Teoh v Hunters Hill Council (No 7)

[2012] NSWCA 356

Court of Appeal

New South Wales

Case Title:

Teoh v Hunters Hill Council (No 7)

Medium Neutral Citation:

[2012] NSWCA 356

Hearing Date(s):

On the papers

Decision Date:

02 November 2012

Jurisdiction:

Before:

Allsop P at [1]
Beazley JA at [1]
Meagher JA at [1]

Decision:

1.The notice of motion filed 12 October 2012 be dismissed.

2.Should the applicant seek to file any further application against Hunters Hill Council in respect of the matters litigated in the Land and Environment Court or the Court of Appeal the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application 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:

PRACTICE AND PROCEDURE - application to vary or set aside judgment - functus officio - no question of principle

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), r 36.3, r 36.16
Vexatious Proceedings Act 2008 (NSW), s 8

Cases Cited:

Teoh v Hunters Hill Council (No 2) [2010] NSWCA 321
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 (No 6) [2012] NSWCA 260

Texts Cited:

Category:

Principal judgment

Parties:

Elaine Teoh (Applicant)
Hunters Hill Council (First Respondent)
Ross Ernest Williams (Second Respondent)

Representation

- Counsel:

- Solicitors:

In person (Applicant)
HWL Ebsworth (First Respondent)
Ronald S Czinner & Co (Second Respondent)

File number(s):

2009/298486

Decision Under Appeal

- Court / Tribunal:

- Before:

Sheahan J

- Date of Decision:

31 July 2009

- Citation:

[2009] NSWLEC 121

- Court File Number(s)

2008/40246

Publication Restriction:

JUDGMENT

1. THE COURT: On 23 August 2012, the Court made orders dismissing a notice of motion of Mrs Elaine Teoh: Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260. That notice of motion was brought under Uniform Civil Procedure Rule 36.16 in respect of the orders made on 12 April 2012 in Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75. This last application was likewise an application made under r 36.16 in respect of orders made on 18 October 2011 in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324.

2. The litigious history of Mrs Teoh's complaints about the results of her case in the Land and Environment Court can be gleaned from the above cases as well as the earlier applications including Teoh v Hunters Hill Council (No 2) [2010] NSWCA 321.

3. It would be an imposition on the time of the Court that could be devoted to other litigants' concerns to set out once again the history of the litigation and Mrs Teoh's refusal to accept the finality of the litigation.

4. On 12 October 2012, Mrs Teoh filed a notice of motion seeking reopening of previous applications and the setting aside of the underlying Land and Environment Court judgment. Reliance was placed on the Supreme Court Act 1970, s 46(4).

5. The simple answer to the notice of motion filed on 12 October 2012 is that the Court is now functus officio. Orders have been made. Mrs Teoh's appeal has been finalised. The applications brought by Mrs Teoh are now finished.

6. Mrs Teoh asked that Allsop P and Beazley JA disqualify themselves in this application. There is no basis to do so.

7. The orders of the Court are:

   (a)The notice of motion filed 12 October 2012 be dismissed.

   (b)Should the applicant seek to file any further application against Hunters Hill Council in respect of the matters litigated in the Land and Environment Court or the Court of Appeal the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.

8. It should be noted that in Teoh (No 6) an order as in (b) above was made, but was ignored by Mrs Teoh.

9. If any further application is made it will be necessary to consider whether the Court should consider of its own motion an order under the Vexatious Proceedings Act 2008 (NSW), s 8.

10. This judgment was given and these reasons were delivered in the absence of the public in Sydney pursuant to UCPR r 36.3.

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