Development Assessment Commission v Macag Holdings Pty Ltd

DEVELOPMENT ASSESSMENT COMMISSION v MACAG HOLDINGS PTY LTD
[2001] SASC 189
Full Court: Doyle CJ, Williams and Martin JJ

DOYLE CJ This is an appeal by the Development Assessment Commission (“the DAC”) against a decision of the Environment, Resources and Development Court (“the ERD Court”). The ERD Court refused to grant leave pursuant to s85 of the Development Act 1993 (SA) (“the Act”) to serve a summons on the respondent, Macag Holdings Pty Ltd (“Macag”). The proposed summons sought an order restraining an alleged breach of the Act. There is also a cross-appeal by Macag, claiming that the ERD Court should have decided that the DAC was estopped from bringing the proceedings in the ERD Court.
Macag is the registered proprietor of land at 10 Duncan Road Beaumont. Macag’s directors are Mr and Mrs Seeley. The DAC instituted proceedings in the ERD Court, applying for leave to serve a summons on Macag. The proposed summons sought an order restraining Macag from undertaking development on certain land by filling the land without having obtained a development consent. The application was made under s85 of the Act. The ERD Court refused leave to serve the summons. It decided Macag had no case to answer. It made that ruling on the basis that the filling activity engaged in by Macag did not constitute development. Consequently, there could be no breach of the Act.
The Subject Land and the Filling Activity
The subject land is situated to the east of Duncan Road at Beaumont. The land is an irregular allotment, trapezoid in shape with a narrowing point at its northern end. Before the filling began it was vacant and unused. The evidence indicates the land was densely vegetated with a mixture of exotic and native bushes and trees. The topography of the land involves a steep gully which traverses the land from south (the higher end) to north. The gully is quite deep with steep sides. The gully once extended beyond the subject land to the north and south.
The land at the subject land’s southern boundary (the head of the gully) was formerly used as a rubbish tip. It is no longer used for that purpose and has been filled in with soil, but remains unconsolidated. That land now has a generally flat to undulating surface. It slopes downwards in a generally south-westerly direction toward the subject land.
The activity the subject of the present appeal and the alleged breach of the Act is the filling of the subject land. It is undisputed that Macag has begun to fill the gully on its land. The amount of fill is not clear. The trial judge suggested it would involve “the placing of many thousands – perhaps hundreds of thousands - of cubic metres of rock and soil on the land.”
The development applications
The proceedings in the ERD Court have progressed on the basis that there has been no development approval for the filling activity. Macag has, however, made two development applications related to the subject land.
In December 1999 Macag applied to the Burnside Council (“the Council”) for development consent for the subdivision of the land (“the subdivision application”). Macag sought consent for the creation of four additional allotments and for the construction of a road. This application did not include a proposal to fill the gully. The Council requested that the DAC be the relevant authority for the purposes of determining the application, given the Council’s ownership of the adjoining dump site. The Minister acceded to the request. The Development Assessment Commission as the relevant authority then indicated in a letter to Macag that because filling would be required to facilitate construction of the road it would require a planning assessment. Subsequently in June 2000, the application was refused by the DAC. An appeal was instituted against that decision, but was subsequently withdrawn.
A second application was lodged by Macag on 11 October 2000 which sought consent for the filling of the gully (“the filling application”). Macag and its solicitors had for more than a year before that time expressed the intention to undertake such filling work. This intention was expressed in correspondence as early as March 1999. This predated the refusal of the subdivision application in June 2000. This explains why in some of the correspondence between the Council and other statutory bodies, it would appear as if the filling of the gully was part of the subdivision application.
A letter from Macag’s solicitors, attached to the application, said that it was made “on a without prejudice basis without in any way conceding that the filling of land constituted development.” Until then Macag had not made an application for development consent for the filling, despite invitations and suggestions from the Council and the DAC that it would be necessary to do so.
The letter also stated that Macag intended to continue with the filling of the land pending the determination of the application. This was justified on the grounds that (as Macag saw it) the filling of the land “does not constitute development”. Macag was well aware of the Council’s difference of opinion on this issue.
The first application to the ERD Court
On 19 October 2000 an application was made to the ERD Court by the DAC seeking leave to serve a summons on Macag pursuant to s85 of the Act. The proposed summons sought an order to restrain breaches of the Act.
The application for leave to serve was heard on 24 October 2000. Macag had become aware of the application and sought leave to be heard. This was granted.
The application by the DAC was supported by evidence by way of affidavit. From the evidence tendered it is clear that filling work had commenced on the subject land. The clearing process had commenced by at least mid July 2000. Clearing continued between July and October 2000. Some cutting into the face of the gully by way of benching of the land had occurred by August 2000. The filling of the land commenced in late September 2000 with the depositing of material at the base of the gully. The DAC alleged that the filling work constituted development, and that without consent this constituted a breach of the Act.
The Court considered whether Macag had a case to answer. Macag argued that the filling could not be treated as development as defined in the Act. If that submission were accepted, there could be no possible breach of the Act, Macag would have no case to answer and the application for leave to serve the summons should be declined.
Counsel for the DAC put three bases to the Judge on which he might find that the filling constituted development. First, it was argued that the placing of the fill constituted “the formation of a levee or mound with a finished height greater than three metres above the natural surface of the ground”, this activity being development by operation of Schedule 2, Clause 4 of the Development Regulations 1993 (SA) (“the Regulations”). Second, that the filling itself constituted “building work” in that it involved the construction of a “building”, because the fill was a “structure”. The judge rejected both of these arguments in his judgment of 27 October 2000: Development Assessment Commission v Macag [2000] SAERDC 81. These contentions are not currently in issue before this Court. The third argument of the DAC, renewed before this Court, was that the filling was development because it was “incidental to the construction of building work”, the reason for placing it there being to facilitate the construction of dwellings. The judge also rejected this argument, holding that in the absence of a land division application and more detail with regard to the proposed housing development there was insufficient proximity between the filling work and the likely future activity of the construction of buildings. The construction of the buildings was “too remote from the fill currently being placed on the land to support the conclusion that such filing is ‘for, or incidental to, the construction’ of the dwellings”.
Having rejected each of the arguments that the filling work constituted development, the Judge concluded that Macag had no case to answer. The Judge consequently refused leave to issue the summons.
The second application to the ERD Court
On 7 December 2000 the DAC again applied to the ERD Court for leave to serve a summons on Macag pursuant to s 85 of the Act. This application was in identical terms to the first application. So was the proposed summons.
The DAC relied on the affidavits sworn in support of the first application. It also relied on three affidavits, not filed in the first application, from persons who lived on Duncan Road.
Each of these affidavits deposed to a conversation with Mr Seeley. The conversations had taken place in late July and early August 2000, before the first application was made to the ERD Court. There is no reason to think that this evidence was not available at the time of the first application.
The effect of the affidavits is that Mr Seeley had told the residents that he proposed to divide the land into at least 24 allotments for housing purposes, with a view to the subsequent development of a housing development similar to one some kilometres away. The effect of this is that it would be a high quality housing development surrounded by a wall, creating what was described as a “security estate”. The evidence suggested that Macag would carry out the subdivision, but would not be the builder.
It appears that the DAC put forward no evidence explaining why it had not appealed against the decision in the first application. Nor, as far as I can tell, did the DAC explain why the additional evidence had not been put forward in support of the first application.
Once again the DAC served Macag with the application. Once again Macag appeared on the hearing of the application and was granted leave to be heard.
The ERD Court judgment
The relevant provisions of s 85 of the Act are as follows:
“85. (1)     Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).
(2)    Proceedings under this section may be brought in a representative capacity (but, if so, the consent of all persons on whose behalf the proceedings are brought must be obtained).
(3)    If proceedings under this section are brought by a person other than a relevant authority, the applicant must serve a copy of the application on the relevant authority within three days after filing the application with the Court.
(4)    An application may be made ex parte and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.
… ”
Having considered the affidavits, the Judge made the following findings in his judgment of 11 January 2001: Development Assessment Commission v Macag Holdings Pty Ltd [2001] SAERDC 3:
“. Macag was the owner of the land the subject of those proceedings.
. The land was vacant and unused.
.At all relevant times it has been and continues to be the intention of Macag to divide the land into 25-30 allotments suitable for residential use, plus the necessary roads and, perhaps, some form of security wall or fencing and gates.
.It was the intention of Macag to fill the whole valley – with the exception of a small portion at the northern end (the toe of the fill), it was Macag’s intention that the final level of the fill be such as to create a flat (although not, perhaps a level) surface across the land from both east to west and north to south.
.The fill is to be both compacted and stabilised in a manner which will render the land suitable for the construction of dwellings.
.No approval authorizing the filling of the valley had been granted pursuant to the Development Act.
.The purpose of the fill was to create a land surface suitable for the proposed land division and, thereafter, the creation of allotments upon which, in all probability, dwelling houses will be constructed.”
These findings are identical to the findings made on the first application, with one exception. The exception is the third finding. In the first application the relevant finding was that:
“At all relevant times it has been and continues to be the intention of Macag to divide the land into four allotments suitable for residential use, plus a road.”
The Judge rejected a submission that the DAC was estopped from making the second application. The Judge said:
“Having considered the authorities to which counsel referred, I have come to the conclusion that applications for leave to serve a summons do not constitute proceedings the nature of which can give rise to estoppel. No findings of fact are made nor final orders issued. All the Court did, in the first proceedings was to refuse leave to serve. In so saying, I have not overlooked that an order for costs was made against the Commission, but that order was made as a consequence of the circumstances of that case, namely that Macag was given leave to appear and argue the question of leave before the Court.”
The Judge rejected a submission that the application was an abuse of process. The submission to the Judge was that after the first decision Macag was entitled to conclude that the filling was not a breach of the Act, and that Macag could continue with the filling without fear that the DAC would later assert that the filling was a breach of the Act. The Judge rejected that submission saying:
“… Having ‘screened’ the Commission’s evidence, all the Court decided was that no case had been made out on the evidence presented and that leave to serve the summons should not be given. In my view, to construe the Court’s judgment as constituting a declaration that Macag is not in breach of the law is, I think, to stretch the judgment beyond a fair and reasonable construction.”
The Judge then considered whether the DAC had made out a case to answer. The Judge noted that the DAC did not reargue conclusions of law reached by the Judge in the first proceedings, subject only to two exceptions. First, the DAC argued for the first time that the filling of the land and its preparation for residential use constituted a change in the use of the land. The use had changed from “non use” as vacant land to “use for the establishment of a housing development”. The Judge rejected this submission. His view was that while Macag intended to change the use of the land, that change of use had not yet occurred. It would occur, if at all, some time after the completion of the filling process. The completion of the filling might well see “a continuation of the period of non-use”. The DAC invited the Judge to revisit its previous submission that the filling of the land was “building work” because it was “filling for or incidental to the construction … of a building”. In part the DAC relied on further arguments of law, and in part the DAC relied on the further evidence about the number of dwellings proposed and the nature of the proposed development. The Judge rejected the submission. He said:
“… The principal basis of my decision was that the building referred to in this portion of the definition was and is not yet capable of identification in the circumstances of this case.”
The additional affidavits did not take the matter any further. It was still simply filling with a view to the ultimate construction of unidentified dwellings on unidentified sites.
Accordingly, the Judge again came to the conclusion that the filling could not constitute development for the purposes of the Act, and refused leave to serve the summons.
The issues on appeal
The first issue is whether the Judge should have found that the DAC was estopped by the first decision, or by reason of an issue decided in it, from making a further application for leave to serve a summons under s 85. This issue is raised by Macag’s cross appeal.
The second issue is whether the Judge should have found that the making of the second application was an abuse of process by the DAC. This also is raised by Macag’s cross appeal.
The third issue is whether the Judge erred in deciding, on the material before him, that there was no arguable case that the filling work carried out by Macag constituted development. Another way of putting it is that the issue is whether the Judge erred in deciding that there was no reasonable prospect of the Court concluding that the filling was development. In putting the matter this way, I do not intend to depart from what this Court said in R v Judge Stevens; Ex parte Tip Top Drycleaners Pty Ltd (1986) 43 SASR 1, in relation to the section’s predecessor. I express the issue in the matter in which I do because, in the present case, there appears to have been no dispute about the facts, and the only issue was whether, assuming those facts were ultimately proved, the ERD Court could conclude that the filling amounted to development. In other words, the real issue before the ERD Court in each application was one of law.
The approach taken by the ERD Court
Before dealing with the issues that arise on appeal, it is necessary to deal with an aspect of the proceedings in the ERD Court.
The issue before the Judge on each application was whether Macag had a case to answer, on the material then before the Court. But on the first application the Judge considered whether, assuming the evidence tendered by DAC was accurate, and drawing all inferences in favour of DAC that were reasonably open, Macag was undertaking development without approval. In other words, the Judge decided the point of law that would have arisen for decision had leave to serve been granted, and the matter gone to a full hearing.
It was not necessary for the Judge to go so far. As will appear, even if the facts were not in dispute, the allegation that Macag had undertaken development on the land raised a difficult question of law, on which views might differ. The Judge had only to decide, at the stage of the first application, if DAC had an arguable case as a matter of law. An affirmative answer could easily have been given to that question, even if the ultimate answer was that Macag had not undertaken development.
It will not always be appropriate to take the approach that the Judge took. In some cases it will be likely, if leave to serve is given, that the applicant will adduce more evidence than is available to or produced by the applicant when leave to serve is sought, and that issues will arise on a full hearing that cannot properly be considered when deciding whether to grant leave to serve. In some cases, considering whether the facts before the ERD Court at the leave to serve stage are capable of proving a breach of the Act, would prevent an applicant from presenting a proper case in due course. An application for leave to serve will not usually be a suitable vehicle to determine a difficult or contentious point of law, especially if there is a possibility that when all the facts are before the Court, the approach to the issue might change. Applying the approach in Tip Top Drycleaners, it will usually suffice to say, on a question of law, that the point relied on is arguable as a matter of law, and that leave to serve should be granted.
The approach approved in Tip Top Drycleaners does not mean that the Judge must decide contentious issues of law at the stage of leave to serve. That decision permits a Judge to decide that a question of law that arises is arguable, and to go no further than that. If, of course, the Judge decides that the question of law is unarguable or untenable, then so be it.
On the first application, the DAC was entitled to argue that if, on the facts presented, it was arguable as a matter of law that Macag had undertaken development, leave to serve should be granted, leaving it to a later hearing to determine whether Macag had in fact undertaken development. In the circumstances, if such a submission were made, it should have been accepted.

But my examination of the transcript before the ERD Court indicates that when Macag was heard (by leave) the matter proceeded on the basis that the facts were unlikely to be in dispute. When the Judge suggested that the question of law, whether on the facts it could be said that Macag had undertaken development, needed to be decided, counsel for the DAC acquiesced in the Judge deciding the question of law at that stage. It may well have seemed convenient to all concerned to proceed this way. If the affidavits then filed contained all the material facts, the only issue being one of law, and if the parties were then ready to argue that question of law, it is understandable that the parties might have seen fit to put full submissions on the question of law, and have it decided once and for all.
A similar course was followed on the second application.
In effect, on the first application and the second application, the DAC agreed to the Judge deciding the substantive issue of law that would ultimately arise. The parties treated the application for leave to serve as if it were a kind of summary hearing, or as if it were an application for a summary judgment. This is a procedure to be used most sparingly, but as the DAC agreed to the course followed, that must be taken into account. I have dealt with this aspect of the matter because it is important in what follows.
Estoppel
In Jackson v Goldsmith (1950) 81 CLR 446 Fullagar J said (at 466):
“The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’.”
This statement has been recognised as an accurate statement of the law of Australia. It requires an identification of the cause of action that has been determined by a decision of a competent court.
In the present case the application made to the ERD Court was for leave to serve a summons seeking a restraining order. Although Macag was heard, the only issue was whether leave to serve should be granted. The reason for refusing leave was a conclusion that the evidence presented was not capable of leading to a conclusion that Macag was in breach of s 32 of the Act. That section provides that no development may be undertaken unless the development is an approved development. The reason for refusing leave to serve the summons is not to be confused with the cause or claims submitted to judgment by the making of the application. That cause or claim was no more than an application for leave to serve a summons. In my opinion the decision made does not determine the claim by the DAC that the filling of the land is a contravention of s 32.
This conclusion is reinforced by the fact that on a plea of res judicata, only the actual record of the Court is relevant: Jackson v Goldsmith at 467. As so often happens these days, yet again the parties have not drawn up the order of the ERD Court, or at least have not included it in the appeal book. In my opinion the appropriate order would record nothing more than the refusal of leave to serve. It would not record a determination that the filling of the land was not a contravention of s 32 of the Act.
There is another reason for concluding that this form of estoppel does not arise. Estoppels by record or by judgment can arise only from a final judgment: Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 297-298; D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 599 Hayne JA.
The question of what is a final order has proven to be a difficult one, as a number of the members of the High Court remarked in Hall v Nominal Defendant (1966) 117 CLR 423. But one thing is clear in this area, and that is that if the application to the Court that has been disposed of by an order is one that may be renewed by the making of a further application to the Court, then the relevant order or decision is not a final order. That proposition underlies, and is sometimes explicit in, the reasoning of the High Court in two cases in which it was held that an application for an extension of time to institute proceedings and an application to set aside a judgment in default of defence did not give rise to final orders: see Hall at 440-441 Taylor J, at 444 Windeyer J; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248 Gibbs CJ, at 253-254 Mason J, at 258 Murphy J. The position is sufficiently stated by Taylor J in Hall where he said (at 440-441):
“… The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action.”
Thus, it is necessary to consider whether s 85 of the Act permits the making of a further application. There is a danger of circularity here as Hayne JA pointed out in Christie (at 599):
“First, the decision whether a particular application has given rise to a final or interlocutory judgment will be much affected, if not determined, by considering whether the dismissal of the application concerned would itself bar renewal of the application. Thus to argue from whether dismissal of an application under s 23A is properly classed as ‘final’ or ‘interlocutory’ for the purposes of rights of appeal, to a conclusion about whether a second application may be mounted, invites circularity of reasoning.”
In other words, it is necessary to consider the statutory provision and decide whether or not it permits successive applications. To reason in some way that the decision is merely interlocutory and therefore that a further application may be made, would be circular.
Considering s 85 in its statutory context, and the terms of the provision itself, I am satisfied that it does permit the making of successive applications. It may well be, as Taylor J pointed out, that in practical terms successive applications, unless supported by further relevant facts, will be pointless. But that is not to say that they cannot be made at all.
My reasons for so deciding are as follows. One would not expect an applicant under s 85 to put forward the whole of the applicant’s case on an application for leave. Usually, on an ex parte application for leave to proceed, it suffices to put forward sufficient material to warrant leave to proceed, it being understood that the applicant’s case will be supplemented once the proceedings are issued. If an adverse decision on an application for leave to serve the summons meant that a further application could not be made, it would be incumbent on an applicant to put forward all material then available to the applicant, to avoid the risk of an adverse decision on incomplete material that the applicant thought was sufficient to obtain a grant of leave to serve. In other words, a suggestion that an application for leave to serve cannot be renewed, is inconsistent with the nature of the statutory procedure. Section 85(17) provides:
“The Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.”
Under that provision, the Court might decide to revoke a decision refusing leave to serve. While this is not decisive, that also suggests that such a decision is in no way final. It is also relevant to bear in mind, in enforcement proceedings of the type contemplated by s 85, that it will sometimes be the case that the applicant will not be in possession of all relevant information at the time when the application is made. It would be an odd result if an application, made in circumstances of urgency and with limited information available, could result in a decision that prevented the making of a further application when further information had become available. There is also the point that activities that amount to development under the Act are often ongoing, and sometimes it will be difficult to decide just when the point has been reached at which the activity amounts to development.
For these reasons I am satisfied that a remedial provision like s 85 should be read as permitting the making of successive applications in relation to a particular alleged breach of the Act. Accordingly, an order refusing leave to serve is not a final order, and cannot give rise to an estoppel by way of res judicata.
For the same reason the order refusing leave to serve cannot give rise to an issue estoppel. Issue estoppel equally depends upon there being a final judgment. The nature of an issue estoppel was identified by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-532. That statement has often been approved in subsequent decisions of the High Court. It is implicit in the principle there stated that the decision said to give rise to an issue estoppel must be a final one, because the whole concept is that the decision finally closes or precludes disputation on the issue of fact or law that has been disposed of.
Abuse of process
The undesirability of repeated applications in relation to the one matter is self evident. The relitigation of an issue already decided is not in the public interest, nor is it fair to the respondent to the application. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 (at 392-393):
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. … Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.” (footnotes omitted)
In the present case the DAC made a second application to the ERD Court in identical terms to the first application. The summons which it sought to issue, on the second occasion, was identical to the summons that it sought to issue on the first occasion. The material relied upon in support of the application for leave to serve was not identical, but the additional material in support of the application was material which appears to have been available to the DAC when it made the first application. At least it can be said that the DAC has not shown that it was not available to it. On the second application the DAC sought to re-argue one of the issues of law decided on the first application, and to put forward an argument of law which it could have put forward on the first application, but did not do so.
The Solicitor-General, appearing for the DAC, acknowledged that the procedure adopted by the DAC in the present case was not desirable. He acknowledged that the DAC could and should have appealed from the first decision. However, he submitted that the second application was not an abuse of process. He made the point that a new argument of law was put forward; that no improper motive had been suggested, and that the DAC, in the orders it sought if the summons were issued, was not seeking the removal of the fill, but merely an order restraining further filling.
In considering the issues which arise on the submission, I have been assisted by the decision of the Court of Appeal of the Supreme Court of Victoria in Christie, and by the decision of the Court of Appeal of New South Wales in Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80. In each case the Court was considering a second application for an extension of time within which to bring an action for personal injury, the statutory limitation period for the making of such a claim having expired. In each case an application for an extension of time had been refused, but had been granted on the making of a second application to a different Judge supported by further evidence. In each case the further evidence was not fresh evidence, that is, evidence that could not have been put forward on the making of the first application. In each case it was acknowledged that no estoppel arose, but the respondent submitted that the making of the second application was an abuse of process. In Christie a majority of the Court concluded that the second application was an abuse of process, the reason being that the new material put forward had been available at the time of the first application, and no explanation for not putting it forward was provided: see Brooking JA at 597-598 and Hayne JA at 606. In Manning the majority came to the opposite conclusion. The majority rejected what they saw as the underlying basis of the decision in Christie. Heydon JA said (at 155, [71]):
“For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before.”
Foster A-JA took a similar view. He acknowledged that the failure of the relevant legal advisors to produce the relevant evidence on the first application warranted severe criticism (at 167, [123]), but did not consider the making of the second application to be an abuse of the Court’s process. He said (at 167-168, [124]):
“I should add that, in my opinion, no additional factor was demonstrated in the present case which could cause the second application to be an abuse of process. It was not simply a repetition of the previously failed application. It was, quite clearly, a genuine endeavour to repair the deficiencies in the first application. It was not a case of ‘hawking’ the application from judge to judge in a search for a successful outcome. It may be noted, of course, that it was only a second application. A third application following upon two previous failures might well enter the area of abuse of process.”
Mason P, who dissented, approved of a “rule of practice” stated in an earlier unreported decision, to the effect that even in the case of an interlocutory order, “an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court.” Mason P went on to say (at 144, [19]):
“I agree with the reasoning of Hayne JA in Christie. Subject to possible and presently irrelevant exceptions, the principle expressed as ‘the ordinary rule of practice’ in Brimaud means that an attempt to evade that principle in a second substantive interlocutory application is an abuse of process. Once the court detects this and satisfies itself that the case falls within the letter and spirit of the rule of practice then the application should be dismissed.”
The fact that in each case the decision was by a majority, and the fact that the majority in each case has taken a different approach, serves to underline the difficulty of the issue. There is an obvious tension between the conclusion that repeated applications can be made, and recognition of the fact that in certain situations the making of a second or later application will amount to an abuse of process. In Manning, Foster A-JA remarked that a third application “might well enter the area of abuse of process”, but it might be said that if a second application does not, there is no reason why a third or later application should.
In deciding whether there is an abuse of process in the present case, it is essential to bear in mind a point made by Heydon JA in Manning, when he said (at 147-148, [45]):
“The point is that there are considerable differences between the particular goals of each type of order, and the categories of circumstances in which each type of order is made. These differences make it difficult to propound a general rule suitable for all cases when the controversy in one specific case for decision does not have characteristics which are common to all categories. Not only are the categories different, but the circumstances of particular cases falling within each category are almost infinitely various. It is unlikely that a single set of rigid and exhaustive criteria could justly settle all issues.”
The point that Heydon JA makes is that in deciding whether there is an abuse of process, one must bear in mind the nature of the application made, the policy behind the procedure that was invoked, and the situation with which the Court dealt. It is evident from the differing approaches in Christie and in Manning, that in Manning the majority were influenced by the fact that on an application for extension of time the Court is considering whether or not a person, who claims to have been injured by the defendant’s negligence, should have an opportunity to claim damages for those injuries. The majority were influenced by the fact that in deciding whether to extend time, a broad discretion could be exercised which would take account of any circumstances of unfairness identified by the potential defendant.
The first issue for me is to determine the approach to take in deciding whether a second or later application under s 85 of the Act, relating to the same matter, is an abuse of process. The second issue is to apply that approach to this particular case.
The fact that successive applications can be made under s 85 is a reason not to accept too readily that a further application is an abuse of process. So is the fact that anyone (with a sufficient interest) can apply under s 85. If further material information has come to light, and if there is a reason for not putting it forward before, or if an alleged development has advanced to a new stage that might raise new issues, a further application should be allowed. It may be appropriate to permit a further application if a new point of law is to be argued, and there is a satisfactory explanation for the failure to advance it before. Some types of development involve an ongoing activity, and further steps in the one activity may raise new issues, or may themselves constitute development. For reasons like this the Court should not adopt an approach that would, in effect, contradict the principle that the refusal of leave to serve is not a final order.
But there is a fundamental policy against re-litigating the same issues of fact and law, whether the first decision on those issues is a final decision or not. There are reasons of justice, of economy and of fairness to a potential respondent to support this policy. Repeated applications in respect of the same matter could lead to “deep pocketing” of a potential respondent by a better resourced applicant. Allowing repeat applications raising the same issues of fact and law will encourage “judge shopping”. It could give rise to conflicting decisions on the one matter by judges of the same court.
Section 85(4) is not expressed in terms that suggest that the Court exercises a general discretion in deciding whether to grant leave to serve, even if a case to answer is made out. So it cannot be said that matters of the type identified by me will be taken account of in the exercise of such a discretion. The refusal to permit a further application under s 85 will not protect the potential respondent from prosecution for an offence under s 44 of the Act, or from an order under s 106 of the Act requiring an offender to make good a contravention of the Act. Refusing to permit a further application under s 85 merely deprives the applicant of the ability to make use of the remedies granted by that section.

Having weighed these matters up, my conclusion is that it is likely to be an abuse of process to make a further application for leave to serve under s 85, when the issues of fact and law under each application are the same, that is, when there has been no relevant change of circumstances, when there is no satisfactory explanation for the making of a further application raising the same issues of fact and law (as there may be in some cases), and when there is no satisfactory explanation for the failure to appeal from the first decision. I express this conclusion in guarded terms, because each case requires a consideration of all relevant circumstances.
I recognise that to hold that a second application is an abuse of process will sometimes seem a bad result, because it will prevent an applicant from having access to remedies which, in a broad sense, should be able to be utilised in the public interest. But most sound rules can on occasions produce results that seem harsh or unfortunate. I think it would be worse to adopt a rule that would permit the re-litigation of issues when there is no good reason to do so.
I now turn to apply this principle to the present case.
In my opinion it is of considerable importance that the parties agreed to the Judge determining the point of law that he decided, on the basis that the facts were not disputed, and agreed to him expressing a final view on the point. The question of whether the filling constituted development for the purposes of the Act appears to have been fully argued in the first application, even though two new points were identified on the second application. No explanation is offered for the failure to appeal against the first decision. There was additional evidence on the second application, but it is evidence that appears to have been available on the first application. There was no material change of circumstances between the making of the first application and the making of the second application. This is a particularly significant factor, because a material change of circumstances would be a firm basis for allowing a second application. This was not a case like Christie or Manning in which a deficiency in the first application had been identified, which the applicant now sought to remedy. Once again, in many cases that would be a sound reason for allowing a second application. There has been no change in the law between the making of the two applications, no new appellate decision which throws any light on the issues. Macag resumed the filling after the first decision. It seems unfair to Macag to submit it to a further application, under the circumstances.
There are some matters that point the other way. The filling activity is a substantial activity, and will effect a permanent change in the landscape. It is effectively irreversible. An important public interest is involved, being the enforcement of the provisions of the Act. If filling is development, then Macag should not be permitted to proceed. Macag had no right to assume that the first application was the end of the matter. That follows from the fact that a further application might be made, at least if new facts came to light. By its second application the DAC does not invite the ERD Court to reopen the facts, but merely to take a different view of the law. The second application to the ERD Court can be viewed as being, in substance, a vehicle for a potential appeal to this Court. The DAC might have made an application for an extension of time within which to appeal from the first decision, and might well have obtained an extension of time.
My conclusion is that the application of the basic rule that I have identified leads to the conclusion that, in this case, the second application was an abuse of process. There is no reason why the DAC should be allowed to re‑litigate the issues which it fought in the first application.
In my opinion the Judge should have decided that the second application was an abuse of process, and should have declined to entertain it.
Normally, having reached that decision, it would not be appropriate to express a view on the other issues that arise on the present appeal. But there are special circumstances in the present case. These issues may yet arise on a prosecution under s 44. They might arise if and when an application is made for consent to a proposed division of the land, or for consent to the erection of buildings on the land.
I would expect the relevant authorities to adopt the approach taken by the ERD Court to the question of whether the filling is development. If that decision is flawed, as I have concluded it is, it seems better to so determine now, to avoid later confusion and uncertainty. Accordingly, I propose to explain why I consider that the ERD Court was wrong in deciding that the filling of the land was not development.
Was the filling of the land development?
The concept of development is at the heart of the enforcement provisions of the Act. Section 32 of the Act provides:
“Subject to this Act, no development may be undertaken unless the development is an approved development.”
Unless development is approved under the Act, a person who undertakes development commits an offence contrary to s 44(1) of the Act, and the person found to have contravened or to have failed to comply with the Act may be required to take action to remedy the breach by virtue of an order under s 106 of the Act.
“Development” is defined in s 4 of the Act. Some parts of the definition deal with particular specified activities. They can be put to one side. The relevant parts of the definition are as follows:
“development” means –
(a)     building work; or
(b)    a change in the use of land; or
(c)     the division of an allotment; or
…
(h)an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development.”
“Building” is defined as follows:
“building” means a building or structure or a portion of a building or structure (including any fixtures or fittings which are subject to the provisions of the Building Code of Australia) whether temporary or permanent, moveable or immovable, and includes a boat or pontoon permanently moored or fixed to land, or a caravan permanently fixed to land;”
Finally, “building work” is also defined, in the following terms:
“building work” means work or activity in the nature of –
(a)the construction, demolition or removal of a building; or
(b)the making of any excavation or filling for, or incidental to, the construction, demolition or removal of a building; or
(c)any other prescribed work or activity.
but does not include any work or activity that is excluded by regulation from the ambit of this definition;”
The Regulations are made “for the purposes of the Act”: s 108(1). Schedules to the Regulations identify additional acts and activities that constitute development, and which are excluded from the definition of development. None of these provisions are directly relevant, although it will be necessary to refer to some of them later. Schedules to the Regulations also identify forms of development that are complying development, the plans and specifications that must accompany applications for consents of particular types, forms of development that must be referred to a prescribed body or that require a concurrence from a prescribed body, forms of development for which public notice must be given and classes of development which must be referred to the DAC. In each of these Schedules defined and undefined terms are used.
The effect of the Judge’s findings is that Macag was filling the valley to create a land surface suitable for division into about 25-30 allotments and compacted so that the allotments would be suitable for the erection of dwelling houses, the precise location of the allotments and houses not having been identified, and the style, size and type of dwelling to be erected not having been identified. The effect of his finding is further that Macag intended to divide the land into allotments, but there was no evidence that it itself intended to erect dwellings on the land.
The Solicitor-General contended that the filling of the land fell within subpara (b) of the definition of “building work”.
The starting point in construing the provisions of the Act is, as always, the ordinary and natural meaning of the words used. On the Judge’s findings the filling of the land by Macag was work or activity in the nature of filling land for the construction of buildings on the filled land. The construction of buildings was the reason for the filling. Viewed objectively, the filling was appropriate and adopted for the construction of buildings. In my opinion, in the ordinary natural meaning of the words used, the filling of the land is building work. The issue is whether there is any reason to read the words of the definition in any other way.
The Judge’s view, repeating his conclusion on the first application, was that the filling of the land was not building work because subpara (b) of the definition applies only to “the placement of fill to prepare a site for the construction of a particular building”. He added:
“By so saying, I do not wish to infer that every detail of both the sighting [sic], design and nature of the building needs to be known, but rather that the intention to construct the building on a particular site must be known and that the placement of the fill must be for the purpose of preparing the site for that building. Such is not the situation in this case.”
As neither the proposed allotments to accommodate the buildings nor the sites had been defined, the terms of the definition were not met. In his reasons in the first application the Judge said that “the construction of the buildings is too remote from the fill currently being placed on the land” to conclude that it was filling for or incidental to the construction of the dwellings. He thought that the filling “may more appropriately be characterised as being a work or activity for or incidental to the division of the land”.
In my respectful opinion there is nothing in the ordinary meaning of the words to limit them in this fashion. On the Judge’s own findings there is no doubt that the valley was being filled for the purpose of creating a surface on which to erect buildings. Granted, a good deal had to occur before the construction of a building could occur, and there might well be further excavation or filling before then. But there is no reason to deny the application of the words of the definition to what had already occurred. The fact that the site of the allotments on which the building would occur was unknown, and the further fact that the site and nature of the proposed buildings is unknown does not detract from the conclusion that the filling was for the construction of a building. I would add that I find nothing surprising in the notion that substantial preparatory works of this nature should be controlled by the Act, or that such works should be controlled before anything specific was known about the siting of the proposed or envisaged building allotments and buildings.
Mr Hayes QC opposed these conclusions on two bases.
His submissions began with the proposition that under s 33(1) of the Act a development could be approved only if it had been assessed against, and granted a consent in respect of:
“(a)the provisions of the appropriate Development Plan (‘provisional development plan consent’);
(b)the provisions of the Building Rules (‘provisional building rules consent’);
… ”
There are other subparagraphs of this provision which need not be set out for present purposes. He submitted that the process of assessment against the Development Plan was quite different from the process of assessment against the Building Rules. Assessment against the Development Plan could be regarded as a mixture of quantative and qualitative assessment, ultimately involving substantial exercises of judgment and degree, and some discretionary decisions. On the other hand assessment against the Building Rules was a far more precise process, with very limited scope for the exercise of discretions. The appeal procedures in each case were different. In general terms I accept this submission, but it is another thing to say just where that leads, other than to plant a suggestion that “building work” must be something that involves a particular identified building that could be assessed under detailed and fairly precise rules like the Building Rules. But that is hardly a basis for rejecting the ordinary and natural meaning of the words found in the definition. Parliament has deliberately extended the definition of “building work” beyond activities that are part of the construction of a building, to include excavation or filling for the construction of a building as development in its own right. It seems to me that Parliament must have intended to catch this activity even when it was sufficiently removed from construction of a building not to be regarded as part of construction, and even when, as would tend to follow, it could not be linked to a specific building proposal.
The next step in Mr Hayes’ submission involved an examination of the Regulations. He submitted that an examination of the Schedules demonstrates that when the Schedules intend to regulate filling as such, and other than related to, or in connection with, a particular identified building, the Regulations specifically so provide.
For example, Schedule 2 prescribes “Additional acts and activities constituting development”. It deals with land in sensitive areas, such as the Hills Face Zone. Clause 1 of the Schedule constitutes as development:
“1. Any excavating or filling (or excavating and filling) of land within the zones and areas specified in the schedule to this clause which involves the excavating or filling (or excavating and filling) of a volume of material which exceeds nine cubic metres in total, but not including the excavating of filling (or excavating and filling) of land –
(a)incidental to the ploughing or tilling of land for the purpose of agriculture; or
(b)incidental to the installation, repair or maintenance of any underground services; or
(c)on or within a public road or public road reserve; or
(d)in the event of an emergency in order –
(i)to protect life or property; or
(ii)to protect the environment where authority to undertake the activity is given by or under another Act.”
Mr Hayes submits that this is an instance of the Regulations dealing with filling as such. I agree, but in my opinion no particular implication is to be drawn from this provision, other than that the drafter of the Regulations thought it appropriate in the zones specified to deal with filling as such, and without regard to any connection with a building. In that provision I find no basis for limiting the ordinary and natural meaning of the words in the definition of “building work”. Mr Hayes referred to a number of other provisions in the Regulations. They are Schedule 3 Clause 4(1)(a); Schedule 4 Part 2 Clause 2; Schedule 5 Clause 1(4)(a); Schedule 8 Clause 1(D); Schedule 10 Clause 3, the Schedule, Part B; and Schedule 14 Clause 1(j).
I have considered each of these provisions. I find in none of them, individually or taken together, a reason to reject the ordinary and natural meaning of the words in the definition of “building work”. Nor, in my opinion, will the giving of that meaning to those words produce an unworkable result having regard to the provisions in the Regulations. I would add that as to each provision in the Regulations a reason can be discerned for dealing with filling in the manner in which it is dealt with. I acknowledge that it is difficult to be confident about these things, because of the detailed nature of the Regulations. But my conclusion is that the Act and the Regulations will work together satisfactorily giving to the definition of “building work” the meaning that I am inclined to give it.
There is in any event a question as to whether the Regulations can limit the meaning of an expression found in the Act. The usual rule is that the meaning of an Act is not to be ascertained by reference to the terms in which delegated legislation has been expressed: Pearce and Geddes, Statutory Interpretation In Australia (4^th ed) para 3.23. But I accept that the relationship between the Regulations and the Act is not of the usual type, and I do not reject Mr Hayes’ submission on this basis alone.
Mr Hayes then argued that if the definition of “building work” was given the meaning for which the Solicitor-General contended, the Act would be unworkable for another reason. When an application is made for development consent in respect of a development which must be assessed against the provisions of a Development Plan, the relevant authority must “determine the nature of the development”: Regulation 16(1). The manner in which an application for consent is dealt with depends on whether the development is “complying” or “non complying”: Regulation 17. Other decisions relating to the manner in which an application is dealt with depend upon an authority categorising or determining the nature of a development. Mr Hayes submitted that the necessary decisions could not be made with any confidence, and that a proposed development could not be meaningfully assessed against the Development Plan, if the filling in question amounted to development. The authority would have to treat the proposed development as being the filling of land for the purpose of an uncertain number of houses, on unidentified sites, the houses being of an unspecified size and appearance. The authority could not follow the required decision making processes with such a general application. The effect of giving the Solicitor-General’s suggested meaning to “building work” would be to force a person to apply, at an inappropriately early stage of a proposal, for development consent. The applicant might be unable to identify the proposed use of land, other than in a very general way, perhaps residential housing, or perhaps simply buildings. As well, he suggested, the applicant would be bound later by the description given to the proposed use when the application was made. There would be problems if an approval were granted. If the filling of land in the present case were approved, there would be uncertainty about what flowed from that. Would it be an approval of filling for the purpose of subsequent housing development, or for buildings generally, or for something else? In other words, Mr Hayes’ submission was that treating filling as building work because it was filling for the construction of buildings generally, and not for the construction of an identified building on an identified site, would give rise to a requirement to make decisions under the Regulations and under the Act that could not satisfactorily be made in respect of such a loosely identified form of “development”.
The submission is a substantial one. Its merits turn on a detailed application of the Regulations and of the Development Plan. That is something which is difficult to assess thoroughly at this stage.
However, I am not persuaded that the submission is sound. In my opinion there are a number of points that can be made in answer to it.
If Mr Hayes is correct, then the present case illustrates that a substantial project can be well advanced, with no ability for the relevant authority to exercise any control over it. The impact on the land in question may, from a practical point of view, be irreversible. The fact that ultimately a development consent will be required for the subdivision of land and for the erection of buildings is no answer to this point. That may prevent a proposal going beyond the filling stage, but will not prevent the filling.

It seems to me that an applicant for development consent can make an application providing details about the proposed use of the land, and that the relevant authority can then assess the application on that basis. In the present case the proposed development could be described as the cutting and filling of land for the purpose of the proposed construction of dwelling houses on the filled land, the application stating that development consent would be sought at a later stage for the subdivision of the land and for the erection of dwelling houses. I am not persuaded that such an application could not be properly dealt with under the Regulations, and properly assessed against the Development Plan, treating it as filling for the stated purpose. The application would of necessity be treated and assessed on the basis that it was for substantial filling of the land, and also by reference to the proposed ultimate use of the land. A consent to development so described would not prevent the applicant from later changing the proposed use of the filled land, although the applicant would run the risk that the authority might not consent to the changed use of the filled land. If subsequent applications by the applicant were nothing more than a detailed working out of what was originally envisaged, one would expect the authority to grant further consents. It also needs to be born in mind that an authority has a wide power to grant consents subject to conditions: s 42 of the Act. If the applicant for consent is unable or unwilling to provide any details about the type of building that will be erected on the land, then I would expect the Authority to deal with the application on the basis that it is for consent to the filling of the land for the erection of buildings. That might lead to the application being rejected, on the basis that only buildings of a certain type would be consented to on the land, or it might lead to a consent conditional on any buildings erected later being of a certain type. I realise, of course, that this situation could be manipulated by an applicant, and consent might be gained to the placing of filling with a view to erecting buildings of a type for which the authority was unlikely to grant a consent, by concealing the type of building ultimately intended. At the same time it needs to be borne in mind that the filling of the land will constitute “development” only if it is the filling of land for the purpose of the construction of buildings.
I cannot say with confidence that giving the definition of “building work” its ordinary and natural meaning will give rise to no problems. However, I am not persuaded by the submissions put by Mr Hayes that the words should not be given their ordinary and natural meaning.
For those reasons I consider that the Judge of the ERD Court erred in deciding that there was no case to answer because, on the material filed in support of the application for leave to serve the summons, the filling of the land by Macag could not constitute development for the purposes of the Act and therefore could not give rise to a breach of the Act. Had the Judge given leave to serve the summons, the ERD Court would later have considered all of the material put before it by the parties, and would have decided whether or not the filling of the land was development. The effect of my view is that if the relevant findings ultimately were the same as those made on the application for leave to serve, the ERD Court should then decide that the filling of the land was in fact development and was a breach of the Act if done without obtaining an appropriate consent. But, at the stage at which the ERD Court dealt with the matter, it was necessary to do no more than to decide that the filling of the land described in the affidavits could, as a matter of law, amount to development.
The DAC also argued in the second application that the filling of the land was development because it amounted to a change in the use of the land. The submission was that the effect of filling the land was to change its use from vacant land to land used for residential purposes.
The Judge rejected that submission. He said:
“I do not regard the matter as free from doubt. However, I have, on balance, come to the conclusion that the filling of the land – although a project of some substance and ultimately for the purpose of rendering the land suitable for residential development – it did not constitute a change in the land use. Although I have no doubt that it is the intention of Macag to change the land use, I do not think that such use either has occurred or will have occurred at the completion of the placement of the fill. The completion of the fill may well see a continuation of the period of non-use.”
On appeal, the Solicitor-General challenged this conclusion. His submission was that to identify the use of the land it was necessary to characterise the purpose of the activity taking place on the land. That activity was, as the Judge found, the filling of the land with a view to the construction of residential buildings. He submitted that on the Judge’s findings the filling and compacting of the land was use of the land for residential development.
Before Macag began to fill the land it was land in its natural state, not used for any purpose, and appropriately described as being used as vacant land. The filling was a substantial activity. The Judge was able to infer that the purpose of the filling was to prepare the land for the erection of dwellings by someone. A change of use by someone at some stage was clearly intended, but it does not follow that the filling of the land of itself amounted to a change of use.
The concept of “a change in the use of land” is not exhaustively defined by the Act. Section 6 of the Act provides some guidance but it is of no assistance in these circumstances. Change in the use of land has been a central concept in planning legislation in this State for some time. In most cases it does not give rise to any great difficulty, but the case law demonstrates that the concept is somewhat imprecise, and can cause difficulty.
In Leverington v State Planning Authority [1970] SASR 387 the issue was whether the enlargement of an existing quarry onto adjacent land was permissible on the basis that it was part of the continued use of the land and therefore did not require consent under the relevant legislation. The reasons of the members of the Court in that case illustrate the difficulty that can arise in determining, for a particular purpose, the existing use of land. The effect of the decision is that all of the facts about the use of the land must be examined. However, as Bray CJ said (at 395):
“Land is not being used for a purpose on a particular date because it might be used for that purpose at some future date.”
I respectfully accept that proposition. Macag is not using the land for the purposes of residential development simply because it might so use the land at some future date, or even simply because it is taking steps which will facilitate it doing so. As Walters J said (at 401):
“The word ‘use’ has undoubtedly a wide signification; it is not a word of fixed connotation, and it is somewhat indefinite. Whether there is a user of a particular piece of land, and if so, what is the fundamental character of that use must inevitably be questions of fact and degree. In answering these questions, I think that, among other things, consideration must necessarily be given not only to the history, development and extent of the quarry operations and ancillary activities, but also to the history, physical nature and surroundings of the areas of land on which the plaintiff has carried on its undertakings. I have adopted this approach in essaying answers to the questions propounded.
… I find it difficult, however, to construe the words ‘existing use to which the land … is … lawfully being put’ without introducing the notion of some aim or purpose. ‘To put land to use’ must, I think, import the concept of an application or employment of the land to some particular purpose, or an activity reasonably incidental thereto. In this context, therefore, it seems to me that the phrase under discussion should be interpreted in the light of the actual purpose or purposes to which the various areas of land were being put at the relevant date.”
To the extent that this passage provides some guidance for the present case, it directs the Court’s attention to an examination of how the land is being used, with a view to discerning the purpose of that use, the purpose presumably being discerned from an objective assessment of the manner in which the land is being used.
In Prestige Car Sales Pty Ltd v Corporation of the Town of Walkerville (1979) 20 SASR 514, in a somewhat different context, Wells J said (at 522):
“The principles for determining what is an existing use and whether there has been a change of existing use should be flexible. They are not convertible into hard and fast rules. Rather should they be treated as directing a comprehensive survey of the circumstances that obtained before the planning regulations in question came into force, and of the circumstances that would obtain if the proposed extensions or reconstructions were to be made or carried out. The object of the survey should be to decide whether, having regard to the purpose of the former use of the subject building and to the purpose of the use that would be made of it after execution of the proposals, there would, as a matter of fact and degree, be a change in the essential nature of the existing use if consent were granted. It should be borne in mind that labels are not principles. No one factor is necessarily decisive. There should be no resort to convenient, but undiscriminating and over-simplified, formulae.”
Finally, I add a reference to the following remark by King CJ in Leeming v Corporation of the City of Port Adelaide (1987) 45 SASR 506 at 514:
“Use of land then is something different from activity pursuant to or in the exercise of that use. An existing use continues until it is discontinued and superseded by a new use or a state of non-use. Whether there has been discontinuance must be gathered from all the circumstances.”
Clearly enough, the question of whether there has been a change in the use of the land is a question of fact and degree, requiring consideration of all the circumstances about the use of the land. The fact of activity on the land consistent with the use of the land for residential dwellings, does not mean that the land is now used for that purpose. Nor is the purpose of Macag to use the land for residential development decisive. And, as I have already recognised, acts may be done on land that change the appearance and topography of the land with a view to a change of use, without yet bringing about a change in the use.
Mr Hayes QC accepted that once the erection of structures had begun, a change of use from vacant land to land used for residential purposes (assuming the structures were dwellings) would have occurred. He appeared to accept that this would occur when, for example, footings were poured. When pressed to explain why the pouring of footings was the decisive stage, as distinct from, for example, the digging of footings, his answer was that the pouring of footings changed the nature of the land, the character of the land. It was observable that a change had occurred. I must say, while recognising the difficulty of the issue, I find this answer unconvincing. The excavation of footings, coupled perhaps with the placement of reinforcing mesh, equally seems to me to change the land, and equally seems to me to be indicative of a change in the use of the land to use for residential purposes. On the other hand, I acknowledge the force of Mr Hayes’ point that before the land was filled one had vacant land with a certain topography, and after it had been filed one had the same land with different topography, but still the land remained vacant land. My impression is that underlying his submission is the proposition that a change in the use of the land, at least in a case like the present one, will not occur until something permanent has been added to the land which is itself unequivocally and objectively identifiable as a new use of the land. Thus, the pouring of footings would be an addition to the land, and unequivocally referable to a dwelling house, assuming that they appeared to be footings for a dwelling house.
It can be seen from this that the submission advanced by Mr Hayes in relation to change of use was similar to the submission advanced in relation to the meaning of the “building work”. It is only when the activity on the land has reached a point at which one can identify in specific terms the activity that is to take place that one can say a change of use has occurred. Thus, the commencement of a residential development identifies the land as used for residential purposes. Earlier activities that are consistent with such a use, but equally consistent with other uses, are not to be regarded as a change of use, mainly because, as best I can tell, on the objective facts other uses remain possible. Thus, as cannot be denied, the filling of the land by Macag certainly left open the possibility of the land remaining unused, the land being used for recreational purposes or the land being used for buildings that are not residential buildings (subject, of course, to the grant of the planning consent). As I have said, I see the force of the argument. But, in my opinion, to accept the submission of Mr Hayes is to adopt what seems to me to be a hard and fast rule that there can be no change of use until something has been done on or to the land which is unequivocally referable not merely to a changed use, but to a particular changed use, and until something has been done on or to the land which is recognisable as the implementation or commencement of that particular use. Thus, only when footings are poured for a residential development can one say that the change of use of the land has occurred.
I consider that this approach is inconsistent with the authorities to which I have referred. Those authorities call for an examination of how the land was used before the relevant activity, and then for an examination of the activity in question and what can be deduced about the purpose of the intended use of the land from that activity. Neither the activity nor the purpose can be considered in isolation. The Judge found, as a matter of fact, that the filling of the land was placed, compacted and stabilised so as to render the land suitable for the construction of dwellings, and with a view to the division of the land into allotments suitable for residential use in the expectation that dwelling houses would be constructed on the land.
In my opinion, on those facts, a change of use in the land has occurred, just as much as if a site for a single dwelling had been cleared, or footings for a single dwelling had been excavated. In the present case the filling of the land can be described as a permanent change in the topography of the land, the purpose of the change being to facilitate the erection of dwellings.
Without intending to take an easy way out, it has to be said that each case will turn on its own facts. Merely digging trenches for footings on a particular piece of land might not change the use of that land, assuming that previously it was vacant land. In the present case I am influenced by the significance of the change in the topography of the land, by its permanent nature, as much as by the finding as to the purpose with which the filling was done.
For those reasons I conclude that the Judge erred in deciding that there was no case to answer because, on the material before him, the filling of the land by Macag could not constitute a change in the use of the land, and therefore could not give rise to a breach of the Act.
Conclusions
I would dismiss the appeal, because the ERD Court should have held the second application to be an abuse of process. It is not necessary to make an order on the cross-appeal, even though the contention advanced to support it has been partly successful. This leaves things somewhat up in the air, in the sense that Macag still requires a development consent for a subdivision of the land, and a person proposing to build on the land will still require a development consent. The significance of the conclusion that the filling of the land is unauthorised development will have to be resolved elsewhere.
WILLIAMS J In my opinion the appeal by DAC should be allowed for the purpose of granting leave to issue a summons against Macag Holdings pursuant to s 85(4) of the Development Act 1993; I would remit to the Environment, Resources and Development Court for further consideration the application made under s 85(10) for an interim order to restrain further filling of the land.
I would dismiss the cross appeal. (I consider that DAC was entitled to renew its application for leave to serve the proceedings but with the support of further evidence).
Upon the hearing of the second application there was evidence of admissions by Mr Seeley, a Director of the respondent that the respondent’s earthmoving activities upon its Beaumont site are directed towards filling a gully with a view to the building of 25 houses or thereabouts (along the lines of a particular development at Glen Osmond). In my opinion the excavation and filling in such circumstances amounts to “development” for the purposes of the Development Act. Applying the definition in s 4, this activity is “building work” in that it is “in the nature of the making of an excavation or filling for or incidental to the construction of a building”. However, even if the details of the project had not been available, the nature of the site preparation (which can be seen upon inspection) speaks for itself in leading to the conclusion that the filling was for the construction of a building. I agree with the reasons given by Doyle CJ for reaching that conclusion.
I also agree with the Chief Justice that (upon the facts as found by the ERD Court Judge for the purposes of the application) a change in land use has occurred. The Chief Justice has reviewed the authorities on this topic and I agree with his conclusions.
The following extracts from the Development Act s 85 are relevant to a consideration of the cross-appeal:
“(1)Any person may apply to the Court for an order to remedy or restrain a breach of this Act or a repealed Act (whether or not any right of that person has been or may be infringed by or as a consequence of that breach).”
“(4)An application may be made ex parte and, if the Court is satisfied on the application that the respondent has a case to answer, it may grant leave to the applicant to serve a summons requiring the respondent to appear before the Court to show cause why an order should not be made under this section.”
“(6)If-
(a)after hearing-
(i)the applicant and the respondent; and
(ii)any other person who has, in the opinion of the Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,
the Court is satisfied, on the balance of probabilities, that the respondent to the application has breached this Act or a repealed Act; or
(b)    the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,
the Court may, by order, exercise any of the following powers:
(c)    require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach;
(d)    require the respondent to make good the breach in a manner, and within a period, specified by the Court, or to take such other action as may appear appropriate to the Court;
(e)    cancel or vary any development authorisation (other than an authorisation granted by the Governor);
(f)     require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;
(g)    if the Court considers it appropriate to do so, require the respondent to pay an amount, determined by the Court, in the nature of exemplary damages-
(i)if the applicant is a council and the Crown has not become a party to the proceedings - to the council;
(ii)in any other case - into the General Revenue of the State.”
“(10)If, on an application under this section or before the determination of the proceedings commenced by the application, the Court is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the Court may make such an order.”
“(11)An interim order-
(a)may be made on an ex parte application; and
(b)may be made whether or not the proceedings have been referred to a conference under subsection (5); and
(c)will be made subject to such conditions as the Court thinks fit; and
(d)will not operate after the proceedings in which it is made are finally determined.”

These provisions should be read in conjunction with the Rules of the ERD Court which includes the following:
“7.1.1 An order for enforcement pursuant to section 85 of the Development Act 1993, … shall be sought by summons.
7.1.2 Proceedings for an enforcement order…shall be commenced by filing in a registry of the Court the following documents:
(a)    an application seeking leave to serve a summons….
(b)    the summons in respect of which leave is sought;
(c)    one or more supporting affidavits; and
(d)    where the applicant brings the proceedings in a representative capacity, a memorandum.
7.2.1The Court, on the hearing of an application for leave… to serve a summons, may refuse to grant the application or may amend or strike out part of the summons where, on the evidence before the Court, there is no reasonable prospect that the Court would make any order of the nature sought.”
The reasons of the ERD Court Judge do not distinguish between the approach to be taken upon an application under s 85(4) for leave to serve and the approach required upon an application for interim relief under s 85(10). His Honour has not referred to the terms of the ERD Court Rules and the effect of r 7.2.1 was not the subject of argument before His Honour or during the hearing of the present appeal.
In the exercise of its power to grant temporary injunctive relief a Court in accordance with general principle may sometimes choose to make a provisional determination of a point of law in the course of determining whether there is a serious question to be tried; the degree of confidence which the Court holds in respect of that determination may then be relevant to an assessment of the balance of convenience (see Spry, ICF The Principles of Equitable Remedies 5^th ed at 467). Such an approach would be appropriate by a Court when exercising jurisdiction under s 85(10) of the Development Act. However, as I read s 85(4) when considering whether to give leave to serve the Court is only concerned to satisfy itself that the applicant raises a case which is fairly arguable; that approach does not require the court to determine an unresolved point of law. Nevertheless unless the relevant contentions of law are fairly arguable under s 85(4) so as to justify leave to serve, there could not be a serious question to be tried. (I note the supplementary discretionary power of the Court under r 7.2.1 “where on the evidence before the Court there is no reasonable prospect that the Court would make any order of the nature sought.”)
In R v Judge Stevens; Ex Parte Tip Top Dry Cleaners Pty Ltd (1986) 43 SASR 1 (“Tip Top Dry Cleaners Case”) Olsson J (at 11) observed that the court is required to screen the application (for leave to serve) to ensure that there is a solid basis upon which to mount the proceedings. I agree with that statement but the terms of r 7.2.1 must also be brought to account. However, I do not consider that the test which His Honour then elaborated (and which was used by the ERD Court Judge in the present case) is apt to deal with the situation where the only issue is one of law rather than one of fact.
In this passage (43 SASR at 11) Olsson J said:
“It is clear that the concept of whether or not there is a case to answer does not concern itself with any value judgment as to reliability or weight of evidence as such. Rather it involves an assessment as to whether there is some reasonable basis of evidence (not, on the face of it, inherently incredible) which, if it was accepted by the Court, would be capable of establishing the matters required to be proved by sub-s (1) of s 36 on the balance of probabilities. Put in another way the Judge, in considering an application brought before the Court in manner required by sub-s (2), is required to pose and answer this question: “On the assumption that all the admissible and relevant evidence of primary fact considered at its strongest from the point of view of the case for the applicant is accurate, and on the further assumption that all inferences most favourable to the applicant which are reasonably open, are drawn, is the evidence capable of producing in the mind of a Judge satisfaction, on the balance of probabilities, that the proposed respondent has contravened or failed to comply with the Act in a manner which potentially entitles the applicant to relief of the nature stipulated in sub-s (3)?”
It is, I think, a quite misleading mistake to employ loose expressions such as “making out a prima facie case” apropos s 36. These are unhelpful and inappropriate, the more so as they may have well settled meanings when employed in particular settings. The present issue is as to the meaning of words carefully chosen by the legislature in the specific setting of s 36.”
In my opinion an application under s 85(4) for leave to serve proceedings is not an appropriate vehicle for finally determining a contentious and unresolved point of law. There may be some obvious propositions of law which the court will treat as being beyond argument but the statement of principle in Tip Top Dry Cleaners does not accommodate the situation in which the facts are not in dispute but there is genuine uncertainty in statutory interpretation. It seems to me that in attempting to apply the statement of principle in Tip Top Dry Cleaners the ERD Court Judge has been led into error.
In accordance with what appears to be the practice, DAC made an ex parte application to the ERD Court on 19 October 2000 (Matter No 1069 of 2000); the application sought an interim order restraining the filling of the land as well as an order for leave to serve. Macag’s advisers became aware of the application and sought to be heard. The Court permitted Macag to make submissions at that early stage but no explanation was given to the Court for Macag’s intervention before service of proceedings. Nevertheless, despite the Court’s limited function at this preliminary stage it was open to the ERD Court Judge in his discretion to allow Macag to participate in the hearing and to accept whatever assistance may have been forthcoming from counsel on its behalf.
Upon the face of the reasons given by the ERD Court Judge on 27 October 2000 it is evident that there was an issue of law deserving of argument; leave to serve the application should have then been given. Instead the ERD Court Judge appears to have thereupon prematurely determined the point. An inappropriate and unduly stringent test as to grant of leave was thus applied. In my view this was irregular.
In considering the leave application, the Judge identified his task in terms of the language of s 85(4) which required him to be “satisfied that the respondent has a case to answer”. However, it is apparent from a reading of the transcript of argument that His Honour was not distinguishing between the application for an interim injunction and the application for leave to serve. His Honour said to counsel for DAC:
“No interim order issues unless I give leave to serve but you put to me that perhaps the appropriate course might be that an interim order be granted so that the legal question which, as I construe it, lies at the heart of this application can be argued more fully another day. Isn’t that putting the cart before the horse?
The very first question for me must be, mustn’t it, whether a case to answer has been made out? A case to answer must be made out on the facts in the light of the law. Therefore, don’t I have to satisfied [sic] that a breach has occurred and that means some activity requiring consent has been undertaken without that consent.”
In expressing agreement, counsel for the DAC then referred to the statement of Olsson J in Tip Top Dry Cleaners to explain the Judge’s task under s 85(4). With the benefit of hindsight it may have been helpful to explore the application of ss 85(10) and (11). However, this remark is not a criticism of counsel because one would assume that the Court was familiar with the well known principles upon which temporary injunctions are granted. Nevertheless it is not difficult now to look back and identify where the matter “went off the rails” during argument. I see nothing in the transcript to suggest that counsel agreed to the Judge doing otherwise than carry out the statutory requirements under s 85(4). In deciding that the land filling process was not “development”, His Honour concluded that the question was “principally one of proximity”. His Honour considered that the gap between Macag’s current operation and the ultimate construction of buildings is too big - “The nature, location and site requirements are unknown” said the Judge.
On 7 December 2000 the DAC made its second application (Matter No 1247 of 2000) for leave to serve. In view of the course taken in the first proceedings it was appropriate that the second application should proceed (as it in fact did) upon notice to Macag (which was again heard in opposition to the leave application). The same Judge heard both the first and second applications. As might be expected, His Honour adopted the same approach to the law as in the first application. Unless there were a basis upon which the Judge might be persuaded to reconsider his previous decision one would expect consistency between his successive decisions. Nevertheless, my criticisms with respect to the screening process adopted upon the first application flow through to the second application when the ERD Court Judge reaffirmed his earlier decision. Significantly the Judge did not see his first decision as establishing any rights on the part of Macag. In his second decision the Judge said:
“All the Court did, in the first proceedings was to refuse leave to serve.
…
Having “screened” the Commission’s evidence, all the Court decided was that no case had been made out on the evidence presented and that leave to serve the summons should not be given. In my view, to construe the Court’s judgment as constituting a declaration that Macag is not in breach of the law is, I think, to stretch the judgment beyond a fair and reasonable construction.”
This statement shows the limited effect which His Honour attached to his first decision.
In its cross appeal Macag contends that the DAC should not be entitled to pursue its application for a second time. I adopt the view of the Chief Justice with respect to an alleged estoppel; in my opinion that does not arise.
However, in my view Macag also fails in its contention that the present proceedings constitute an abuse of court. This aspect of the matter stands to be considered in the light of s 17(4) of the ERD Court Act:
“(4)Subject to rules of the Court, the Court may, if of the opinion that it is appropriate to do so, on its own initiative or on the application of a party to the relevant proceedings-
(a) dismiss or determine any proceedings that appear
(i)to be frivolous or vexatious; or
(ii)to have been instituted or prosecuted for the purpose of delay or obstruction, or for some other improper purpose;”
In my opinion the second application should not be characterised as vexatious merely because it is repetitive of matters raised upon the first application. Our attention was directed to cases in which the Court has refused to allow a second application for extension of a statutory time limitation in recognition of a rule of practice that there are cases when a second “substantive interlocutory application” will not be allowed. Such a rule may be applied where there be an “issue of substance” (as it is sometimes expressed) or where the previous order has dealt directly with the “rights in contest” (see Carr & Anor v Finance Corporation of Australia Ltd (No 1) (1980-81) 147 CLR 246 at 248 and 256). The decision of the ERD Court upon the first application can only be regarded as being of a “substantive nature” if those proceedings be treated as something more than a screening process.
As I have already observed, the screening procedure of obtaining leave under s 85(4) is not designed to be determinative of rights. Upon the second application the ERD Court Judge examined the effect of his earlier decision. He regarded the earlier proceedings as merely a screening of the applicant’s evidence leading to a conclusion that no case was made out for the purposes of s 85(4). I do not consider that an “issue of substance” was determined (or required to be determined) by any such screening process. (The application under s 85(10) was never separately addressed).
The Court has a discretion to dismiss vexatious proceedings under s 17 of the ERD Court Act. If that discretion were now required to be exercised the following factors (or features) deserve to be brought to account:
(1)Any person has a right under s 85(1) to apply to the Court. Even if the DAC were now prevented from pursuing the matter, others could do so. There has been no determination in favour of Macag of some substantive right.
(2)The “relevant authority” has power under s 84(2) to give directions which would overlap the operation of s 85(6).
(3)Upon finding a contravention of the Development Act (upon proceedings for an offence) the ERD Court has power under s 106 to order “making good” the contravention.
(4)DAC had no right to appeal against the decision of the ERD Court upon the first application insofar as it involved a question of fact unless leave to appeal were granted (see ERD Court Act s 30(2)). If DAC had sought leave to appeal or, upon an appeal as of right upon a question of law had sought to adduce fresh evidence, it may be that this Court would have required the matter to be pursued by way of a new application. In my view this possibility considerably reduces the force of the argument that the DAC should have appealed against the first decision (see per Charles JA in DA Christie Pty Ltd v Baker [1996] 2 VR 582 at 612 and compare per Mason P in Nominal Defendant v Manning (2000) 50 NSWLR 139 at 145 where the President discusses the evils of “judge shopping” at first instance. However, there is no suggestion of judge shopping in the present case as the two applications were dealt with by the same judge.
To deny DAC the right to institute civil process seeking injunctive relief does not seem to me to have utility in view of other processes which are available to deal with an alleged contravention of the Development Act 1993. The Beaumont site involves a comparatively large area (2.347 hectares) and the operations which have commenced on the land must have the potential to impact substantially upon the locality. It is in the public interest that steps be taken promptly to secure compliance with the Act. I would be loathe to place some procedural fetter upon the DAC in respect of its second application. Rules of practice and procedure are not designed to be shackles for their own sake. The situation would be different if wealth, poverty or sheer determination had armed a party to oppress an opponent by repeated applications (see per Mason P Nominal Defendant v Manning at 144). I detect no hint of harassment in the present instance.
In my opinion there is no principle which in present circumstances says that it is vexatious to renew the interlocutory application based upon supplementary evidence designed to meet the evidentiary gap which the ERD Court Judge held to exist. In Carr & Anor v Finance Corporation of Australia Ltd [No 1] (1980-81) 147 CLR 246 at 256 Mason J said:
“…I can see no justification for arbitrarily imposing upon that discretion a rigid rule that the refusal of an application is a complete bar. The Court should preserve the generality of its discretion so as to protect its capacity to see that justice is done in a wide variety of cases.”
I consider that the second application is sufficiently explained by the presence of the additional factual material. The perceived need for the second set of proceedings has been brought about by a misconception as to the proper approach to be taken in the screening process with respect to an unresolved question of law and a misconception as to what might constitute “development”. Supplementary affidavits were filed in support of the second application. It is not suggested that DAC is acting otherwise than in good faith. This is not a case where the DAC was required to bring forward all its evidence in the first instance. (Nevertheless the Court will exercise a general discretion with respect to unnecessary costs).
Upon the first application the ERD Judge was prepared to draw the limited inference that it was the “intention of Macag to divide the land into four allotments suitable for residential use, plus a road”. (Emphasis added). In so concluding the Judge said that he was not overlooking Macag’s submission that “there is no evidence upon which a conclusion that the purpose of the fill is to provide sites for the construction of dwellings can be reasonably drawn.
Macag’s position upon the first application is reflected in a letter dated 15 April 1999 to Mr Crabb of the City of Burnside:
“…I have been advised that the filling of land can only be classed as “building work” if it is incidental to the construction of a building. I repeat there is no current proposal to construct any buildings on the land. Accordingly to fill can not amount to building work and accordingly it is not development. Further I deny that I stated to you on 26^th March that dwellings were proposed on the land - that may be your assumption but there is no basis for that assumption.”
Macag’s argument (which was repeated in the present appeal) was that the fact of earthworking which resulted in land becoming suitable to support a building did not constitute “development” unless the project could be linked to a particular building proposal.
It is evident that upon the first application the ERD Court Judge accepted Macag’s submission. His Honour said at p 9:
“I think that the gap between the fill currently being and to be placed on the land and the ultimate construction of the dwellings is too big. In my view, the words “filling for or incidental to the construction…of a building” refer to the placement of fill to prepare a site for the construction of a particular building. By so saying, I do not wish to infer that every detail of both the siting, design and nature of the building needs to be known, but rather that the intention to construct the building on a particular site must be known and that the placement of the fill must be for the purpose of preparing the site for that building. Such is not the situation in this case - the construction of the dwellings is a long way down the track. The nature, location and site requirements of the dwellings is unknown….”
In my view this approach was wrong (as the judgment of the Chief Justice upon this appeal demonstrates). However, rather than appeal against the decision which this statement underpinned, DAC brought forward in a new application supplementary material which showed that Mr Seeley’s company was preparing the land for a specific project to mirror that at Mira Monte; Mr Seeley mentioned the name of a particular agent; the proposed point of access to the development was identified at the northern end of Duncan Road and Mr Seeley mentioned a brick wall which was to be included in the development from the access point and running south along the Duncan Road alignment. A neighbour informed DAC of these facts by letter dated 3 August 2000 but they were not made known to the Court until the second application was made. Mr Seeley’s statement in his letter of 15 April 1999 may now be seen to be unsupportable although his statements show that he is not to be the actual builder. If the issue was one of “proximity” involving identification of a particular project then Seeley’s admission arguably showed that Macag’s plans were further advanced than had previously been disclosed to the Court. If Macag’s subjective intentions were relevant (as the ERD Court Judge held) then there was fresh evidence. If the question were one of fact and degree to establish a nexus between the earth works and the constructing of buildings (in accordance with the reasoning of the ERD Court Judge) then I consider that the evidence supporting the second application is sufficiently different from that advanced on the first occasion to meet Macag’s contention that the second application was vexatious.

Upon the first application Macag was content to take advantage of the claimed lack of evidence of its “purpose” in order to avoid an order authorising service of proceedings. I consider that by reason of the Judge’s treatment of the first application (in the light of Macag’s submissions) that DAC was justified in making a second application. Contrary to Macag’s letter of 15 April 1999 there was a current proposal to construct buildings on the land. Not only was the land to be rendered suitable to support a building but there was also an intention to promote a specific project of some magnitude even though Macag may not be the proposed developer.
Upon the cross appeal Macag contends that the renewal of DAC’s application constitutes an “abuse of process”. In evaluating this submission (and the materiality of the supplementary affidavits) I consider that the court is entitled to bring to account the approach taken by the Judge upon the first application and the submission then made on behalf of Macag. I consider that it was not unreasonable for DAC in these circumstances to accept the decision and then to bring forward a new case to meet the supposed “gap” referred to by His Honour. In assessing whether the second application is vexatious, the materiality of the further facts and the reasonableness of DAC’s conduct is to be judged in the light of what happened upon the first application. In my opinion the fact that the decision upon the first application was wrong in law is not to the point. It was reasonable for DAC to put its application upon a different factual basis with a view to satisfying the test which the Judge had wrongly articulated.
It may sometimes be an abuse of process to litigate an issue which has been previously litigated in the absence of fresh evidence which would justify reopening the issue. However, in my view the second application is sufficiently justified by the additional evidence even although that evidence is unnecessary by reason of this Court’s different approach to the underlying question of law.
It is argued that DAC (by its counsel) acquiesced in the Judge finally resolving the question of law upon the first application. That is not how I read the transcript but I am prepared to acknowledge that there is room for difference of opinion on this point. Even if I am wrong, I would be slow to take an approach which circumscribed DAC’s future actions by reason of the exchanges between Judge and counsel where the implications of what was being done may not have been immediately apparent.
Some assistance may be obtained by considering the approach of the House of Lords in JT Stratford & Son Ltd v Lindley & Anor [1965] AC 269. That was a special case in that the underlying point of law arising upon an interlocutory injunction application was allowed to proceed to the Court of Appeal and to the House of Lords. In that case counsel for the applicant changed his position significantly after originally formally electing to adopt a position. The House of Lords treated that as being a matter which went to costs. At 275 the report notes:
“For the defendants, objection was raised to the admission of the further evidence on the issue of intimidation, on the ground that, during the hearing before the judge, counsel for the plaintiff company had been asked whether he would stand on the evidence as it was, and had elected to do so. It was submitted that if a party in interlocutory proceedings elected to stand on his evidence it was not proper that he should come before the Court of Appeal with a whole sheaf of affidavits and seek leave to adduce that fresh evidence on the only issue on which he had failed before the judge; and, further, that if the court was minded to grant the leave asked for, the defendants should also be permitted to make a reply on affidavit.
The court, in pursuance of the discretion given to it under the rule, gave leave to admit the further evidence, reserving any question of costs until after the hearing of the substantive interlocutory appeal.”
If, contrary to my view, DAC on the first hearing did acquiesce in the ERD Court Judge making a final determination of the point of law, any departure from that position may properly be made the subject of an order for costs; the conduct of DAC should not be treated as vexatious.
The Court is well equipped to consider on a case by case basis conduct which is claimed to be vexatious. The Court’s approach to this topic was reviewed in McHenry v Lewis (1882) 22 ChD 397 at 407 per Bowen LJ.
“…it would be most unwise, unless one was actually driven to do so for the purpose of deciding this case, to lay down any definition of what is vexatious or oppressive, or to draw a circle, so to speak, round this court unnecessarily, and to say that it will not move outside it. I would much rather rest on the general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end. I would rather do that than attempt to define what vexation and oppression mean; they must vary with the circumstances of each case.”
For present purposes, I have been able to derive only limited assistance from Nominal Defendant v Manning (supra) and DA Christie v Baker (supra) which were cited in argument. In Nominal Defendant v Manning at 147-148 Heydon JA acknowledges the difficulty in attempting to propound a universal rule as to when successive interlocutory applications in the same terms will be permitted. His Honour suggests that it is unlikely that a single set of rigid and exhaustive criteria could be laid down in advance without undefined exceptions. I agree. I do not consider that Manning or Christie establish principles of general application. I am unwilling to draw upon principles to be found in these cases which are so easily distinguishable from the present - which has its own peculiar features as I have already enunciated.
I have mentioned a rule of practice which might be applied when the previous order has dealt directly with the “rights in contest”. Even such a phrase invites definition - although the expression is not apt to describe the screening process in the present case. I consider that any statement of principle or practice with respect to repetitive interlocutory applications might be expected to incorporate the over-rider that the Court should do whatever the interests of justice require in the particular circumstances.
For these reasons I disagree with the submission of the cross appellant that the actions of Development Assessment Commission are vexatious or an abuse of the Court’s process.
The orders which I would make appear at the commencement of these reasons.
MARTIN J The facts of this matter are set out in the judgment of Doyle CJ. I agree with his Honour’s reasons and the conclusions he has reached with respect to the various issues raised on the appeal. As to the conclusion that the second application in the ERD Court was an abuse of process, I wish to add the following observations.
The powers of a court to prevent an abuse of process exist for the purposes of protecting the courts and their proceedings and maintaining public confidence in the administration of justice: Ridgeway v The Queen (1995) 184 CLR 19 at 74 Gaudron J. Proceedings which are vexatious and oppressive because they seek to litigate a case which has already been disposed of in an earlier hearing may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393.
In circumstances involving interlocutory applications, the decisions in DA Christie Pty Ltd v Baker [1996] 2 VR 582 and Nominal Defendant v Manning (2000) 50 NSWLR 139 demonstrate that repeated applications may amount to an abuse of process. They also demonstrate the difficulties in applying the principles to interlocutory applications.
Bearing in mind that the procedure invoked before the judge in the ERD Court is akin to a screening process which is not designed to facilitate final determinations of substantive questions of law and that successive applications can be made pursuant to s 85 of the Development Act 1993 (“the Act”), as the Chief Justice points out a court should not accept too readily that a second or subsequent application is an abuse of process. In that context, I can understand why the judge rejected the respondent’s proposition. My mind has vacillated on this issue. However, a combination of factors had led me to the view that, notwithstanding the nature of the proceedings, the second application was an abuse of process.
The applications were in identical terms. The material relied upon in support of the second application was substantially the same as the material placed before the court on the first application.
Although additional evidence was led on the second application directed to the respondent’s future intentions, the additional evidence added little to the evidence presented in support of the first application. From the outset the appellant relied upon the respondent’s previous development applications and statements by a director of the respondent that it was the respondent’s intention to develop the land for the construction of dwellings. In the first judgment delivered 27 October 2000, the judge accepted the appellant’s case and found that it was the intention of the respondent to divide the land into four allotments suitable for the construction of residential dwellings. The additional evidence presented in support of the second application was affidavit evidence from local residents who deposed to conversations with the director of the respondent. In those conversations the director stated that it was intended to create in the order of 25 allotments similar to the Mira-Monte development on Glen Osmond Road.
In substance, therefore, the only additional information provided to the court was an increase in the number of allotments that the respondent intended to create. That additional information did not impinge upon the reasoning that led the judge on the first application to his view that the activity was not a development for the purposes of the Act. It did not address the issue of proximity upon which the judge based his decision.
The first application was made on 19 October 2000 and the judge gave his decision on 27 October 2000. Although the affidavits providing the additional material in support of the second application were sworn on 30 November 2000, the conversations with the director of the respondent that comprised the additional information presented on the second application occurred in August 2000, approximately two months before the first application was made to the ERD Court. Significantly, the appellant had been informed of one of those conversations in August 2000. In substance, therefore, what was presented to the judge on the second application as additional evidence was available to the appellant prior to the filing of the first application. There is no explanation for why the appellant did not place that material before the judge on the first application.
In addition to the extra evidence, on the second application the appellant relied upon a further legal argument concerned with a change in the use of the land. However, that argument could have been put before the ERD Court on the first application.
The manner in which the parties proceeded on the first application is also significant. The transcript discloses that the parties proceeded on the basis that the question of law as to whether the activity amounted to development for the purposes of the Act was the critical question to be determined by the judge. Full argument was presented. The appellant did not attempt to limit the argument to persuading the judge that the appellant had an arguable case on the point of law which justified the grant of leave to serve the summons. Against that background, the appellant apparently chose not to appeal against the decision. No application was made subsequently for leave to extend the time within which to appeal. The appellant has not sought to explain why it did not seek to appeal.
It is the combination of the factors to which I have referred, including the absence of explanations for the conduct of the appellant, that have led me to the view that the second application was an abuse of process.
For these reasons and for the reasons given by the Chief Justice, I agree with the orders proposed by the Chief Justice.

[2001] SASC 189

19 July 2001