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[2014] NSWCA 125
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Teoh v Hunters Hill Council (No. 8) [2014] NSWCA 125 (14 April 2014)
Last Updated: 16 April 2014
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Case Title:
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Teoh v Hunters Hill Council (No. 8)
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Medium Neutral Citation:
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Hearing Date(s):
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18 December 2013
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Decision Date:
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14 April 2014
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Before:
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Beazley P; Emmett JA; Sackville AJA
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Decision:
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(1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a),
all proceedings in New South Wales relating to the subject matter of proceedings
40246 of 2008 in the Land and Environment Court
of New South Wales, being
proceedings entitled Teoh v Hunters Hill Council, or relating to
proceedings 2009/298486 in the New South Wales Court of Appeal, are
stayed. (2) Pursuant to the Vexatious Proceedings Act 2008, s
8(7)(b), the applicant (Ms Teoh) is prohibited from instituting proceedings in
the Supreme Court of New South Wales relating to the subject
matter of
proceedings 40246 of 2008 in the Land and Environment Court of New South Wales,
being proceedings entitled Teoh v Hunters Hill Council, or relating to
proceedings 2009/298486 in the New South Wales Court of Appeal. [Note:
The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the
Court otherwise orders, a judgment or order is taken to be entered when it is
recorded in the Court's computerised
court record system. Setting aside and
variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and
36.18. Parties should in particular note the time limit of fourteen days in Rule
36.16.] |
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Catchwords:
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PRACTICE AND PROCEDURE - application to vary or set aside judgment -
application out of time - application only available where challenge
is to
orders made by a single Judge of Appeal - whether Court should make a vexatious
proceedings order of its own motion
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Category:
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Principal judgment
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Parties:
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Elaine Teoh (Applicant)
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Representation
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- Solicitors:
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No appearance (Respondent)
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File Number(s):
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2009/298486
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Decision Under Appeal
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- Court / Tribunal:
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Court of Appeal
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- Before:
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Allsop P, Beazley and Meagher JJA
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- Date of Decision:
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02 November 2012
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- Citation:
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- Court File Number(s):
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2009/298486
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Publication Restriction:
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None
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JUDGMENT
- THE
COURT: The applicant, Ms Teoh, filed a notice of motion on 18 September 2013
(Motion). Paragraph 1 of the Motion sought orders, in substance, varying
or discharging the orders made by this Court on 2 November 2012:
Teoh v
Hunters Hill Council (No. 7) [2012] NSWCA 356 (Teoh (No. 7)).
On that occasion, the Court (Allsop P, Beazley and Meagher JJA) dismissed on the
papers a motion filed by the applicant seeking
to reopen previous applications
by her challenging orders made in the Land and Environment Court and the Court
of Appeal. The orders
made by the Court in Teoh (No. 7) were duly entered
on 18 March 2013.
- The
Motion was the seventh occasion on which essentially the same matter has been
before the Court of Appeal. It appears that the
applicant's ultimate aim in her
series of applications to this Court is to set aside a judgment given by Sheahan
J in the Land and
Environment Court on 16 September 2008 notwithstanding that
she has never appealed against that judgment: Teoh v Hunters Hill Council
[2008] NSWLEC 263 (Sheahan J (No. 1)). His Honour
dismissed an application by the applicant in Class 4 of the Court's jurisdiction
challenging the validity of a development
consent granted by the respondent,
Hunters Hill Council (Council), for the erection of a second storey on a
neighbour's property. She claimed, among other things, that the Council had
misapplied
the solar access requirements set out in the relevant Development
Control Plan (DCP No. 15).
- In
Teoh (No. 7) the Court, in addition to dismissing the applicant's motion,
made the following order on its own motion (at [7]):
"Should the applicant seek to file any further application against Hunters
Hill Council in respect of the matters litigated in the
Land and Environment
Court or the Court of Appeal the applicant must at the same time file a document
of no more than five pages
showing cause why this Court should not in chambers
summarily dismiss the application as vexatious and an abuse of process."
The Motion
- The
applicant's Motion sought orders pursuant to Uniform Civil Procedure Rules 2005
(UCPR) r 36.16 or, alternatively, s 46(4) of the Supreme Court Act
1970 (SC Act).
- UCPR
36.16(1) empowers the Court to set aside or vary a judgment or order if a notice
of motion is filed before entry of the judgment
or orders. The Court may also
set aside or vary a judgment or order in certain circumstances after it has been
entered: r 36.16(2).
However, r 36.16 also provides as follows:
"(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.
...
(3C) Despite rule 1.12, the court may not extend the time limited by subrule
(3A)..."
- Section
46(4) of the SC Act provides that the Court of Appeal may discharge or vary a
judgment given by a Judge of Appeal, or an order
made or direction given by a
Judge of Appeal.
- The
Motion was listed for hearing before the Court on 18 December 2013. Prior to the
hearing, the applicant was advised by the Registrar
that the Court would
consider whether it should make an order of its own motion pursuant to s 8 of
the Vexatious Proceedings Act 2008 (VP Act). The Council was
informed that it was not required to attend the hearing.
- The
applicant filed written submissions in support of her Motion and appeared in
person at the hearing.
- In
the course of oral argument, the Court pointed out to the applicant that it
appeared that her claim for relief pursuant to r 36.16
could not succeed, since
the Motion had not been filed within fourteen days of the entry of the orders
made in Teoh (No. 7). The applicant accepted that this was correct and
that therefore her application pursuant to r 36.16 had to fail.
- The
Court also pointed out to the applicant that her application pursuant to s 46(4)
of the SC Act was misconceived since she sought
to challenge orders made by the
Court of Appeal in Teoh (No. 7), rather than orders made by a single
Judge of Appeal. Section 46(4) only authorises the Court to discharge a
judgment, order or direction
given or made by a Judge of Appeal. The applicant
also accepted that her claim for relief was not within the terms of s 46(4) of
the SC Act.
- Paragraph
2 of the Motion sought a stay of enforcement of a costs assessment made on 19
August 2013. However, the applicant did not
file any affidavit and did not offer
any other evidence in support of that relief. Accordingly there was no material
before the Court
to support her stay application.
- In
these circumstances, the Court dismissed the Motion and reserved its reasons for
doing so. The foregoing constitutes the Court's
reasons for dismissing the
Motion.
A Vexatious Proceedings Order?
- During
the hearing, the Court reminded the applicant of the Registrar's letter
(referred to at [7] above). After the contents of that
letter were discussed
with the applicant, the Court considered it appropriate that she should be
advised of the precise orders that
the Court was contemplating making pursuant
to the VP Act and that she should be given an opportunity to make written
submissions
in opposition to any such proposed orders.
- Accordingly,
the Court made the following orders:
"1. Order that Elaine Teoh, the applicant on the motion filed on 18 September
2013 (Ms Teoh), show cause why the following orders
should not be made:
(1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a), an
order staying all proceedings in New South Wales relating to the subject matter
of proceedings 40246 of 2008 in the Land and
Environment Court of New South
Wales, being proceedings entitled Teoh v Hunters Hill Council, or
relating to proceedings 2009/298486 in the New South Wales Court of Appeal;
(2) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b), an
order prohibiting Ms Teoh from instituting proceedings in the Supreme Court of
New South Wales relating to the subject matter
of proceedings 40246 of 2008 in
the Land and Environment Court of New South Wales or relating to proceedings
2009/298486 in the New
South Wales Court of Appeal.
2. Direct that Ms Teoh file any written submissions showing cause on or
before 14 February 2014, such submissions not to exceed 15
pages in length."
- At
the applicant's request, the time for filing her written submissions was
subsequently extended to 17 March 2014 and the page limit
amended to 25 pages.
The applicant filed 25 pages of closely typed written submissions on 18 March
2014.
Vexatious Proceedings Act
- Section
8 of the VP Act relevantly provides:
"Making a vexatious proceedings order
(1) When orders may be made
An authorised court may make an order under this section (a vexatious
proceedings order) in relation to a person if the court is satisfied
that:
(a) the person has frequently instituted or conducted vexatious proceedings
in Australia, or
(b) ...
(2) For the purposes of subsection (1), an authorised court may have regard
to:
(a) proceedings instituted or conducted in any Australian court or tribunal
(including proceedings instituted or conducted before
the commencement of this
section), and
(b) orders made by any Australian court or tribunal (including orders made
before the commencement of this section).
(3) An authorised court must not make a vexatious proceedings order in
relation to a person without hearing the person or giving the
person an
opportunity of being heard.
(4) Orders may be made on court's own motion or on application
An authorised court may make a vexatious proceedings order of its own
motion...
(7) Orders that may be made by Supreme Court
The Supreme Court may make any one or more of the following vexatious
proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales
already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South
Wales,
(c) any other order that the Court considers appropriate in relation to the
person."
- Section
4 of the VP Act defines "proceedings" to include:
"(a) any cause, matter, action, suit, proceedings, trial, complaint or
inquiry of any kind within the jurisdiction of any court or
tribunal, and
(b) any proceedings (including any interlocutory proceedings) taken in
connection with or incidental to proceedings pending before
a court or tribunal,
and
(c) any calling into question of a decision, whether or not a final decision,
of a court or tribunal, and whether by appeal, challenge,
review or in another
way."
- Section
5 of the VP Act relevantly provides:
"(1) In this Act, institute, in relation to proceedings,
includes:
(a) for civil proceedings - the taking of a step or the making of an
application that may be necessary before proceedings can be started
against or
in relation to a party, ..."
- Section
6 of the VP Act defines "vexatious proceedings" to include:
"(a) proceedings that are an abuse of the process of a court or tribunal,
and
(b) proceedings instituted to harass or annoy, to cause delay or detriment,
or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or
detriment, or achieve another wrongful purpose."
The Procedural History
- The
Motion is but the latest in a long series of attempts by the applicant to
re-open previous judgments or orders. Much of the procedural
history is set out
in two of the judgments of this Court: Teoh v Hunters Hill Council (No. 4)
[2011] NSWCA 324; 81 NSWLR 771 (Teoh (No. 4)) and Teoh v
Hunters Hill Council (No. 6) [2012] NSWCA 260 (Teoh (No.6)). What
follows is based partly on those judgments.
- On
20 and 27 March 2009, the applicant filed notices of motions in the Land and
Environment Court, in which she sought orders reopening
the decision in
Sheahan J (No. 1) on the ground of "fraud". Prior to filing the notices
of motion, the applicant had not filed any appeal or application for an
extension
of time in which to appeal from the orders made by Sheahan J. On 27
March 2009, Biscoe J dismissed the applicant's motions: Teoh v Hunters Hill
Council [2009] NSWLEC 54.
- On
4 May 2009 and 14 July 2009, the applicant filed further motions in the Land and
Environment Court seeking to reopen Sheahan J (No. 1). She relied on
UCPR, r 36.15(1), which provides that a judgment or order "given, entered or
made irregularly, illegally or against
good faith" may be set aside or varied.
Sheahan J dismissed the motion on 31 July 2009: Teoh v Hunters Hill Council
(No. 3) [2009] NSWLEC 121; 167 LGERA 432 (Sheahan J (No.
2)).
- The
applicant then sought leave to appeal from the judgment in Sheahan J (No.
2). This Court dismissed the application on 10 March 2010: Teoh v Hunters
Hill Council (Court of Appeal (NSW), 10 March 2010, unrep) (Teoh
(No. 1)).
- Tobias
JA, with whom Campbell JA agreed, pointed out (at [6]) that the applicant had a
right of appeal from the decision in Sheahan J (No. 1) but that she had
chosen not to exercise that right. Accordingly, the applicant was limited to the
principles applicable to the re-opening
of a final judgment. Tobias JA continued
as follows:
"6 As his Honour pointed out in [Sheahan J (No. 2)], the applicant
made a series of assertions and allegations that ranged far and wide. In a
judgment of some 41 pages and some 146
paragraphs his Honour dealt in detail
with each of those matters and rejected each of them as justifying the
re-opening of his 2008
decision.
7 When one reads the applicant's written arguments on the present leave
application and having listened carefully to her oral submissions,
it is plain
that her real complaint is that his Honour erred in a number of respects in
[Sheahan J (No. 1)] with respect to her challenge to the validity of the
development consent which the Council had granted to the second respondent
in
November 2007. When asked whether what she was really seeking was leave, albeit
out of time, to appeal against [Sheahan J (No. 1)], she eschewed any such
suggestion and made it clear that her summons for leave to appeal was only
against [Sheahan J (No. 2)] in which his Honour had dismissed the
applicant's Motions of 4 May and 14 July 2009 to re-open [Sheahan J (No.
1)]. In that judgment his Honour also dealt with the question of the costs
of the original substantive proceedings and ordered that
the respondents' costs
should be paid for by the applicant.
8 It seems to me that his Honour's discretion with respect to the re-opening
of [Sheahan J (No. 1)] was exercised in a manner that is beyond reproach.
In order to establish an entitlement to leave to appeal it is necessary at the
very least for the applicant to demonstrate that she has some arguable case to
the effect that his Honour has committed error so
as to indicate that there are
at least some prospects of her succeeding on the appeal. In my view, she has
failed on both scores.
In my opinion, there are no prospects and certainly no
likely prospect of her appeal against his Honour's orders dismissing her two
Notices of Motion succeeding."
- On
23 March 2010, the applicant filed a notice of motion in the Registry seeking
orders pursuant to UCPR, r 36.16(3A) setting aside
the orders made in Teoh
(No. 1). It appears that the motion was initially made returnable before a
single Judge of Appeal. The listing was made in error, as a single
Judge of
Appeal did not have power to make the orders sought by the applicant.
Nevertheless, Young JA dismissed the motion: Teoh v Hunters Hill Council
(Court of Appeal (NSW), 2 August 2010, unrep).
- The
applicant filed a motion seeking orders setting aside the order made by Young
JA. She sought that relief pursuant to UCPR, r 36.16(3A)
or, alternatively s
46(4) of the SC Act. In addition, the applicant sought orders setting aside the
decision in Teoh (No.1).
- This
Court treated these motions as a renewed application for leave to appeal from
the decision in Sheahan J (No. 2), but dismissed the application on 25
November 2010: Teoh v Hunters Hill Council (No. 2) [2010] NSWCA 321
(Teoh (No. 2)). In delivering judgment, Handley AJA (with whom Allsop
P and Beazley JA agreed) observed (at [12]) that the applicant had again
made it
clear that she was not seeking leave to appeal from Sheahan J (No. 1).
Handley AJA also pointed out (at [16]) that:
"Disappointed applicants cannot hope to succeed in a second application on
the same grounds with substantially the same arguments
that were unsuccessful
the first time. The power is not available for what is no more than a second
attempt, on the same arguments,
to obtain the orders sought...Parties must fully
prepare and present their cases the first time because this will almost always
be
the only effective opportunity they have."
- Handley
AJA added the following observations (at [18]):
"The decision of two
judges of the Court on 10 March 2010, to refuse leave to appeal from the
judgment of Sheahan J of 31 July 2009
[sic], resolved that controversy. The
Court's reasons for judgment reveal no error of fact or principle. The applicant
has not been
able to advance a new ground or a new argument which could possibly
justify this Court in taking the extraordinary step of setting
aside the order
of 10 March and granting leave to appeal."
- On
8 December 2010, the applicant filed a motion in this Court seeking orders
pursuant to UCPR, r 36.16(3A) setting aside or varying
the orders made in
Teoh (No. 1) and Teoh (No. 2), with the "ultimate aim of obtaining
leave to appeal from Sheahan J (No. 2)": Teoh v Hunters Hill Council
(No. 4) [2011] NSWCA 324 (Teoh (No. 4)) at [13]). The Court in
Teoh (No.4) dismissed the motion in a reserved judgment.
- The
judgment records (at [16]) that the President arranged for counsel to be
appointed to act as amicus curiae and that, in consequence,
the Court had the
considerable benefit of counsel's written submissions. Handley AJA (with whom
Allsop P and Beazley JA agreed) identified
(at [18]) the "underlying issue" as
whether there was:
"sufficient reason to doubt the correctness of the decision in Sheahan J
(No. 2) that the final orders in Sheahan J (No. 1) had not been
given, entered or made irregularly, illegally or against good faith."
- Handley
AJA held (at [29]) that the applicant had failed to establish an arguable case
of error in Sheahan J (No. 2) that would justify the grant of leave to
appeal. His Honour pointed out (at [30]) that the applicant
had:
"failed three times to persuade this Court that she has arguable grounds for
leave to appeal from Sheahan J (No. 2). She must understand that a fourth
application on the same grounds and materials would be vexatious and an abuse of
process."
- Handley
AJA also said (at [39]) that the Court should act of its own motion to prevent
potential abuse of its process should the applicant
file a fourth notice of
motion seeking essentially the same relief as she had sought previously.
Accordingly, the Court made the
following order:
"The Registrar is directed, should the applicant file a further motion
seeking, in substance, leave to appeal from the judgment of
[Sheahan J (No.
2)] to promptly vacate the return date, notify the parties, and refer the
papers to a Judge nominated by the President to determine,
in Chambers, whether
the Court should fix a new return date and notify the parties, or whether Ms
Teoh should be invited to show
cause in writing why the Court should not, in
Chambers, summarily dismiss the proceedings as vexatious and an abuse of
process."
- None
of this deterred the applicant. On 1 November 2011 she duly filed a fourth
application in this Court, this time seeking to reopen
Teoh (No. 4). The
applicant was given notice to show cause why the notice of motion should not be
summarily dismissed. After considering some
28 pages of written submissions, the
Court determined that the motion of 1 November 2011 was an abuse of process and
should be summarily
dismissed: Teoh v Hunters Hill Council (No. 5) [2012]
NSWCA 75 (Teoh (No. 5)).
- The
applicant raised a number of contentions, including fraud, collusion and the
alleged incompetence of counsel. The Court said this:
"32... This Court could not possibly find on the present material that the
judgment in Sheahan J No 1 was procured by fraud.
33 Nothing filed in support of this motion discloses any other basis for
reopening our judgment of 18 October 2011. There is no evidence
of any change of
circumstances and no fresh argument. Nor does the material disclose a basis for
concluding that the orders in Sheahan
J No 1 were given, made or entered
"irregularly, illegally or against good faith" within UCPR Pt 36 r 36.15(1).
...
35 There is no reason to doubt the correctness of the decision of this Court
of 18 October 2011 or the decision in Sheahan J No 2
that the requirements of
UCPR Pt 36 r 36.15(1) had not been established in relation to the judgment and
orders in Sheahan J No 1.
36 The final orders in Sheahan J No 1 have been perfected and the Land and
Environment Court has no power, on the grounds alleged,
to set them aside under
its inherent jurisdiction. On any appeal this Court would have no greater
power.
37 The notice of motion of 1 November 2011 is therefore an abuse of process
and must be summarily dismissed."
- On
26 April 2012, the applicant tried yet again. Her notice of motion on this
occasion sought orders reopening the proceedings to
allow her to adduce fresh
evidence and to advance new arguments. The Court canvassed the evidence relied
upon by the applicant and
concluded as follows (Teoh v Hunters Hill Council
[2012] NSWCA 260 (Teoh (No. 6)), at [15]):
"It is apparent from this material that the notice of motion seeks to
challenge either the findings made by Sheahan J in Sheahan J
No 1 or in
Sheahan J No 2. If it is the former, the applicant has never appealed from that
judgment. If it is the latter, the applicant
has not raised any new matter that
has not been adverted to in her earlier application. The material upon which the
applicant seeks
to rely was all material that ought to have been adduced in the
original proceedings. We reiterate that there has never been an appeal
from the
decision in the original proceedings. Nor has the applicant referred to any
factual matter relating to either of those proceedings,
in one forum or the
other, that has not been raised in previous applications before the Court."
- The
Court made it clear (at [30]) that this application was an abuse of
process:
"This Court has inherent power to prevent abuses of its process. In Teoh v
Hunters Hill Council (No 4) at [34]-[38], Handley AJA collected a number of
the relevant authorities. The present application is an abuse of the Court's
process.
It raises issues and arguments which have been considered and dealt
with in one or more of the four earlier judgments of this Court
concerning Mrs
Teoh's application to secure leave to appeal from Sheahan J No 2. Furthermore,
this court is satisfied that the material
to which it has referred does not
identify any fresh argument or change of circumstances that would justify
reopening the initial
decision refusing leave to appeal from Sheahan J No 2. For
those reasons the application made by paragraphs 1, 2 and 3 of the motion
should
be dismissed."
- The
Court made the following direction:
"Should the applicant file any
further notice of motion in this matter pursuant to UCPR, r 36.16, the applicant
must at the same time
file a document, comprising no more than five pages,
showing cause why this Court should not, in Chambers, summarily dismiss the
notice of motion as vexatious and an abuse of process."
- The
applicant filed yet another motion on 12 October 2012. She sought to reopen her
previous applications and relied on s 46(4) of
the SC Act to do so. The Court
dismissed the application on the papers: Teoh (No. 7). The Court's
reasons included the following:
"3 It would be an imposition on the time of the court that could be devoted
to other litigants' concerns to set out once again the
history of the litigation
and Mrs Teoh's refusal to accept the finality of the litigation.
4 On 12 October 2012, Mrs Teoh filed a notice of motion seeking reopening of
previous applications and the setting aside of the underlying
Land and
Environment Court judgment. Reliance was placed on the Supreme Court Act
1970, s 46(4).
5 The simple answer to the notice of motion filed on 12 October 2012 is that
the Court is now functus officio. Orders have been made.
Mrs Teoh's appeal has
been finalised. The applications brought by Mrs Teoh are now finished."
- The
Court made an order concerning any further application by the applicant similar
to the order made in Teoh (No. 6).
- The
final application in this series is the Motion dealt with in this judgment. It,
too, was an abuse of the Court's process since
it lacked any arguable foundation
for the relief sought and was an attempt to relitigate in this Court for the
sixth time the issues
resolved in Teoh (No. 1).
Principles
A Comparison
- The
VP Act came into force on 1 December 2008 and repealed s 84 of the SC Act), the
previous provision dealing with vexatious litigants
in New South Wales. Section
84(1) of the SC Act in effect defined a "vexatious litigant" to mean a person
who:
"habitually and persistently and without any reasonable ground
institutes vexatious legal proceedings, whether in the [Supreme] Court
or in any
inferior court, and whether against the same person or against different
persons."
The expression "vexatious legal proceedings" was not defined in s 84 and it
was therefore necessary for the courts to interpret that
expression.
- Section
8(1) of the VP Act relevantly empowers an authorised court to make a "vexatious
proceedings order" if it is satisfied that
the person has "frequently instituted
or conducted vexatious proceedings in Australia". Section 6 of the VP Act (set
out at [19]
above) defines "vexatious proceedings".
- It
is not necessary to catalogue exhaustively the differences between the two sets
of legislation. It is convenient, however, to note
a number of the differences,
some of which are pointed out by N Kirby, "When Rights Cause Injustice: A
Critique of the Vexatious Proceedings Act 2008 (NSW)"
[2009] SydLawRw 7 
; (2009) 31
Syd L Rev 163, at 165-167:
(1) Section 84 of the SC Act required the court to find that the person
concerned had "habitually and persistently and without any reasonable ground
instituted
vexatious legal proceedings". The test in s 8(1) of the VP Act is
different. It requires the court to be satisfied that the person
has "frequently
instituted or conducted vexatious proceedings".
(2) Section 84 of the SC Act was limited to cases where the person concerned
instituted vexatious legal proceedings in the Supreme
Court or in any inferior
court in New South Wales. Section 8(1) of the VP Act allows the court to take
into account any vexatious
proceedings instituted or conducted in
Australia.
(3) Section 84 of the SC Act directed attention only to the institution
of vexatious proceedings. Section 8(1) of the VP Act allows the court to take
into account not only whether the person has frequently
instituted vexatious
proceedings, but also whether he or she has frequently conducted
vexatious proceedings.
(4) In the absence of a definition of "vexatious proceedings" in s 84 of the
Supreme Court Act, the courts formulated their own definitions: see
Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 (Roden J).
Although s 6 of the VP Act builds on the judicial definitions, it is the
statutory language that now must be applied.
(5) The VP Act also includes a definition of "proceedings" in s 4. The
definition is broad and includes any calling into question
of a decision,
whether or not a final decision, of a court and whether by appeal challenge or
in any other way (s 4(c)).
Construction of the Vexatious Proceedings Act
- The
key provision of the VP Act for present purposes is s 8(1)(a). In order for the
Supreme Court to make a vexatious proceedings
order pursuant to s 8(1)(a), it
must be satisfied that:
● the relevant person has instituted or conducted vexatious proceedings
in Australia; and
● the person has done so "frequently".
If the Court is so satisfied, it may make an order of the kind
identified in s 8(7) of the VP Act. The Court therefore has a discretion whether
to make an order and,
if so, the nature of the order that should be made.
- Four
further points should be made about the construction of the VP Act. Each is of
some significance to the present case.
- The
first concerns the word "frequently", which has been used in other
legislation concerned with vexatious litigants. In Jones v Cusack [1992]
HCA 40; 109 ALR 313, Toohey J dealt with an application under High Court Rules
1958 O 63 r 6, which at the time empowered the Court to impose restrictions
on a
person who:
"frequently and without reasonable ground has instituted
vexatious legal proceedings."
(The current provisions concerning vexatious proceedings orders in the High
Court are contained in Part XAB of the Judiciary Act 1903 (Cth).
Section 77RN(1)(a) empowers the High Court to make such an order if satisfied
that "a person has frequently instituted or
conducted vexatious proceedings in
Australian courts or tribunals". The definition of vexatious proceedings in s
77RL(1) is substantially
the same as that in s 6 of the VP Act.)
- In
Jones v Cusack, Toohey J stated (at 315) that the word "frequently" is a
relative term that has to be understood in the context of the proceedings
the
particular litigant has instituted in the High Court. In that case, within a
period of seven years the litigant had instituted
five proceedings in the High
Court and had appealed unsuccessfully twice from decisions of single Justices of
the Court. He made
essentially the same claim in all proceedings, namely that
Commonwealth legislation dealing with the banking system and the currency
was
unconstitutional. In these circumstances, Toohey J considered that the language
of O 63 r 6 had been satisfied. Authorities in
New South Wales and elsewhere
have found Toohey J's formulation to be of assistance in construing s 8(1)(a) of
the VP Act: see Attorney General of New South Wales v Croker [2010] NSWSC
942 at [23] (Fullerton J); Hambleton v Labaj [2010] QSC 124 at [56]
(Applegarth J); Attorney General of NSW v Wilson [2010] NSWSC 1008 at
[12] (Davies J).
- In
the last-mentioned case, Davies J suggested (at [14]) that a small number of
vexatious proceedings might satisfy s 8(1) of the
VP Act, on the same basis that
a small number of vexatious proceedings could be said to have been "persistently
instituted" for the
purposes of s 84 of the SC Act. Some care must be taken,
however, before importing the approach taken to different statutory language
to
the constructions of s 8(1) of the VP Act. No doubt it is true that the same
conduct will often satisfy both statutory tests,
but it is the current statutory
language that must always be applied.
- The
dictionary definition of "frequently" includes "at frequent or short intervals,
often, repeatedly" (Oxford English Dictionary Online (March 2014, Oxford
University Press). This does not mean that the test can be satisfied only if a
person institutes successive vexatious
proceedings at short intervals.
Nonetheless, a pattern of repeated vexatious applications within a limited
period of time may be
an important consideration in determining whether the
language of s 8(1)(a) of the VP Act has been satisfied. This is particularly
the
case where a litigant repeatedly challenges a decision in a manner that
demonstrates an unwillingness or inability to accept
that the challenge has been
rejected and that there are no grounds for further challenges. This kind of
case, in our view, is what
Toohey J had in mind when he indicated that
"frequently" is a relative term that must be understood in the context of the
proceedings
instituted by the person against whom the orders are sought.
- Secondly,
a number of decisions have held that it is necessary for the Court considering
an application under the VP Act to form its own judgment
about each proceeding
said to satisfy the definition of "vexatious proceedings", but that in doing so
the Court may take into account
the findings and views expressed by the judicial
officers who resolved each of the proceedings: Attorney General of New South
Wales v Croker [2010] NSWSC 942 at [125] (Fullerton J) (following the views
expressed by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC
142 at [5] in relation to s 84 of the SC Act); Attorney General v Chan
[2011] NSWSC 1315 at [39] (Adamson J) (and other cases cited there); Attorney
General of New South Wales v Martin [2013] NSWSC 442 at [9] (Hidden J)
(citing Attorney General v Chan at [39]).
- Section
8(1)(a) of the VP Act requires the authorised court to be satisfied that the
person against whom an order is sought has frequently
instituted or conducted
vexatious proceedings in Australia. To be so satisfied, the court must identify
the vexatious proceedings
that have been instituted or conducted by that person
and make a finding as to whether he or she has instituted or conducted such
proceedings "frequently". A necessary element in this process is making a
finding as to whether each of the proceedings relied on
(or a sufficient number
of them) satisfies the definition of "vexatious proceedings" in s 6 of the VP
Act.
- Section
6 does not specify the matters that the court dealing with the application under
the VP Act should take into account in determining
whether particular
proceedings were, for example, an abuse of the process of the court (s 6(a)) or
instituted without reasonable
ground (s 6(c)). There is nothing in the language
of s 6 to indicate that a finding by the court in the earlier proceedings that
they were an abuse of process or instituted without reasonable grounds is
determinative on an application under the VP Act. Equally,
there is nothing to
indicate that a finding made or view expressed by the court in the earlier
proceedings is to carry no weight
on an application under the VP
Act.
- Ordinarily,
the court that heard and decided the earlier proceedings will have been best
placed to determine whether they were an
abuse of process or instituted without
reasonable grounds. It would be an odd result if such a determination simply has
to be ignored
by a court hearing an application under the VP Act. The oddity of
the result is reinforced by the likelihood that an application
under the VP Act
would be prolonged if the findings made and views expressed in the earlier
proceedings could not be taken into account.
Indeed there would be a real risk
that the court would be burdened with relitigation of issues of the very kind
that the legislation
is designed to avoid.
- On
the other hand, the seriousness of the consequences of making a vexatious
proceedings order supports a construction of ss 6 and
8 of the VP Act that
leaves it open to the court hearing an application for a vexatious proceedings
order to depart from the findings
made in the earlier proceedings. However, in
the ordinary course it would require very persuasive material to justify such a
departure.
- Thirdly,
the definition of "vexatious proceedings" contains at least two sub-paragraphs
that do not require proof of any subjective intent.
Proceedings clearly can be
an abuse of the process of a court (s 6(a)) regardless of whether the person
instituting or conducting
them intends to abuse the court's process. Similarly,
proceedings can be instituted or pursued without reasonable ground (s 6(c))
regardless of whether the party concerned realises that the proceedings lack any
reasonable basis. It is not necessary for present
purposes to decide whether s
6(b) and (d) fall into the same category.
- The
fourth matter, which has already been referred to, is that an order
restricting a person's access to the courts is a very serious matter
and thus an
order under the VP Act is not to be made lightly. The purpose of the statutory
power is not to punish the litigant for
past misdeeds. The purpose is to shield
other litigants from harassment and to protect the Court itself from the
expense, burden
and inconvenience of baseless and repetitious suits: Official
Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 at [3] (Perram J)
(although referring to Federal Court Rules, O 21 r (1) (which is similar to
repealed s 84 of the SC Act), this statement
is equally applicable to the
purpose of the VP Act).
The Present Case
Had the Applicant Frequently Instituted or Conducted Vexatious
Proceedings?
- As
the procedural history recounted earlier in this judgment demonstrates, the
applicant failed in her application for leave to appeal
from the judgment in
Sheahan (No. 2) on 10 March 2010. Since then, she has sought on seven
separate occasions either to set aside the decision in Sheahan (No. 2) or
to set aside the orders made by the Court in rejecting earlier attempts by the
applicant to reopen Sheahan (No. 2). On each of the seven occasions her
application has been dismissed.
- In
two of the matters (Teoh (No. 5) and Teoh (No. 6)), the Court has
specifically found that the application was an abuse of the process of the
Court. In a third matter (Teoh (No. 7)) it is clear from the judgment
that the Court considered the application to be an abuse of the Court's process,
since the Court was
functus officio. The Motion dealt with in this judgment was
also clearly an abuse of process. Thus in each of these four matters,
the
applicant initiated or conducted proceedings that, on the findings of the Court,
constituted an abuse of its process.
- The
judgments in two of the three remaining matters (Teoh (No. 2) and Teoh
(No.4)) concluded that the applicant had not established arguable grounds
for challenging the decisions in Sheahan (No. 1) or Teoh (No. 1).
Not every case in which a court finds that the applicant has failed to establish
an arguable case will necessarily be one that was
instituted or conducted
without reasonable grounds. It may be, for example, that the weakness of the
case only becomes apparent in
the course of argument. But the reasoning in
Teoh (No. 2) and Teoh (No.4) shows that the Court considered that
the applicant instituted each application without reasonable grounds for doing
so.
- Unless
there is some reason for departing from the findings made and views expressed in
the six proceedings we have identified, it
must follow that the applicant has
instituted or conducted six "vexatious proceedings", within the meaning of the
VP Act, in this
Court. As will be seen, the applicant's submissions provide no
reason for departing from these findings and there is no basis in
the material
before the Court for doing so. Accordingly, four of the six proceedings we have
identified were an abuse of the process
of the Court (s 6(a)) and two were
instituted without reasonable grounds (s 6(c)). The fact that each of the
applications was interlocutory
does not prevent them from satisfying the
definition of "vexatious proceedings" (s 4(b)).
- Each
of the six applications instituted by the applicant was in substance an attempt
to reopen or challenge the original orders made
in the Land and Environment
Court. Each was bound to fail. All six were instituted within a three year
period. Each application agitated
essentially the same complaint, after that
complaint had already been definitively rejected by the Court of
Appeal.
- For
these reasons, subject to considering the applicant's submissions, a firm basis
exists for the Court to be satisfied that the
applicant has frequently
instituted vexatious proceedings in Australia, within the meaning of s 8(1)(a)
of the VP Act.
The Applicant's Submissions
- The
applicant's written submissions, despite their length, do not address the
critical issues that arise when a court is asked to
make, or considers whether
to make on its own motion, a vexatious proceedings order under the VP Act.
Indeed, the submissions do
not refer to the VP Act.
- The
arguments advanced at length by the applicant essentially repeat contentions
that have already been rejected in one or other of
the previous judgments or
rest on unsupported assertions of fraud, collusion and bias. The submissions
demonstrate a failure by the
applicant to appreciate the vice of making repeated
applications to the Court seeking the same or substantially the same relief.
The
necessity of litigation being brought to an end was explained in Teoh (No.
2), the first of the six vexatious proceedings instituted or conducted by
the applicant.
- The
applicant's submissions include the following contentions:
● the judgments in Sheahan (No. 1) and Sheahan (No. 2)
were affected by the bias or apprehended bias of the trial Judge;
● some members of the Court of Appeal were affected by "ostensible
bias" and thus were unable to appreciate the applicant's
arguments;
● the applicant's own counsel in the Land and Environment Court failed
to put arguments or to adduce evidence essential to the
applicant's case;
● the applicant's counsel acted in the Land and Environment Court in a
"recklessly ignorant" manner and indeed "colluded" with
other legal
representatives to act adversely to the applicant's interests;
● senior counsel for the Council misled the Land and Environment
Court;
● the decisions in Sheahan (No. 1) and Sheahan (No. 2)
were affected by illogicality, irrationality and distortion of the meaning of
DCP No. 15;
● the decisions were also tainted by fraud and perjury;
● each Court of Appeal was mistaken as to the construction of DCP No.
15; and
● various members of the Court of Appeal had preconceived and
misconceived views about critical issues, particularly the nature
of merits
review.
- None
of the applicant's assertions of impropriety or misconduct is supported by any
evidence. As we have indicated, many of the claims
have been made and rejected
in earlier proceedings. Unfounded or unsupported assertions do not assist the
applicant.
- The
applicant's submissions advance no cogent reason why the Court should not be
satisfied that she has frequently instituted vexatious
proceedings in Australia.
The Court is so satisfied.
Exercise of Discretion
- The
next question is whether the Court should make the vexatious proceedings order
of which the applicant was given notice (see at
[14] above). In considering this
question, the principles stated earlier, particularly at [60] above, must be
borne in mind.
- It
is clear from the procedural history that the applicant will not or cannot
accept that her claims against the Council have been
determined by the Land and
Environment Court and this Court, and that further attempts to relitigate those
claims will be both futile
and an abuse of the Court's process. The procedural
history also suggests very strongly that, unless a vexatious proceedings order
is made, the applicant will persist in seeking to re-open orders made by this
Court. As has been made clear in the judgments already
given in the earlier
proceedings, the consequences of further applications inevitably will be
inconvenience, unnecessary expense
and a waste of the Court's limited time and
resources. They are also likely to impose an unwarranted burden on the Council
should
it be forced to respond to further claims made by the applicant
concerning the same subject matter.
- If
there were any doubt about the applicant's unwillingness or inability to
perceive that litigation must be brought to an end once
claims have been dealt
with, they have been dispelled by the written submissions she has filed in
opposition to the making of the
proposed vexatious proceedings order. The
submissions demonstrate a fixed determination to reargue issues that have long
since been
definitively resolved.
- The
proposed vexatious proceedings order to which the applicant's attention was
directed is limited in scope. Its effect is twofold:
- to stay all
proceedings in New South Wales relating to the subject of the proceedings in the
Land and Environment Court or to the
proceedings in this Court; and
- to prohibit the
applicant instituting proceedings in the Supreme Court relating to the subject
matter of the proceedings in the Land
and Environment Court or to the
proceedings in this Court.
These orders go no further than necessary to curtail the applicant's repeated
attempts to institute vexatious proceedings arising
out of her original claims
in the Land and Environment Court.
Orders
- It
is in the interests of justice that the orders set out earlier in this judgment
be made. Accordingly, the Court makes the following
orders:
(1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a), all
proceedings in New South Wales relating to the subject matter of proceedings
40246 of 2008 in the Land and Environment Court
of New South Wales, being
proceedings entitled Teoh v Hunters Hill Council, or relating to
proceedings 2009/298486 in the New South Wales Court of Appeal, are stayed.
(2) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b), the
applicant (Ms Teoh) is prohibited from instituting proceedings in the Supreme
Court of New South Wales relating to the subject
matter of proceedings 40246 of
2008 in the Land and Environment Court of New South Wales, being proceedings
entitled Teoh v Hunters Hill Council, or relating to proceedings
2009/298486 in the New South Wales Court of Appeal.
**********
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