Teoh v Hunters Hill Council (No. 8) [2014] NSWCA 125

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Teoh v Hunters Hill Council (No. 8) [2014] NSWCA 125 Hearing dates: 18 December 2013 Decision date: 14 April 2014 Before: Beazley P; Emmett JA; Sackville AJA Decision: (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.] Catchwords: 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 Legislation Cited: Federal Court Rules 1979 (Cth) O 21 r (1) High Court Rules 1958 (Cth) O 63 r 6 Judiciary Act 1903 (Cth) Part XAB Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 r 36.15, 36.16 Vexatious Proceedings Act 2008 Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Attorney General of New South Wales v Croker [2010] NSWSC 942 Attorney General of New South Wales v Martin [2013] NSWSC 442 Attorney General of NSW v Wilson [2010] NSWSC 1008 Attorney General v Bar-Mordecai [2005] NSWSC 142 Attorney General v Chan [2011] NSWSC 1315 Hambleton v Labaj [2010] QSC 124 Jones v Cusack [1992] HCA 40; 109 ALR 313 Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 Teoh v Hunters Hill Council (Court of Appeal (NSW), 10 March 2010, unrep)) Teoh v Hunters Hill Council (Court of Appeal (NSW), 2 August 2010, unrep) Teoh v Hunters Hill Council (No. 2) [2010] NSWCA 321 Teoh v Hunters Hill Council (No. 3) [2009] NSWLEC 121; 167 LGERA 432 Teoh v Hunters Hill Council (No. 4) [2011] NSWCA 324; 81 NSWLR 771 Teoh v Hunters Hill Council (No. 5) [2012] NSWCA 75 Teoh v Hunters Hill Council (No. 6) [2012] NSWCA 260 Teoh v Hunters Hill Council (No. 7) [2012] NSWCA 356 Teoh v Hunters Hill Council [2008] NSWLEC 263 Teoh v Hunters Hill Council [2009] NSWLEC 54 Texts Cited: N Kirby, "When Rights Cause Injustice: A Critique of the Vexatious Proceedings Act 2008 (NSW)" (2009) 31 Syd L Rev 163

Oxford English Dictionary Online (March 2014, Oxford University Press) Category: Principal judgment Parties: Elaine Teoh (Applicant) Representation: No appearance (Respondent) File Number(s): 2009/298486 Publication restriction: None Decision under appeal Jurisdiction: 9003 Citation: Teoh v Hunters Hill Council (No. 7) [2012] NSWCA 356 Date of Decision: 2012-11-02 00:00:00 Before: Allsop P, Beazley and Meagher JJA File Number(s): 2009/298486

Judgment 1THE 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. 2The 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). 3In 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 4The 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). 5UCPR 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)..." 6Section 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. 7The 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. 8The applicant filed written submissions in support of her Motion and appeared in person at the hearing. 9In 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. 10The 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. 11Paragraph 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. 12In 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? 13During 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. 14Accordingly, 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." 15At 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 16Section 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." 17Section 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." 18Section 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, ..." 19Section 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 20The Motion is but the latest in a long series of attempts by the applicant to re-open previous judgments or orders. Much of the procedural history is set out in two of the judgments of this Court: Teoh v Hunters Hill Council (No. 4) [2011] NSWCA 324; 81 NSWLR 771 (Teoh (No. 4)) and Teoh v Hunters Hill Council (No. 6) [2012] NSWCA 260 (Teoh (No.6)). What follows is based partly on those judgments. 21On 20 and 27 March 2009, the applicant filed notices of motions in the Land and Environment Court, in which she sought orders reopening the decision in Sheahan J (No. 1) on the ground of "fraud". Prior to filing the notices of motion, the applicant had not filed any appeal or application for an extension of time in which to appeal from the orders made by Sheahan J. On 27 March 2009, Biscoe J dismissed the applicant's motions: Teoh v Hunters Hill Council [2009] NSWLEC 54. 22On 4 May 2009 and 14 July 2009, the applicant filed further motions in the Land and Environment Court seeking to reopen Sheahan J (No. 1). She relied on UCPR, r 36.15(1), which provides that a judgment or order "given, entered or made irregularly, illegally or against good faith" may be set aside or varied. Sheahan J dismissed the motion on 31 July 2009: Teoh v Hunters Hill Council (No. 3) [2009] NSWLEC 121; 167 LGERA 432 (Sheahan J (No. 2)). 23The applicant then sought leave to appeal from the judgment in Sheahan J (No. 2). This Court dismissed the application on 10 March 2010: Teoh v Hunters Hill Council (Court of Appeal (NSW), 10 March 2010, unrep) (Teoh (No. 1)). 24Tobias JA, with whom Campbell JA agreed, pointed out (at [6]) that the applicant had a right of appeal from the decision in Sheahan J (No. 1) but that she had chosen not to exercise that right. Accordingly, the applicant was limited to the principles applicable to the re-opening of a final judgment. Tobias JA continued as follows: "6 As his Honour pointed out in [Sheahan J (No. 2)], the applicant made a series of assertions and allegations that ranged far and wide. In a judgment of some 41 pages and some 146 paragraphs his Honour dealt in detail with each of those matters and rejected each of them as justifying the re-opening of his 2008 decision. 7 When one reads the applicant's written arguments on the present leave application and having listened carefully to her oral submissions, it is plain that her real complaint is that his Honour erred in a number of respects in [Sheahan J (No. 1)] with respect to her challenge to the validity of the development consent which the Council had granted to the second respondent in November 2007. When asked whether what she was really seeking was leave, albeit out of time, to appeal against [Sheahan J (No. 1)], she eschewed any such suggestion and made it clear that her summons for leave to appeal was only against [Sheahan J (No. 2)] in which his Honour had dismissed the applicant's Motions of 4 May and 14 July 2009 to re-open [Sheahan J (No. 1)]. In that judgment his Honour also dealt with the question of the costs of the original substantive proceedings and ordered that the respondents' costs should be paid for by the applicant. 8 It seems to me that his Honour's discretion with respect to the re-opening of [Sheahan J (No. 1)] was exercised in a manner that is beyond reproach. In order to establish an entitlement to leave to appeal it is necessary at the very least for the applicant to demonstrate that she has some arguable case to the effect that his Honour has committed error so as to indicate that there are at least some prospects of her succeeding on the appeal. In my view, she has failed on both scores. In my opinion, there are no prospects and certainly no likely prospect of her appeal against his Honour's orders dismissing her two Notices of Motion succeeding." 25On 23 March 2010, the applicant filed a notice of motion in the Registry seeking orders pursuant to UCPR, r 36.16(3A) setting aside the orders made in Teoh (No. 1). It appears that the motion was initially made returnable before a single Judge of Appeal. The listing was made in error, as a single Judge of Appeal did not have power to make the orders sought by the applicant. Nevertheless, Young JA dismissed the motion: Teoh v Hunters Hill Council (Court of Appeal (NSW), 2 August 2010, unrep). 26The applicant filed a motion seeking orders setting aside the order made by Young JA. She sought that relief pursuant to UCPR, r 36.16(3A) or, alternatively s 46(4) of the SC Act. In addition, the applicant sought orders setting aside the decision in Teoh (No.1). 27This Court treated these motions as a renewed application for leave to appeal from the decision in Sheahan J (No. 2), but dismissed the application on 25 November 2010: Teoh v Hunters Hill Council (No. 2) [2010] NSWCA 321 (Teoh (No. 2)). In delivering judgment, Handley AJA (with whom Allsop P and Beazley JA agreed) observed (at [12]) that the applicant had again made it clear that she was not seeking leave to appeal from Sheahan J (No. 1). Handley AJA also pointed out (at [16]) that: "Disappointed applicants cannot hope to succeed in a second application on the same grounds with substantially the same arguments that were unsuccessful the first time. The power is not available for what is no more than a second attempt, on the same arguments, to obtain the orders sought...Parties must fully prepare and present their cases the first time because this will almost always be the only effective opportunity they have." 28Handley AJA added the following observations (at [18]): "The decision of two judges of the Court on 10 March 2010, to refuse leave to appeal from the judgment of Sheahan J of 31 July 2009 [sic], resolved that controversy. The Court's reasons for judgment reveal no error of fact or principle. The applicant has not been able to advance a new ground or a new argument which could possibly justify this Court in taking the extraordinary step of setting aside the order of 10 March and granting leave to appeal." 29On 8 December 2010, the applicant filed a motion in this Court seeking orders pursuant to UCPR, r 36.16(3A) setting aside or varying the orders made in Teoh (No. 1) and Teoh (No. 2), with the "ultimate aim of obtaining leave to appeal from Sheahan J (No. 2)": Teoh v Hunters Hill Council (No. 4) [2011] NSWCA 324 (Teoh (No. 4)) at [13]). The Court in Teoh (No.4) dismissed the motion in a reserved judgment. 30The judgment records (at [16]) that the President arranged for counsel to be appointed to act as amicus curiae and that, in consequence, the Court had the considerable benefit of counsel's written submissions. Handley AJA (with whom Allsop P and Beazley JA agreed) identified (at [18]) the "underlying issue" as whether there was: "sufficient reason to doubt the correctness of the decision in Sheahan J (No. 2) that the final orders in Sheahan J (No. 1) had not been given, entered or made irregularly, illegally or against good faith." 31Handley AJA held (at [29]) that the applicant had failed to establish an arguable case of error in Sheahan J (No. 2) that would justify the grant of leave to appeal. His Honour pointed out (at [30]) that the applicant had: "failed three times to persuade this Court that she has arguable grounds for leave to appeal from Sheahan J (No. 2). She must understand that a fourth application on the same grounds and materials would be vexatious and an abuse of process." 32Handley AJA also said (at [39]) that the Court should act of its own motion to prevent potential abuse of its process should the applicant file a fourth notice of motion seeking essentially the same relief as she had sought previously. Accordingly, the Court made the following order: "The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of [Sheahan J (No. 2)] to promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Ms Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process." 33None of this deterred the applicant. On 1 November 2011 she duly filed a fourth application in this Court, this time seeking to reopen Teoh (No. 4). The applicant was given notice to show cause why the notice of motion should not be summarily dismissed. After considering some 28 pages of written submissions, the Court determined that the motion of 1 November 2011 was an abuse of process and should be summarily dismissed: Teoh v Hunters Hill Council (No. 5) [2012] NSWCA 75 (Teoh (No. 5)). 34The applicant raised a number of contentions, including fraud, collusion and the alleged incompetence of counsel. The Court said this: "32... This Court could not possibly find on the present material that the judgment in Sheahan J No 1 was procured by fraud. 33 Nothing filed in support of this motion discloses any other basis for reopening our judgment of 18 October 2011. There is no evidence of any change of circumstances and no fresh argument. Nor does the material disclose a basis for concluding that the orders in Sheahan J No 1 were given, made or entered "irregularly, illegally or against good faith" within UCPR Pt 36 r 36.15(1). ... 35 There is no reason to doubt the correctness of the decision of this Court of 18 October 2011 or the decision in Sheahan J No 2 that the requirements of UCPR Pt 36 r 36.15(1) had not been established in relation to the judgment and orders in Sheahan J No 1. 36 The final orders in Sheahan J No 1 have been perfected and the Land and Environment Court has no power, on the grounds alleged, to set them aside under its inherent jurisdiction. On any appeal this Court would have no greater power. 37 The notice of motion of 1 November 2011 is therefore an abuse of process and must be summarily dismissed." 35On 26 April 2012, the applicant tried yet again. Her notice of motion on this occasion sought orders reopening the proceedings to allow her to adduce fresh evidence and to advance new arguments. The Court canvassed the evidence relied upon by the applicant and concluded as follows (Teoh v Hunters Hill Council [2012] NSWCA 260 (Teoh (No. 6)), at [15]): "It is apparent from this material that the notice of motion seeks to challenge either the findings made by Sheahan J in Sheahan J No 1 or in Sheahan J No 2. If it is the former, the applicant has never appealed from that judgment. If it is the latter, the applicant has not raised any new matter that has not been adverted to in her earlier application. The material upon which the applicant seeks to rely was all material that ought to have been adduced in the original proceedings. We reiterate that there has never been an appeal from the decision in the original proceedings. Nor has the applicant referred to any factual matter relating to either of those proceedings, in one forum or the other, that has not been raised in previous applications before the Court." 36The Court made it clear (at [30]) that this application was an abuse of process: "This Court has inherent power to prevent abuses of its process. In Teoh v Hunters Hill Council (No 4) at [34]-[38], Handley AJA collected a number of the relevant authorities. The present application is an abuse of the Court's process. It raises issues and arguments which have been considered and dealt with in one or more of the four earlier judgments of this Court concerning Mrs Teoh's application to secure leave to appeal from Sheahan J No 2. Furthermore, this court is satisfied that the material to which it has referred does not identify any fresh argument or change of circumstances that would justify reopening the initial decision refusing leave to appeal from Sheahan J No 2. For those reasons the application made by paragraphs 1, 2 and 3 of the motion should be dismissed." 37The Court made the following direction: "Should the applicant file any further notice of motion in this matter pursuant to UCPR, r 36.16, the applicant must at the same time file a document, comprising no more than five pages, showing cause why this Court should not, in Chambers, summarily dismiss the notice of motion as vexatious and an abuse of process." 38The applicant filed yet another motion on 12 October 2012. She sought to reopen her previous applications and relied on s 46(4) of the SC Act to do so. The Court dismissed the application on the papers: Teoh (No. 7). The Court's reasons included the following: "3 It would be an imposition on the time of the court that could be devoted to other litigants' concerns to set out once again the history of the litigation and Mrs Teoh's refusal to accept the finality of the litigation. 4 On 12 October 2012, Mrs Teoh filed a notice of motion seeking reopening of previous applications and the setting aside of the underlying Land and Environment Court judgment. Reliance was placed on the Supreme Court Act 1970, s 46(4). 5 The simple answer to the notice of motion filed on 12 October 2012 is that the Court is now functus officio. Orders have been made. Mrs Teoh's appeal has been finalised. The applications brought by Mrs Teoh are now finished." 39The Court made an order concerning any further application by the applicant similar to the order made in Teoh (No. 6). 40The final application in this series is the Motion dealt with in this judgment. It, too, was an abuse of the Court's process since it lacked any arguable foundation for the relief sought and was an attempt to relitigate in this Court for the sixth time the issues resolved in Teoh (No. 1).

Principles

A Comparison 41The 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. 42Section 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". 43It 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) 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 44The key provision of the VP Act for present purposes is s 8(1)(a). In order for the Supreme Court to make a vexatious proceedings order pursuant to s 8(1)(a), it must be satisfied that: ● the relevant person has instituted or conducted vexatious proceedings in Australia; and ● the person has done so "frequently". If the Court is so satisfied, it may make an order of the kind identified in s 8(7) of the VP Act. The Court therefore has a discretion whether to make an order and, if so, the nature of the order that should be made. 45Four further points should be made about the construction of the VP Act. Each is of some significance to the present case. 46The first concerns the word "frequently", which has been used in other legislation concerned with vexatious litigants. In Jones v Cusack [1992] HCA 40; 109 ALR 313, Toohey J dealt with an application under High Court Rules 1958 O 63 r 6, which at the time empowered the Court to impose restrictions on a person who: "frequently and without reasonable ground has instituted vexatious legal proceedings." (The current provisions concerning vexatious proceedings orders in the High Court are contained in Part XAB of the Judiciary Act 1903 (Cth). Section 77RN(1)(a) empowers the High Court to make such an order if satisfied that "a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals". The definition of vexatious proceedings in s 77RL(1) is substantially the same as that in s 6 of the VP Act.) 47In Jones v Cusack, Toohey J stated (at 315) that the word "frequently" is a relative term that has to be understood in the context of the proceedings the particular litigant has instituted in the High Court. In that case, within a period of seven years the litigant had instituted five proceedings in the High Court and had appealed unsuccessfully twice from decisions of single Justices of the Court. He made essentially the same claim in all proceedings, namely that Commonwealth legislation dealing with the banking system and the currency was unconstitutional. In these circumstances, Toohey J considered that the language of O 63 r 6 had been satisfied. Authorities in New South Wales and elsewhere have found Toohey J's formulation to be of assistance in construing s 8(1)(a) of the VP Act: see Attorney General of New South Wales v Croker [2010] NSWSC 942 at [23] (Fullerton J); Hambleton v Labaj [2010] QSC 124 at [56] (Applegarth J); Attorney General of NSW v Wilson [2010] NSWSC 1008 at [12] (Davies J). 48In the last-mentioned case, Davies J suggested (at [14]) that a small number of vexatious proceedings might satisfy s 8(1) of the VP Act, on the same basis that a small number of vexatious proceedings could be said to have been "persistently instituted" for the purposes of s 84 of the SC Act. Some care must be taken, however, before importing the approach taken to different statutory language to the constructions of s 8(1) of the VP Act. No doubt it is true that the same conduct will often satisfy both statutory tests, but it is the current statutory language that must always be applied. 49The dictionary definition of "frequently" includes "at frequent or short intervals, often, repeatedly" (Oxford English Dictionary Online (March 2014, Oxford University Press). This does not mean that the test can be satisfied only if a person institutes successive vexatious proceedings at short intervals. Nonetheless, a pattern of repeated vexatious applications within a limited period of time may be an important consideration in determining whether the language of s 8(1)(a) of the VP Act has been satisfied. This is particularly the case where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges. This kind of case, in our view, is what Toohey J had in mind when he indicated that "frequently" is a relative term that must be understood in the context of the proceedings instituted by the person against whom the orders are sought. 50Secondly, a number of decisions have held that it is necessary for the Court considering an application under the VP Act to form its own judgment about each proceeding said to satisfy the definition of "vexatious proceedings", but that in doing so the Court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings: Attorney General of New South Wales v Croker [2010] NSWSC 942 at [125] (Fullerton J) (following the views expressed by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 at [5] in relation to s 84 of the SC Act); Attorney General v Chan [2011] NSWSC 1315 at [39] (Adamson J) (and other cases cited there); Attorney General of New South Wales v Martin [2013] NSWSC 442 at [9] (Hidden J) (citing Attorney General v Chan at [39]). 51Section 8(1)(a) of the VP Act requires the authorised court to be satisfied that the person against whom an order is sought has frequently instituted or conducted vexatious proceedings in Australia. To be so satisfied, the court must identify the vexatious proceedings that have been instituted or conducted by that person and make a finding as to whether he or she has instituted or conducted such proceedings "frequently". A necessary element in this process is making a finding as to whether each of the proceedings relied on (or a sufficient number of them) satisfies the definition of "vexatious proceedings" in s 6 of the VP Act. 52Section 6 does not specify the matters that the court dealing with the application under the VP Act should take into account in determining whether particular proceedings were, for example, an abuse of the process of the court (s 6(a)) or instituted without reasonable ground (s 6(c)). There is nothing in the language of s 6 to indicate that a finding by the court in the earlier proceedings that they were an abuse of process or instituted without reasonable grounds is determinative on an application under the VP Act. Equally, there is nothing to indicate that a finding made or view expressed by the court in the earlier proceedings is to carry no weight on an application under the VP Act. 53Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. It would be an odd result if such a determination simply has to be ignored by a court hearing an application under the VP Act. The oddity of the result is reinforced by the likelihood that an application under the VP Act would be prolonged if the findings made and views expressed in the earlier proceedings could not be taken into account. Indeed there would be a real risk that the court would be burdened with relitigation of issues of the very kind that the legislation is designed to avoid. 54On the other hand, the seriousness of the consequences of making a vexatious proceedings order supports a construction of ss 6 and 8 of the VP Act that leaves it open to the court hearing an application for a vexatious proceedings order to depart from the findings made in the earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure. 55Thirdly, the definition of "vexatious proceedings" contains at least two sub-paragraphs that do not require proof of any subjective intent. Proceedings clearly can be an abuse of the process of a court (s 6(a)) regardless of whether the person instituting or conducting them intends to abuse the court's process. Similarly, proceedings can be instituted or pursued without reasonable ground (s 6(c)) regardless of whether the party concerned realises that the proceedings lack any reasonable basis. It is not necessary for present purposes to decide whether s 6(b) and (d) fall into the same category. 56The fourth matter, which has already been referred to, is that an order restricting a person's access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly. The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 at [3] (Perram J) (although referring to Federal Court Rules, O 21 r (1) (which is similar to repealed s 84 of the SC Act), this statement is equally applicable to the purpose of the VP Act).

The Present Case

Had the Applicant Frequently Instituted or Conducted Vexatious Proceedings? 57As 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. 58In 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. 59The 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. 60Unless 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)). 61Each 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. 62For 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 63The applicant's written submissions, despite their length, do not address the critical issues that arise when a court is asked to make, or considers whether to make on its own motion, a vexatious proceedings order under the VP Act. Indeed, the submissions do not refer to the VP Act. 64The arguments advanced at length by the applicant essentially repeat contentions that have already been rejected in one or other of the previous judgments or rest on unsupported assertions of fraud, collusion and bias. The submissions demonstrate a failure by the applicant to appreciate the vice of making repeated applications to the Court seeking the same or substantially the same relief. The necessity of litigation being brought to an end was explained in Teoh (No. 2), the first of the six vexatious proceedings instituted or conducted by the applicant. 65The applicant's submissions include the following contentions: ● the judgments in Sheahan (No. 1) and Sheahan (No. 2) were affected by the bias or apprehended bias of the trial Judge; ● some members of the Court of Appeal were affected by "ostensible bias" and thus were unable to appreciate the applicant's arguments; ● the applicant's own counsel in the Land and Environment Court failed to put arguments or to adduce evidence essential to the applicant's case; ● the applicant's counsel acted in the Land and Environment Court in a "recklessly ignorant" manner and indeed "colluded" with other legal representatives to act adversely to the applicant's interests; ● senior counsel for the Council misled the Land and Environment Court; ● the decisions in Sheahan (No. 1) and Sheahan (No. 2) were affected by illogicality, irrationality and distortion of the meaning of DCP No. 15; ● the decisions were also tainted by fraud and perjury; ● each Court of Appeal was mistaken as to the construction of DCP No. 15; and ● various members of the Court of Appeal had preconceived and misconceived views about critical issues, particularly the nature of merits review. 66None of the applicant's assertions of impropriety or misconduct is supported by any evidence. As we have indicated, many of the claims have been made and rejected in earlier proceedings. Unfounded or unsupported assertions do not assist the applicant. 67The applicant's submissions advance no cogent reason why the Court should not be satisfied that she has frequently instituted vexatious proceedings in Australia. The Court is so satisfied.

Exercise of Discretion 68The next question is whether the Court should make the vexatious proceedings order of which the applicant was given notice (see at [14] above). In considering this question, the principles stated earlier, particularly at [60] above, must be borne in mind. 69It is clear from the procedural history that the applicant will not or cannot accept that her claims against the Council have been determined by the Land and Environment Court and this Court, and that further attempts to relitigate those claims will be both futile and an abuse of the Court's process. The procedural history also suggests very strongly that, unless a vexatious proceedings order is made, the applicant will persist in seeking to re-open orders made by this Court. As has been made clear in the judgments already given in the earlier proceedings, the consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court's limited time and resources. They are also likely to impose an unwarranted burden on the Council should it be forced to respond to further claims made by the applicant concerning the same subject matter. 70If there were any doubt about the applicant's unwillingness or inability to perceive that litigation must be brought to an end once claims have been dealt with, they have been dispelled by the written submissions she has filed in opposition to the making of the proposed vexatious proceedings order. The submissions demonstrate a fixed determination to reargue issues that have long since been definitively resolved. 71The proposed vexatious proceedings order to which the applicant's attention was directed is limited in scope. Its effect is twofold: * 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 72It is in the interests of justice that the orders set out earlier in this judgment be made. Accordingly, the Court makes the following orders: (1) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(a), all proceedings in New South Wales relating to the subject matter of proceedings 40246 of 2008 in the Land and Environment Court of New South Wales, being proceedings entitled Teoh v Hunters Hill Council, or relating to proceedings 2009/298486 in the New South Wales Court of Appeal, are stayed. (2) Pursuant to the Vexatious Proceedings Act 2008, s 8(7)(b), the applicant (Ms Teoh) is prohibited from instituting proceedings in the Supreme Court of New South Wales relating to the subject matter of proceedings 40246 of 2008 in the Land and Environment Court of New South Wales, being proceedings entitled Teoh v Hunters Hill Council, or relating to proceedings 2009/298486 in the New South Wales Court of Appeal.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014