Teoh v Hunters Hill Council (No 4)

[2011] NSWCA 324

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324

Hearing dates:

25 July 2011

Decision date:

18 October 2011

Before:

Allsop P, Beazley JA, Handley AJA

Decision:

(1) Notice of motion of 9 December 2010 dismissed with costs.

(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 why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

[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:

ABUSE OF PROCESS - Court can act of its own motion to control abuse of its process
PRACTICE - interlocutory application refused - renewed application competent - further application may be abuse of process

Cases Cited:

Burton v President & Ors of Shire of Bairnsdale [1908] HCA 57, 7 CLR 76
Carr v Finance Corporation of Australia (No 1) [1981] HCA 20, 147 CLR 246
Chouman v Margules (1993) 17 MVR 144 CA
Clyne v NSW Bar Association [1960] HCA 40, 104 CLR 186
Commonwealth Trading Bank v Inglis [1974] HCA 17, 131 CLR 311
Cracknell v Janson (1879) 11 Ch D 1
Dudgeon v Chie [1955] HCA 42, 92 CLR 342
Haggard v Pelicier Freres [1892] AC 61
Re Harrison's Share under a Settlement [1955] Ch 260 CA
Metropolitan Bank v Pooley (1885) 10 App Cas 210
North Western Salt Co. Ltd v Electrolytic Alkali Co. Ltd [1914] AC 461
Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9, 149 CLR 147
Sun Life Assurance Co of Canada v Jervis [1944] AC 111
Thynne v Thynne [1955] P 272 CA

Category:

Principal judgment

Parties:

Applicant: Elaine Teoh
1st Respondent - Hunters Hill Council
2nd Respondent - Ross E Williams

Representation:

Applicant: In Person
1st Respondent - Ms M Carpenter
2nd Respondent - Mr R Czinner
Amicus Curiae - Mr J Sheller & Mr D Joyce
Applicant in Person
1st Respondent - Ebsworth Lawyers
2nd Respondent - Ronald S Czinner & Co

File Number(s):

CA 09/298486

 Decision under appeal 

Date of Decision:

2010-11-25 00:00:00

Before:

Allsop P, Beazley JA and Handley AJA

File Number(s):

CA 09/298486

Judgment

1. ALLSOP P : I agree with Handley AJA.

1. BEAZLEY JA : I agree with Handley AJA.

1. HANDLEY AJA : The Court has before it the applicant's notice of motion of 9 December 2010 which seeks orders under UCPR Pt 36 r 36.16(3A) setting aside our decision of 25 November 2010. This dismissed her notice of motion of 10 August 2010 which was in substance a renewed application for leave to appeal from a decision of Sheahan J in the Land & Environment Court.

1. The underlying dispute has a long history. On 12 March 2008 Mrs Teoh commenced proceedings in the Land & Environment Court in Class 4 of its jurisdiction for judicial review of a development consent granted by the Council for the erection of a second storey on a neighbour's house.

1. Mrs Teoh claimed that the Council had not complied with the provisions of its Development Control Plan for the assessment of the shadowing of a neighbour's property by proposed development.

1. The case was heard by Sheahan J on 5 June 2008 when Mrs Teoh was represented by counsel. Judgment was given on 16 th September that year and Mrs Teoh's claim was dismissed [2008] NSWLEC 263 (Sheahan J No. 1).

1. An all grounds appeal lay as of right to this Court from that decision, but Mrs Teoh did not exercise that right at the time, and has never sought an extension of the 28 day time limit for such an appeal.

1. Instead she sought to reopen the judgment relying initially, in a notice of motion of 20 March 2009, on fraud and then, on a notice of motion of 4 May 2009 on UCPR Pt 36 r 36.15(1). That rule enables a judgment or order given, entered or made "irregularly, illegally or against good faith" to be set aside or varied. Her claim based on fraud was not pursued.

1. Her application to set aside the final orders in Sheahan J No. 1 and reopen the trial was dismissed on 31 July 2009 [2009] NSWLEC 121, 167 LGERA 432 (Sheahan J No. 2).

1. On 10 March 2010 Mrs Teoh's application for leave to appeal from Sheahan J No. 2 was dismissed by Tobias and Campbell JJA (Court of Appeal No. 1).

1. On 23 March 2010 Mrs Teoh applied under UCPR Pt 36 r 36.16(3A) to set aside or vary the orders in Court of Appeal No. 1. By a circuitous route those proceedings came before the Full Court, as presently constituted, on 10 November 2010. Mrs Teoh, appearing in person, was fully heard and the Court reserved its decision.

1. Judgment was given on 25 November 2010 and Mrs Teoh's application was dismissed [2010] NSWCA 321 (Court of Appeal No. 2).

1. Nothing daunted on 8 December 2010 Mrs Teoh tried again and filed a notice of motion under the same rule seeking to set aside or vary the orders in Court of Appeal Nos 1 and 2, with the ultimate aim of obtaining leave to appeal from Sheahan J No. 2.

1. An order refusing leave to appeal is interlocutory, not final: Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9, 149 CLR 147, 152-3; Spencer Bower & Handley " Res Judicata " 4 th ed 2009 page 86. Thus a renewed application for leave to appeal is technically competent: Carr v Finance Corporation of Australia (No 1) [1981] HCA 20, 147 CLR 246, 248, and the Court's power to reconsider its interlocutory orders is preserved by UCPR Pt 36.16(4).

1. The latest notice of motion was heard on 25 July. The Court had the benefit of Mrs Teoh's written submissions of 21 July 2011 and she was heard at length. The transcript of her submissions extends over 25 pages. She confirmed, yet again, that she was not seeking to appeal out of time from Sheahan J No. 1.

1. The President had arranged for counsel to be appointed to act as an amicus, and the Court had the considerable benefit of the written and oral submissions of Messrs James Sheller and Daniel Joyce of counsel.

1. The issue raised by Mrs Teoh's latest notice of motion, and initially, the only issue, is whether the decisions in Court of Appeal Nos 1 and 2 should be reopened. 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.

1. The underlying issue is whether there is sufficient reason to doubt the correctness of the decision in Sheahan J No. 2 that the final orders in Sheahan J No. 1 had not been given, entered or made irregularly, illegally or against good faith.

1. Unfortunately Mrs Teoh would not or could not face up to either issue and made no real attempt to establish that she had an arguable case on either.

1. Her written and oral submissions were focused on the trial in Sheahan J No. 1.

1. 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).

1. 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.

1. Mrs Teoh referred more than once to Chouman v Margules (1993) 17 MVR 144 CA, 149 where Kirby P considered the relevance in criminal cases of proof that the advocate for the accused at the trial was "flagrantly incompetent". That case does not assist Mrs Teoh because Kirby P thought that that ground may not be available in a civil case (above at pp 149-50).

1. Moreover that was an appeal from the judgment at a trial and the appellant obtained a new trial because the trial Judge and counsel overlooked important evidence before the Court. The circumstances in the present case are quite different.

1. The decision in Sheahan J No. 1 was final, and once 14 days had elapsed from entry of the orders pursuant to UCPR Pt 36 r 36.11 those orders could only be set aside or varied by the Land & Environment Court on very limited grounds.

1. There is no reason to doubt the correctness of the decision in Sheahan J No. 2 that the orders in Sheahan J No. 1 were not given, entered, or made irregularly, illegally or against good faith.

1. Mrs Teoh has not pursued a claim in fraud since March 2009, and the relief sought in Sheahan J No. 2 and since has not been, and could not be, based on fraud. Such a claim must be propounded in a substantive action in which the allegations of fraud are fully pleaded and particularised. The claim will not be entertained on a notice of motion supported by affidavit.

1. The slip rule, embodied in UCPR Pt 36 r 36.17, enables the Court at any time to correct clerical mistakes in its orders, or errors arising from an accidental slip or omission. There was no such mistake, slip, or omission in Court of Appeal Nos 1 and 2 and the motion before this Court was not based on that rule.

1. In my judgment Mrs Teoh has failed to establish an arguable case of error in Sheahan J No. 2 which would justify the grant of leave to appeal. There may or may not have been some error in Sheahan J No. 1 but she has never challenged that decision in this Court.

1. Mrs Teoh has failed three times to persuade this Court that she has arguable grounds for leave to appeal from Sheahan J No. 2. She must understand that a fourth application on the same grounds and materials would be vexatious and an abuse of process.

1. The respondents have not sought to have Mrs Teoh declared a vexatious litigant and this Court would not make such a declaration without proper notice to her and only after giving her an opportunity to be heard.

1. The Court however has a duty to conserve its resources and ensure as far as possible that they are available for other litigants. It is therefore entitled to protect itself and its proceedings from abuse by a litigant who may wish to make a fourth application for the same relief.

1. 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.

1. The Court may exercise inherent powers to prevent abuse of its process: In Metropolitan Bank v Pooley (1885) 10 App Cas 210, 214 the Earl of Selborne LC said:

"The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure."

In the same case Lord Blackburn said at 220-1:

"... the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds ... the Court had the right to protect itself against such an abuse ....

The statement of the Earl of Selborne LC quoted above was cited by Lord Watson writing for the Board in Haggard v Pelicier Freres [1892] AC 61, 68. In those cases the jurisdiction was exercised on the application of the party aggrieved but these statements envisage the Court acting of its own motion.

1. Those authorities were referred to by Isaacs J in Burton v President & Ors of Shire of Bairnsdale [1908] HCA 57, 7 CLR 76, 94-5.

1. In Commonwealth Trading Bank v Inglis [1974] HCA 17, 131 CLR 311, 320 Barwick CJ and McTiernan J said:

"... there is an inherent power in the Court to control the bringing of applications in the course of an action of which the Court is seized for the purpose of preventing a party abusing the process of the Court."

1. The principle is not limited to pending actions. The Court in Inglis had earlier held (at p 319) that applications for orders inconsistent with earlier orders are regarded for this purpose as made in the earlier proceedings although these may have been concluded for other purposes.

1. In Inglis the Court's inherent powers were exercised on the application of the party aggrieved, but a Court sufficiently apprised of the relevant facts can act of its own motion to protect itself and prevent abuse of its process. The Court can act of its own motion in cases of contempt in the face of the court; clear and serous illegality: North Western Salt Co. Ltd v Electrolytic Alkali Co. Ltd [1914] AC 461, 469; scandalous allegations: Cracknell v Janson (1879) 11 Ch D 1, 13; in limited circumstances it may set aside its own judgment: Thynne v Thynne [1955] P 272 CA, 314; it may decline to hear a case where there is no actual controversy: Sun Life Assurance Co of Canada v Jervis [1944] AC 111; it may recall its unperfected judgment: Re Harrison's Share under a Settlement [1955] Ch 260 CA; and it can object to the competency of an appeal: Dudgeon v Chie [1955] HCA 42, 92 CLR 342, 351; Clyne v NSW Bar Association [1960] HCA 40, 104 CLR 186, 205. There is no reason for thinking that these examples are exhaustive, or that the categories are closed.

1. This Court should act of its own motion to prevent potential abuse of its process should Mrs Teoh file a fourth notice of motion seeking, in substance, the same relief. It should do this by directing the Registrar that the return date for any further motion by Mrs Teoh for the same relief is to be promptly vacated to enable a Judge to review the application on the papers to determine whether there is a case for a fourth hearing. If a Judge in Chambers considers that the material filed warrants a fourth hearing the Court will fix a new return date, and notify the parties.

1. If a Judge considers, on the material filed, that a fourth hearing is not warranted, Mrs Teoh will be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

1. The nature and scope of the Court's inherent jurisdiction were helpfully reviewed by Master Jacob in 1970 Current Legal Problems 23, and by Mr Keith Mason QC in the (1983) 57 ALJ 449. However neither author considered the Court's power to act of its own motion either generally or in relation to an abuse of its process.

1. In my judgment the following orders should be made:

(1) Notice of motion of 9 December 2010 dismissed with costs.

(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 why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

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Amendments

14 June 2012 - Correction to date and citation of judgment

Amended paragraphs: Order (2)

Decision last updated: 14 June 2012