Teoh v Hunters Hill Council and Another

Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWLEC 299 Anderson v New South Wales Minister for Planning (No.2) [2008] NSWLEC 272; 163 LGERA 132 Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Bailey v Marinoff (1971) 125 CLR 529 Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 Burrell v The Queen (2008) 82 ALJR 1221, 248 ALR 428 Chon & Kim v Hunters Hill Council [2004] NSWLEC 509 Coles v Burke (1987) 10 NSWLR 429 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Corowa v Geographe Point Pty Ltd (No.2) [2007] NSWLEC 272 Coulton v Holcombe (1986) 65 ALR 656, 162 CLR 1 Deputy Commissioner of Taxation v Meredith (No.2) [2008] NSWCA 133 DJL v Central Authority (2000) 201 CLR 226 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14 Fokas v Kogarah Council [2008] NSWCA 145 Forsyth v Wilesmith (No.2) [2008] NSWLEC 260 Haig v Minister Administering the National Parks & Wildlife Act (1994) 85 LGERA 143 Hannan v Electricity Commission of NSW, unreported Court of Appeal BC8500575, 28 August 1985 Kakakios v Hunters Hill Council [2007] NSWLEC 342 Kendell v Carnegie [2006] NSWCA 302, 68 NSWLR 193 CASES CITED: Ku-ring-gai Council v Minister for Planning (No.2) [2008] NSWLEC 276 Latoudis v Casey (1990) 170 CLR 534 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 Metwally v University of Wollongong (No.2) (1985) 60 ALR 68 at 71; 59 ALJR 481 Michales v Dimoski [2007] NSWLEC 443 Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1990) 110 ALR 449 Oshlack v Richmond River Council ("Oshlack") (1998) 193 CLR 72 Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, 139 LGERA 354 Pearse v Sharpe (No.2) [2008] NSWLEC 81 Pittwater Council v Brown Bros Waste Contractors Pty Ltd [2009] NSWLEC 50 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Smith v NSW Bar Association (1992) 176 CLR 256 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438 Teoh v Hunters Hill Council [2008] NSWLEC 263 Teoh v Hunters Hill Council [2009] NSWLEC 54 Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 Woollahra Municipal Council v Ferella (2005) 141 LGERA 166 Woollahra Municipal Council v Baranov (2006) 144 LGERA 96 Yevad Products Pty Limited v Brookfield [2005] FCAFC 177

DATES OF HEARING: 3 February 2009, 14 July 2009

FIRST RESPONDENT Mr J Reilly, 3 February 2009 Miss M Carpenter, 14 July 2009 LEGAL REPRESENTATIVES: SOLICITORS HWL Ebsworth

SECOND RESPONDENT Mr M Baird SOLICITORS Ronald C Czinner & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40246 of 2008 Teoh v Hunters Hill Council and Another (No.3)

JUDGMENT Introduction 1 His Honour: In these class 4 proceedings, commenced on 12 March 2008, Mrs Teoh challenged a development consent granted by Council to Mr Williams, her next-door neighbour in Mary Street, Hunters Hill, effective 3 December 2007. 2 Mrs Teoh has consistently claimed that her proceedings were brought "in the public interest". Before and since 5 June 2008, she has represented herself. 3 However, at the hearing on 5 June 2008 Mrs Teoh was represented by Mr O'Gorman-Hughes of counsel, who ran the case solely on the basis that Council had misapplied the solar access control in its Development Control Plan No.15 (which has applied since 2 March 2000) when its officers assessed that issue having regard "to the whole of the site" and recommended consent be granted. 4 I dismissed Mrs Teoh's challenge in a reserved judgment published on 16 September 2008 - see [2008] NSWLEC 263. I reserved the question of costs, but no appeal was lodged against the substantive decision. She now seeks to reopen the proceedings. The Notices of Motion, Points of Claim, and relief sought 5 There are now four Notices of Motion before the court for determination. 6 The respondents, on 15 October and 12 November 2008 respectively, brought motions to obtain orders for costs against Mrs Teoh. I heard both those motions together on 3 February 2009, and reserved my decision. I ordered a transcript of that hearing, and put the matter aside, pending its arrival. 7 However, after the reservation of my decision on the Notices of Motion for costs, Mrs Teoh sent to the court various further documents on 5, 11 and 17 February. When the first bundle arrived, I returned the court file to the Registrar for attention. The Registrar wrote to Mrs Teoh on 4 March, suggesting various motions which she could consider bringing in order to reopen the case, if that were her desire or request, and listed the matter for mention before her on Friday 13 March 2009. On that day the Registrar directed Mrs Teoh to file a Notice of Motion, and reserved the question of costs. 8 In response, Mrs Teoh then filed two Notices of Motion, one on 20 March, and a second, filed in court before the Registrar, on 27 March. The Registrar referred both of them to the Duty Judge, Biscoe J, to be dealt with instanter. Again Mrs Teoh appeared for herself. The relief sought on 27 March 2009 was as follows: In the Notice of Motion dated 20 March 2009 "1. The costs hearing in this matter be stayed. 2. The judgment given on 16 September, 2008 be set aside on the ground of fraud. 3. Alternatively judgment be set aside pursuant UCPR 36.15 or other power of the court. 4. such orders as are necessary to institute proceedings for orders in 2, 3 above, if appropriate. 5. Determination that the proceedings were brought in the public interest." In the Notice of Motion dated 27 March 2009 "1. Leave be given to file this motion in court and motion to be returnable instanter. 2. The costs hearing in this matter be stayed. 3. A preliminary determination whether this is a matter brought in the public interest. If it is not, then order number 7 is not sought. 4. The court re open this matter on the ground of fraud, or if that be not be (sic) made out, then (re open) pursuant to UCPR 36.15 , or other power of the court. 5. Leave be given for making of ancillary orders as are necessary to assist in establishing the fraud, and other elements of grounds in para.4. 6. Such other orders as may be necessary or are ancillary to orders of para.4. 7. That the 2nd respondent, by himself or by his servants or others acting on his behalf, be restrained from any further construction, building or demolition work pursuant to the development consent granted 3.12.2007. 8. Costs of the motion to be awarded against the 1st and 2nd respondents or otherwise that there be no costs order." 9 Both Notices of Motion refer to UCPR 36.15 which provides: "General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent." 10 UCPR 36.16 is also often relevant (despite what Mrs Teoh says about it) in proceedings of this type, viz: "Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order." (emphasis added) 11 Mrs Teoh did not seek to rely on UCPR 36.16 in these proceedings, but the court is acutely aware of the different position which applies to possible reopening of a matter, once the court's orders have been entered or perfected. 12 Biscoe J suggested to Mrs Teoh at the hearing before him on 27 March 2009, and she accepted, that if she wished to proceed with an allegation of fraud it needed to be properly pleaded, and probably should be the subject of "separate proceedings", in either this court or the Equity Division of the Supreme Court (see the transcript of the hearing on 27 March 2009 at p4, LL30-44, p12, LL18-19 & 31-34, and p13, LL9-11). 13 His Honour then delivered a short extempore judgment in which he dismissed her two Notices of Motion (of 20 and 27 March) and reserved costs - [2009] NSWLEC 54. 14 Mrs Teoh filed a further affidavit on 29 April 2009, and then a further Notice of Motion on 4 May 2009. That Notice of Motion was before the List Judge on two occasions and directions were given. On 13 May 2009, Biscoe J directed (in summary) - applicant's further evidence by 27 May 2009, respondents' further evidence by 10 June 2009, further directions and fix for hearing 12 June 2009. His Honour specifically reserved costs. On 12 June 2009 I directed (in summary) - any affidavit in reply by applicant by 19 June 2009, and parties to seek a hearing date for applicant's Notice of Motion. No question of costs arose before me on that date. (I record these directions because their observance or otherwise, on all sides, was of some concern during argument). 15 The hearing of the Notice of Motion of 4 May 2009 was then fixed for 14 July 2009. 16 The first thing to note at this point is that Mrs Teoh delayed from 16 September 2008 until 5 February 2009 before taking any steps to overturn my judgment and did not appeal it. In one of her affidavits she admits she did not read the judgment until 9 October. Her complaints concern the conduct of the substantive hearing, which had occurred some three months before I delivered the judgment. The Court of Appeal noted in Fokas v Kogarah Council [2008] NSWCA 145 (at [18]) that the courts must act promptly to correct any injustice in final orders. 17 Secondly, there have been no fresh or separate proceedings commenced, as envisaged by Biscoe J on 27 March 2009, only another Notice of Motion filed in the original class 4 proceedings. (Mrs Teoh had put to His Honour on that occasion Pain J's decision in Michales v Dimoski ("Michales") [2007] NSWLEC 443, where Her Honour dealt with a fraud allegation by way of a Notice of Motion in the same proceedings, rather than have a multiplicity of proceedings. See also Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, at 693-94, but c.f. Logwon Pty Ltd v Warringah Shire Council ("Logwon") (1993) 33 NSWLR 13, per Sheller JA). 18 Thirdly, the only "pleading" that was filed by Mrs Teoh prior to the 14 July hearing was a "Points of Claim" document dated 5 June 2009. 19 When the hearing of the 4 May Notice of Motion commenced on 14 July, Mrs Teoh sought, and was granted, over the objections of both the respondents, leave to "amend" her Notice of Motion and her Points of Claim, both of them by the addition of further paragraphs. 20 In fact, the amended Notice of Motion filed on 14 July contains an entirely separate menu of relief sought, and it revived her contention of fraud, after her affidavit of 4 May 2009 had stressed that she was not seeking "an order based on fraud". The range of relief sought on 14 July 2009 was, therefore, as follows:

In the Notice of Motion dated 4 May 2009: "1. Judgement of 16 September be set aside pursuant to UCPR r.36.15(1) for irregularity illegality or against good faith. (sic) 2. If order 1 be not granted, then the costs application be re-opened and further time given to allow for affidavits to be filed. 3. Costs. 4. Grant leave to re-open."

In the Notice of Motion dated 14 July 2009: "1. Leave be granted by the court to extend the time under UCPR Sub rule (2) of s.49.20 so that application can be made for the order sought below (see 2). 2. Order made by acting registrar Kiang on 20.5.08 for costs for the notice of motion on that day be set aside, (pursuant to UCPR 49.19). 3. Leave be granted to amend the Points of Claim filed on 5.6.09 in order to particularise the pleadings relating to the fraud . Of Council in speaking a half-truth. (sic) 4. Leave be granted for the applicant to tender opinion, as having specialised knowledge and to invoke the power of the court to apply Civil Procedure Act s.70." (emphasis added) (During argument on 14 July Mrs Teoh explained that this later prayer 4 concerned her ability to identify certain handwriting on various documents. However, in one of her May 2008 affidavits, not read in the substantive proceedings, she expressed a " lay opinion with specialised knowledge " in which she made an " overall finding ", of an expert nature, on solar impacts. I also note that she did not press a letter, annexed to one of her affidavits, seeking assistance of an expert document examiner to support an allegation that the Council file had been tampered with - see T15). 21 The Amended Points of Claim filed on 14 July 2009 are in the following terms: "1. On 12 March 2008, the applicant brought an action in this court pursuant to s 123 of the Environmental Planning and Assessment Act 1979 ('the Act') against Hunters Hill Council (the 'Council'), the first respondent and Ross Williams, the second respondent. 2. The hearing took place on Thursday 5 June 2008, before Mr Justice Sheahan and judgment was given on 16 September 2008 and published (Teoh v Hunters Hill Council & Anor 2008 NSWLEC 263). 3. The applicant was self represented throughout until Mr R O'Gorman Hughes of Counsel represented the applicant at the hearing. 4. The solicitor for the Council was Jeff Reilly (of HWL Ebsworth). 5. At the outset Mr M Baird of Counsel acted for the second respondent until about three weeks prior to the hearing, Mr R Czinner, solicitor was engaged as well. 6. On 4 June 2008, the Council in breach of the Practice Notes, (when 27 May was the deadline) foreshadowed evidence to be tendered by the Manager, Development Control Unit. 7. On 5 June 2008, at the time of the hearing, unknown to the applicant, the legal representatives were in agreement to conduct the case by excluding certain material information in breach of the rules. 8. The council acted illegally and against good faith and obtained judgment thereby. Particulars: (i) The Council sought to tender evidence to which Mr S Kourepis, the manager, DCU, (hereafter 'SK') on that morning had deposed which contained a half truth which had a tendency to and did mislead the court. The half-truth was the statement made in paragraph 16 and is to be taken in the context of his memo of 21.11.2007. (ii) SK did knowingly depose to the affidavit, (of 5.6.08) the falsity of which he knew or as to the falsity or truth of which he was recklessly indifferent. 9. Irregularity and against good faith: (a) The council purported to tender its whole file but the file was incomplete with the result that the court was misled. Particulars : (i) omitted emails being communications between HWL and the applicant. (ii) omitted evidence which should have been available at the hearing. (The plan with 'probably correct' comment). (b) the council deposed to having acted in a manner contrary to its early representation that there were no calculations made in respect to the assessment. 10. There was a miscarriage of justice. The applicant was disadvantaged by the lack of timely discovery, and other irregularities and misconduct of respondents complained of. Inter alia - (a) Negligence of legal representatives unexplained failure to understand facts of case, and misapprehension. (b) The app's legal representative was negligent in his duty of care to the client - ignored Jones v Dunkel". ( c) The 2nd respondent deposed to an affidavit which was false in a material respect and together with other facts, had a tendency to mislead the court. Particulars: (i) The affidavit indicated that the applicant had been ordered to file the Points of Claim by the 20 April when the lawyers knew or should have known that this was out by 8 days. (Ie should have been '28 April') (i) (sic) The affidavit indicated that the applicant did not make an appearance on the first mention. (iii) The 2nd respondent and the council were both represented in court when Justice Jagot said in open court that the applicant had appeared on the first day, (contrary to the notation on the court file). On that occasion the applicant requested that the filing of the Points of claim be deferred till after Anzac Day which always follows not precedes the 20 April." 22 It is to be noted that no "fraud" is asserted or particularised in the Amended Points of Claim, despite being mentioned in the Notice of Motion of 14 July 2009. It is fair to say that Mrs Teoh has constantly "shifted her ground" in attempting to upset the court's decision on her challenge, but she was told in very clear terms by Biscoe J of the need for strict pleading of fraud. Distilling the issues remaining for decision 23 As noted immediately above, I granted leave during the hearing on 14 July for Mrs Teoh to amend her Points of Claim. l also allowed her to make (1) submissions that Acting Registrar Kiang's costs order be vacated or set aside, and (2) submissions in respect of handwriting on various documents (even though she did not demonstrate to the court her possession of any relevant expertise in the area). 24 No reason was advanced during her submissions on 14 July for allowing any later evidence to be adduced on the costs motions, and she pointed to none. The court assumes her position to be that, if the court agrees to reopen the judicial review proceedings, the questions concerning the costs of them should also be reopened as a matter of course. 25 That leaves for decision, from among the prayers for relief included in Mrs Teoh's two outstanding Notices of Motion (set out in [20]) (1) those prayers concerning Mrs Teoh's desire to reopen the substantive proceedings, and (2) questions of costs from (a) Acting Registrar Kiang's hearing on 20 May 2008, and (b) my hearing of these Notices of Motion, apart altogether from the matters raised in respect of the costs of the substantive hearing. In the event that the relevant reopening application is unsuccessful, the costs matters heard on 3 February 2009 can now, at last, be disposed of. That decision on costs requires consideration also of Mrs Teoh's submission that her proceedings are properly characterised as "public interest" litigation. 26 Also outstanding are the questions of costs reserved (1) by the Registrar on 13 March 2009, and (2) by Biscoe J on both 27 March 2009 and 13 May 2009. 27 The "reopening" issues may be summarised as follows:

Should " leave to re-open ", in general terms, be granted? 2. Is there a case for the court to set aside my judgment of 16 September 2008 for " irregularity, illegality, or against good faith (sic)" under UCPR 36.15(1)? 3. Was there some impropriety in the behaviour of the legal representatives in the case in agreeing " to conduct the case by excluding certain material information in breach of the rules "? 4. Did the Council act " illegally and against good faith ", in successfully resisting Mrs Teoh's challenge by: (i) relying on a " half-truth " (specifically in par 16 of his affidavit, c.f. his memo of 21 November 2007) in the evidence of Mr Kourepis which evidence misled the court. (ii) Mr Kourepis knowingly false swearing in his affidavit. (iii) tendering a bundle of documents which was known to be incomplete because, e.g., a particular plan germane to the case was missing (and some emails were excluded). (iv) " the Council deposing to having acted in a manner contrary to its early representation that there were no calculations made in respect to (sic) the assessment ? 5. Was there a miscarriage of justice as a result of: · Lack of timely discovery · Negligence of legal representatives · Negligence of the applicant's own counsel · The second respondent's affidavit which was false in a material respect and tended to mislead the court, in so far as: (i) it erroneously said that the applicant had to file her Points of Claim by 20 April, rather than 28 April, as ordered; and (ii) it erroneously said that the applicant failed to appear the first return date, when Jagot J (contrary to the note on the file cover) acknowledged that she had, in fact, been present on that date. The Evidence Mrs Teoh's materials 28 Mrs Teoh has filed an incredible amount of material, in a variety of quite extraordinary forms, since these proceedings commenced. A large number of her affidavits have been read in neither the substantive hearing nor the costs hearing. 29 The List Judges' directions in respect of the 14 July hearing refer to "further" evidence, but at the hearing itself Mrs Teoh sought, and was granted, again over well-founded objections, leave to rely on the following affidavits: s Those sworn or filed by her on 1 May 2008, 30 May 2008, 20 March 2009, 26 March 2009, 29 April 2009, 4 May 2009, 27 May 2009, 19 June 2009, 30 June 2009, 3 July 2009, and two filed in court on 14 July 2009, dated 13 July 2009. s Two sworn or filed by Eric Teoh on 23 March and 27 May 2009. s One sworn or filed by Diane Walkey on 29 June 2009. s One sworn or filed by Elizabeth Györy on 16 December 2008.

30 Mrs Teoh also specifically sought to rely upon the following documents: s A letter she wrote to the Registrar, dated 23 March 2009, regarding her lateness for "the first directions hearing" before Jagot J on 4 April 2008). (She is concerned that a notation "no appearance" on the file "can reflect badly" on her and "has prejudiced me in the litigation process"). s An affidavit sworn by Mr Williams on 14 May 2008 in respect of a motion heard by the then Acting Registrar on 20 May 2008. s Extracts (pp D12, D13, D16, plus a streetscape plan) from a Council report dated 12 July 2004 concerning a development application for 9 Luke Street, Hunters Hill (in evidence as Exhibit T1). s An affidavit sworn 5 June 2008 by Council officer Steve Kourepis, read in part at the substantive hearing, together with Exhibit "SK-1" to that affidavit. s A notice issued by Mrs Teoh on 30 June 2009 to both respondents, requiring them to admit certain facts and the authenticity of certain documents for the purpose of this hearing. (Neither respondent made any admissions in response to this notice, and Mrs Teoh dealt with the issues by way of her affidavits of 13 July). 31 Mrs Teoh also asked the court (1) to have regard to all the material put before me at the costs hearing when I deal with the "reopen" Notice of Motion, and (2) to have regard, in deciding the costs matter, to all the material she relied upon in this hearing on reopening. "I need everything, your Honour" (T14.7.09, p14, L12). 32 Mrs Teoh swore an affidavit on 17 December 2008, apparently in anticipation of the costs hearing, and referred to it during the recent "reopen" hearing as if it had been read in the costs hearing, which it was not. For completeness, I have now examined that affidavit. 33 In addition, there are before the court several bundles of documents Mrs Teoh has filed at various times, including one filed on 28 May 2009. She also tendered a bundle on the costs applications at the hearing on 3 February 2009. I have now examined both those bundles of material. 34 In the "costs" bundle, she made vague allegations of impropriety or misconduct, including an assertion that at the substantive hearing the Council relied upon a "plan", which she says "appears to have been made by way of recent intervention". She claims that she found that plan in her counsel's brief after my judgment was handed down. I undertook to examine that bundle of documents as I considered my decision on costs. I have now done so, and now know (1) that it contained many criticisms of, and allegations against, the respondents, Councillors, Council officers, and the legal representatives, and (2) that it expressed a desire on Mrs Teoh's part to have my judgment reviewed "by this court". Many of the documents are in the form of notes or lists of "prompt points". Also included in it are: (i) a statement dated 30 January 2009 from one Vivienne Lowe, a relative of Mrs Teoh who asserts expertise in solar access measurement and takes issue with Council's assessment processes, as dealt with in the evidence at the hearing, (ii) a 2004 Council report on another development application (in Luke Street), which had been the subject of an unsuccessful appeal to this court, (iii) an email from the Lower North Shore Greens, (iv) a letter from a King M Fong OAM, addressed to the Presiding Judge, (v) a " petition " type document, similarly addressed, expressing concern about the test Council used, (vi) informal correspondence regarding the formation of a Resident Action Group in Hunters Hill, and (vii) a partial copy of an affidavit by Mr Steve Kourepis of Council, sworn 5 June 2008. 35 There is one other important item among the court papers which should be mentioned. Just before the substantive hearing commenced on 5 June 2008, the Registrar sent up to me a handwritten letter (dated that day), with which was associated a small bundle of documents from Mrs Teoh. I noted that the letter stated in its opening paragraph that she needed "to make comments regarding the conduct of this matter by the legal representatives of the other parties". I read no further, and handed the document to her counsel early in the hearing (see T5.6.08, p3, LL44-9), saying that I did not wish to see it if it were not to be introduced into evidence in the case (Tp4, LL1-6). Mr O'Gorman-Hughes responded (Tp4, LL8-10): " I wouldn't want to touch that, your Honour. I don't rely on it, your Honour. If the record could note that that document has been withdrawn from the court file and the applicant doesn't seek to rely upon it ". (my emphasis) 36 Curiously, that document has found its way back into the court file, in unexplained circumstances, and I have now read it in full. 37 One major difficulty in this matter is that Mrs Teoh's materials are in complete disarray, and both her written and oral arguments are extremely difficult to follow. Very little, if any at all, of her "evidence" meets the requirements of the Evidence Act 1995 such as to be admitted into evidence in normal circumstances. Its form is generally appalling and it contains irrelevant material, hearsay, opinion, and prejudicial material. Section 55(1) requires admitted evidence to be capable of "rationally affect[ing] … the assessment of the probability of the existence of a fact in issue in the proceeding", and s 56(2) provides that "evidence that is not relevant in the proceeding is not admissible". Ms Carpenter, Counsel for the Council, urged the court to keep in mind s 136 when weighing Mrs Teoh's evidence: "General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing." 38 However, Mrs Teoh is representing herself, has a group of local, concerned supporters, and obviously has a firm conviction that she has been the victim of a major injustice. Although an appeal against my decision was the appropriate vehicle to express her dissatisfaction, she has chosen this more unusual, or "curious" (T14.7.09, p44, L10), course. 39 I decided that it was important and appropriate to decline to hear the respondents' objections to her material, and proceed to consider all of it, whatever its substantive or inherent merit, and whether or not it was technically appropriate to be entertained, despite (1) the provisions of the Civil Procedure Act 2005, s 70, and (2) the need for courts to take care to ensure that latitude extended to self-represented and emotional parties does not work an injustice on other parties (see T24, LL43-50). The respondents' evidence 40 Two affidavits were read by the respondents at the costs hearing - one by the solicitor for Mr Williams, Ronald Czinner, sworn 27 January 2009, and one by the solicitor for the Council, Jeffrey Reilly, on 2 December 2008. 41 Council led no evidence on the "reopen" Notice of Motion, and Mr Williams relied only on his affidavit sworn 10 June 2009. Cross-examination 42 Neither respondent required the applicant or any of her witnesses for cross-examination, and the applicant did not require Mr Williams. The law regarding reopening 43 UCPR 36.16(4), acknowledges that there may be relevant powers to reopen, "set aside or vary", apart from those set out in the Rules. 44 There has been held to be an inherent power, in at least some courts, to reopen matters in the interests of justice, but it may not apply to a court of statutory creation (see DJL v Central Authority (2000) 201 CLR 226, at 245, and Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438, but c.f., e.g., Logwon per Sheller JA). 45 Any power to reopen has been held to be a "limited, special, and wholly exceptional jurisdiction", "not lightly to be exercised", and there must be shown to be "exceptional circumstances", often in the nature of some "unfinished business". The courts will not simply respond to some "undefined feeling that an injustice has occurred which the court must correct". See Haig v Minister Administering the National Parks & Wildlife Act (1994) 85 LGERA 143, per Kirby P at 153-155. See also Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, and Pittwater Council v Brown Bros Waste Contractors Pty Ltd ("Brown Bros") [2009] NSWLEC 50, in which Lloyd J made a thorough survey of relevant authority; the discussion by Basten JA in Deputy Commissioner of Taxation v Meredith (No.2) [2008] NSWCA 133 at [6]-[7], [13]-[16] and [22]; and Pain J's analysis in Michales at [28]ff. 46 It has long been accepted that, subject only to very special exceptions, including successful appeal, the substantial issues between litigating parties are ordinarily settled by a judgment which follows a correctly run trial. This is often referred to as the "principle of finality". Coulton v Holcombe (1986) 65 ALR 656, at 660; 162 CLR 1 at 7. See also D'Orta-Ekenaike v Victoria Legal Aid ("D'Orta") (2005) 223 CLR 1 at [34]-[37]. In Drummoyne Foreshores Committee Inc v Drummoyne Council [2001] NSWLEC 14, I observed that a court is functus officio when proceedings are "brought regularly to an end". 47 In Wentworth v Rogers (No.5) ("Wentworth v Rogers (No.5)") (1986) 6 NSWLR 534 (at 538) Kirby P said: " There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed". 48 Section 56 of the Land & Environment Court Act 1979 speaks of this court's decisions as "final and conclusive", once entered, subject only, it would appear, to (1) a successful appeal, (2) an appropriate application of the "slip rule", or (3) a successful (but separate) challenge on the grounds of fraud or bad faith. (See generally UCPR 36.15 and 36.16, Bailey v Marinoff (1971) 125 CLR 529, and Burrell v The Queen (2008) 82 ALJR 1221, 248 ALR 428). 49 The phrase "irregularly, illegally or against good faith" might connote "misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of the judgment" and warrants the exercise of the "exceptional" jurisdiction - Coles v Burke (1987) 10 NSWLR 429, at 437 per Kirby P (with whom Samuels and McHugh JJA agreed), but c.f. Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110, and then see Kendell v Carnegie ("Kendell") [2006] NSWCA 302, 68 NSWLR 193 at 204ff per Bryson JA (with whom Hodgson and McColl JJA agreed), who concluded (at [53]) that an "irregularity" need not involve "misconduct or dishonourable conduct".' 50 As Ms Carpenter submits on Council's behalf (submissions par 11), "an irregularity is ordinarily a failure to comply with procedural formality", and UCPR 36.15 might also be enlivened if the judgment or order involved some denial of procedural fairness, Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262, at [85]-[87]. 51 Bryson JA in Kendell, went on to say (at [60]) that: " Against good faith is an expression which requires the impeachment of the intention or behaviour of the person whose good faith is impugned". 52 Clearly each case where the question of reopening arises will turn on a close consideration of all the relevant facts. The endeavour to abide by the law, and act in good faith, must involve conscientious effort. 53 There may be no need to prove misconduct or dishonourable conduct (Kendell), but, if one relies on fraud, separate proceedings may have to be brought, and the fraud must be clearly established - more than suspicion, or fraud being one available inference from the facts, is required (Wentworth v Rogers (No.5) at 538, Michales v Dimoski at [29]). 54 When a "final decision" is wrongfully made, its unlawfulness may not prevent a lawful new "final decision" being made in place of it. Courts retain a wide discretion to vary, for example, injunctive relief in such circumstances. (See discussion by McHugh JA at the end of his reasons in Hannan v Electricity Commission of NSW, an unreported Court of Appeal decision BC8500575, 28 August 1985). 55 In Brown Bros an application was made to reopen a class 4 matter to amend or perhaps suspend an order made by consent. Lloyd J refused the application, holding that liberty to apply does not leave it completely open to a party to seek a variation of an order made in finalisation of proceedings. 56 The Judge hearing a motion to reopen must first examine if the orders are "complete on their face", and if they are "regularly made". If the "working out or carrying out" of the orders make it "necessary to obtain a direction or a decision of the Court as to effectuating or implementing the orders", that can be achieved pursuant to the exercise of liberty to apply. See Lloyd J in Brown Bros (at [15]-[20]), Phillips v Walsh (1990) 20 NSWLR 206, at 209-10, Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201, Woollahra Municipal Council v Baranov (2006) 144 LGERA 96. Common examples might involve an order for specific performance which might require a further order for the execution of documents etc, or might by reason of the defendant's impecuniosity, prove, unexpectedly, to be impossible - a case of "supervening impossibility". 57 The High Court said in Smith v NSW Bar Association (1992) 176 CLR 256, at 266:

" If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application."

Fraud 58 In Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J said, at 285: "… fraud may take a variety of forms and is, on that account, incapable of precise definition … [I]t is this feature of fraud which underlines the rule of practice, … that fraud must be pleaded specifically and with particularity". 59 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1990) 110 ALR 449 it was pointed out that the tort of deceit also requires clear, cogent or strict proof. 60 Kirby P set out in Wentworth v Rogers (No.5) (at 538-9) six principles to be applied when a court is asked to set aside a judgment on the grounds of fraud. They may be briefly summarised as follows: 1. Particulars of the alleged fraud must be " exactly given " and the allegation " must be established by the strict proof which such a charge requires " (at 538D).

There must be " a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment " (at 538E).

"…[m]ere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief " (at 538G).

Perjury by a party of a witness, later discovered, may ground relief, but only in exceptional cases as generally more will be required (at 539B-C).

" It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge " (at 539D).

The onus/burden of proof lies on the party impugning the judgment to establish the " components necessary to warrant the drastic step of setting aside a judgment " (at 539 E-F). (see also Kirby P's summary at 539F-G). 61 The transcript of the hearing before Biscoe J on 27 March reveals the repeated use of the word "fraud". In the debate between Mrs Teoh and His Honour, she told him that "fraud is an extended species of bad faith" (T10, L6), and His Honour said that he thought "against good faith" would include fraud (T11, L16). She also told him that both the substantive hearing and the costs hearing were affected by fraud (T5, LL2-15). (As noted earlier, His Honour took a firm view on how Mrs Teoh should pursue her allegations - see [12], [13], and [22] above). Consideration 62 As the majority of the High Court said in D'Orta (at [37]):

"Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected." 63 In that same case McHugh J said (at [140]): "One difficulty is that unsuccessful litigants whose principal action was without much substance are those most likely to bring a later, equally unsubstantiated, claim against their representative." 64 Mrs Teoh was not especially critical of my decision. However, during the costs hearing (at T3.2.09, p5, LL34-36) she said that my judgment had decided "half of what we wanted", and "we could have gone just that little bit further and would have got there …". She added, gratuitously, that she did not think that the court "fully understood the nature of the issues" (LL38-39). 65 Mrs Teoh has, however, been extremely critical of many individuals - her own counsel (Mr O'Gorman-Hughes), her neighbour (the second respondent, Mr Williams), the Council itself, several Councillors, several Council officers, the respondents' legal representatives, and the officers of this court. 66 In an email to Greens MLC Sylvia Hale on 12 May 2009 (Annexure 'P5' to her affidavit of 19 June 2009), Mrs Teoh claimed to have a "prima facie case" of fraud against "the local planning manager", and that there had been "an irregularity in the proceedings (a problem caused by the legal teams including my barrister)" (her emphasis), but that "the case for fraud is too challenging, expensive and time consuming", although "arguably … of resounding public interest". At the hearing of the Notice of Motion to reopen (at T4, LL4-5) she conceded that she had "no direct evidence of fraud", only "circumstantial" evidence. 67 The allegation(s) of fraud as such might be seen, in the end, to be thin or "half-hearted", but the wide-ranging allegations made against both respondents of a breach of all or any elements of UCPR 36.15 by each of them include the following: · All legal representatives and the Council behaved badly - failed to grant full discovery (which Mrs Teoh says amounts to fraud), failed to respond appropriately when misrepresentation was exposed, and ignored "public interest and the petitions". Every step the lawyers and Council officers took is regarded with suspicion. Even a request that she allow Mr McEwen SC to inspect the site prior to the substantive hearing was treated as suspicious. · Her own counsel was negligent, and/or uncommunicative, and/or he colluded with his opponents to exclude evidence from the hearing. · The Council has a record of poor practices and a lack of responsiveness and was guilty of "partiality" (or apprehended bias or prejudice) towards Mr Williams, and "fell for his misrepresentations", resulting in inappropriate treatment of an objector, an inconsistent approach to the merits, an unseemly quick decision, and setting an undesirable precedent. · She suspected the motives behind the "late" affidavit of Council's Mr Kourepis's dated 5 June 2008, although it was explained to her that it was sworn and filed to confirm that Council made a site visit before making its decision. Mrs Teoh says that Mr Kourepis was guilty of a "half-truth", if not perjury, that he made his assessment calculations on the basis of a "predetermined outcome", and that he made key information available to everyone except Mrs Teoh. · She asserts that Council officer Shahram Mehdizadgan (apparently referred to as Zadgan) is incompetent, is regularly overturned by Council, and sneaked around her house on 4 June 2008. He was seen by Mrs Gyory, and Mrs Teoh says (on 20 March 2009) that his visit "now assumes added significance", which has not been explained to the court. · Experts from whom she sought assistance would not respond to her, apparently for fear of offending Council. · Councillors showed Mrs Teoh some sympathy, when approached, and then unanimously approved Mr Williams' DA (probably, she claims, because he is a former Mayor and knew some of them). 68 The test of proper discovery/disclosure is whether a different result would flow if certain documents had been available at trial, and Mrs Teoh has produced absolutely no substantiation of her allegations in this respect. See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, at 142-3, and Yevad Products Pty Limited v Brookfield [2005] FCAFC 177, at [89]-[90]. 69 Any evidence of "collusion" by the legal representatives would be clearly evidence of "against bad faith", but there is no evidence of it - it is not collusion for advocates to agree with each other as to when evidence should or should not be admitted, according to law. 70 Mr Zadgan went to 68 and 70 Mary Street the day before the hearing, apparently to take photographs for the hearing, but Mrs Teoh refused him entry, and Mr Teoh (affidavit 17.12.08) and Mrs Gyory (affidavit 16.12.08) felt the need to corroborate that fact, as if there were something wrong with what Mr Zadgan did. 71 Mrs Teoh asked the court to draw adverse Jones v Dunkel inferences about (1) Mr Reilly because his affidavit on her reopening application was not read, so saving his exposure to her cross-examination, and (2) Mr Zadgan because he did not give evidence at the substantive hearing, but she was most concerned that such an inference might be drawn against herself (see T14.7.09, p64, LL11-16). 72 I turn now to consider in more detail some of her other allegations. Her own representatives 73 In her affidavit of 17 December 2008 (at par 38) Mrs Teoh asked the court to take "a more sympathetic view" on the costs question because her solicitor "withdrew at a crucial time" and she "was unfortunate in her choice of counsel". Other material suggests that at least two solicitors (Bruce Woolf and Linda Geronimo) have advised her at various times, and her affidavit of 17 December 2008 recounts that she also sought assistance from other agencies (EDO, PIAC, Redfern Legal Centre and Law Access). 74 Mr Woolf's email to Mr O'Gorman-Hughes on 23 May 2008 (Exhibit 'P8' to Mrs Teoh's affidavit of 19 June 2009) speaks of reviewing "the plans" that afternoon with Mrs Teoh, and encloses a draft argument regarding cl 7.4.2 of the DCP, and invites attention to Senior Commissioner Roseth's decision in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, 139 LGERA 354. Mr O'Gorman-Hughes responded on 25 May that failure to follow the planning principles enunciated in that case was "not a ground for invalidity [but] may be relevant to the exercise of the court's discretion". Mrs Teoh was at that time holding many of the key contents of the brief. 75 Apart from saying that she made an "unfortunate" choice of counsel, she said in another affidavit that he acted "against his client's interest". In her oral submissions on 14 July (T38, L2) she said she had a "litany of complaints" against him. At the earlier costs hearing she complained that "important" and "material" parts of her case were "left out". Yet, after he sent her a copy of his written submissions and his draft Further Amended Points of Claim on 2 June, she responded by email on 4 June that the two documents were "quite good, excellent I think" (see Annexure 'J15' to her affidavit of 29 April 2009). 76 In the end, it is not a matter for this court to adjudicate on the competence of her counsel, and Mrs Teoh admitted in court that she is bound by what he did on her behalf (T3.2.09, p2). See Metwally v University of Wollongong (No.2) (1985) 60 ALR 68 at 71; 59 ALJR 481. Mr McEwen said (T5.6.08, p3, L5) that Mr O'Gorman-Hughes "put some structure to her case" when he came into the matter only a few days before the hearing. Mrs Teoh now says that he colluded with McEwen. The submissions of the respondents' representatives in the subsequent hearings expressed the view that he did a competent job. 77 For whatever its value, I can say that I consider that Mr O'Gorman-Hughes' submissions were tenacious and comprehensive, and I pondered them very carefully indeed when writing my original decision. Her case had little strength on the evidence, and ran very close to being, as alleged, a disguised merits review application, and I thought at the hearing that it was put at its highest. Her counsel successfully had pages 1-50 of the Council bundle, and the bulk of Mr Kourepis's affidavit, withdrawn. 78 Mrs Teoh makes her trenchant criticisms of him while admitting her own "unfamiliarity with civil litigation". Mr O'Gorman-Hughes responded to her criticism in his email to her dated 26 February 2009, saying that he had considered everything she had briefed to him, but ran only the grounds of challenge that "had any arguable prospect of success" in invalidating the consent. Having now seen what would have been in his brief I am fortified in my view of his efforts, but she, of course, is entitled to take whatever action she chooses against him regarding them. 79 Even if I were satisfied that he had not done a good job for her, that would not be a sufficient ground for the court to reopen the matter. The "no appearance" notation made by Jagot J on 4 April 2008 80 Mrs Teoh complains that this notation made her look "very dilatory" (T14.7.09, p13, LL14-15). 81 The simple fact is that Mrs Teoh was indeed not present when the case was called on that day, and that is accurately noted on the court file. 82 There is no doubt that she was late due to misadventure (later verified to Jagot J by medical certificate), and attended the court later that day, but in her earlier absence on that day the matter had been stood over for a week. 83 It would be entirely inappropriate to alter the file cover notation, and clearly no harm was done to Mrs Teoh's interests in any way. 84 Her letter of 23 March 2009 asks the Registrar to "clarify the situation". That letter will remain in the court file, and this judgment will be part of the public record from now on. I believe "the situation" is thereby "clarified". The attempt to prove Council was inconsistent in its approach 85 These class 4 proceedings had to adjudicate on whether Mr Williams' DA was properly assessed, but, the court having found that it was, Mrs Teoh now seeks to produce documents and/or make other references to Council's consideration of various other applications, such as those for 9 Luke Street (Exhibit T1, and Chon & Kim v Hunters Hill Council [2004] NSWLEC 509 per Tuor C), 38 Earl Street (Kakakios v Hunters Hill Council [2007] NSWLEC 342 per Moore C), 14 Abigail Street, and 15 Mary Street. 86 She says she wanted to "analogise from Luke Street to Mary Street" (T14.7.09, p39, LL7-8), but none of this material is at all relevant to her reopening application. Was the Council bundle inappropriately selective? 87 The court's (usual) direction was that Council file its development application file, plus any other documents it said record matters relevant to the decision. 88 Mrs Teoh complains that the bundle was a "simulated file" (affidavit 17.12.09, par 7), and did not include some emails exchanged post-consent and pre-proceedings. For some reason which I do not comprehend, she contends that a "whole" bundle may have answered the allegation that her challenge was in essence really an appeal on the merits of Williams' proposal. 89 I certainly do not accept that such emails or any other post-consent material (such as records of later conversations between Council officers and Mrs Teoh) are, or should have been, caught by the direction. 90 It was always open for Mrs Teoh to try to put them into evidence herself, or through her counsel, but they would not have been regarded as relevant to the issues in the class 4 challenge, and should expect to be rejected. 91 Successful objection was justifiably taken to substantial contents of the bundle by Mrs Teoh's counsel, and those materials were deleted from the exhibit at the hearing. The Kourepis memo 92 Mrs Teoh attacks Mr Kourepis's file note/memo regarding their meeting of 20 February 2008. 93 That meeting and any account of it would be held to be irrelevant to her challenge heard by me, which predated any such meeting, and is irrelevant also to this application. 94 It was not in evidence before me, and should not have been. Mr Williams' error 95 In his affidavit of 14 May 2008, read when the court considered Mrs Teoh's application to amend on 20 May 2008, Mr Williams said that Mrs Teoh was supposed to file her Points of Claim and Affidavits in Chief by "20 April", rather than nominating the correct date "28 April". 96 I accept that this was a typographical error of no real significance, and that it caused Mrs Teoh absolutely no prejudice. She met the correct deadline, but then quickly commenced action to amend. 97 Mrs Teoh retreated from an allegation that Mr Williams also made an adverse comment (or inference) about her non-appearance on 4 April 2008 (see T14.7.09, p18, LL15-49). The Acting Registrar's costs order 20 May 2008 98 During the hearing on 14 July 2009 Mrs Teoh claimed that the 20 May 2008 costs order caused an unparticularised "irregularity" (T6, LL13-18), and was "a point against me" (T13, LL26-27). 99 The order was made when, very close to the hearing date, and with a deal of indulgence from her opponents, Mrs Teoh made a major change to her case, well after the respondents had prepared their responses to a wider-ranging challenge involving many serious allegations against them. 100 She now complains that (1) the Council and the court "lacked compassion" in pursuing and imposing a costs order when she had recently attended a friend's funeral, and (2) that the 20 May 2008 costs order may have been the court seeking to punish her for the "no appearance" notation of 4 April 2008, and/or the erroneous assertion in Mr Williams' affidavit. 101 The order made is the usual one in such circumstances. It was made after argument, and there is no evidence that any irrelevant considerations were involved. It is the appropriate order, and was perfected more than a year ago. The court will not now interfere with it, nor rely upon it as any ground to reopen the proceedings. The Kourepis affidavit 5 June 2008 and "Exhibit SK1" 102 Apart from complaining that Mr Kourepis's affidavit was filed so late, but being unable to make out any prejudice, Mrs Teoh accuses Mr Kourepis of perjury. 103 Perjury is a serious criminal offence which can attract a lengthy term of imprisonment. She has produced no evidence at all to support such a charge of deliberate lying on Mr Kourepis's part, and Wentworth v Rogers (No.5) says it would not be sufficient on its own, even if it were true, to justify a reopening. 104 In Wentworth v Rogers (No.5), Kirby P said (at 539C-D): " In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required". 105 Mrs Teoh fails to recognise that neither Mr Kourepis's affidavit, nor its exhibit 'SK1', of which Mrs Teoh is so critical, was in evidence before me. They played no part in her losing the case. (The only exhibits in the substantive proceedings were the remnant Council bundle and the DCP). 106 At the substantive hearing, Mrs Teoh's counsel argued strenuously that the court should not admit Mr Kourepis's evidence (T5.6.08, p2, L5-p3, L2), and the issue was resolved by agreement among counsel, during argument in my presence, that only pars 12-16 of the affidavit would be read, as an agreed fact, and that the balance would not be read at all. (see T5.06.08, p3, LL9-31). Miss Carpenter's written and oral submissions are also mistaken in this respect. 107 Exhibit SK1 is dealt with in "not read" portions of Mr Kourepis's affidavit, and was not mentioned at all in the hearing. 108 Paragraphs 12-16 of the affidavit stated as follows: " 12. Council keeps records in relation to when Development Control Plans were made by it. I have searched those records, and have been able to identify the following matters in relation to Development Control Plan No.15. 13. Council, at its meeting of 6 December 1999, resolved to revise Development Control Plan No.15 - Residential Dwelling Houses and prepare a draft Development Control Plan No.15. On 20 December 1999, Council resolved to place draft Development Control Plan No.15 - Residential Development on public exhibition for comment for a minimum period of 60 days. 14. The draft Development Control Plan No.15 - Residential Dwelling Houses was placed on exhibition in the local papers for a 60-day period ending 14 February 2000. 15. At the end of the exhibition period, Council, at its meeting of 28 February 2000, considered the draft Development Control Plan No.15, where it was resolved that Development Control Plan No.15 (Amendment 1) - Residential development be adopted, and the document to become operative from 2 March 2000. 16. At my time at Hunters Hill Council, the application of clause 7.4 Solar Access has always been assessed to the whole of a site." 109 Apart from her allegations of its amounting to perjury and error, Mrs Teoh finds par 16 "ambiguous", but I cannot agree that it is, and my decision on the Council's assessment of Mr Williams' DA speaks for itself. Conclusion on reopening 110 The court concludes that, despite the torrent of material placed before it, Mrs Teoh has made out none of her claims for a reopening of these proceedings - neither fraud, nor any of the three legs of UCPR 36.15(1), namely irregularity, illegality, or lack of good faith. No material evidence was discovered after the trial, or after the costs hearing, which would affect the court's substantive decision. 111 Her Notices of Motion of 4 May and 14 July should be dismissed, and, as she has been totally unsuccessful, she must also be ordered to pay the respondents' costs of resisting them. Costs of the substantive proceedings 112 The competing claims for costs of the substantive proceedings were heard on 3 February 2009 and my decision was reserved. That hearing will not be reopened, so I must now turn to deal with those costs. 113 The well-established rule is that in class 4 proceedings costs normally "follow the event", the event being, in this case, my dismissal of Mrs Teoh's class 4 challenge to Council's grant of consent to Mr Williams. Both respondents put Mrs Teoh clearly on notice, prior to the hearing, that she was at risk of costs orders if she maintained her challenge. 114 There are only three relevant qualifications or exceptions to the general rule, which are recognised by the authorities, and are relevant in this case: (1) the Council chose to defend the process it followed in determining to grant consent, rather than lodge a submitting appearance and leave it to Mr Williams alone to defend the consent itself; (2) Mrs Teoh's application for the case to be reopened may establish some " disentitling conduct " on the part of the respondents and sound in costs; and (3) " public interest litigation " might constitute an exception to the general rule. 115 Dealing first with exception No.(2), I am satisfied there is no "disentitling conduct" on the respondents' parts. Apart from their successful rebuttal of all the post-judgment attacks dealt with above, and given the fact that the litigation formed part of a campaign where allegations of perjury, misrepresentation and bias have been so lightly bandied about, I believe that both respondents conducted the proceedings efficiently and reasonably, including the costs applications. I consider they have treated Mrs Teoh fairly at all stages. 116 So far as exception No.(1) is concerned, there is no general rule or "broad legal principle" that Councils should file submitting appearances in "neighbour on neighbour" disputes like this one, even though they very often do so. See Pain J's discussion in Forsyth v Wilesmith (No.2) [2008] NSWLEC 260. 117 Given the unusual and serious allegations (bias, partiality, and misrepresentation) that were originally made in the substantive proceedings against both respondents, until their last-minute amendment by the applicant, I am satisfied that it was entirely appropriate for the Council to actively participate in the proceedings. In so finding, I adopt and apply the reasoning of Jagot J in Pearse v Sharpe (No.2) [2008] NSWLEC 81. It would not be reasonable to expect the Council to withdraw from active defence of the challenge when notified a few days before the hearing that the hearing would focus only on Council's application of the solar access control. 118 I now turn, therefore, to exception No.(3). Public Interest Litigation? 119 Mrs Teoh has maintained since the very early days of her challenge that it was correctly regarded as "public interest litigation". 120 She regularly described her role as the "applicant in the public interest", and nominated in many of her filed documents various persons (1) on whose behalf she purported to speak (with their consent), and/or (2) who endorsed various positions she put, and to which they deposed in affidavits at times (e.g. those filed by 9-15 May 2008, or near 17 December 2008), on the basis of their having a stated "like or common interest" with Mrs Teoh. 121 In her affidavit of 30 May 2008 (par 28) Mrs Teoh said: " I have brought this action, very largely in the belief that it falls within the rubric of the public interest and that it is in the public interest for a technical rule to be applied in the correct way. Despite the fact that I personally will gain a victory of sorts, it is very much a Pyrrhic victory, as I face once again the process of re=submission before council even should this case prove my position correct. However, even a small concession means a lot to the ordinary objector who has precious and few rights in this area of local government planning, literally". 122 There is no dispute that Mrs Teoh is a local community activist, and proud of it, and there is evidence that she continues that activism, despite health and family concerns (see Eric Teoh's affidavit of 17 December 2008). 123 In her affidavit of 17 December 2008 (par 4), she said that after the settlement discussions held 11-18 April 2008 broke down, she "felt a responsibility to continue in order to protect the environment, and for the public interest factors of the case". 124 In her affidavit of 4 May 2009 (par 1) she said that "indications of the public interest are evident in the petitions and emails" contained in various of her materials. 125 Those "petitions" have taken various forms at different stages of the consent process and the litigation. Some addressed to Council officers at the DA stage simply express sympathy for Mr and Mrs Teoh. Others addressed to the Council accuse Mr Williams of misrepresentation to Council. Some signed before and after the substantive hearing express concern about the granting of the consent, about Council's treatment of objectors, and about the validity of the "whole site" test. Some are addressed to the "Presiding Judge", and some of those ask the judge to give favourable regard to the petition in dealing with the Teohs. Those post-dating the judgment could be said to be an attack on the court, but Mrs Teoh refutes that allegation. 126 The letter she so inappropriately filed on the actual hearing date (5 June 2008 - see [35]-[36] above) asked the court to show Mrs Teoh "some consideration in view of the fact that [she] found it so difficult to secure legal representation … and … had extremely limited experience in civil litigation and none in this area of local government". 127 The "public interest" character of litigation is not established simply by demonstrating that some members of the public have or display a particular interest in the case, and express their support for a self-represented litigant. At the end of the day this is a neighbourhood planning dispute which involved an adjudication by the local council. 128 Biscoe J said in Ku-ring-gai Council v Minister for Planning (No.2) [2008] NSWLEC 276, at [32]: "It is not uncommon in this jurisdiction for proceedings to be brought which relate to matters of public interest. Many administrative and constitutional matters and ordinary civil matters can also answer that description. Assuming that these proceedings were brought in the public interest, I do not consider that that public interest, of itself, is of sufficient moment to justify departure from the usual order. Although there were questions of construction of fairly recent legislation dealing with planning panels, there was no additional factor, such as breaking new ground on a matter of legal principle, sufficient to justify departure from the usual "loser pays" costs order. The council's self-interest in the outcome of the proceedings also tends to weigh against departure from the usual costs order." 129 On the same day (2 October 2008), His Honour, in his judgment in Anderson v New South Wales Minister for Planning (No.2) [2008] NSWLEC 272; 163 LGERA 132 at [12] quoted the following passage from the judgment of Tamberlin J in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 (at [8]-[12]): "[8] The reference to the public interest appears in an extensive range of legislative provisions upon which tribunals and courts are required to make determinations as to what decision will be in the public interest. This expression is, on the authorities, one that does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined. It is not desirable that the courts or tribunals, in an attempt to prescribe some generally applicable rule, should give a description of the public interest that confines this expression. [9] The expression in the public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests. In the present case, broadly speaking, the competing aspects of the public interest include the benefits conferred on the public by the transparency of government processes and the need for confidentiality in certain circumstances. [10] The expression the public interest is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination. By way of example, town planning legislation frequently lists a number of factors that a local council or planning body is required to take into account when making a determination, with a concluding consideration being a generalised reference to the public interest and the circumstances of the case. [11] The indeterminate nature of the concept of the public interest means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination. In this respect, the well-known observations of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are apposite. In that case, his Honour was considering the different process of determining the relevant considerations to take into account in the exercise of a broad statutory discretion, however, the approach is relevant in the present case. His Honour said: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. [12] The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that the public interest can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations". 130 This is clearly not "public interest litigation", as recognised by the relevant authorities, but, even if it were properly so regarded, there would need to be some further element present in it to displace the general "costs follow the event" rule. See the discussion in Oshlack v Richmond River Council ("Oshlack") (1998) 193 CLR 72. 131 That element is most often a novel and/or significant issue of law involved in the case. 132 In Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWLEC 299, Lloyd J surveyed the relevant authorities post Oshlack, and held that rules of court subsequently made have not changed the situation that something more than a "public interest" character is required to "justify a departure from the general rule that a successful litigant is entitled to an order for costs" (see [12]). 133 Both Lloyd J and Biscoe J held that the Anderson litigation met the "public interest" test, but not the "other special circumstance" test. Lloyd J said (at [14]): "…firstly, despite raising the question of intergenerational equity, the proceedings did not involve any real or substantial question of the proper interpretation of legal questions of general significance. On the contrary, the case involved the application of settled principles of administrative law to the facts of the case. Secondly, the case on its facts was not a particularly strong one, for seldom has a decision maker gone to such lengths to ensure that every conceivable consideration was taken into account including affording the Andersons themselves the fullest opportunity of making submissions and having them taken into account before any determination was made." See also Jagot J's judgment in Corowa v Geographe Point Pty Ltd (No.2) [2007] NSWLEC 272. 134 Mrs Teoh sought to address the "significant other issue" test by asserting, in her affidavit dated 17 December 2008 (in par 27), that her "novel legal issue" was to propound "the connection between legal and mathematical procedural error". That question was not argued at all at the substantive hearing. 135 In this case there are no circumstances whatever to justify departing from the general rule that the unsuccessful applicant - and Mrs Teoh is the only applicant - should pay the costs of the successful respondents on at least a party-party basis. Indemnity costs? 136 Although Mr Baird indicated during argument that he might press for any costs order to be made on an indemnity basis, he did not pursue any such submission. 137 Costs orders should never be made to punish litigants for their conduct of proceedings, but to compensate the successful parties for the trouble and expense to which they were put by that conduct. Latoudis v Casey (1990) 170 CLR 534. 138 In all the circumstances of the case I am not disposed to make an order against Mrs Teoh for indemnity costs, but I do consider that I should say that I find some of her conduct during this litigation to be quite unacceptable. 139 If one accepts, as I do, Miss Carpenter's definition of "irregularity" as "a failure to comply with procedural formality", Mrs Teoh is guilty of it in almost everything she has done in these proceedings. 140 She is a well-educated and apparently intelligent person with a community profile, and BA, DipEd and LLB qualifications from UNSW, and ought to know and do better than: · repeatedly accusing your opponents of manipulating evidence, and denying any manipulation on your own part, and then flooding the court with unproven and uncorroborated material, much of which is incomplete ("the parts that are relevant" - T14.7.09, p25, L18) and/or deliberately obscured (see affidavit 26.03.09, Exhibit F4), and some of which is endorsed with "lies" and other things. · making glib and unsubstantiated allegations of partiality, perjury, and misrepresentation, which do her no credit at all, and may be "against good faith", particularly in the in light of her attempts to influence the court to "take it easy" with her, inter alia because she says she tried to avoid litigation. · failing to ensure that she served all her key documents, in full, on both the respondents (T14.7.09, p7, LL21-36). · inferring, quite unfairly, that Miss Carpenter had breached the NSW Bar Association Rules in her written submissions on the reopening motion (see T14.7.09, p40, L35-p41, L39). · evading any probing or challenging questions from the bench, while at the same time lecturing the court about "listening to the subtext as well [and] … to everything in context" (T14.7.09, p61, LL36-7). · raising fraud allegations only when the respondents began pursuing their costs (T14.7.09, p20, LL14-18), and then avoiding the thrust of Biscoe J's decision on how she was to raise fraud by leaving the filing of her amended Notice of Motion (of 14 July 2009) until the very last moment. · expressing resentment that as the moving party she bore the onus of proof of her extravagant allegations (T14.7.09, p12, L38). 141 To that list must be added the suspicion that inevitably attaches to the fact that the 5 June 2008 letter to the Registrar has mysteriously returned to the court file (T14.7.09, p17, LL43-50, and see [35]-[36] above). Outstanding items of "reserved costs" 142 It remains only for me to deal with the three outstanding questions of costs, concerning particular events during this litigation, which costs were specifically reserved and should now be determined. 143 The Acting Registrar reserved the costs of the hearing she initiated on 13 March 2009, after the series of inappropriate communications Mrs Teoh sent to the court, and just after I had reserved my decision on costs (see [7]). Biscoe J specifically reserved the costs (1) of the hearing of her original notices of motion (which he dismissed) on 27 March 2009, and again (2) of the directions hearing on 13 May 2009. 144 The respondents' costs of those three appearances and associated work should clearly be paid by Mrs Teoh. Conclusion on costs 145 The applicant must, therefore, be ordered to pay all the costs of the two respondents on a party-party basis. Orders 146 The orders of the court are, therefore: (1) The Applicant's Notices of Motion of 4 May 2009 and 14 July 2009 seeking to reopen these proceedings are dismissed. (2) The applicant is ordered to pay both respondents' costs of the proceedings, including their costs of: (a) the original hearing on 5 June 2008. (b) all interlocutory proceedings and directions hearings before and since that date. (c) the hearing on costs before Sheahan J on 3 February 2009. (d) the hearing of the applicant's Notices of Motion by Biscoe J on 27 March 2009 . (e) the hearing of the Applicant's later Notices of Motion by Sheahan J on 14 July 2009. on a party-party basis, as agreed, or as assessed according to law.

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