"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.