Redland Shire Council v Jensen

[2003] QPEC 26

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Redland Shire Council v. Jensen and Anor [2003] QPEC 026

PARTIES:

REDLAND SHIRE COUNCIL (Applicant)

v.

ANNE CATHERINE JENSEN (First Respondent)

And

RICHARD ASHTON JENSEN (Second Respondent)

FILE NO/S:

4189 of 2002

DIVISION:

Planning and Environment Court Brisbane

PROCEEDING:

Preliminary Point

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2003

JUDGE:

Quirk DCJ

ORDER:

CATCHWORDS:

Issue Estoppel

Blair v. Curran (1939) 62 CLR 464

Bass &v. Anor v. Permanent Trustee Company Limited (1999) 198 CLR 334

EGRI & Anor v. DRG Australia Ltd (1989) 19 NSWLR 600

TM Burke Estates Pty Ltd v. Council of the Shire of Noosa (2001) 113 LGERA 368

Port of Melbourne Authority v. Anshun (1981) 147 CLR 589

COUNSEL:

Mr P Lyons QC and Mr P Sm

ith for the Applicant

Mr G Allan for the First Respondent

SOLICITORS:

Deacons for the Applicant

Anderssen Lawyers for the First Respondent

1. This originating application was brought by the Redland Shire Council but, on this occasion, I have been asked to rule whether issue estoppel prevents the first respondent pursuing an application (made on 28 April 2003) for a preliminary ruling. 

1. The rulings sought by the first respondent are set out in a schedule to the formal application in these terms:

“The construction of a retaining wall along the northern boundary, and the filling done by the Respondents on the land described as Lot 503 on RP 118166, County of Stanley, Parish of Russell (“the subject land”) and situated at 50 Attunga Street, Macleay island in the State of Queensland is:

(a) “development, namely the carrying out of building work pursuant to s. 1.3.2 of the Integrated Planning Act 1997 (“the Integrated Planning Act”);

(b) “building work” as defined in s.1.3.5(aa) of the Integrated Planning Act, being work regulated under the Standard Building Regulation 1993;

(c) in respect of the retaining wall constructed on the foreshore along the northern boundary of the subject land “self-assessable development” pursuant to Item 4 of Part 1 of Schedule 5 of the Standard Building Regulation 1993; and

(d)        in respect of the filling on the subject land, “self-assessable development” pursuant to Item 5 of Part 1 of Schedule 5 of the Standard Building Regulation 1993”.

1. The applicant Council’s contention is that the pursuit of that ruling is prevented by an issue estoppel arising from the decision of His Honour Judge McLauchlan on 14 March 2003.  His Honour’s Reasons for Judgment on that occasion are, of course, part of the court record. 

1. The determination which was sought on that occasion is set out by His Honour in para. 1.  As can be seen, it was not precisely in the same terms as the first respondent’s current application but this is not a matter upon which I have made my decision. 

1. As His Honour points out in para. 2, the originating application was brought by the Council seeking certain declaratory relief (which he identifies) and a consequential enforcement order. The onus of establishing that such relief should be given of course rested with the applicant Council.  As His Honour went on to observe:

“The fundamental issue between the parties is thus whether the filling carried out by the respondents on the land in question is assessable development requiring a development permit or whether, as the respondents contend, the filling constitutes self-assessable development requiring no such permit.”. 

1. Perhaps unusually, the application which His Honour was entertaining was brought by a party who carried no onus in the principal action, but that is a matter upon which it is unnecessary to dwell. 

1. The legislation relevant to the determination of the relevant point was identified by His Honour.  As he noted, a statement of certain agreed facts were before him, but it appears that these facts did not deal with certain requirements of the legislation to which he pointed.  He concluded in these terms:

“It follows that the filling done by the respondents cannot be identified as filling which is self-assessable development in terms of the Standard Building Regulation 1993. The preliminary determination sought cannot therefore be made.”

His Honour went on to explain why he thought it inappropriate to grant an adjournment to allow other factual material to be placed before him.

1. As I mentioned at the outset, I have to decide whether His Honour’s decision has raised an issue estoppel in respect of the determinations now sought to be made on the first respondent’s application of 28 April.  In the course of argument the leading authorities in regard to issue estoppel were discussed at length.  (e.g., Blair v. Curran (1939) 62 CLR 464; Bass &v. Anor v. Permanent Trustee Company Limited (1999) 198 CLR 334). What emerges quite clearly from these decisions is that (to use the words of Dixon J in Blair):

“a judicial determination directly involving an issue of fact or law disposes once and for all of the issue so that it cannot afterwards be raised between the same parties or their privies.”

1. As it was put by McHugh JA in EGRI & Anor v. DRG Australia Ltd (1989) 19 NSWLR 600 at 603:

“A final decision once given by a competent Tribunal forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision”.

1. In certain circumstances, a ruling made in a preliminary way may give rise to issue estoppel e.g., TM Burke Estates Pty Ltd v. Council of the Shire of Noosa (2001) 113 LGERA 368. However, it was clear in that case that the relevant issue was submitted to the court on the basis of commonly accepted facts and finally determined (see para. 33 p.378).

1. The matter before me appears to turn upon whether His Honour’s decision was indeed a final determination of the issue in question.  On that point some ambiguity arises from the transcript of the proceedings and His Honour’s reasons.  It is clear enough that His Honour considered that he was unable to make a preliminary determination that the work in question was “building work” within the meaning of the Standard Building Regulations because there was:

“No evidence and no agreement in relation to those matters.”

1. The applicant Council pointed out that, if His Honour’s ruling could be properly regarded as a final determination of the issue, the failure on the part of the first respondent to adduce the necessary evidence did not prevent an issue estoppel arising (Port of Melbourne Authority v. Anshun (1981) 147 CLR 589, 613-614).

1. My difficulty however is reading His Honour’s decision as a final determination of the relevant issue rather than simply ruling that, at that point in the proceedings, he was not prepared to make a determination in a final way in respect of an issue that went to the heart of the applicant Council’s principal claim.

1. That notion is, in my view, consistent with His Honour’s written reasons and the exchange that took place between His Honour and counsel which appears at pp. 45-47 of the transcript.

1. Accordingly, I am not prepared to rule that His Honour’s decision has given rise to an issue estoppel in respect of the issue which is here relevant.  I would not wish, however, to be taken to be ruling that it is appropriate that the court should, in the exercise of its discretion, proceed to determine the preliminary point which the first respondent seeks to pursue.  That is not a matter which was really argued before me.  I order accordingly.