Arjunan v Neighbourhood Association DP No 285853

The current notice of motion

1. On 17 August 2023, the applicants filed the notice of motion that is presently before the Court, supported by an affidavit of the first applicant of the same date. By that motion, the applicants seek to set aside and vary the orders made in Arjunan (No 2) pursuant to r 36.16(3A) of the UCPR. It is clear from the orders sought that the applicants wish to reverse the orders that the Court made on the application for leave to appeal, in Arjunan (No 1): "1. Allow the motion to set aside and vary the decision made on 3.8.23. 2. Grant leave to appeal and allow the appeal and determine the appeal concurrently as per UCPR 51.14 (reasons in White Folder page: 19). 3. Seek decisions that were not made as requested in the motion filed on 2.6.23 at [2]-[5]: (a) to vacate the first part of order 3 (reasons at page 11/36 of my Affidavit 2.6.23); and (b) to vacate the cost order of Justice Adams (reasons at: [44] of the Order on 19.5.23) 4. Decide this motion on papers to save cost and time. 5. The respondent to pay the costs in all proceedings. 6. All cost orders in all proceedings are net of insurance claims."
2. On 28 August 2023, the Registrar of the Court of Appeal made directions including a direction that the applicants show cause why a Teoh direction (along the lines of the direction made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324 (Teoh)) should not be made in this matter. Pursuant to those directions, both parties have filed written submissions and the applicants filed an additional affidavit of the first applicant dated 14 September 2023. The respondent has advised that it seeks a Teoh direction.
3. The applicants advance a series of arguments in their submissions filed on 14 September 2023, including that the respondent committed an abuse of process by misleading the court, withholding evidence, using false and misleading evidence and breaching s 56(3) of the Civil Procedure Act 2005 (NSW). The arguments, which we have summarised below, have already been the subject of consideration by this Court in either or both of Arjunan (No 1) and Arjunan (No 2). The applicant's dissatisfaction with the manner in which this Court has dealt with those arguments does not constitute a basis on which to set aside or vary the orders in Arjunan (No 2).
4. The applicants first contend that evidence was overlooked, the costs order set a bad precedent in circumstances where Owners of Strata Plan 26131 v Dimitriou (2009) 74 NSWLR 370; [2009] NSWCA 27 prevailed over statute, the costs were disproportionate and the maximum costs limit was exceeded, which is against public interest. Those arguments were the subject of proposed appeal grounds 1 and 5 as raised in the applicants' draft notice of appeal in relation to the decision of Adamson J (as identified by the applicants in their submissions). Those grounds were addressed in Arjunan (No 1) at [21]-[25] and [39]-[40]. The Court did not consider the arguments to have sufficient merit to warrant a grant of leave: [25] and [40].
5. Secondly, the applicants contend that additional "evidence", being Coscuez International Pty Ltd v The Owners - Strata Plan No 46433; The Owners - Strata Plan No 46433 v Coscuez International Pty Ltd [2022] NSWCATCD 201 (Coscuez), was not heard on the applicants' argument that a by-law was invalid as it was inconsistent with the Community Land Management Act 1989 (NSW) (CLM Act). The point which the applicants seek to make by reference to Coscuez was the subject of proposed appeal ground 2 (as the applicants identified in their submissions).
6. The Court refused leave to appeal on this proposed ground, noting that Adamson J concluded that the CLM Act did not exclude the making of the by-law: Arjunan (No 1) at [26]-[28]. Coscuez was cited for the first time as authority for this point in the first applicant's affidavit dated 2 June 2023, which the Court treated in Arjunan (No 2) as constituting submissions: at [7]. As the decision concerned consideration of special by-laws of a strata scheme the content of which were quite different to those at issue in this case (see Coscuez at [35], [47], [53]-[55]), it is of little assistance to the applicants' argument (and in any event is not binding on this Court).
7. Thirdly, the applicants contend that the respondents withheld evidence (including a report from the Department of Fair Trading) to the effect that neither Ms Keegan or Ms O'Hea had authority to appoint or retain Grace Lawyers and no resolution was passed to that effect. The argument that the resolutions appointing Grace Lawyers were invalid was the subject of proposed appeal ground 3 (again as the applicants identified in submissions), upon which the Court refused leave to appeal: Arjunan (No 1) at [35]. The arguments that Ms Keegan and Ms O'Hea did not have authority to make the agreement with Grace Lawyers, that the agreement was void for illegality and that the report from the Department of Fair Trading was new evidence was dealt with in Arjunan (No 2) at [8]-[14].
8. Fourthly, the applicants contend that in Arjunan (No 1), the Court did not consider the additional "evidence", being The Owners - Strata Plan No. 1813 v Keevers [2022] NSWCATCD 104 (Keevers) and EB 9 & 10 Pty Ltd v The Owners SP 934 (No 2) [2018] NSWSC 546 (EB 9 & 10), on the topic of whether the CLM Act provides for recovery of unpaid contributions with interest and costs. The point which the applicants seek to make by reference to Keevers and EB 9 & 10 was the subject of proposed ground 4 (as the applicants identified) and was dealt with in Arjunan (No 1) at [36]-[38], with specific reference there made to EB 9 & 10. Both of the cases were also cited in the applicants' submissions on the 2 June 2023 notice of motion in relation to the argument addressed by the Court in Arjunan (No 2) at [15]. There, the Court relevantly stated: "The submissions in this respect did no more than reagitate points that were made on the leave application, which the Court addressed in Arjunan (No 1) at [36]-[38]."
9. Fifthly, the applicants submit that the respondent should have provided the invoices, or if they did not exist, then the Court should not have awarded costs without evidence of the invoices. The argument that invoicing requirements were not satisfied was the subject of proposed appeal ground 5 (again, as the applicants themselves identified in their submissions) and was addressed at Arjunan (No 1) at [39]-[40]. The applicants also contend that the solicitor for the respondent withheld evidence of the insurance claim, in particular the amount received and the legal fees paid as of 30 September 2021, and if the respondent had disclosed to the Magistrate the amount received, the costs order would have excluded the legal costs covered by the insurance. That argument was the subject of submissions on the first application to reopen and was rejected by the Court in Arjunan (No 2) at [16]-[18].
10. The applicants also seek to vacate the following three costs orders: (i) the order made in Arjunan (No 1) which required them to pay the respondent's costs of the application for leave to appeal, excluding the costs of the notice of motion dated 17 March 2023; (ii) the order made by Rothman J that the applicants pay the respondent's costs of and incidental to the amended motion dated 19 April 2022; and (iii) the costs order made by N Adams J which required the applicants to pay the respondent's costs of the motion dated 21 November 2022 on the ordinary basis.
11. The Court rejects the contention that any of those costs orders should be vacated. First, the applicants have not articulated any arguable basis for vacating the costs order made in Arjunan (No 1), particularly in circumstances where the first applicant accepted, in the course of the hearing on 9 May 2023, that if the applicants were unsuccessful they would be liable to pay the respondent's costs: Arjunan (No 1) at [47].
12. Secondly, the applicants argued that Rothman J dismissed the 19 April 2022 amended notice of motion on the basis that the motion was "wrong[ly] referr[ed]" to him and they should not be penalised with costs for that. However, the motion was not in fact dismissed on that basis but instead for reasons including that the applicants were attempting to reagitate issues already dealt with and there was no good reason why leave should be granted to reargue aspects of Hamill J's decision: eg, Arjunan v Neighbourhood Association DP No 285853 [2022] NSWSC 746 at [39], [42]. In any case, it is now too late to make an application pursuant to r 36.16: UCPR, r 36.16(3A).
13. Thirdly, as to the costs order made by N Adams J, her Honour made that order on the basis that there was no reason to depart from the usual rule that costs follow the event: at [25]. In so far as the applicants contend that the Court should have considered this complaint in Arjunan (No 2), the submissions on that application made clear that the orders in the 2 June 2023 notice of motion were sought under r 36.16(3A) of the UCPR. As the Court explained in Arjunan (No 2), the 2 June 2023 notice of motion was brought within 14 days of Arjunan (No 1) and so was treated as an application to reopen and vary the orders made in that judgment. With six months having passed (by that time) since N Adams J made the impugned costs order, the application could not have been dealt with as an application to vary that order: UCPR, r 36.16(3A).
14. In any event, the argument is without merit. The applicants submit, having regard to this Court's identification of an arguable error in her Honour's reasons in Arjunan (No 1) (see [44]), that in circumstances where the respondent's solicitors led N Adams J into error in that regard the respondent should not be "rewarded with cost". However, the Court did not grant leave to appeal, let alone make any orders affecting her Honour's decision, having regard to its nature as interlocutory and on a matter of practice and procedure. We noted in this respect in Arjunan (No 1) that even if the applicants had been permitted to raise the points of substance that they sought to raise on the application before N Adams J, they would still have been unsuccessful as the arguments lacked merit.
15. The arguments that the applicants have been denied procedural fairness, having not been heard on the purportedly "new" and "overlooked" evidence, and that consequently the case has not been finally determined is without merit. As the respondent submitted, the applicants are attempting to reagitate issues that have already been determined. The notice of motion dated 17 August 2023 should be dismissed, with costs.

Whether a Teoh direction should be made

1. In Teoh, Handley AJA (with whom Allsop P and Beazley JA agreed) made the following direction at [42]: 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 [in Teoh v Hunters Hill Council (No 3)] [2009] NSWLEC 121[; (2009) 167 LGERA 432] 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.
2. A Teoh direction imposes a procedural requirement to be satisfied before an applicant can burden other parties and the Court with successive applications seeking the same or effectively the same relief as those that have already been finally disposed of; and is consistent with the statutory mandate for the conduct of proceedings with a view to the just, quick and cheap resolution of the real issues in dispute.
3. This Court recently distilled the principles relevant to making a Teoh direction in Proietti v Proietti [2023] NSWCA 132 at [32]-[34]: "As this Court made clear in Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 at [222] (per Ward P, Meagher and Leeming JJA), it is 'no small thing' for this Court to impose a requirement that an applicant obtain leave before proceeding with any further motion based on the matters he or she has to date litigated; '[r]estricting a person's right to access the courts is an extreme interference with a basic right' (there citing Teoh v Hunters Hill Council; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 and Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230 and Samootin v Shea [2013] NSWCA 312). Nevertheless, 'a Court sufficiently apprised of the relevant facts can act of its own motion to protect itself and prevent abuse of its process'; and the authorities are clear that, where an applicant seeks to file multiple applications seeking in substance the same relief (as the applicant has here done), the Court should act of its own motion to prevent potential abuse of its process (see Teoh at [38]-[39] per Handley AJA; see also, for example, Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [21] per Bell P, as his Honour then was, Basten and Leeming JJA). The relevant principles as to an abuse of process were set out in Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 (Muriniti v Lawcover) (and affirmed in Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 at [80]-[83] and [91] per Gleeson JA and Griffiths AJA). One of the circumstances in which there will be an abuse of process is where the continuance of proceedings will bring the administration of justice in disrepute (see UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] and [44] per Kiefel CJ, Bell and Keane JJ). As noted at [494] in Muriniti v Lawcover, proceedings may be unjustifiably vexatious and oppressive where it is sought to litigate anew a case already disposed of by earlier proceedings. Matters relevant to such a conclusion were identified in State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 81-423."
4. The applicants submit that the 17 August 2023 notice of motion is competent and not frivolous or vexatious because: it is necessitated by the respondent withholding evidence (namely, details of an insurance claim and a report from the Department of Fair Trading); the fact that evidence has been withheld or overlooked means the case has not been finally determined and the consequent lack of procedural fairness presents reason to reopen the case; and the "right of the respondent" is not adversely affected as it has received insurance for its legal costs. The applicant's submissions on the Teoh direction then set out the matters dealt with above at [17]-[22]. The arguments relied upon have been dealt with and rejected above (and in Arjunan (No 1) and Arjunan (No 2)).
5. The procedural history the Court has outlined above demonstrates a persistent refusal on the part of the applicants to accept the orders of the various courts that have considered its complaints on multiple occasions. In so far as the applications in this Court are concerned, the Court observed that in Arjunan (No 1) that the proposed appeal from Adamson J "would be the second appeal afforded on at least some of the proposed grounds if leave were granted": at [3]. The 17 August 2023 notice of motion is the second notice of motion filed in this Court by the applicants pursuant to r 36.16(3A) of the UCPR, the first of which was similarly dismissed largely on the basis that the application did no more than reagitate points that were made on the leave application, which the Court addressed in Arjunan (No 1).
6. The applicants' demonstrated refusal to accept the orders of the Court is vexatious, oppressive and unfair to the respondent; and thus amounts to an abuse of process. To permit these proceedings to continue would bring the administration of justice into disrepute; a central tenant of the judicial system is that controversies, once resolved, are not to be reopened (other than in very limited circumstances): Proietti v Proietti [2023] NSWCA 132 at [36]; D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
7. If the applicants persist, notwithstanding the making of the Teoh direction, in bringing in substance the same application as has already been considered and dismissed, then consideration may need to be given as to why the matter should not be referred to the Attorney-General for his consideration as to whether to make an application for the applicants to be declared vexatious litigants.

Conclusion

1. The Court makes the following orders: 1. The notice of motion filed on 17 August 2023 is dismissed with costs. 2. If Mr Kannapiran Chinna Arjunan or Ms Thangam Kannapiran files any further application against Neighbourhood Association DP No 285853 in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, leave to appeal from the orders of Adamson J of 9 November 2022 or N Adams J of 1 December 2022, or leave to reopen the orders of the Court of Appeal made on 19 May 2023, 3 August 2023, or 8 November 2023, the Registrar shall 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 Mr Kannapiran Chinna Arjunan or Ms Thangam Kannapiran 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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