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[2014] NSWCA 125
Court of Appeal (NSW)
2013-12-18
Beazley P, Emmett JA, Allsop P
Original judgment source is linked above.
The Applicant's Submissions 63The applicant's written submissions, despite their length, do not address the critical issues that arise when a court is asked to make, or considers whether to make on its own motion, a vexatious proceedings order under the VP Act. Indeed, the submissions do not refer to the VP Act. 64The arguments advanced at length by the applicant essentially repeat contentions that have already been rejected in one or other of the previous judgments or rest on unsupported assertions of fraud, collusion and bias. The submissions demonstrate a failure by the applicant to appreciate the vice of making repeated applications to the Court seeking the same or substantially the same relief. The necessity of litigation being brought to an end was explained in Teoh (No. 2), the first of the six vexatious proceedings instituted or conducted by the applicant. 65The applicant's submissions include the following contentions: ● the judgments in Sheahan (No. 1) and Sheahan (No. 2) were affected by the bias or apprehended bias of the trial Judge; ● some members of the Court of Appeal were affected by "ostensible bias" and thus were unable to appreciate the applicant's arguments; ● the applicant's own counsel in the Land and Environment Court failed to put arguments or to adduce evidence essential to the applicant's case; ● the applicant's counsel acted in the Land and Environment Court in a "recklessly ignorant" manner and indeed "colluded" with other legal representatives to act adversely to the applicant's interests; ● senior counsel for the Council misled the Land and Environment Court; ● the decisions in Sheahan (No. 1) and Sheahan (No. 2) were affected by illogicality, irrationality and distortion of the meaning of DCP No. 15; ● the decisions were also tainted by fraud and perjury; ● each Court of Appeal was mistaken as to the construction of DCP No. 15; and ● various members of the Court of Appeal had preconceived and misconceived views about critical issues, particularly the nature of merits review. 66None of the applicant's assertions of impropriety or misconduct is supported by any evidence. As we have indicated, many of the claims have been made and rejected in earlier proceedings. Unfounded or unsupported assertions do not assist the applicant. 67The applicant's submissions advance no cogent reason why the Court should not be satisfied that she has frequently instituted vexatious proceedings in Australia. The Court is so satisfied.
Exercise of Discretion 68The next question is whether the Court should make the vexatious proceedings order of which the applicant was given notice (see at [14] above). In considering this question, the principles stated earlier, particularly at [60] above, must be borne in mind. 69It is clear from the procedural history that the applicant will not or cannot accept that her claims against the Council have been determined by the Land and Environment Court and this Court, and that further attempts to relitigate those claims will be both futile and an abuse of the Court's process. The procedural history also suggests very strongly that, unless a vexatious proceedings order is made, the applicant will persist in seeking to re-open orders made by this Court. As has been made clear in the judgments already given in the earlier proceedings, the consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court's limited time and resources. They are also likely to impose an unwarranted burden on the Council should it be forced to respond to further claims made by the applicant concerning the same subject matter. 70If there were any doubt about the applicant's unwillingness or inability to perceive that litigation must be brought to an end once claims have been dealt with, they have been dispelled by the written submissions she has filed in opposition to the making of the proposed vexatious proceedings order. The submissions demonstrate a fixed determination to reargue issues that have long since been definitively resolved. 71The proposed vexatious proceedings order to which the applicant's attention was directed is limited in scope. Its effect is twofold:
Orders 72It is in the interests of justice that the orders set out earlier in this judgment be made. Accordingly, the Court makes the following orders: (1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a), all proceedings in New South Wales relating to the subject matter of proceedings 40246 of 2008 in the Land and Environment Court of New South Wales, being proceedings entitled Teoh v Hunters Hill Council, or relating to proceedings 2009/298486 in the New South Wales Court of Appeal, are stayed. (2) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b), the applicant (Ms Teoh) is prohibited from instituting proceedings in the Supreme Court of New South Wales relating to the subject matter of proceedings 40246 of 2008 in the Land and Environment Court of New South Wales, being proceedings entitled Teoh v Hunters Hill Council, or relating to proceedings 2009/298486 in the New South Wales Court of Appeal.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014
Teoh
Hunters Hill Council
al judgment Parties: Elaine Teoh (Applicant) Representation: No appearance (Respondent) File Number(s): 2009/298486 Publication restriction: None Decision under appeal Jurisdiction: 9003 Citation: Teoh v Hunters Hill Council (No. 7) [2012] NSWCA 356 Date of Decision: 2012-11-02 00:00:00 Before: Allsop P, Beazley and Meagher JJA File Number(s): 2009/298486
The Procedural History 20The Motion is but the latest in a long series of attempts by the applicant to re-open previous judgments or orders. Much of the procedural history is set out in two of the judgments of this Court: Teoh v Hunters Hill Council (No. 4) [2011] NSWCA 324; 81 NSWLR 771 (Teoh (No. 4)) and Teoh v Hunters Hill Council (No. 6) [2012] NSWCA 260 (Teoh (No.6)). What follows is based partly on those judgments. 21On 20 and 27 March 2009, the applicant filed notices of motions in the Land and Environment Court, in which she sought orders reopening the decision in Sheahan J (No. 1) on the ground of "fraud". Prior to filing the notices of motion, the applicant had not filed any appeal or application for an extension of time in which to appeal from the orders made by Sheahan J. On 27 March 2009, Biscoe J dismissed the applicant's motions: Teoh v Hunters Hill Council [2009] NSWLEC 54. 22On 4 May 2009 and 14 July 2009, the applicant filed further motions in the Land and Environment Court seeking to reopen Sheahan J (No. 1). She relied on UCPR, r 36.15(1), which provides that a judgment or order "given, entered or made irregularly, illegally or against good faith" may be set aside or varied. Sheahan J dismissed the motion on 31 July 2009: Teoh v Hunters Hill Council (No. 3) [2009] NSWLEC 121; 167 LGERA 432 (Sheahan J (No. 2)). 23The applicant then sought leave to appeal from the judgment in Sheahan J (No. 2). This Court dismissed the application on 10 March 2010: Teoh v Hunters Hill Council (Court of Appeal (NSW), 10 March 2010, unrep) (Teoh (No. 1)). 24Tobias JA, with whom Campbell JA agreed, pointed out (at [6]) that the applicant had a right of appeal from the decision in Sheahan J (No. 1) but that she had chosen not to exercise that right. Accordingly, the applicant was limited to the principles applicable to the re-opening of a final judgment. Tobias JA continued as follows: "6 As his Honour pointed out in [Sheahan J (No. 2)], the applicant made a series of assertions and allegations that ranged far and wide. In a judgment of some 41 pages and some 146 paragraphs his Honour dealt in detail with each of those matters and rejected each of them as justifying the re-opening of his 2008 decision. 7 When one reads the applicant's written arguments on the present leave application and having listened carefully to her oral submissions, it is plain that her real complaint is that his Honour erred in a number of respects in [Sheahan J (No. 1)] with respect to her challenge to the validity of the development consent which the Council had granted to the second respondent in November 2007. When asked whether what she was really seeking was leave, albeit out of time, to appeal against [Sheahan J (No. 1)], she eschewed any such suggestion and made it clear that her summons for leave to appeal was only against [Sheahan J (No. 2)] in which his Honour had dismissed the applicant's Motions of 4 May and 14 July 2009 to re-open [Sheahan J (No. 1)]. In that judgment his Honour also dealt with the question of the costs of the original substantive proceedings and ordered that the respondents' costs should be paid for by the applicant. 8 It seems to me that his Honour's discretion with respect to the re-opening of [Sheahan J (No. 1)] was exercised in a manner that is beyond reproach. In order to establish an entitlement to leave to appeal it is necessary at the very least for the applicant to demonstrate that she has some arguable case to the effect that his Honour has committed error so as to indicate that there are at least some prospects of her succeeding on the appeal. In my view, she has failed on both scores. In my opinion, there are no prospects and certainly no likely prospect of her appeal against his Honour's orders dismissing her two Notices of Motion succeeding." 25On 23 March 2010, the applicant filed a notice of motion in the Registry seeking orders pursuant to UCPR, r 36.16(3A) setting aside the orders made in Teoh (No. 1). It appears that the motion was initially made returnable before a single Judge of Appeal. The listing was made in error, as a single Judge of Appeal did not have power to make the orders sought by the applicant. Nevertheless, Young JA dismissed the motion: Teoh v Hunters Hill Council (Court of Appeal (NSW), 2 August 2010, unrep). 26The applicant filed a motion seeking orders setting aside the order made by Young JA. She sought that relief pursuant to UCPR, r 36.16(3A) or, alternatively s 46(4) of the SC Act. In addition, the applicant sought orders setting aside the decision in Teoh (No.1). 27This Court treated these motions as a renewed application for leave to appeal from the decision in Sheahan J (No. 2), but dismissed the application on 25 November 2010: Teoh v Hunters Hill Council (No. 2) [2010] NSWCA 321 (Teoh (No. 2)). In delivering judgment, Handley AJA (with whom Allsop P and Beazley JA agreed) observed (at [12]) that the applicant had again made it clear that she was not seeking leave to appeal from Sheahan J (No. 1). Handley AJA also pointed out (at [16]) that: "Disappointed applicants cannot hope to succeed in a second application on the same grounds with substantially the same arguments that were unsuccessful the first time. The power is not available for what is no more than a second attempt, on the same arguments, to obtain the orders sought...Parties must fully prepare and present their cases the first time because this will almost always be the only effective opportunity they have." 28Handley AJA added the following observations (at [18]): "The decision of two judges of the Court on 10 March 2010, to refuse leave to appeal from the judgment of Sheahan J of 31 July 2009 [sic], resolved that controversy. The Court's reasons for judgment reveal no error of fact or principle. The applicant has not been able to advance a new ground or a new argument which could possibly justify this Court in taking the extraordinary step of setting aside the order of 10 March and granting leave to appeal." 29On 8 December 2010, the applicant filed a motion in this Court seeking orders pursuant to UCPR, r 36.16(3A) setting aside or varying the orders made in Teoh (No. 1) and Teoh (No. 2), with the "ultimate aim of obtaining leave to appeal from Sheahan J (No. 2)": Teoh v Hunters Hill Council (No. 4) [2011] NSWCA 324 (Teoh (No. 4)) at [13]). The Court in Teoh (No.4) dismissed the motion in a reserved judgment. 30The judgment records (at [16]) that the President arranged for counsel to be appointed to act as amicus curiae and that, in consequence, the Court had the considerable benefit of counsel's written submissions. Handley AJA (with whom Allsop P and Beazley JA agreed) identified (at [18]) the "underlying issue" as whether there was: "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." 31Handley AJA held (at [29]) that the applicant had failed to establish an arguable case of error in Sheahan J (No. 2) that would justify the grant of leave to appeal. His Honour pointed out (at [30]) that the applicant had: "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." 32Handley AJA also said (at [39]) that the Court should act of its own motion to prevent potential abuse of its process should the applicant file a fourth notice of motion seeking essentially the same relief as she had sought previously. Accordingly, the Court made the following order: "The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of [Sheahan J (No. 2)] 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 Ms 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." 33None of this deterred the applicant. On 1 November 2011 she duly filed a fourth application in this Court, this time seeking to reopen Teoh (No. 4). The applicant was given notice to show cause why the notice of motion should not be summarily dismissed. After considering some 28 pages of written submissions, the Court determined that the motion of 1 November 2011 was an abuse of process and should be summarily dismissed: Teoh v Hunters Hill Council (No. 5) [2012] NSWCA 75 (Teoh (No. 5)). 34The applicant raised a number of contentions, including fraud, collusion and the alleged incompetence of counsel. The Court said this: "32... This Court could not possibly find on the present material that the judgment in Sheahan J No 1 was procured by fraud. 33 Nothing filed in support of this motion discloses any other basis for reopening our judgment of 18 October 2011. There is no evidence of any change of circumstances and no fresh argument. Nor does the material disclose a basis for concluding that the orders in Sheahan J No 1 were given, made or entered "irregularly, illegally or against good faith" within UCPR Pt 36 r 36.15(1). ... 35 There is no reason to doubt the correctness of the decision of this Court of 18 October 2011 or the decision in Sheahan J No 2 that the requirements of UCPR Pt 36 r 36.15(1) had not been established in relation to the judgment and orders in Sheahan J No 1. 36 The final orders in Sheahan J No 1 have been perfected and the Land and Environment Court has no power, on the grounds alleged, to set them aside under its inherent jurisdiction. On any appeal this Court would have no greater power. 37 The notice of motion of 1 November 2011 is therefore an abuse of process and must be summarily dismissed." 35On 26 April 2012, the applicant tried yet again. Her notice of motion on this occasion sought orders reopening the proceedings to allow her to adduce fresh evidence and to advance new arguments. The Court canvassed the evidence relied upon by the applicant and concluded as follows (Teoh v Hunters Hill Council [2012] NSWCA 260 (Teoh (No. 6)), at [15]): "It is apparent from this material that the notice of motion seeks to challenge either the findings made by Sheahan J in Sheahan J No 1 or in Sheahan J 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." 36The Court made it clear (at [30]) that this application was an abuse of process: "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." 37The Court made the following direction: "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." 38The applicant filed yet another motion on 12 October 2012. She sought to reopen her previous applications and relied on s 46(4) of the SC Act to do so. The Court dismissed the application on the papers: Teoh (No. 7). The Court's reasons included the following: "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." 39The Court made an order concerning any further application by the applicant similar to the order made in Teoh (No. 6). 40The final application in this series is the Motion dealt with in this judgment. It, too, was an abuse of the Court's process since it lacked any arguable foundation for the relief sought and was an attempt to relitigate in this Court for the sixth time the issues resolved in Teoh (No. 1).
Construction of the Vexatious Proceedings Act 44The key provision of the VP Act for present purposes is s 8(1)(a). In order for the Supreme Court to make a vexatious proceedings order pursuant to s 8(1)(a), it must be satisfied that: ● the relevant person has instituted or conducted vexatious proceedings in Australia; and ● the person has done so "frequently". If the Court is so satisfied, it may make an order of the kind identified in s 8(7) of the VP Act. The Court therefore has a discretion whether to make an order and, if so, the nature of the order that should be made. 45Four further points should be made about the construction of the VP Act. Each is of some significance to the present case. 46The first concerns the word "frequently", which has been used in other legislation concerned with vexatious litigants. In Jones v Cusack [1992] HCA 40; 109 ALR 313, Toohey J dealt with an application under High Court Rules 1958 O 63 r 6, which at the time empowered the Court to impose restrictions on a person who: "frequently and without reasonable ground has instituted vexatious legal proceedings." (The current provisions concerning vexatious proceedings orders in the High Court are contained in Part XAB of the Judiciary Act 1903 (Cth). Section 77RN(1)(a) empowers the High Court to make such an order if satisfied that "a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals". The definition of vexatious proceedings in s 77RL(1) is substantially the same as that in s 6 of the VP Act.) 47In Jones v Cusack, Toohey J stated (at 315) that the word "frequently" is a relative term that has to be understood in the context of the proceedings the particular litigant has instituted in the High Court. In that case, within a period of seven years the litigant had instituted five proceedings in the High Court and had appealed unsuccessfully twice from decisions of single Justices of the Court. He made essentially the same claim in all proceedings, namely that Commonwealth legislation dealing with the banking system and the currency was unconstitutional. In these circumstances, Toohey J considered that the language of O 63 r 6 had been satisfied. Authorities in New South Wales and elsewhere have found Toohey J's formulation to be of assistance in construing s 8(1)(a) of the VP Act: see Attorney General of New South Wales v Croker [2010] NSWSC 942 at [23] (Fullerton J); Hambleton v Labaj [2010] QSC 124 at [56] (Applegarth J); Attorney General of NSW v Wilson [2010] NSWSC 1008 at [12] (Davies J). 48In the last-mentioned case, Davies J suggested (at [14]) that a small number of vexatious proceedings might satisfy s 8(1) of the VP Act, on the same basis that a small number of vexatious proceedings could be said to have been "persistently instituted" for the purposes of s 84 of the SC Act. Some care must be taken, however, before importing the approach taken to different statutory language to the constructions of s 8(1) of the VP Act. No doubt it is true that the same conduct will often satisfy both statutory tests, but it is the current statutory language that must always be applied. 49The dictionary definition of "frequently" includes "at frequent or short intervals, often, repeatedly" (Oxford English Dictionary Online (March 2014, Oxford University Press). This does not mean that the test can be satisfied only if a person institutes successive vexatious proceedings at short intervals. Nonetheless, a pattern of repeated vexatious applications within a limited period of time may be an important consideration in determining whether the language of s 8(1)(a) of the VP Act has been satisfied. This is particularly the case where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges. This kind of case, in our view, is what Toohey J had in mind when he indicated that "frequently" is a relative term that must be understood in the context of the proceedings instituted by the person against whom the orders are sought. 50Secondly, a number of decisions have held that it is necessary for the Court considering an application under the VP Act to form its own judgment about each proceeding said to satisfy the definition of "vexatious proceedings", but that in doing so the Court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings: Attorney General of New South Wales v Croker [2010] NSWSC 942 at [125] (Fullerton J) (following the views expressed by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 at [5] in relation to s 84 of the SC Act); Attorney General v Chan [2011] NSWSC 1315 at [39] (Adamson J) (and other cases cited there); Attorney General of New South Wales v Martin [2013] NSWSC 442 at [9] (Hidden J) (citing Attorney General v Chan at [39]). 51Section 8(1)(a) of the VP Act requires the authorised court to be satisfied that the person against whom an order is sought has frequently instituted or conducted vexatious proceedings in Australia. To be so satisfied, the court must identify the vexatious proceedings that have been instituted or conducted by that person and make a finding as to whether he or she has instituted or conducted such proceedings "frequently". A necessary element in this process is making a finding as to whether each of the proceedings relied on (or a sufficient number of them) satisfies the definition of "vexatious proceedings" in s 6 of the VP Act. 52Section 6 does not specify the matters that the court dealing with the application under the VP Act should take into account in determining whether particular proceedings were, for example, an abuse of the process of the court (s 6(a)) or instituted without reasonable ground (s 6(c)). There is nothing in the language of s 6 to indicate that a finding by the court in the earlier proceedings that they were an abuse of process or instituted without reasonable grounds is determinative on an application under the VP Act. Equally, there is nothing to indicate that a finding made or view expressed by the court in the earlier proceedings is to carry no weight on an application under the VP Act. 53Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. It would be an odd result if such a determination simply has to be ignored by a court hearing an application under the VP Act. The oddity of the result is reinforced by the likelihood that an application under the VP Act would be prolonged if the findings made and views expressed in the earlier proceedings could not be taken into account. Indeed there would be a real risk that the court would be burdened with relitigation of issues of the very kind that the legislation is designed to avoid. 54On the other hand, the seriousness of the consequences of making a vexatious proceedings order supports a construction of ss 6 and 8 of the VP Act that leaves it open to the court hearing an application for a vexatious proceedings order to depart from the findings made in the earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure. 55Thirdly, the definition of "vexatious proceedings" contains at least two sub-paragraphs that do not require proof of any subjective intent. Proceedings clearly can be an abuse of the process of a court (s 6(a)) regardless of whether the person instituting or conducting them intends to abuse the court's process. Similarly, proceedings can be instituted or pursued without reasonable ground (s 6(c)) regardless of whether the party concerned realises that the proceedings lack any reasonable basis. It is not necessary for present purposes to decide whether s 6(b) and (d) fall into the same category. 56The fourth matter, which has already been referred to, is that an order restricting a person's access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly. The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 at [3] (Perram J) (although referring to Federal Court Rules, O 21 r (1) (which is similar to repealed s 84 of the SC Act), this statement is equally applicable to the purpose of the VP Act).
[2010] QSC 124
(1988) 14 NSWLR 481