Moy v Warringah Council

[2004] NSWCCA 77

Reported Decision: 133 LGERA 49
142 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION:	Moy v Warringah Council [2004] NSWCCA 77
HEARING DATE(S):	8 March 2004
JUDGMENT DATE:	29 March 2004
JUDGMENT OF:	Sully J at 1; Simpson J at 2; Sperling J at 3
DECISION:	(1) Time for application for leave to appeal extended to 18 September 2003; (2) Leave to appeal granted; (3) Appeal dismissed.
CATCHWORDS:	Criminal law - application for leave to appeal pursuant to s5F of the Criminal Appeal Act 1912 from the Land & Environment Court of NSW refusing to grant a permanent stay of criminal proceedings in that court - extended doctrine of res judicata - whether the doctrine applies only where the question is the same - whether the question was the same - construction of "substantially the same development" in s96(6) of the Environmental Planning & Assessment Act 1979, and of "not inconsistent with" in cl145(1) of the Enivronmental Planning & Assessment Regulation 2000
LEGISLATION CITED:	Criminal Appeal Act 1912, s5F Environmental Planning & Assessment Act 1979, s81A, s96, s109D, s109F, s109ZH, s125 Environmental Planning & Assessment Regulation 2000, cl145 Transport Act 1930, s124
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Carroll (2002) 77 ALJR 157 O'Donel v The Commissioner for Road Transport & Tramways (NSW) (1938) 59 CLR 744 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Quinn v Leathem [1901] AC 495 Reichel v Magrath (1889) 14 App Cas 665 Re Kearney; Ex parte Jurlama (1984) 52 ALJR 24 Rogers (1994) 181 CLR 251 Turner v London Transport Executive [1977] ICR 952 Zangzinchai v Millanta (1994) 125 ALR 265
PARTIES :	Rick Moy Warringah Council
FILE NUMBER(S):	CCA 60376/03
COUNSEL:	Mr R McEwen SC with Ms V Culkoff for the Applicant Mr G Miller with Mr T Howard for the Respondent
SOLICITORS:	Stephen Klinger Solicitor for the Appellant Wilshire Webb for the Respondent

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	50042/02; 50043/02
LOWER COURT JUDICIAL OFFICER :	Bignold J

- 20 -

60376/03

Sully J
Simpson J
Sperling J

Mo nday, 29 March 2004

Rick Moy v Warringah Council

Judgment

1 Sully J: I agree with Sperling J.

2 Simpson J: I agree with Sperling J.

3 Sperling J:

The application

4 A prosecution is pending in the Land and Environment Court of New South Wales against the present applicant, Rick Moy. The prosecutor is Warringah Council. The applicant is charged with two offences, being offences constituted respectively by s109F and s109ZH of the Environmental Planning and Assessment Act 1979. (I will come to those sections later in this judgment.)

5 The application in this court is for leave to appeal against a decision by Bignold J, a judge of the Land and Environment Court of New South Wales, given on 22 August 2003, refusing an application for a permanent stay of the prosecution on the ground of abuse of process. Leave is sought pursuant to s5F of the Criminal Appeal Act 1912.

6 The gist of the application for a stay was that conviction for the offences charged would be inconsistent with an earlier determination by Commissioner J S Murrell, a commissioner of the Land and Environment Court of New South Wales, given on 22 August 2002 in proceedings in which McIntosh Properties Pty Limited was the applicant and Warringah Council was respondent.

7 The parties in the prosecution and the earlier proceedings are, accordingly, not the same, the prosecution being brought by Warringah Council against the present applicant and the earlier proceedings having been between another party and the Council. In these circumstances, the applicant relied on the extended doctrine of res judicata which I will discuss later in this judgment.

Extension of time

8 The notice of appeal was filed within 28 days of the decision instead of within 14 days as required. Application for extension of time is made on the ground that the applicant’s solicitor was overseas and that the applicant incorrectly understood that the time limit was 28 days. The time should be extended.

The legislation

9 The relevant legislation consists of the Environmental Planning & Assessment Act 1979 (the Act) and the Environmental Planning & Assessment Regulation 2000 (the Regulation). In this judgment, references to sections of the Act are prefaced by “s”. References to clauses in the Regulation are prefaced by “cl”.

10 Where a development consent is required, such consent may be granted by a consent authority, in which case building work may not be carried out otherwise than in accordance with the development consent (s76A(1)). The relevant municipal council is a consent authority (in this case Warringah Council).

11 The consent authority may, on application, modify a development consent if it is satisfied that the development as modified is ”substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified” (s96(2)-(4)). Such satisfaction is a threshold question. If answered affirmatively, there is then the merit of the application to be decided. An appeal lies to the Land and Environment Court (s96(6)).

12 Building may not commence pursuant to a development consent until a construction certificate has been issued; a construction certificate may be issued by an accredited certifier (s81A(2)). An accredited certifier is a certifying authority, authorised to issue such a certificate (s109D(1)). (The present applicant was an accredited certifier and certifying authority.)

13 A construction certificate must not be issued unless the certifying authority is satisfied that the requirements of regulations made under the Act have been complied with (s109F(1)(a)).

14 The Regulation provides that a certifying authority must not issue a construction certificate for building work “unless it [which includes “he” or “she”] is satisfied … that the design and construction of the building (as depicted in … plans and specifications …) are not inconsistent with the development consent” (cl145(1)).

15 A person who makes a statement that is false or misleading in a material particular in a construction certificate is guilty of an offence (s109ZH(1)(b)).

Further background

16 In the present case, Warringah Council granted a development consent. Thereafter, the applicant issued a construction certificate as an accredited certifier. Subsequently, in the proceedings to which I have referred, Commissioner Murrell modified the original development consent on the merits, having held on the threshold question that the development consent as modified would be “substantially the same development” as that for which consent had been granted.

17 The prosecution was then instituted against the applicant. The gist of the prosecution is that the construction certificate was issued by the applicant in breach of s109F(1)(a) and cl 145(1)(a), in that the applicant was not satisfied that the construction certificate was “not inconsistent with the development consent”; and that the construction certificate contained a false statement to the effect that the applicant was so satisfied.

18 Then came the unsuccessful application to Bignold J for a permanent stay of the prosecution, which is now the subject of the present application for leave to appeal.

Decision by Commissioner Murrell 22 August 2002

19 As recorded by the Commissioner, work had commenced on the development. As approved by the development consent and as partly constructed, the development consisted of a basement parking level and two residential levels above. The exterior walls, internal stairs and concrete slabs for the three levels of the building had been constructed.

20 The building, as partly constructed, did not accord with the development consent in the following respects at least: the level of the basement was not below natural ground level at the front of the building, the front setback of the building was less than approved, and the basement floor level was 1.5m higher than that approved.

21 The developer had applied to the Council for modification of the development consent by increasing the height of the approved development by 1.5m and allowing the shorter setback. This was refused. At that stage, unless there were a successful appeal, the structure would have had to be demolished.

22 It appears that, on appeal, a more sophisticated modification was proposed. With reduced thickness of the slabs and of ceiling heights (presumably already incorporated in the existing structure) and a modified roof, the overall maximum height of the structure was not breached. A variation in the front setback was still required. There were other proposed modifications which appear to be of less significance.

23 In her judgment, the Commissioner reviewed the relevant planning controls and guidelines, the evidence (including expert evidence) and the submissions.

24 As to the threshold question, namely, whether the proposed development was substantially the same as the development approved in the development consent, the Commissioner held that it was. She said, at [47] to [49] of the judgment:

[I]n this case I am satisfied that the development as proposed to be modified is substantially the same development to that approved by the Council … In this regard I agree with the applicant’s submission that the development as approved will read as a two storey residential flat building above basement parking and that the proposed modification will result in a similar building. It will also read as two floors of residential above parking containing 16 units with a similar footprint and landscaped area.
In my assessment the application will not radically transform the development as approved or change its character and it will remain essentially the same as the development approved by Council. This is a residential flat building of similar height, size, bulk and scale with two levels of residential above parking.
… In my assessment while there are numerous changes proposed in terms of internal configuration, the roofline setback, etc, I am satisfied that the essential character of the building will not be changed by the modifications proposed whether that be in the plans submitted to the Council of the amended plans prepared to comply with Mr Robinson’s comments. It is not simply a matter of the number of changes which is relevant and I am satisfied that in isolation and in combination the proposed development will remain essentially, materially and substantially the same.

25 Having determined the threshold question in favour of the developer, the Commissioner proceeded to decide whether the modification should be permitted on its merits (see [50]). In that regard, it appears that the Commissioner accepted the Council’s submission that the top floor of the development should be set back from the front alignment of the building (see [61] of the judgment). The proposed modifications were approved with that additional requirement.

26 In the foregoing review, I have not captured all of the modifications referred to in the judgment, but I believe I have captured the main points of what was decided.

27 In the result, the appeal was upheld by Commissioner Murrell and an order was made approving modification to the original development consent, subject to conditions, all as specified in an annexure to the judgment (see [66]).

The prosecution – further detail

28 The first summons charges that the applicant issued a construction certificate in breach of s109F(1)(a) and cl 145(1)(a) “in that in the circumstances in which the construction certificate was issued a certifying authority could not be satisfied that the design and construction of the building as depicted in the plans and specifications for the construction certificate were not inconsistent with the development consent”.

29 Particulars of the offence under s125(1) specify inconsistencies between the construction certificate and the development consent, including the following:

(i) The carparking on the development consent is below ground whereas the carparking for the construction certificate plans is above ground.
(ii) The heights and levels of the building approved by the construction certificate have been increased compared to the development consent.
(iv) The southern front setback to Old Pittwater Road and the side eastern and western setbacks have been reduced between the development consent and the construction certificate.

These are the major modifications approved by Commissioner Murrell.

30 The second summons charges that the applicant made a false statement in breach of s109ZH. The representation in the certificate which is relied upon is in the following terms in the particulars incorporated in the summons:

I certify that the work if completed in accordance with these plans and specifications will comply with the requirements of s81A(5) of the Environmental Planning and Assessment Act 1979.


Impliedly, that is asserted to be a statement of compliance with cl 145(1)(a). The statement is then said to be false and misleading in view of the same inconsistencies as are specified in the first summons.

The decision by Bignold J 22 August 2003

31 In his judgment given on 22 August 2003, Bignold J noted, at [33], the following agreed fact:

[T]hat the plans accompanying the modification application (ultimately approved by Commissioner Murrell) include the changes made to the originally approved development by the plans approved by the Defendant when he issued the construction certificate.

His Honour went on to say, at [35]:

Accordingly it can be accurately said that his [the present applicant’s] application is founded upon the fact that whatever be the differences to the approved development that were created by the construction certificate issued by the Defendant those differences were included in, and encompassed by, the modifications to the development consent subsequently approved by the Court’s earlier judgment.

32 Having reviewed the authorities to which he had been referred, Bignold J said at [57]:

The requirement that the same question or issue be raised in the subsequent proceedings as that which has been conclusively determined in the earlier proceedings is a prerequisite that is common to the doctrines of issue estoppel and res judicata in its ordinary and extended application (including in the latter case the doctrine of abuse of process).

33 His Honour’s reasons for refusing the application were then as follows, at [58-60]:

[T]he Defendant has failed to establish that the issues raised by the two prosecutions of offences under the EP&A Act brought against him are the same issue or question that was determined in the Court’s earlier judgment.
The most obvious reason for so concluding does not depend upon the rejection of the Defendant’s principal submission that the expression “not inconsistent with the development consent” appearing in cl 145(1)(a) of the Regulation (which is central to both charges) when referring to the construction certificate plans may be legitimately interpreted as meaning “substantially the same as (the development) for which the development consent was originally granted” which is the statutory expression employed by s96(2)(a) of the EP&A Act (which was central to the Court’s earlier judgment). The reason why the issues or questions raised by the current proceedings are clearly not the same as the issue determined by the earlier judgment is simply that the issues raised by the prosecutions concern the relevant “satisfaction” of the Defendant in his capacity as the relevant certifying authority (in issuing the construction certificate) as to whether the construction certificate plans were not inconsistent with the development consent whereas the earlier judgment concerned the relevant “satisfaction” by a different person, namely a Commissioner of this Court in determining an appeal pursuant to s96(6) of the EP&A Act against the decision of the Council (as the consent authority) in respect of a modification application made by another different person.
In other words the question whether person X is satisfied of a state of affairs is not the same question as whether person Y is also satisfied when persons X and Y are entirely independent of one another and are acting in different capacities from one another.

34 At [41], his Honour had noted the applicant’s argument that the terminology in cl 145 – “not inconsistent with the development consent” – was co-extensive in meaning with the terminology in s96 – “substantially the same development as the development for which consent was originally granted”. His Honour did not resolve that question of statutory construction. He thought it best to avoid doing so on an interlocutory application (see [63]).

35 Accordingly, the ratio of his Honour’s decision was as follows:– The doctrine of extended estoppel required that the issue be the same; and it was not the same because – assuming the terminology in cl 145 and in s96 had the same meaning – the question decided by Commissioner Murrell was whether there was in the Commissioner’s opinion the necessary degree of similarity between the proposed modification and the original development consent, whereas the question in the prosecution was whether the applicant was satisfied of that degree of similarity between the development as certified and the original development consent.

36 It was for these reasons that Bignold J dismissed the application.

Grounds of appeal

37 The grounds relied on for leave to appeal and in the appeal, if leave is granted, are as follows:

1. His Honour erred in holding that for an abuse of process to apply the issues in the current proceedings and the earlier proceedings “must be the very same” [42], [57].

2. His Honour erred in holding that the reason why the issues were not the “very same” was because:

(a) the issues raised by the Prosecutor concern the relevant satisfaction of the Appellant in his capacity as the certifying authority, whereas the earlier judgment concerns the relevant satisfaction of a different person, namely the Commissioner of the Court; and
(b) “the question of whether person x is satisfied of a state of affairs is not the same question as to whether person y is also satisfied when person X and Y are entirely independent of one another and are acting in different capacities from one another” [59] – [61].

3. His Honour should have held, irrespective of whether person X or Y is satisfied, that:

(a) if the current prosecution results in a judgment that controverts or is inconsistent with an earlier judgment, such that it creates a conflict between the two decisions;
(b) the current prosecution results in a scandal of conflicting judgments based on substantially the same or related facts; and
(c) the current prosecution and the earlier judgment of Commissioner Murrell resonated with a similarity that both conceptually, and in application, they were consonant one with the other, so that
it would be an abuse of process to allow the current prosecution to proceed to final judgment.

4. Leave ought to be granted for the following reasons:

(a) if the Appellant is successful on the Appeal the substantive proceedings pending before the Land and Environment Court may not need to be determined;
(b) this will result in substantial savings in time and costs for both the parties and the Court;
(c) the question of law as to whether Bignold J applied the appropriate test in determining whether there was an abuse of process (as distinct from the tests applicable for issue estoppel and res judicata) is an important question of law.

Holding

38 In my opinion, Bignold J did not err in dismissing the application for the reasons he gave and for other reasons as well.

Do the questions have to be the same?

39 Bignold J held that they did. He was right.

40 What has been called the extended doctrine of res judicata is introduced in Spencer Bower, Turner & Handley, The doctrine of res judicata (3rd ed, London, Butterworths, 1996) in the following way (at paragraph 443):

Defences of res judicata are available where the cause of action sued upon has previously been litigated to judgment. Defences of issue estoppel are also available where an issue of fact or law which has been decided is raised again in later proceedings between the same parties, but only in respect of determinations of ultimate issues fundamental to the earlier decision and subject to the special circumstances exception. Issue estoppels cover determinations on issues in the proceedings which it can be inferred were actually decided, and other questions which were fundamental to the earlier decision although they were not, for whatever reason, in contention in those proceedings. Beyond that there is also an extended doctrine of res judicata based on abuse of process which can apply where defences of merger, cause of action estoppel and issue estoppel are not strictly available.

41 The extended doctrine has spawned more than one line of authority. For example, it applies where a litigant has failed to raise a matter in earlier proceedings which could have been raised and is, for that reason, precluded from doing so in later proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. That kind of abuse of process does not arise in the present case.

42 The species of abuse of process invoked by the applicant in the present case finds its source in the decision of the House of Lords in Reichel v Magrath (1889) 14 App Cas 665. In what follows in this judgment, I will refer to that species of abuse of process as the extended doctrine of res judicata. No other species of abuse of process is involved.

43 The appellant in Reichel brought an action against (inter alia) his bishop claiming a declaration that he was vicar of a benefice and that an instrument of resignation executed by him was void. It was found that the vicarage was void (vacant, we would say) by reason of the appellant’s resignation with the bishop’s consent, and the declaration was accordingly refused. In later proceedings, the respondent, having been appointed to the benefice as the appellant’s successor, claimed a declaration that he was vicar and an injunction to restrain the appellant from interfering with his use and occupation of the house and lands the subject of the benefice. In his defence, the appellant set up the same case as that on which he had been defeated in the earlier proceedings. The Privy Council affirmed the decision of the Court of Appeal that the defence should be struck out as an abuse of process. The decision of the court was unanimous. Reasons were given by Lord Halsbury LC (at 668):

My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr Reichel can resist the claim by Mr Magrath to occupy the vicarage is that he (Mr Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.

And by Lord Watson (at 668):

My Lords, this is an attempt by the appellant to retain the temporalities of the benefice of Sparsholt by re-trying, with his successor in the benefice, the same issues which have already been conclusively decided against him in a question with his proper contradictor. The Court must, in my opinion, have jurisdiction to forbid any such abuse of its process.

44 The foundational elements of this decision were that a party who had failed on a question or issue in earlier proceedings was precluded from re-litigating the same question or issue in later proceedings, albeit that the other party in the later proceedings was different. The effect was to extend res judicata or issue estoppel principles to proceedings involving a different party.

45 It is integral to res judicata and issue estoppel that the question in the second proceedings is the same as that decided in the first. Of the many judicial pronouncements to that effect, I provide one. In Turner v London Transport Executive [1977] ICR 952, a decision of the English Court of Appeal, Browne LJ said (at 964):

The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity.

This is of the essence of such estoppel. It is because the same question has been decided that it may not be re-litigated.

46 There is no reason why that should not also be the case where the extended doctrine of estoppel is invoked, albeit that another party is involved. Why in reason should there be a more favourable rule where another party is involved than where the proceedings are between the same parties?

47 The fact that it may be difficult in some cases to decide whether the question is the same, does not derogate from the requirement: see for example Blair v Curran (1939) 62 CLR 464, where a great deal of the judgment is occupied by exploring whether the question previously determined was truly the same.

48 Not surprisingly, counsel for the applicant in the present proceedings had been unable to find any decision in which the extended doctrine of res judicata has been applied without the question being identical.

49 There are then two further decisions of the High Court to review. The first is Rogers (1994) 181 CLR 251. In that case, in the course of a criminal trial, the trial judge rejected records of interview on the ground that they were not made voluntarily. At a subsequent trial relating to other charges, the prosecution sought to rely on two of the records of interview in support of certain of the new charges. The majority, constituted by Mason CJ, Deane and Gaudron JJ, held that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings, but that the tender of the records of interview, was, in the circumstances, an abuse of process. Mason CJ said (at 256-7):

Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue . These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant. [Emphasis added.]

Deane and Gaudron JJ said in their joint judgment (at 280):

Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant’s forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions” (Spencer Bower and Turner, p 411). [Emphasis added.]

50 Nothing in this case suggests that the extended doctrine of res judicata operates on anything less than the same question.

51 The decision of the High Court in Carroll (2002) 77 ALJR 157 is relied upon by the applicant as permitting a permanent stay of proceedings to be granted on the ground of inconsistency, as distinct from complete identity between the question decided in the earlier proceedings and the question at issue in the later proceedings. Whatever may be the effect of the decision in relation to successive criminal proceedings, I do not read the case as having any relevance to the content and operation of the extended doctrine of res judicata where the prior proceedings are civil rather than criminal. In particular, I do not read the case as authority for the proposition that where the earlier proceedings are civil proceedings complete identity is unnecessary.

52 In Carroll, the respondent was charged with murder. He gave evidence under oath at his trial that he did not kill the deceased. The jury returned a verdict of guilty. A verdict of acquittal was entered on appeal. In subsequent proceedings, the respondent was indicted for perjury in relation to his sworn evidence at the trial that he did not kill the deceased. The jury returned a verdict of guilty. The Court of Criminal Appeal of Queensland concluded that the trial should have been stayed as an abuse of process and quashed the conviction for perjury. The High Court upheld that decision.

53 One sees immediately the entry point of the applicant’s argument. The respondent’s evidence at the trial was that he did not kill the deceased. The question at the subsequent perjury trial was whether he did. That was not the same question as was decided at the earlier murder trial without further analysis because, in theory at least, the jury at the earlier trial might have had a reasonable doubt about the mental element of the offence and not about the act of killing.

54 I do not propose to provide a full review of the decision. The judgments are lengthy and cover a variety of considerations. True it is that passages may be cited which put the decision on inconsistency rather than identity as between the relevant questions. And true it is that Gleeson CJ and Hayne J, at [41] and [42], saw the questions as different, albeit immaterially so. On the other hand, Gaudron and Gummow JJ, at [101], and McHugh J at [127] regarded the question at the murder trial as having been, on analysis, whether the respondent had killed the deceased and, accordingly, in their opinion, it was the same question as arose at the perjury trial.

55 The reason a detailed review of the decision is unnecessary is the importance given in all of the judgments to the prior proceedings having been criminal proceedings, and criminal proceedings resulting in an acquittal. The judgments are redolent with considerations applicable only to such a case, including the importance of finality in criminal proceedings and the incontrovertibility of a verdict of acquittal.

56 It is sufficient to deal with this decision in another way. Decisions are to be received as determinations relative to the facts of the case: Quinn v Leathem [1901] AC 495, 506. There is nothing in Carroll to suggest that any member of the court intended to lay down as a principle that something less than precise identity is sufficient for application of the extended doctrine of res judicata in relation to both criminal and civil proceedings. There is everything to suggest that the court intended to lay down principles in relation to successive criminal proceedings exclusively.

57 Secondly, the implications of the applicant’s reading of Carroll have to be considered. If, in relation to civil proceedings, the extended doctrine of res judicata does not require complete identity of questions, two alternative implications arise. One is that there is a more liberal test in civil cases which do not involve the same parties than in cases which do. That would be absurd and cannot be the law. The other is that the rule in relation to res judicata and issue estoppel in civil cases can always be circumvented by recourse to the extended doctrine. The court in Carroll cannot be taken to have made such a radical change in the law without making it clear that that is what it was doing. The necessary conclusion is that (at least in relation to civil proceedings) the extended doctrine of res judicata requires identity of questions in the same way as res judicata and issue estoppel require identity of questions.

Are the questions the same?

58 They are not, for the reasons given by Bignold J and for other reasons.

First reason

59 I will deal first with Bignold J’s approach.

60 I will assume for the immediate purpose that the phrases “not inconsistent with” and “substantially the same development” have the same meaning, imputing the same nature and degree of allowable variance relative to the development consent.

61 I will also assume, for the immediate purpose, that there is no material difference between the variations in the case of the modified development (relative to the development consent) and the variations in the case of the construction certificate (relative to the development consent). (There is the concession that the variations in the case of the approved development exceeded those in the case of the construction certificate, which is not a material difference for immediate purposes.)

62 There is nonetheless a significant difference between the two provisions. Section 96 calls for the opinion of a tribunal (the consent authority or the court on appeal) as to whether, in nature and degree, the variation is allowable. By contrast, cl 145 calls for a finding of fact by a tribunal (the court) as to whether another person (the certifying authority; in this case, the applicant) was satisfied that the variation, in nature and degree, was allowable. In one case it is a tribunal’s own opinion that counts. In the other, it is a tribunal’s finding of fact as to the opinion of the certifier that counts.

63 There is a fundamental difference in this respect between the question arising under s96 and the question arising under cl 145. It is a difference which exists independently of any difference in the nature, degree or content of the variations which present for consideration under the respective provisions. For this reason alone, the questions are not the same.

64 Bignold J did not put the point quite that way, but, in substance, it is what he said at [58 – 60] of the judgment.

Second reason

65 A second reason for the question being different arises from yet a further difference between the two provisions.

66 Section 96 involves a comparison between a proposed development and the development consent. Clause 145 involves a comparison between a construction certificate and the development consent. The questions arising under the respective provisions are different in that respect.

67 The applicant invokes the concession that, on the facts of this case, the variations approved pursuant to s96 were more extensive than the variations in the construction certificate relative to the development consent. That, the applicant says, is not a material difference but, on the contrary, demonstrates that an adverse finding in the prosecution, grounded as it is on cl 145, would be inconsistent with the prior approval of a modified development by Commissioner Murrell pursuant to s96.

68 This is recourse to the facts of the case to show that, as a matter of reasoning, there is no inconsistency between questions which, on their face, are different. Such recourse to the facts is impermissible under the principles relating to estoppel by res judicata and issue estoppel. By parity of reasoning it is impermissible under the principles applicable to the extended doctrine of res judicata.

69 In this regard, I need only cite the decision of the High Court in O’Donel v The Commissioner for Road Transport & Tramways(NSW) (1938) 59 CLR 744. The appellant, O’Donel, brought two proceedings for compensation for incapacity due to blindness allegedly resulting from injury received on 19 March 1933 in the course of his employment with the respondent. In proceedings in the Supreme Court of NSW, pursuant to s124 of the Transport Act 1930, the appellant recovered the salary he was receiving at the time of the injury for the period from 14 September 1934 to 15 February 1935. In the second proceeding, brought in the Workers Compensation Commission of NSW, the appellant claimed workers’ compensation from 15 February 1935 for incapacity due to blindness resulting from the same injury. The Commission dismissed the claim, being satisfied that the appellant’s blindness resulted from a progressive, chronic disease from which the appellant was suffering before 19 March 1933 and thereafter, rather than from the injury received on 19 March 1933. The Commission held, accordingly, that the injury received on 19 March 1933 did not cause any incapacity for work after 15 February 1935 and dismissed the claim.

70 On appeal from the decision of the Commission, it was argued that the Commission was constrained by the doctrine of res judicata to disallow evidence adduced by the respondent that the appellant’s blindness in the period after 15 February 1935 resulted from disease rather than from injury received on 19 March 1933.

71 It was held by the High Court that there was no estoppel. The earlier proceedings had determined only that the appellant’s blindness up to 15 February 1935 was caused by the injury received on 19 March 1933. Was it not then the same blindness which continued thereafter? Latham CJ said, at 758:

When the matter came at a later date before the Workers' Compensation Commission the continued existence of total blindness was proved. It is an easy inference to conclude that the blindness existing at the later date had the same cause as the blindness which existed at the earlier date. It is, as it appears to me, at this point that the real difficulty of the case appears. How far can an estoppel be extended by inference?

72 His Honour held it could not. He said, at 758-9:

Now it cannot possibly be said that the Supreme Court, by a judgment relating only to a period which ended on 15th February, thereby made any direct or actual decision or determination as to any matter or state of affairs whatever which existed at a later date. That judgment did create an estoppel as to one proposition — but that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption.

73 That the plaintiff’s blindness before and after 15 February 1935 had the same cause depended on evidence. His Honour concluded, at 759:

The question which it decided is, as the Full Court of the Supreme Court said, not eadem quaestio. In my opinion the plaintiff's contention therefore fails.

74 Evatt and McTiernan JJ were of the same opinion for substantially the same reasons.

75 The doctrine of extended res judicata is designed to bring the principles of estoppel by res judicata and issue estoppel into operation notwithstanding that there is a difference in the parties. The reasoning in O’Donel applies. It follows that the patent difference between the questions arising under the two provisions cannot be cured by recourse to the factual relationship between the matter decided by Commissioner Murrell and the matter to be decided in the prosecution.

Third reason

76 A third reason for the questions not being the same relates to the function of the respective provisions and the construction to be given to them having regard to that function.

77 The applicant submits that the phrases “substantially the same development” and “not inconsistent with” have the same ordinary meanings. That may be so in ordinary usage. However, the fact that the regulation-making authority has chosen different language in cl 145 from that used by the Parliament in s96, where the two provisions are part of the same code, strongly suggests that a distinction was intended. More particularly, both terminologies call for a judgment which cannot be made in vacuo and which necessarily takes into account the function of the respective provisions.

78 From this perspective, the formulae “substantially the same development” in s96 and “not inconsistent with” in cl 145 cannot be seen as having the same import. Put another way, it is entirely possible that the same variation (or a more extensive variation, as in this case) might be seen as resulting in “substantially the same development” within the meaning of s96, and yet as being incapable of accommodating the requirement that the certified development be “not inconsistent with” the development consent within the meaning of cl 145.

79 That is because s96 and cl 145 have different functions in the scheme of the legislation. The function of cl 145 is to ensure that the development as built will be in accordance with the development consent. The function of s96 is to allow modification of the development consent (albeit with a threshold limitation). In this context, the kind of variation contemplated by s96 and by cl 145 may be quite different in character. Variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as “inconsistent with” the development consent within the meaning of cl 145. On the other hand, s96 may be seen as contemplating relief from strict compliance with such limitations under the formula “substantially the same development”.

80 There is also, the degree of variation which the respective provisions will accommodate. Clause 145 is proscriptive. It prohibits the issue of a construction certificate unless the certifier is satisfied of the matter specified. Section 96, on the other hand, is a facultative, beneficial provision. As such it is to be construed and applied in a way that is favourable to those who are to benefit from the provision: ReKearney; Ex parte Jurlama (1984) 52 ALR 24, 28; Zangzinchai v Millanta (1994) 125 ALR 265, 272.

81 It is unnecessary to decide whether cl 145 is to be applied strictly although that argument is available. It is sufficient that s96 is to be construed liberally on grounds which do not apply to cl 145. It follows that s96 may accommodate a greater degree of variation in the proposed development referrable to the development consent than cl 145 will accommodate.

82 For that reason also, the finding that the approved development was “substantially the same development” within the meaning of s96 does not necessarily imply that the plans the subject of the construction certificate were “not inconsistent with” the development consent within the meaning of cl 145. And that is so notwithstanding that the approved development involved more extensive variations than were involved in the construction certificate.

83 Because of disparity in the nature and in the degree of variation which may be accommodated by the respective provisions, the questions arising under the two provisions are not necessarily the same.

Judgment in rem

84 The applicant says that the decision by Commissioner Murrell is a judgment in rem. The only relevant consequence would be that the difference in parties does not matter. The principles relating to estoppel by res judicata and issue estoppel would then apply rather than those relating to the extended doctrine. The question decided by Commissioner Murrell would still have to be the same as the question arising in the prosecution. This point cannot avail the applicant.

Conclusion

85 Bignold J did not err in refusing the application for a permanent stay of the prosecution. I would grant leave to appeal and dismiss the appeal.

Proposed orders

86 I propose the following orders:

(1) Time for application for leave to appeal extended to 18 September 2003.

(2) Leave to appeal granted.

(3) Appeal dismissed.

-o0o-

Last Modified: 03/30/2004