that fraud could not be considered, and (3) the Court's inherent jurisdiction in exceptional cases was engaged.

8 Many of these grounds canvassed issues which were or should have been raised in Sheahan J No 1 which has never been directly challenged. These included (3)(b)(i), (ii) sharp practice, incompetence of counsel, collusion in the first hearing, and procedural default, (3)(b)(iii) wrongful exclusion of evidence, (4) excluded information about the method used to determine shadowing; (5) false evidence, (6)(a) insufficient attention to material facts, (6)(b) apprehended bias of Sheahan J and erroneous findings."

29 Leaving aside for the moment the application for a stay of the costs orders pending a review, it is apparent that the applicant is seeking to reagitate the same issues once again. As Handley AJA stated in Teoh v Hunters Hill Council (No 4), at [17]:

"... As this Court held in Court of Appeal No. 2 [15]. Mrs Teoh had to identify an argument of fact or law which this Court overlooked and failed to consider, or a significant change of circumstances in the meantime."

30 This Court has inherent power to prevent abuses of its process. In Teoh v Hunters Hill Council (No 4) at [34]-[38], Handley AJA collected a number of the relevant authorities. The present application is an abuse of the Court's process. It raises issues and arguments which have been considered and dealt with in one or more of the four earlier judgments of this Court concerning Mrs Teoh's application to secure leave to appeal from Sheahan J No 2. Furthermore, this Court is satisfied that the material to which it has referred does not identify any fresh argument or change of circumstances that would justify reopening the initial decision refusing leave to appeal from Sheahan J No 2. For those reasons the application made by paragraphs 1, 2 and 3 of the motion should be dismissed.

31 Insofar as the application seeks a stay of the costs orders, that application is dependent upon whether her application under UCPR, Pt 36, r 36.16 was successful. As we have concluded that the primary relief that the applicant has sought on this application should be refused, it follows that the relief she seeks relating to costs must also fail.

32 Accordingly, the Court makes the following orders:

1. Notice of motion filed 26 April 2012 dismissed;

2. Should the applicant file any further notice of motion in this matter pursuant to UCPR, r 36.16, the applicant must at the same time file a document, comprising no more than five pages, showing cause why this Court should not, in Chambers, summarily dismiss the notice of motion as vexatious and an abuse of process;

3. No other document is to be filed in support of the notice of motion.

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Decision last updated: 23 August 2012