Elaine Teoh v Hunters Hill Council

ELAINE TEOH
v
HUNTERS HILL COUNCIL & ANOR
[2013] HCASL 125
S45/2013

The applicant sought judicial review in the Land and Environment Court of New South Wales of a grant by the first respondent of a development consent. On 16 September 2008, Sheahan J dismissed her application. The applicant did not appeal that decision but, by notices of motion in the Land and Environment Court, sought orders reopening the proceeding. On 31 July 2009, Sheahan J dismissed two such notices of motion.
On 10 March 2010, the New South Wales Court of Appeal refused the applicant leave to appeal against the decision of Sheahan J. Since then, the applicant has filed numerous additional applications for leave to appeal the same decision or to reopen previous applications.
The applicant seeks special leave to appeal from a judgment of the Court of Appeal given on 2 November 2012[1] holding that it was functus officio. Only one of the applicant's proposed grounds of appeal relates to the judgment that is actually the subject of the application for special leave to appeal. That ground is that the Court of Appeal erred when it failed to take into account further evidence said to be contained in an affidavit of 22 June 2012. An affidavit of that date appears to have been before the Court of Appeal in at least one of the applicant's previous applications[2] and the Court of Appeal, in the decision from which special leave to appeal is now sought, referred to the decision in that application. There is no reason to doubt the correctness of the Court of Appeal's conclusion that it was functus officio. The applicant would enjoy no prospects of success in this Court.
[1]Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356.
[2]Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260.
The applicant requires an enlargement of time within which to file her application for special leave to appeal. She has filed an affidavit, presumably in support of an application for that enlargement of time. As the application for special leave has no prospects of success, an enlargement of time should not be granted.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler

CaseChat Overview and Summary

In the matter of Elaine Teoh versus Hunters Hill Council, the applicant sought judicial review of a development consent granted by the council. The matter was initially dismissed by Sheahan J in the Land and Environment Court of New South Wales on 16 September 2008. Despite numerous attempts to reopen the proceedings and appeal the decision, the applicant's efforts have been unsuccessful. The case reached the High Court of Australia where the applicant sought special leave to appeal the decision of the Court of Appeal, which held that it was functus officio. The primary ground for appeal was the Court of Appeal's failure to consider an affidavit dated 22 June 2012, which had been before it in a previous application.

The legal issues that the court had to determine included whether the Court of Appeal correctly concluded that it was functus officio and whether the court erred in not considering the affidavit from 22 June 2012. The High Court found no reason to doubt the correctness of the Court of Appeal's conclusion and noted that the applicant's prospects of success in the High Court were minimal. The court also considered an application by the applicant for an enlargement of time to file her application for special leave to appeal, which was denied as the special leave application had no prospects of success.

The High Court held that the Court of Appeal's decision was correct and dismissed the application for special leave to appeal. The court found that the Court of Appeal was functus officio and that the applicant would not enjoy any prospects of success in the High Court. The court also ruled that an enlargement of time should not be granted for filing the special leave application, given the lack of prospects of success. Consequently, the application for special leave to appeal was dismissed, and the Registrar was directed to draw up, sign, and seal an order to that effect.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established