TEOH v HUNTERS HILL COUNCIL AND ANOR

CATCHWORDS: APPEAL - leave to appeal - second application after refusal of first - only granted in exceptional circumstances. - JUDGMENTS and ORDERS - amendment after entry.

Burrell v The Queen [2008] HCA 34, 238 CLR 218 Carr v Finance Corporation of Australia (No 1) [1981] HCA 20, 147 CLR 245 CASES CITED: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387 Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9, 149 CLR 147, Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; 167 LGERA 432

A: Elaine Teoh PARTIES: 1R: Hunters Hill Council 2R: Ross E Williams

Applicant in Person COUNSEL: Ms M Carpenter for First Respondent Mr R Czinner for Second Respondent

Applicant in Person SOLICITORS: HWL Ebsworth Lawyers - First Respondent Ronald S Czinner & Co - Second Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

09/298486 ALLSOP P BEAZLEY JA HANDLEY AJA

Thursday 25 November 2010 ELAINE TEOH v HUNTERS HILL COUNCIL [NO 2]

APPEAL - leave to appeal - second application after refusal of first - only granted in exceptional circumstances.

JUDGMENTS and ORDERS - amendment after entry. HEADNOTE

On 10 March 2010 the Court (Tobias and Campbell JJA) dismissed an application for leave to appeal from the decision of She a han J [2009] NSWLEC 121, 167 LGERA 432. The latter had dismissed an application to re-open final orders under UCPR Pt 36.15(1) on the ground that they had been made or entered irregularly, illegally, or against good faith. The applicant lodged a further application for leave to appeal on 23 March 2010. HELD: dismissing the application (1) The reasons of the Court for refusing leave on 10 March 2010 revealed no error of fact or principle; (2) The application had failed to advance a new ground or a new argument in support of leave. ORDERS Notice of motion of 10 August 2010 dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

09/298486 ALLSOP P BEAZLEY JA HANDLEY AJA

Thursday 25 November 2010 ELAINE TEOH v HUNTERS HILL COUNCIL [NO 2]

Judgment 1 ALLSOP P: I agree with Handley AJA. 2 BEAZLEY JA: I agree with Handley AJA. 3 HANDLEY, AJA This is an application by Mrs Teoh, in form under s 46(4) of the Supreme Court Act, to discharge or vary orders made by Young JA, sitting as a single judge of the Court on 2 August 2010. The proceedings in this Court arise from a Class 4 application commenced by Mrs Teoh in the Land and Environment Court on 12 March 2008 in which she sought judicial review of the decision of the Council to grant development consent for the construction of a second storey on a neighbour's house on the northern boundary of her property. 4 The application was dismissed by Sheahan J on 16 September 2008. The applicant did not appeal from that judgment but on 20 and 27 March 2009 filed notices of motion in the Land and Environment Court seeking orders reopening the proceedings. The relief sought was based on allegations of fraud on the part of the Council and others. The notices of motion were dismissed by Biscoe J on 27 March 2009. The applicant did not seek leave to appeal. 5 Her next move was to file a notice of motion in that Court on 4 May 2009, followed by a further notice of motion on 14 July. These sought orders reopening the 2008 decision under the power conferred by UCPR Pt 36.15. They were dismissed by Sheahan J on 31 July 2009. His decision is reported: Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; 167 LGERA 432. 6 UCPR Pt 36.15(1) provides that a judgment or order may be set aside if the judgment "was given or entered or the order was made irregularly, illegally or against good faith." 7 The meaning of this rule was considered by this Court in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387. The Court said in its joint judgment: "16. The focus of Pt 36.15(1) is on the judgment or order which is attacked, and the question is whether it was given entered or made irregularly, etc. The focus is on irregularity in those steps, not on the merits of any decision or the irregularity of other steps in the proceedings … 17. The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits …" 8 As is clear from this decision given on 30 November 2009 after Sheahan J gave his second judgment on 31 July 2009, the judgment or order made by him on 16 September 2008 was not "given … entered or … made irregularly, illegally or against good faith." 9 The applicant applied for leave to appeal from this judgment. The application was heard by a court comprising Tobias and Campbell JJA on 10 March 2010 and dismissed. 10 The applicant filed a notice of motion in this Court on 23 March which, in error, was made returnable before a single judge. It was filed within 14 days of the decision of Tobias and Campbell JJA and invoked the power of the Court, conferred by UCPR Pt 36.16(3A), to reconsider its orders. The notice of motion was amended on 19 July. As amended, it sought the following orders: 1. The orders of the judges dismissing the leave application made on 10 March 2010 be set aside. 2. Leave be granted to adduce further evidence relevant to this notice of motion. 3. Grant leave to appeal the judgment of Sheahan J of 16 September 2009. 4. Grant an extension of time in which the file the notice of appeal. 11 The relief sought in paras 1 and 3 could not be granted by a single judge and the notice of motion should, on one view, have been made returnable before Tobias and Campbell JJA. 12 The amended notice of motion was dismissed by Young JA on 2 August. On 10 August the applicant applied by notice of motion to set aside his orders pursuant to s 46(4) or UCPR Pt 36.16(3A). She also sought orders setting aside the decision of the Full Court on 10 March 2010 and, in terms, leave to appeal from the judgment of Sheahan J of "16 September 2009". There was no such judgment and in answer to questions from the President the applicant made it quite clear that leave was sought to appeal from the decision of 31 July 2009 and not from that of 16 September 2008. 13 Young JA, as a single Judge, could not have made orders 1 and 3 in the amended notice of motion and this Court is strictly in the same position when dealing with an application under s 46(4). However, since the Court as constituted could entertain a renewed application for leave to appeal, the notice of motion of 10 August 2010 should be treated as an original application rather than one under s 46(4). 14 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 and a second application to the Full Court for leave is technically competent: Carr v Finance Corporation of Australia (No 1) [1981] HCA 20, 147 CLR 246, 248. The Court's inherent power to reconsider its interlocutory orders is preserved by UCPR Pt 36.16(4). The notice of motion of 10 August 2010, treated as an original motion, is therefore formally competent and can be entertained by the Court as currently constituted. 15 This Court would only set aside a decision of another Full Court refusing leave to appeal in exceptional circumstances. The second Court would need to be persuaded that the renewed application was supported by a new ground of fact or law that had not been considered before, or that there had been a significant change of circumstances in the meantime. 16 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: Carr v Finance Corporation of Australia (No 1) [1981] HCA 20, 147 CLR 245, 248. Parties must fully prepare and present their cases the first time because this will almost always be the only effective opportunity they have. 17 The underlying principle is that stated by the High Court in Burrell v The Queen [2008] HCA 34, 238 CLR 218 at [15] in the joint judgment of five judges: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances." 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 13 July 2009, 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. 19 I therefore propose that the motion of 10 August 2010 be dismissed with costs.

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