Smargiassi Nominees Pty Ltd v Shire of Collie
[2021] WASCA 107
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2021] WASCA 107
CORAM: BEECH JA
VAUGHAN JA
MORRISON AJA
HEARD: 13 MAY 2021
SUPPLEMENTARY
SUBMISSIONS : 20 & 27 MAY 2021
DELIVERED : 25 JUNE 2021
FILE NO/S: CACV 87 of 2020
BETWEEN: SMARGIASSI NOMINEES PTY LTD
Appellant
AND
SHIRE OF COLLIE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ACTING MASTER WHITBY
Citation: SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2020] WASC 94
File Number : CIV 1588 of 2019
Catchwords:
Practice and procedure - Proceedings seeking declaration that uses of relevant land are lawful non‑conforming uses under local planning scheme - Defendant's application for summary judgment - Whether prior conviction in earlier litigation finally determined use to which land was being put at relevant time - Whether claim for declaration inconsistent with decision and findings in earlier litigation - Turns on own facts
Legislation:
Rules of Supreme Court 1971 (WA), O 16
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | P G McGowan |
| Respondent | : | M D Cuerden SC |
Solicitors:
| Appellant | : | Rowley Legal |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Arthur JS Hall & Co v Simons [2002] 1 AC 615
Bennett v The State of Western Australia [2012] WASCA 70
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Cameron v James [1945] VLR 113
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Carter v Walker [2010] VSCA 340; (2010) 32 VR 1
Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Foodbarn Pty Ltd v Solicitor‑General (1975) 32 LGRA 157
Gull Petroleum v Nashville Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308
R v Township of Hartington (1855) 4 El & Bl 780, 794; 119 ER 288
Re Koenigsberg; Public Trustee v Koenigsberg [1949] 1 Ch 348
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529
Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118
Smargiassi Nominees Pty Ltd v Shire of Collie [2020] WASC 94
Stimac v Nicol [1942] VLR 66
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
JUDGMENT OF THE COURT:
Overview
The appellant is the owner of Lot 1 House No 650 Collie River Scenic Drive, Collie, Western Australia (Land). The Land is within the district of the Shire of Collie (Shire), the Shire being the respondent in the appeal. The Land is zoned 'Rural 1' under the Shire of Collie Local Planning Scheme No 5 (Scheme). Following other litigation between the appellant and the Shire concerning the Land, the appellant brought proceedings in the General Division of the Supreme Court seeking a declaration that its uses of the Land are lawful non-conforming uses under the Scheme.
The Shire sought summary dismissal of the appellant's proceedings.
The Shire claimed that the appellant was or should be prevented from re-litigating the use to which the Land had been put, relying on one or more of the doctrines of issue estoppel, Anshun estoppel and abuse of process. The summary dismissal application was successful.[1] On 3 July 2020 the acting master made orders granting the Shire summary judgment and ordering that judgment be entered for the Shire.[2] The master did so having found, in effect, that the prior litigation had finally determined the use to which the Land was being put at the relevant time.
[1] Smargiassi Nominees Pty Ltd v Shire of Collie [2020] WASC 94 (Primary reasons).
[2] BAB 1.
By this appeal, the appellant contends that:
1.The master was in error in finding that there was a conclusive determination in the prior litigation of all the uses carried out on the Land at the relevant time (ground 1).
2.Even if there was such a determination, it was no more than an obiter finding (ground 2).
For the reasons that follow the appeal should be allowed. The appellant's claim is not inconsistent with the decision and findings in the earlier litigation. The prior litigation did not determine the totality of uses to which the Land was being put at the relevant time. The master erred in holding to the contrary and determining that summary judgment should be entered for the Shire against the appellant.
Background facts
The appellant acquired the Land from Arc-Right Engineering Pty Ltd (ARE) in June 2008. In July 2006, ARE, as the then owner of the Land, consented to an application to the Shire for planning approval in respect of the Land. The formal applicant for the planning approval was a different intended purchaser of the Land. The proposed development and uses of the Land were described as:
[E]arthmoving, trucking and concrete batching, engineering consultancy/engineering manufacturing business.[3]
[3] GAB 131.
The approval application was accompanied by a letter dated 6 July 2006 attaching plans and other documents.[4] In the letter the existing uses of the Land were described as engineering, fabrication, earthmoving, concrete batching and truck maintenance. On 9 August 2006 the Shire granted ARE approval to undertake development described as 'Light Industry (Engineering, Fabrication and Earth moving services)' in accordance with the plans attached to the application for planning approval (2006 approval). The 2006 approval was granted pursuant to the Shire of Collie Town Planning Scheme No 1 and the Shire of Collie Interim Development Order No 6.[5]
[4] GAB 132 - 138.
[5] GAB 139 - 140.
The 2006 approval stated that the application to undertake development was granted subject to a number of specified conditions including:
4.Designated Parking areas not being used for general storage or any purpose other than the parking of motor vehicles;
…
6.Any additional development which is not in accordance with the original application or conditions of approval, as outlined above, will require further approval by the Shire of Collie.[6]
[6] GAB 139.
The 2006 approval also noted that:
Note 1:If the development the subject of this approval is not substantially commenced within a period of 2 years from the date of this approval, the approval shall lapse and be of no further effect.
Note 2:Where an approval has so lapsed, no development shall be carried out without the further approval of council having been first sought and obtained.[7]
[7] GAB 139.
The Scheme came into effect on 2 October 2009. Under the Scheme the Land was zoned 'Rural 1' which meant a number of uses of the Land were prohibited including, relevantly, uses described as 'Industry-general', 'Industry-light' and 'Storage'.[8] However, cl 4.8 of the Scheme provided for certain 'Non-Conforming Uses':
Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent:
(a)the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date;
(b)the carrying out of any development on that land for which, immediately prior to the Gazettal date, an approval or approvals, lawfully required to authorise the development to be carried out, were duly obtained and are current.
[8] Part 4 of the Scheme provided for 'Zones and the Use of Land'. Included within pt 4 was a 'Zoning Table'. The Zoning Table designated, by an 'X', that in relation to Rural 1 zoned land each of 'Industry-general', 'Industry-light' and 'Storage' was a use that was not permitted by the Scheme. See also Scheme cl 4.3.1, cl 4.3.2 and Table 1 items 45, 46 and 77.
Clause 4.8 of the Scheme has to be read with cl 4.9.1 and cl 4.10.
Clause 4.9.1 of the Scheme provides:
A person must not:
(a)alter or extend a non-conforming use;
(b)erect, alter or extend a building used in conjunction with or in furtherance of a nonconforming use; or
(c)change the use of land from a non-conforming use to another non-conforming use,
without first having applied for and obtained planning approval under the Scheme.
Clause 4.10 of the Scheme provides:
DISCONTINUANCE OF NON-CONFORMING USE
Where a non-conforming use of any land has been discontinued for a period of 6 months the land must not be used after that period otherwise than in conforming with the provisions of the Scheme.
On 18 March 2015, in the Magistrates Court at Collie, the Shire charged the appellant with contravening the provisions of a planning scheme (ie the Scheme) contrary to s 218(a) of the Planning and Development Act 2005 (WA). As and by way of details of the alleged offence, the prosecution notice alleged that between 1 March 2014 and 12 January 2015 (offence period) at the Land (being zoned Rural 1 under the Scheme) the appellant:
carried out development namely the use of the land for storage of scrap metal, skip bins, car bodies, old machinery, timber, builders rubble and construction materials on [the Land] without first having applied for and obtained the planning approval of [the Shire] under Part 9 of the Scheme and thereby contravened Clause 8.1 of the Scheme.[9]
[9] GAB 141.
Clause 8.1 of the Scheme provides:
Subject to clause 8.2 [which is irrelevant for present purposes], all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.
On 5 October 2016, after a five-day trial, Magistrate Maughan dismissed the charge.[10] The magistrate concluded that:
1.The Shire had failed to establish beyond reasonable doubt that the appellant did not have the right to use the Land as it was being used during the offence period pursuant to the non-conforming use provisions of the Scheme.
2.The right of non-conforming use extended to all uses falling within the use class of 'Industry-light' under the Scheme and the Shire had failed to prove beyond reasonable doubt that the Land was being used for purposes outside those uses during the offence period.
[10] GAB 144 - 162.
In the course of the magistrate's reasons, his Honour stated that it was not in dispute, and found it proven beyond reasonable doubt, that during the offence period materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble were stored on the Land.[11] The magistrate also referred to the Shire having relied on evidence of the appellant's director to the effect that the use of the Land involved 'mainly a lot of storage'.[12] His Honour stated, however, that 'any evidence as to the extent to which storage and/or industrial activity was conducted on the Land is vague'.[13]
[11] GAB 147 par 4(iv).
[12] GAB 160 par 46(iii).
[13] GAB 161 par 48.
The magistrate also adopted what were described as 'key factual circumstances' put forward on behalf of the appellant as being an accurate representation of the evidence.[14] As will be seen, these primary facts were not in dispute in subsequent appeals from the magistrate's decision. Also, among other things, the magistrate found that in 2008 a portion of the Land was leased to a Mr Menezes.[15] As at the time of the prosecution Mr Menezes continued to operate his business from that leased portion of the Land using it for the purpose of repairing vehicles, storing salvaged materials and processing timber for re-use.[16]
[14] GAB 151 - 154 par 17.
[15] GAB 153 par 17(13).
[16] GAB 153 par 17(14).
The Shire appealed against the acquittal. On 22 August 2017 a judge in the General Division of the Supreme Court, Martino J, allowed the respondent's appeal and entered a conviction against the appellant.[17] Martino J held that:
1.The magistrate had erred in concluding that the Shire had the burden of proving that the appellant was using the Land otherwise than in accordance with the rights of non-conforming use conferred by the Scheme. The magistrate should have held that the appellant carried the burden of proving on the balance of probabilities that its use of the Land during the offence period fell within the scope of the non-conforming use rights provided under the Scheme.[18]
2.The magistrate's conclusion that the ambit of the appellant's right of non-conforming use was to be determined by reference to a class of use specified in the Scheme was contrary to the decision of the High Court in Shire of Perth v O'Keefe.[19] The non-conforming use exemption was to be determined by reference to the actual use to which the relevant land had been put.[20]
3.The only right of non-conforming use which might be available to the appellant was a right to use the Land in accordance with the 2006 approval.[21]
4.The evidence established, and the magistrate had found, that during the offence period the Land was being used for storing scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble.[22]
5.To the extent that use of the Land for storage was approved in 2006, the approval was for storage associated with the use of the Land for the purposes approved - namely, general fabrication and engineering purposes.[23]
6.However, during the offence period, the Land was not being used for general fabrication or engineering purposes; and the storage of the various items on the Land was not associated with the use of the Land for those purposes.[24]
[17] Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238 (2017 GD Decision).
[18] 2017 GD Decision [94], [114].
[19] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.
[20] 2017 GD Decision [117].
[21] 2017 GD Decision [118] - [119], [121].
[22] 2017 GD Decision [124].
[23] 2017 GD Decision [126].
[24] 2017 GD Decision [126], [128].
Martino J stated:
The approval granted was for the use of [the Land] for general fabrication and engineering purposes with a storage area, a workshop, staff amenity areas and car parking. The evidence of the use of [the Land] in the period covered by the charge [ie the offence period] was that it was being used for the purpose of storage. While the approval included approval of a storage area it is my view that on a proper construction of the approval, the approval of storage was of storage associated with the use of [the Land] for general fabrication and engineering purposes. In the period covered by the charge [the Land] was not being used for general fabrication or engineering purposes and the storage was not associated with the use of the land for that purpose.
In my view the use of [the Land] to store the materials that his Honour found were stored on it was not authorised by the 2006 approval …[25] (emphasis added)
[25] 2017 GD Decision [126] - [127].
The appellant applied to this court for leave to appeal. The appellant accepted that it had to establish that its use of the Land during the offence period was within the scope of the 2006 approval.[26] The appellant contended that: (1) Martino J took an unduly narrow view of the 2006 approval which, properly construed, included the uses to which the appellant put the Land during the offence period;[27] or (2) the non-conforming use right in the 2006 approval should be construed by reference to the light industry use characterisation within the Scheme rather than by reference to what was actually being done on the Land.[28] Both contentions were rejected. Leave to appeal was refused and the appeal was dismissed.[29]
[26] Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 (2018 CA Decision) [6], [40].
[27] 2018 CA Decision [7].
[28] 2018 CA Decision [8].
[29] 2018 CA Decision [9], [53].
In its reasons for decision, this court observed that:
The grounds of appeal do not challenge any findings of primary fact made by either the magistrate or [Martino J]. Rather, the grounds of appeal challenge the conclusions which [Martino J] drew from those facts.[30]
[30] 2018 CA Decision [10].
In terms of the use of the Land by the appellant, this court noted (at [22] of the 2018 CA Decision) relevant factual findings that:
The appellant acquired the land in August 2008. Since acquiring the land, and during the offence period, the appellant has used the land for:
•the sorting and storage of metal components including an industrial silencer, miscellaneous pipes and flanges, stainless steel screens, copper, rubber conveyor belt, machinery and equipment;
•the sorting and processing of metal flanges and bolts for further machining at a different site owned by the appellant;
•the storage of two sea containers (used as a sandblasting unit);
•the storage of transportable building;
•the maintenance of vehicles and equipment; and
•the storage of motor vehicle bodies.[31]
[31] 2018 CA Decision [22]. The finding can be seen as being derived from the magistrate's reasons: GAB 154 par 17(15). See also [23] - [24].
Similarly, the court referred to a factual finding that, during the offence period, materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble were stored on the Land.[32] Earlier the court had, in terms, essentially adopted the finding made by the magistrate as to the lease of part of the Land to Mr Menezes and the continuing use that Mr Menezes made of that part of the Land (refer to [18] above).[33]
[32] 2018 CA Decision [23]. The finding can be seen as being derived from the magistrate's reasons: GAB 147 par 4(iv). See [17] above. Martino J made a concurrent factual finding: 2017 GD Decision [128].
[33] 2018 CA Decision [21].
The court also referred to Martino J as having:
found that during the offence period, the land was not being used for general fabrication or engineering purposes, and that the storage of the various items on the land was not associated with the use of the land for those purposes.[34]
[34] 2018 CA Decision [4]. This replicates the findings of Martino J at 2017 GD Decision [126], [128] as reproduced above, in part, at [20].
The court agreed with the conclusions of Martino J as summarised at [19.1] and [19.2] above.[35] Accordingly, it was for Martino J to determine whether the appellant had established, on the balance of probabilities, that the uses to which the appellant put the Land during the offence period were uses to which the appellant could have lawfully put the Land immediately prior to the promulgation of the Scheme.[36] As other potential avenues by which lawful use might be established could not be made out, that ultimately turned on the appellant's non-conforming use argument associated with the 2006 approval.[37] The court concluded that the appeal had to be dismissed unless the evidence established on the balance of probabilities that the uses to which the Land was being put during the offence period came within the scope of the 2006 approval.[38]
[35] 2018 CA Decision [33] - [34].
[36] 2018 CA Decision [35]. See also [36].
[37] 2018 CA Decision [40].
[38] 2018 CA Decision [43].
The court observed that:
1.Pursuant to cl 4.8 of the Scheme, the uses to which the Land was in fact being put immediately prior to the Scheme coming into effect were critical to the ambit of any right of non-conforming use conferred by the Scheme.[39]
2.The appellant also had to establish that such uses were lawful - and the uses could only be lawful if they came within the scope of the 2006 approval.[40]
[39] 2018 CA Decision [41].
[40] 2018 CA Decision [42].
The court stated that:
The judge [ie Martino J] was therefore correct to conclude that the only storage permitted by the 2006 approval was storage for purposes ancillary to the primary uses approved, namely, engineering, fabrication and earthmoving.
Both the magistrate and the judge found that the primary use to which the land was being put during the offence period was for the storage of the various items which we have described. The appellant carried the burden of establishing that use of the land for that purpose came within the ambit of the approval granted by the Shire in 2006. However, no evidence was adduced to the effect that the storage of the scrap metal, motor vehicle bodies, skip bins and miscellaneous items were ancillary to any use to which the land was being put during the offence period. To the contrary, such evidence as there was went no further than to suggest that some of the items might be stored on the land for use by the appellant in connection with a business conducted on other land.
The appellant failed to establish, on the balance of probabilities, that the use to which the land was being put during the offence period came within the uses approved by the Shire in 2006. As a result, even if the appellant had established that the land was being used for those purposes immediately prior to the promulgation of the Scheme, it could not have established that those uses were lawful and therefore came within the scope of any right of non-conforming use conferred by the Scheme.[41] (emphasis added)
[41] 2018 CA Decision [45] - [47].
The court rejected the appellant's two contentions which sought to overcome these conclusions. First, the appellant asserted that the 2006 approval should be construed as granting approval to use the Land for 'light industry'. However, the approval was not in those terms.[42] Second, the appellant relied on authorities which established that, in determining the ambit of a right of non-conforming use, the purpose for which land is being used should be characterised at a level of generality. As to that the court held:
No amount of generality of characterisation or liberality of reading can result in the use to which the land was being put during the offence period falling within the terms of the approval granted in 2006. The use to which the appellant's land was put during the offence period was entirely different from the use for which approval was granted in 2006. During the offence period, the land was predominantly used for the storage of various metal items. That storage was not ancillary to any metal fabrication, engineering or earthmoving business being conducted on the land. It was clearly not within the scope of the 2006 approval and, as a consequence, could not have been a use lawfully carried on immediately prior to the promulgation of the Scheme. The judge was correct to so conclude.[43] (emphasis added)
[42] 2018 CA Decision [48] - [50].
[43] 2018 CA Decision [52].
The present litigation
On 2 April 2019 the appellant commenced proceedings against the Shire. The appellant sought a declaration that it was entitled to continue to use the Land for certain permitted non-conforming uses in accordance with cl 4.8 of the Scheme. The appellant's pleaded case had various iterations. The last was a substituted statement of claim dated 13 November 2019 (SOC).
Paragraph 16 of the SOC provided:
Prior to and since at least October 2009, the Land has been used for the following purposes authorised by the 2006 Approval without any break in excess of six months (the Non-Conforming Uses):
16.1engineering fabrication;
16.2earth moving purposes including temporary storage of material incidental to that use, including but not limited to gravel and concrete;
16.3transportable home construction including but not limited to engineered steel house stumps and steel floor supports, engineering of timber trusses and wall frames, incidental storage of materials including wood, steel, fabricated items and consumables for use in the fabrication and engineering of the above mentioned items;
16.4sandblasting;
16.5plant, equipment and commercial vehicle maintenance including incidental storage thereof;
16.6processing, including cutting, cleaning, sandblasting and disassembling of steel and other metals for recycling and incidental storage thereof;
16.7processing, including cutting, cleaning, sandblasting and disassembling, and sorting of metal flanges and bolts for further machining off site and incidental storage thereof;
16.8processing, including cutting, cleaning, sandblasting, disassembling and sorting of various metal parts, including but not limited to vales, piping, traps and cages for further machining off site and incidental storage thereof;
16.9processing, including cutting, cleaning and sorting of various steel, other metals, rubber, rubber pipe and hoses for fabrication and engineering uses and incidental storage thereof;
16.10fabrication and repair of skip bins and incidental storage thereof;
16.11repair and recycling of wooden pallets and incidental storage thereof;
16.12the use of two sea containers for sandblasting purposes.
The Shire's defence pleaded as follows:
10.[The Shire] denies each and every allegation in paragraph 16 of the statement of claim, and further says that:
(a)[the appellant] has used the Land solely or predominantly for storage other than for a purpose or purposes ancillary to the primary uses approved by the 2006 Approval;
(b)further and alternatively, if (which is denied) the Land was used for a purpose authorised by the 2006 Approval, [the appellant] discontinued such use by no later than 1 March 2014 for a period of not less than 6 months within the meaning of clause 4.10 of [the Scheme].
11.Further, [the Shire] says that in proceedings to which [the appellant] and [the Shire] were the parties, the Court of Appeal found that:
(a)[the appellant] failed to establish, on the balance of probabilities, that the use to which the Land has been put came within any of the uses approved by the 2006 Approval;
(b)further, during the period 1 March 2014 to 12 January 2015 the Land was predominantly used for the storage of various metal items, such storage not being ancillary to any of the primary uses approved by the 2006 Approval and therefore not within the scope of the 2006 Approval;
(c)further, the use to which the Land was put during the period 1 March 2014 to 12 January 2015 was entirely different from the use for which approval was granted by the 2006 Approval.
Particulars
[The Shire] relies on the reasons for decision of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 188.
12.[The Shire] says that by reason of the matters pleaded in the preceding paragraph:
(a)[the appellant's] allegations pleaded in paragraph 16 of the statement of claim and the claim for relief are not maintainable by reason of an issue estoppel in favour of [the Shire] in respect of those allegations and the relief claimed;
(b)further and alternatively, [the appellant] is prevented by Anshun estoppel from pleading or otherwise maintaining those allegations and claiming that relief;
(c)further and alternatively, [the appellant's] allegations and claim for relief herein are an abuse of process.
Accordingly, it is the findings identified at par 11 of the defence that are relied on by the Shire to make out its defences based on issue estoppel, Anshun estoppel and abuse of process. The pleading does not pinpoint the paragraphs within the 2018 CA Decision that are relied on. It is clear, however, that par 11(a) of the defence refers to [47] of the 2018 CA Decision[44] and pars 11(b) and (c) of the defence refer to [52] of the 2018 CA Decision.[45]
[44] See [28] above (refer to the italicised portion of par 3 thereof).
[45] See [29] above (refer to the italicised portions thereof).
The Shire sought summary judgment dismissing the action pursuant to O 16 of the Rules of the Supreme Court 1971 (WA) (RSC). In the alternative the Shire sought that the SOC be struck out and the action be dismissed pursuant to O 20 r 19(1)(d) of the RSC. The grounds for the application were expressed as being:
The [appellant's] claim is directly inconsistent with the decision and findings of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118, is not maintainable in light of that decision, and the claim is barred by issue estoppel and/or Anshun estoppel and/or is an abuse of process.[46]
[46] BAB 34.
Accordingly, the Shire's summary dismissal application was grounded on the proposition that the appellant's claim was inconsistent with the Court of Appeal's decision and findings in the 2018 CA Decision.[47]
[47] See also Respondent's submissions dated 29 January 2020 in CIV 1588 of 2019 pars 2, 24.
The decision of the master
The Shire required leave to file its application as it was made out of time. The master was satisfied that leave should be granted.[48] There is no challenge to that aspect of the decision. Nor is there any challenge to the legal principles attending a defendant's application for summary judgment as were stated by the master.[49]
[48] Primary reasons [19] - [24].
[49] Primary reasons [25] - [28].
The master identified the relevant issue to be whether it was open to the appellant to maintain its plea of asserted lawful non-conforming uses of the Land in light of the 2018 CA Decision.[50]
[50] Primary reasons [29].
After referring to the parties' submissions,[51] the master referred to some of the legal principles relevant to the doctrines of issue estoppel, Anshun estoppel and abuse of process.[52] There is no direct challenge to the legal principles as identified by the master. The master then referred to the findings of the Court of Appeal in the 2018 CA Decision.[53] The master recounted that the parties were, in effect, agreed that the central finding of the Court of Appeal for the purpose of the application before her was that reproduced at [29] above[54] - thereby echoing the Shire's defence at pars 11(b) and (c). The master characterised that as a finding that the use to which the Land was being put by the appellant - ie the storage of various metal items - was not a use for which approval was granted by the 2006 approval.[55]
[51] Primary reasons [30] - [33].
[52] Primary reasons [34] - [38].
[53] Primary reasons [39]. See also [42].
[54] Primary reasons [40].
[55] Primary reasons [41].
As to issue estoppel, the master then held:
In my view the Court of Appeal, in determining whether the use the subject of the Prosecution Notice was permitted by [the Scheme], was required to determine the totality of use of the Land by [the appellant]. It was a central issue because the Court of Appeal was required to determine whether the storage use by [the appellant] was ancillary to any other use of the Land by [the appellant]. The findings of fact at [22] of the Court of Appeal's reasons [reproduced in these reasons at [23] above] finally set out the use to which the Land was being put at that time. The Court of Appeal's role was not to make a finding in the negative - that is to what uses the Land were not being put by [the appellant] - such a finding is inherently illogical and potentially impossible. Rather the Court of Appeal was required to and did determine what use the Land was being put to by [the appellant]. No other uses can now be asserted by [the appellant].
[The appellant] is estopped from asserting alternate uses of the Land in these proceedings which are inconsistent with the findings of the Court of Appeal. The uses pleaded at par 16 of [the SOC] are inconsistent with the findings of the Court of Appeal.[56] (emphasis added)
[56] Primary reasons [46] - [47].
The master also upheld the Shire's contentions based on Anshun estoppel[57] and abuse of process.[58] In summary the master held that the appellant's claim in par 16 of the SOC was inconsistent with this court's finding in the 2018 CA Decision.[59] Accordingly, the Shire's application for summary judgment was granted on the basis of each of issue estoppel, Anshun estoppel and abuse of process.[60]
[57] Primary reasons [48].
[58] Primary reasons [49].
[59] Primary reasons [4].
[60] Primary reasons [50].
Issue Estoppel, Anshun Estoppel and Abuse of Process
It is appropriate, before turning to the grounds of appeal, to outline the basis of the doctrines of issue estoppel, Anshun estoppel and abuse of process. The applicable principles of the doctrines relied on by the Shire in obtaining summary dismissal of the appellant's action inform consideration of the grounds of appeal insofar as the grounds direct attention to the proper characterisation of the determination and findings in the earlier litigation between the parties. The references within the grounds of appeal (see [67] below) to the relevant 'determination' and 'finding' of facts by the Court of Appeal in the 2018 CA Decision must be understood in the framework of what may properly ground an issue estoppel, Anshun estoppel or abuse of process.
Each doctrine is informed by the public interest in finality in litigation and the conclusiveness of judicial decisions: controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
Issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching a final judgment in an adversarial proceeding.[61] In Blair v Curran Dixon J (as his Honour then was) stated:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as a legal foundation or justification of its conclusion …[62]
[61] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22]. See also: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 510, 531 - 533; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466 ‑ 467.
[62] Blair v Curran (531).
The requirements for the doctrine of issue estoppel to apply in a second set of proceedings are that:[63]
1.The same question has been decided.
2.The judicial decision which is said to create the estoppel was final.
3.The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[63] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [21] (referring to Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, 935); Tomlinson v Ramsey Food Processing Pty Ltd [90].
Accordingly, an issue estoppel may arise where a state of fact or law is alleged or denied, the existence of which is 'a matter necessarily decided' by a prior final judgment between the parties or their privies. However, only that which is 'legally indispensable to the conclusion' is finally precluded.[64] In Blair v Curran Dixon J explained that:
In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action … [However] the estoppel [is not] confined to the final legal conclusion expressed in the judgment, decree or order. … the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[65]
[64] Blair v Curran (532).
[65] Blair v Curran (532).
Dixon J distinguished between:[66]
1.Matters of fact or law which are 'fundamental or cardinal' to the prior judicial determination or 'necessarily involved' in it as its legal justification or foundation. In short, the 'immediate foundation' of the prior judicial determination.
2.Matters of fact or law which are 'subsidiary or collateral'; for example, evidentiary facts - rather than ultimate facts - not being part of the 'essential foundation or groundwork' of the prior judicial determination. In short, 'no more than part of the reasoning supporting the conclusion'.
[66] Blair v Curran (532 - 533).
The former will ground an issue estoppel. The latter will not. Thus Fullagar J has stated: 'Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue' (emphasis added).[67] So too issue estoppel has been said to be confined to: (1) an issue of fact or law directly involved in a judicial determination; (2) a matter which has been put in issue and determined; or (3) an essential element in a cause of action or defence in proceedings in which judgment has been entered.[68]
[67] Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1, 15. See also Jackson v Goldsmith (467).
[68] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 274.
The author of Spencer Bower and Handley: Res Judicata suggests that the question is whether the matter of fact or law was so fundamental that the prior judicial determination cannot stand without it.[69] There is support for that in Brewer v Brewer so far as Fullagar J (Dixon CJ agreeing) explained the decision in Hoysted v Federal Commissioner of Taxation in the following terms:[70]
In Hoysted's Case the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different. As Somervell LJ said: 'He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously'.[71] The point in question had been 'the groundwork of the decision itself, though not then directly the point at issue'[72] (per Coleridge J).[73] (emphasis added)
[69] K R Handley QC, Spencer Bower and Handley: Res Judicata (5th ed, 2019) [8.24].
[70] Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290.
[71] Re Koenigsberg; Public Trustee v Koenigsberg [1949] 1 Ch 348, 360.
[72] R v Township of Hartington (1855) 4 El & Bl 780, 794; 119 ER 288, 293.
[73] Brewer v Brewer (15).
The argument before and decision of the master assumed that an issue estoppel could arise out of a criminal conviction. That was also the basis on which the appeal was argued up to and including the appeal hearing.
Neither party developed the relevant legal principles as to the doctrines of issue estoppel, Anshun estoppel or abuse of process in its initial written submissions. At the appeal hearing, the court having raised some questions as to applicable principles, senior counsel for the Shire sought and was granted leave to file supplementary written submissions as to the potential application of issue estoppel and Anshun estoppel. The Shire subsequently filed supplementary written submissions contending that a judicial determination in criminal proceedings may be relied on as giving rise to an issue or Anshun estoppel in subsequent civil proceedings between the same parties or their privies.
The appellant contested that proposition in its responsive supplementary submissions - seemingly suggesting that, as a matter of law, there could never be an issue or Anshun estoppel in civil proceedings that followed a criminal conviction. However, there was no ground of appeal to that effect. There ought to have been were the appeal to have been fought and decided on that basis. Nor, beyond assertion, did the appellant's supplementary submissions grapple with the legal issues implicit in the proposition. For the reasons that follow we have not found it necessary to determine the point - or to consider whether the point should be determined given the absence of any relevant ground of appeal and the manner in which the litigation proceeded until the appellant's responsive supplementary submissions.
The accepted position in Australia is that an issue estoppel of the kind recognised in civil proceedings has no application to a case where both the earlier and the subsequent proceedings are criminal.[74] No party made submissions as to the principle of incontrovertibility and its application in civil proceedings to a prior conviction.[75] It is accepted that the principle of incontrovertibility applies in the case of a prior conviction.[76] The principle precludes a person, in subsequent civil or criminal proceedings, from impugning his or her earlier conviction.[77] Moreover, in this State there is some support for the proposition that, in the case of a judgment of conviction, the fact of the conviction and the material facts comprising the elements of the offence the subject of the conviction are matters that are incontrovertible between an accused and the State.[78]
[74] Rogers v The Queen (254 - 255), (278); R v Carroll [2002] HCA 55; (2002) 213 CLR 635 [33], [90] ‑ [91]; Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 [51].
[75] See however: Rogers v The Queen (273), (277 - 278); Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [53] ‑ [56]; R v Carroll [35] ‑ [38], [40], [45], [47] ‑ [50], [86], [93]; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [77] ‑ [79]; Island Maritime Ltd v Filipowski [41] ‑ [43], [50] ‑ [52], [55] ‑ [57].
[76] R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308 [110] ‑ [111], [200] ‑ [202], [237], [274], [275].
[77] Rogers v The Queen (274); D'Orta-Ekenaike v Victoria Legal Aid [74] - [77]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[78] Bennett v The State of Western Australia [2012] WASCA 70 [130]. See also [135].
Neither the parties nor the master referred to these principles. That may be because it would be difficult to contend that the appellant’s claims in par 16 of the SOC impugned its conviction in any relevant sense. In any event, the application and the parties' contentions were put primarily in the framework of issue estoppel. Consequently, the question presented by the respondent's summary dismissal application was whether, as the application asserted and the master accepted, a finding in an earlier criminal proceeding could constitute an issue estoppel in a subsequent civil proceeding. There are some Victorian decisions which answer that question in the affirmative.[79]
[79] Cameron v James [1945] VLR 113, 116; Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 [79]. See also Stimac v Nicol [1942] VLR 66.
As will be seen, the grounds of appeal are confined. There was no challenge before the master or in any ground of appeal before this court to whether a criminal conviction may give rise to an issue estoppel in a subsequent civil proceeding. Consistently with the manner in which the parties approached the litigation, we will assume, without deciding, that the doctrine of issue estoppel may apply in the present circumstances. Necessarily, however, identification of the issue or issues as determined by the earlier proceedings is informed by its character as a criminal proceeding that resulted in conviction.
Anshun estoppel is so-called in recognition of the relevant principle as expounded in Port of Melbourne Authority v Anshun Pty Ltd[80] (although sometimes[81] it is referred to as the 'extended principle' in Henderson v Henderson).[82] It is an extension of cause of action estoppel and issue estoppel and also potentially precludes assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. In Tomlinson v Ramsey Food Processing Pty Ltd the plurality referred to Anshun estoppel in these terms:
[It] operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.[83]
[80] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598, 602 ‑ 604.
[81] See eg Tomlinson v Ramsey Food Processing Pty Ltd [22].
[82] Henderson v Henderson (1843) 3 Hare 100; 67 ER 313.
[83] Tomlinson v Ramsey Food Processing Pty Ltd [22].
So described there will often be, at best, limited practical scope for the operation of the doctrine where the same parties or their privies are first involved in criminal proceedings and thereafter in civil proceedings. The requirement that the matter sought to be raised in the civil proceeding be 'so connected' (or, as put in Anshun itself, 'so closely connected')[84] with the subject matter of the first proceedings as to make it 'unreasonable' not to have raised the claim or issue in the anterior criminal proceeding will often be difficult to establish. For example, there are potentially numerous reasons why a party to earlier criminal proceedings directed to a discrete allegation may justifiably refrain from litigating an issue in those proceedings yet wish to litigate the issue in other proceedings.[85]
[84] Port of Melbourne Authority v Anshun Pty Ltd (604).
[85] See eg Port of Melbourne Authority v Anshun Pty Ltd (603); Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34 [31].
In supplementary submissions in this court, the Shire clarified that it relied on the doctrine of Anshun estoppel only to the extent that the allegations in par 16 of the SOC would, if raised in the earlier proceedings, have provided a defence to the prosecution by establishing the existence of a permitted non-conforming right use of the Land.[86] (Counsel for the appellant had previously accepted, at the appeal hearing, that if the appellant had been able to show that the storage as found was ancillary to a use in par 16 of the SOC, the appellant could not have been convicted of the relevant charge - this assumed that the relevant primary use was a lawful non-conforming use by reason of the 2006 approval.)[87] In so fastening on the appellant's apparent concession, the Shire's case for Anshun estoppel did not explain why it was unreasonable for the appellant to have failed to advance such a defence. Thus the case was seemingly put on the basis that the fact that the matter could have been raised as a defence in the earlier prosecution meant that it should have been so asserted in the sense that it was unreasonable not to do so. Such reasoning has recently been rejected by the High Court as involving 'fundamental error'.[88]
[86] Respondent's supplementary submissions dated 20 May 2021 par 20.
[87] Appeal ts 8 - 10.
[88] Clayton v Bant [31].
The Shire's post-appeal hearing clarification recognises the limited scope for any Anshun estoppel. It also exposes a number of difficulties with the order for summary dismissal so far as it was based on Anshun estoppel. First, this is not how the reliance on Anshun estoppel is pressed in pars 11 and 12 of the Shire's defence. Second, this is not how the summary dismissal application was couched. There it was said only that the claim was 'directly inconsistent' with the decision and findings in the 2018 CA Decision.[89] Third, this is not how the master determined the Anshun estoppel point. The master held that the appellant should have, and had an opportunity to, assert all of the uses to which the Land was being put during the offence period and it was unreasonable to now assert non-conforming uses where it did not seek to prove those uses in the earlier proceedings.[90] There was no consideration of whether and how, if at all, such uses might have provided a defence. More generally, the master held that the appellant's claim was inconsistent with the findings in the 2018 CA Decision and thus could not proceed.[91]
[89] See [34] - [35] above.
[90] Primary reasons [48].
[91] Primary reasons [4].
At least some of the uses alleged in par 16 of the SOC could not, prima facie, have provided any reasonably arguable defence. For example, it is not reasonably arguable that the storage as found could have been ancillary to the pleaded uses in pars 16.2 ‑ 16.4 and 16.12 of the SOC. Indeed, on the eventual findings of the Court of Appeal in the 2018 CA Decision, as discussed further below, the pleaded uses could not have been a defence at all so far as the storage as charged and found was a primary use of the Land - the storage was not incidental or ancillary to any other use.
The evaluative aspect of the Shire's defence based on Anshun estoppel is not addressed in the master's reasons. Nor is there explanation of why, in the context of the prosecution, the appellant should have asserted all of the uses to which the Land was being put during the offence period. There is, for example, no consideration of either the basis on which the appellant sought to defend the prosecution or how the uses now asserted in par 16 of the SOC might have provided a defence to the prosecution.
On one reading of the grounds of appeal it might be thought that, strictly speaking, they do not impugn the master's decision so far as it is based on Anshun estoppel. The grounds of appeal challenge the master's finding that the 2018 CA Decision provided for a conclusive determination of all uses of the Land. There can, however, only be an Anshun estoppel where a point was not determined in the earlier litigation - the claim or issue having, unreasonably, not been made or raised in the earlier litigation. Nevertheless, the Shire has not suggested that the master's summary dismissal determination can survive, based solely on Anshun estoppel, if one or more of the grounds of appeal are upheld. The Shire's restraint is explicable and is to be understood by the Shire's clarification as to the limited basis on which it relies on the doctrine of Anshun estoppel.
On appeal the Shire only relies on the doctrine of Anshun estoppel where and to the extent that an allegation in par 16 of the SOC would have provided a defence to the prosecution. However, the master made no finding in this regard - the primary reasons cannot be interpreted as having upheld the Shire's claim for summary dismissal on the clarified basis on which it was advanced in this court. Nor is there any notice of contention seeking to uphold the master's decision on the basis as is now articulated on appeal. Accordingly, the Anshun estoppel point has essentially become a non-issue on appeal. The basis on which the Shire seeks to sustain the Anshun estoppel on appeal is, for the reasons explained above, without foundation.
It follows that, if one or more one or more of the grounds of appeal are upheld, it is not necessary to give independent consideration to whether the summary dismissal of the appellant's claim may be sustained on the basis of Anshun estoppel.
The doctrine of abuse of process is informed in part by similar considerations of finality and fairness as underpin both issue estoppel and Anshun estoppel. However, the doctrine is inherently broader and more flexible than issue or Anshun estoppel and is capable of application in any circumstance in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[92] In that respect:
[I]t has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.[93]
[92] Tomlinson v Ramsey Food Processing Pty Ltd [24] - [25].
[93] Tomlinson v Ramsey Food Processing Pty Ltd [26].
In Rogers v The Queen Deane and Gaudron JJ said, by way of example, that subject to identified exceptions it was an abuse of process 'to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial'.[94] It is obvious why that will ordinarily be the case. Where, in order to succeed, a later civil proceeding must establish that a subsisting criminal conviction is wrong, permitting the subsequent action to proceed with the consequent risk of inconsistent judgments will 'in the overwhelming majority of cases' bring the administration of justice into disrepute.[95]
[94] Rogers v The Queen (274). See also: Hunter v Chief Constable of the West Midlands Police (541 - 545); Arthur JS Hall & Co v Simons [2002] 1 AC 615, 679. There are, however, circumstances in which re-litigation has been found not to be abusive. See eg K R Handley QC, Spencer Bower and Handley: Res Judicata (5th ed, 2019) [26.12].
[95] Arthur JS Hall & Co v Simons (685). See also (679), (706).
Before the master, the alleged abuse of process was put by the Shire in terms that the appellant effectively sought to re-litigate something squarely put in issue in the earlier proceedings in respect of which comprehensive findings of fact were made against the appellant.[96] In this court, senior counsel for the Shire accepted that a contended for inconsistency was at the heart of the case for summary dismissal. Accordingly, if, on appeal, the court found that there was not an inconsistency in the manner as contended by the Shire, the abuse of process argument was accepted to add nothing to the analysis.[97]
[96] Respondent's submissions dated 29 January 2020 in CIV 1588 of 2019 par 29. That was also, in substance, the way the master referred to the doctrine of abuse of process: Primary reasons [37]. See also Primary reasons [49] (there was an abuse of process as the uses of the Land pleaded in par 16 of the SOC 'are inconsistent' with the findings in the 2018 CA Decision).
[97] Appeal ts 24.
The grounds of appeal
There are two grounds of appeal:
1.The Acting Master erred in law in finding that the Court of Appeal conclusively determined all uses carried out on the land at the date of prosecution (and conviction) when the Court of Appeal did not make such a determination; determining only that the uses identified in the Prosecution Notice were uses which were not permitted.
2.Alternatively, if the Court of Appeal did, as a finding of fact, determine all uses carried out on the land at the date of prosecution (and conviction) then in doing so it was obiter as it was not necessary to nor essential to the determination of the question before the Court and the Acting Master should so have found.
Both grounds are defective. They fail to identify the paragraph number of the primary reasons where the alleged error is said to have occurred.[98] In written submissions the appellant said that, for ground 1, the relevant finding is that reproduced at [39] above.[99] With ground 2 the alleged error was said to arise from par 1 as reproduced at [39] above.[100] Presumably, in both respects, the gravamen of the master's finding that is challenged is that which has been italicised at [39] above.
[98] Compare Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(d).
[99] Appellant's submissions par 1 WAB 6.
[100] Appellant's submissions par 32 WAB 12.
Accordingly, the appeal was advanced in confined terms. By ground 1 the appellant challenged whether the master was correct in holding that there was a conclusive determination within the prior litigation as to the use to which the Land was being put during the offence period; and, if unsuccessful in that challenge, by ground 2 the appellant challenged the proper characterisation of that determination. The implicit suggestion - not developed in the grounds of appeal or the appellant's written or oral submissions but in any event unchallenged by the respondent's answer or the oral submissions on behalf of the Shire - was that success in either contention would result in none of the doctrines of issue estoppel, Anshun estoppel or abuse of process being applicable as an answer to par 16 of the SOC (at least for the purposes of summary dismissal).
The parties' submissions
Ground 1: Alleged error in finding that the 2018 CA Decision conclusively determined all uses carried out on the Land
The appellant sought to draw a distinction between the earlier litigation and the present litigation. The earlier litigation was a criminal prosecution in relation to specific alleged uses of the Land during the offence period. Thus, in deciding the case, Martino J and the Court of Appeal proceeded on the premise that the use of the Land to be addressed was that alleged in the prosecution notice. The sole relevant question was whether that use - relevantly storage as a primary use or ancillary to some other permitted use - was a lawful non-conforming use. The appellant submitted that the Court of Appeal did not (and nor was it necessary or appropriate for the court to) embark on a forensic examination of all uses being carried out on the Land.[101]
[101] Appeal ts 3; appellant's submissions pars 14 - 23, 26 - 27 WAB 9 - 11.
It was contended that, so far as there had been a determination that the use in the prosecution notice was not permitted, it did not lead to the result of precluding the appellant from arguing that there were a range of actual uses that were permitted as falling within the 2006 approval.[102]
[102] Appeal ts 3.
The appellant accepted that it could not (and said that it did not intend to) contradict the finding that there was unauthorised development during the offence period by the storage as alleged in the prosecution notice.[103] The appellant contended, however, that the issues raised in par 16 of the SOC were not agitated in the earlier litigation.[104] Critical to the appellant's contention were propositions that:
1.The Court of Appeal did not determine that the uses in par 16 of the SOC were not uses carried out on the Land during the offence period.[105] The question of what, if any, other non-conforming uses were being lawfully carried out on the Land was of 'peripheral or no relevance'.[106]
2.Nothing in the 2018 CA Decision (and, presumably, the 2017 GD Decision) 'rule[d] out' the possibility or found that the appellant was not carrying out the alleged non-conforming uses contended for in par 16 of the SOC.[107]
[103] Appeal ts 4 - 5.
[104] Appellant's submissions par 30 WAB 11 - 12.
[105] Appellant's submissions par 19 WAB 10.
[106] Appellant's submissions par 25 WAB 11.
[107] Appellant's submissions par 24 WAB 10.
According to counsel for the appellant, the prosecution notice related only to the storage use as alleged in the notice. It was this use - and only this use - that had to be justified in the earlier criminal proceedings. Any other use was not going to provide a defence unless it could be said that the storage was incidental to that other use.[108]
[108] Appeal ts 5.
The Shire identified, correctly, that the sole issue raised by ground 1 was the scope of the determination of the Court of Appeal in the 2018 CA Decision. The question was whether the Court of Appeal made a conclusive determination as to the use to which the appellant had put the Land which was inconsistent with the appellant's pleaded allegations of use in par 16 of the SOC.[109]
[109] Respondent's submissions par 1 WAB 18.
The Shire acknowledged that the earlier litigation occurred in the context of a prosecution for a specific contravention. It pointed out, however, that the offence period the subject of the prosecution was more than six months.[110] Otherwise the Shire submitted that the master's conclusion the subject of ground 1 was correct as:
1.In coming to the 2018 CA Decision it was necessary for the Court of Appeal to identify the uses to which the Land was being put during the offence period.[111] The Court of Appeal had to, and did, make findings as to the totality of use to which the appellant put the Land during the offence period.[112]
2.The Court of Appeal found that: (a) the appellant had used the Land for the purposes as reproduced at [23] above; and (b) the primary use to which the Land was being used during the offence period was for storage. The Shire also referred to the Court of Appeal's other findings as reproduced at [28] - [29] above.[113]
Ground 2: Alleged error in not holding that any finding determining all uses carried out on the Land no more than an obiter dictum
[110] Respondent's submissions par 13 WAB 20.
[111] Respondent's submissions pars 16 - 17 WAB 20 - 21.
[112] Respondent's submissions par 23 WAB 22.
[113] Respondent's submissions pars 18 - 21 WAB 21 - 22.
In purported support of ground 2, the appellant repeated a number of its earlier submissions to the effect that a finding in the earlier litigation that the predominant activity on the Land was storage did not: (1) preclude the possibility of other uses; or (2) prevent those other uses from being lawful non-conforming uses.[114] In the same vein the appellant said that the issues of fact and law sought to be established by par 16 of the SOC were different from the issues of fact and law as found in the earlier prosecution.[115]
[114] Appellant's submissions pars 38, 42, 44 WAB 13 - 14.
[115] Appellant's submissions par 40 WAB 13.
In terms of ground 2, the appellant's submissions went no higher than to contend in relation to the 2018 CA Decision that:[116]
1.The Court of Appeal's 'central finding' was that reproduced at [29] above, namely, that: (a) the Land was predominantly used for the storage of various metal items; (b) such storage was not ancillary to any fabrication, engineering or earthmoving business being conducted on the Land; and (c) such storage was clearly not within the scope of the 2006 approval.
2.The Court of Appeal's findings as reproduced at [23] - [24] above were 'peripheral and incidental' to its central finding.
3.However, the master interpreted those latter findings as 'comprehensive finding[s] of fact' which were a 'necessary prerequisite' to the finding that the Court of Appeal had to make in its disposition of the appeal.
4.If the Court of Appeal made any such wider finding in the 2018 CA Decision it would be doing something which was neither necessary nor appropriate in order to deal with the issue before it, namely, whether or not the Shire had made out its case on the prosecution.
[116] Appellant's submissions pars 33 - 36 WAB 12. See also par 31 WAB 12.
The Shire contended that, for the reasons contained in its submissions in answer to ground 1, the earlier findings as to the use to which the Land was put during the offence period were necessary to the 2018 CA Decision and not merely incidental or inessential.[117]
[117] Respondent's submissions par 25 WAB 23.
Evaluation and determination
Two things should be noted at the outset before turning to a fuller consideration of ground 1.
First, the Shire never advanced its application for summary dismissal on the basis that, in the context of a planning scheme, land could only have a single use. The Shire accepted before the master that land could be used for more than one use.[118] That concession was correct. Ordinarily, at least, in the context of town planning schemes, a person may use property for more than one purpose. If the whole of the premises is used for two or more purposes, none of which subserves the others, there is no occasion to determine which of the multiple purposes is dominant.[119] There will, however, on occasions be a question of characterisation - expressed as one of fact and degree - in determining whether a use for a particular purpose is subservient or incidental to another purpose or whether it constitutes an independent use.[120]
[118] ts 14.
[119] Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 217 (citing Foodbarn Pty Ltd v Solicitor‑General (1975) 32 LGRA 157, 161); Gull Petroleum v Nashville Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431, 447.
[120] Lizzio v Ryde Municipal Council (216 - 217) (citing Foodbarn Pty Ltd v Solicitor-General (NSW) (161)).
Second, it is critical to the disposition of the appeal to identify, with precision, what was established by the appellant's conviction on the charge of having contravened cl 8.1 of the Scheme (being a planning scheme) contrary to s 218(a) of the Planning and Development Act. In broad terms it might be said, with one exception, that the conviction established that the appellant contravened the provisions of a planning scheme as alleged in the prosecution notice. The exception is that the use of the Land for storage of construction materials was never found to be proved. But such a broad formulation is insufficient for the application of the doctrines of issue estoppel, Anshun estoppel and abuse of process.
Having regard to the principles discussed at [43] - [54] above, what in fact was established by the appellant's conviction ought to be more precisely specified as follows:[121]
1.The appellant carried out development on the Land during the offence period by using it for storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble.
2.There was no planning approval for such development (ie the use by storage) under pt 9 of the Scheme.
3.The development (ie the use by storage) was a use of the Land that was not permitted by the Scheme.
4.The development (ie the use by storage) was not authorised as a lawful non-conforming use of the Land by virtue of the 2006 approval.
[121] The appellant and the Shire effectively accepted that these were the essential elements as established by the conviction. See appeal ts 6, 12.
Senior counsel for the Shire submitted that analysis as to whether there was an issue estoppel, Anshun estoppel or abuse of process arose for consideration in the context of the fourth of those matters.[122] Senior counsel did not suggest that the actual conclusion as expressed in [82.4] above was inconsistent with the claims made by par 16 of the SOC. Instead, relying on what was stated by Dixon J in Blair v Curran, senior counsel maintained that there were relevant intermediate findings that were legally indispensable to the conclusion.[123] It was suggested, for the Shire, that the question became 'by what process of reasoning did the Court of Appeal find that the storage use was not authorised by the 2006 approval'.[124] Senior counsel answered the question he so posed - saying that 'we stand or fall' on the proposition as enunciated - by stating that the findings the Shire had identified within the 2018 CA Decision were essential findings in the Court of Appeal reasoning to the conclusion that the storage was not authorised by the 2006 approval.[125]
[122] Appeal ts 12, 14.
[123] Appeal ts 12 - 14.
[124] Appeal ts 14.
[125] Appeal ts 14.
It was contended, for the Shire, that the Court of Appeal had reasoned in the 2018 CA Decision that:[126]
1.For the storage to be authorised it had to be ancillary to a 'general engineering fabrication' use.[127]
2.There was no such use as the Land was not being used for any purpose other than storage.
[126] Appeal ts 14.
[127] This formulation repeats the terminology employed by senior counsel for the Shire. More correctly, the storage had to be ancillary to one or more of the primary uses approved under the 2006 approval, namely, engineering, fabrication and earthmoving. See 2018 CA Decision [45].
The Shire relied on what it said were findings upheld by the Court of Appeal in the 2018 CA Decision as to the use to which the Land was in fact being put.[128] The Shire echoed what was said by the master as to the Court of Appeal being required to determine - and having in fact determined - the 'totality of use' of the Land by the appellant.[129] It was said that the Court of Appeal had to make findings as to what the Land was or was not being used for to conclude that the storage was not ancillary to a use within the 2006 approval.[130]
[128] Appeal ts 14 - 16. Mention was made of the 2018 CA Decision at [4], [22], [41] - [43] (see above at [25], [23], [26] - [27] above).
[129] Appeal ts 16; respondent's submissions par 23 WAB 22. See Primary reasons [46] (reproduced at [39] above). The phrase 'totality of … use' had its provenance in a submission on the part of the Shire before the master: ts 14 - 15.
[130] Appeal ts 16 - 17.
The master does not explain what she means by 'totality of use'. In context, however, we do not read the reference as being confined to uses to which the storage was ancillary. Rather, consistently with the case that was advanced to her on behalf of the Shire,[131] the master was referring to all of the uses of the Land during the offence period. There are five reasons why we would reject the narrower reading of the master's reasons.
[131] See Primary reasons [42] - [43].
First, at the outset the master refers to the Shire's case as being that the issue which the appellant was prevented from re-litigating was 'the use to which the Land [was] being put'.[132] Second, the master said that the Court of Appeal was 'required to determine whether the storage use by [the appellant] was ancillary to any other use of the Land'.[133] The language of 'any other use' is unconfined. Third, the master refers to the Court of Appeal having, at [22] of the 2018 CA Decision,[134] finally set out the use to which the Land was being used at the time.[135] The master's reference to 'the' use is in terms of that being the only use. Fourth, uniformly with the previous marker, the master concludes that the Court of Appeal 'was required to and did determine what use the Land was being put to' - with the result that '[n]o other uses can now be asserted'. Fifth, the master eventually concludes that the uses pleaded at par 16 of the SOC are inconsistent with the findings of the Court of Appeal. One of the pleaded uses is 'earthmoving purposes' (SOC par 16.2). The 2018 CA Decision made no express findings as to whether or not the Land was used for earthmoving purposes. The master's conclusion that this use was within the scope of and was inconsistent with the previous findings is comprehensible only on the basis that the master considered that the Court of Appeal had determined all the uses of the Land during the offence period.
[132] Primary reasons [43].
[133] Primary reasons [46] (emphasis added).
[134] Reproduced at [23] above.
[135] Primary reasons [46].
We do not read or construe the 2018 CA Decision as having conclusively determined all of the uses to which the Land was being put during the offence period. We reach that conclusion having reviewed the passages of the 2018 CA Decision as relied on by the Shire in written and oral submissions.[136]
[136] Respondent's submissions pars 16, 18 - 21 WAB 20 - 22; appeal ts 14 - 16.
Initially senior counsel for the Shire directed the court's attention to [22] ‑ [23] of the 2018 CA Decision.[137] Here there are findings as to the appellant's use of the Land during the offence period. However, there is no finding that this was the only use of the Land. Indeed, by reference to the use of the Land by Mr Menezes,[138] it appears that the Court of Appeal contemplated that there may have been other uses of the Land during the offence period.
[137] See [23] - [24] above.
[138] 2018 CA Decision [21] (see [18], [24] above).
Senior counsel for the Shire then turned to [41] ‑ [43] of the 2018 CA Decision.[139] He sought to emphasise the Court of Appeal's reference to the use to which the Land was in fact being put. We accept that, at [41] and [42] of the 2018 CA Decision, there are such references in the context of describing the burden of proof to be discharged by the appellant. But there is no finding as to actual use as opposed to what arose for the appellant to prove to establish the defence. Senior counsel for the Shire particularly relied on what was said at [43] of the 2018 CA Decision as to the appellant having to establish on the balance of probabilities that the uses to which the Land was being put during the offence period came within the scope of the 2006 approval. In context, however, that was simply referring to the storage use of the Land as was the subject of the prosecution notice.
[139] See [26] - [27] above.
In written submissions the Shire relied on [45] ‑ [47][140] and [52][141] of the 2018 CA Decision. At [45] the Court of Appeal concluded that Martino J was correct to conclude that the only storage permitted by the 2006 approval was storage ancillary to engineering, fabrication and earthmoving. That was focused on use for storage and is not dispositive of all the possible uses to which the Land was being put during the offence period. The Court of Appeal acknowledged, at [46], the concurrent findings of the magistrate and Martino J that the 'primary use' of the Land during the offence period was for storage as previously described. Again, however, that was not determinative of whether there was some other relevant use in addition to that identified primary use. Otherwise, at [46], the Court of Appeal repeated what had been said as to the appellant's burden of proof and also referred to the lack of evidence to meet that burden. So far as the Court of Appeal observed that there was no evidence that the storage was ancillary to any use, the finding is consistent with the storage being a primary use which was not ancillary to any other use but at the same time not inconsistent with there being other possible uses. The passage at [47] simply confirms the appellant's failure to establish that the storage use of the Land the subject of the prosecution notice fell within the 2006 approval.
[140] Reproduced at [28] above
[141] Reproduced at [29] above.
It was not in dispute before the master, and the master apparently agreed, that the Court of Appeal's central finding was contained at [52] of the 2018 CA Decision.[142] That may be accepted. However, the finding at [52] does not, in our opinion, reveal a conclusion on the part of the Court of Appeal that the Land was not being used for any purpose other than storage.
[142] Primary reasons [40] - [41]. The relevant passage is reproduced at [29] above.
In the relevant passage, the Court of Appeal twice refers to 'the use to which' the Land was being put. Again, however, this is no more than a reference to the use as found, being the use the subject of the prosecution notice (ie the storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble). The Court of Appeal then states that, during the offence period, the Land was predominantly used for the storage of various metal items. It is not suggested that this was the exclusive use. To the contrary, the passage expressly admits of the possibility that there may be other uses (not being a predominant use). Importantly, however, the ultimate finding is expressed in terms that the storage as found 'was not ancillary to any metal fabrication, engineering or earthmoving business being conducted on the Land'.[143]
[143] 2018 CA Decision [52].
Accordingly, the Court of Appeal's critical finding is not in the terms as advanced by the Shire before the master and on appeal in this court. The Court of Appeal did not state in terms or otherwise reason that the Land was not being used for any purpose other than storage. There was no finding or reasoning to the effect that the storage as found was the only use of the Land. There was not a relevant positive finding - either as to the totality of the use or uses of the Land or that the Land was not being used for certain purposes. Rather, more circumspectly and in a manner that responded directly to the specific question that arose for determination, the critical finding on the part of the Court of Appeal was that it had not been established on the balance of probabilities that the relevant storage as found by the magistrate and the primary judge was ancillary to any fabrication, engineering or earthmoving on the Land.
In the latter respect, at its heart the 2018 CA Decision relevantly condensed to a question of whether the storage use as found was permitted as being ancillary to one or more of the approved primary uses of engineering, fabrication and earthmoving - success on the 2018 appeal from the decision of Martino J depending on whether the appellant established that its use of the Land as charged during the offence period was within the scope of the 2006 approval.
Before the master, and in this court, the Shire's case for inconsistency relied on the proposition that, to determine whether the storage use was ancillary to one or more of the primary uses as approved, the Court of Appeal (1) had to and (2) did determine the totality of the use of the Land. Both limbs of that contention must be rejected. It was not the case that the totality of the use of the Land had to be determined to answer the question arising in the 2018 CA Decision. It was open to answer the question in the negative on the basis that the storage use as found was a primary use which was not ancillary to any other use; and to do so without making any positive finding that the Land was not being used for fabrication, engineering or earthmoving. Moreover, as has been discussed at [93] ‑ [94] above, that in substance is how the Court of Appeal reasoned in the 2018 CA Decision. The Court of Appeal decided the question without determining, conclusively, all of the uses to which the Land was put during the offence period. The question was resolved by the Court of Appeal on a narrower basis - the storage use as proven by the Shire was not ancillary to anything that might have been within the scope of the 2006 approval.
We accept that Martino J went further.[144] The Court of Appeal referred to this aspect of Martino J's reasoning at [4] of the 2018 CA Decision[145] but did not adopt that reasoning as part of its reasoning to its conclusion. A positive finding that the Land was not being used for general fabrication or engineering purposes formed no part of, and was not necessarily involved in, the Court of Appeal's determination. Whether or not this was integral to Martino J's determination, and whether Martino J's decision is capable of giving rise to any issue estoppel, does not arise in this appeal. Both before the master[146] and in this court[147] the Shire relied on the Court of Appeal's findings rather than Martino J's findings. Indeed, senior counsel for the Shire made it clear that the Shire did not rely on Martino J's reasons and findings except to the extent that they were picked up by the Court of Appeal.[148]
[144] See 2017 GD Decision [126], [128] (reproduced in part at [20] above).
[145] Reproduced at [25] above.
[146] Primary reasons [39].
[147] Appeal ts 22.
[148] Appeal ts 22.
For these reasons, in our respectful view, the master erred in holding that the findings of fact at [22] of the 2018 CA Decision[149] finally set out the use to which the Land was being put during the offence period. The Court of Appeal was not required to determine the 'totality of use' of the Land. Nor did the Court of Appeal do so in the 2018 CA Decision. So understood the appellant's claim in par 16 of the SOC is not relevantly inconsistent with the decision and findings of the Court of Appeal in the 2018 CA Decision. Accordingly, the essential reasoning by which the master found that the doctrines of issue estoppel, Anshun estoppel and abuse of process applied to justify summary dismissal has not been sustained. Ground 1 should be upheld and the appeal should be allowed.
[149] Reproduced at [23] above.
Ground 2 is expressed as being in the alternative to ground 1. Ground 2 assumes, contrary to ground 1, that in the 2018 CA Decision the Court of Appeal determined all uses carried out on the Land during the offence period. The premise of ground 2 fails with the upholding of ground 1. Accordingly, ground 2 falls away. However, we would observe that, bearing in mind the principles set out at [43] - [48] above, the conclusion at [82] and our conclusion at [94] - [96] above that the Court of Appeal was not required to determine the 'totality of use' of the Land, if, contrary to our view, the Court of Appeal determined all uses carried out on the Land during the offence period, there would appear to be merit in ground 2. However, for the reasons given, it is not necessary to say more as to this ground.
Conclusion and orders
At the appeal hearing there was consideration of whether some of the specific uses pleaded in par 16 of the SOC might not be maintainable. The court has power to summarily dismiss part of a claim. Consideration was given to whether two types of use might be neatly excised from par 16 because there was a good defence on the merits to those particular pleaded uses. First were pleaded uses in par 16 which could be characterised as fitting within the description 'engineering, fabrication' (see eg SOC pars 16.1, 16.3, 16.6 - 16.10). Second were the numerous references to 'incidental storage' (see eg SOC pars 16.2 ‑ 16.3, 16.5 ‑ 16.11).[150]
[150] Appeal ts 8 - 10, 18 - 21.
As to the first category, senior counsel for the Shire submitted that the plea was inconsistent with the earlier conviction because such uses would clearly be within the scope of engineering or fabrication.[151] Senior counsel obviously had in mind Martino J's finding, referred to by the Court of Appeal at [4] of the 2018 CA Decision, to the effect that during the offence period the Land was not being used for general fabrication or engineering purposes. However, as already mentioned, this aspect of Martino J's reasoning was not adopted by the Court of Appeal as the basis for its decision. Thus it cannot provide the foundation for a limited summary dismissal. Moreover, this stands outside the Shire's pleaded defence.
[151] Appeal ts 20.
The second category presents on its face as being problematic. There is a judicial determination, in the form of the conviction, that the storage on the Land during the offence period of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble was unlawful. Yet, by numerous sub-pars within par 16 of the SOC, the appellant claims that prior to and since October 2009 (ie a period covering the offence period) the Land has been used lawfully for purposes including various 'incidental storage' uses.
Two things need to be stated based on our earlier discussion of the relevant principles as they apply in the present circumstances:
1.The appellant must not be allowed to mount a collateral attack on its criminal conviction. The fact of the conviction - and the unlawfulness of the storage as found the subject of the prosecution notice - is and must remain incontrovertible in the present civil proceedings.
2.There is, however, no relevant preclusion on the appellant contending that other kinds of storage (ie storage not being the storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble) was lawfully conducted on the Land during the offence period.
At the appeal hearing, counsel for the appellant made it quite clear that nothing in the appellant's pleaded case was intended to contradict the conviction. The appellant accepted, unequivocally, that the storage as found the subject of the conviction was an unauthorised development.[152] Counsel for the appellant made the point, however, that the prosecution was not a complaint about storage generally.[153] It was submitted, in substance, that what the appellant sought to pursue was its civil proceedings to determine what other uses were permitted rather than re-contest what had been found by the conviction to be a use which was not permitted.[154]
[152] Appeal ts 4 - 5. See also appellant's submissions par 28 WAB 11.
[153] Appeal ts 8.
[154] Appeal ts 8 - 9.
The various pleas as to 'incidental storage' should be understood conformably with the explanation provided by counsel for the appellant before this court - the 'incidental storage' is storage other than the storage of scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble. On that basis, these parts of par 16 ought to be allowed to proceed to trial. However, the trial judge should be cognisant that these pleas, advanced under the guise that they are not intended to contradict the earlier finding of unlawfulness, ought not be permitted to controvert the conviction and the unlawfulness of the storage the subject of the prosecution notice as found.
There is one further matter. The Shire's application to the master sought alternative orders striking out the SOC. The master considered this but only did so for completeness in the event that she was wrong to grant leave to bring the O 16 summary judgment application out of time.[155] The master would have struck out the SOC in its entirety. However, in reaching the alternative conclusion, the master simply relied on her earlier findings that the appellant was prevented from maintaining its plea in par 16 of the SOC by reason of the doctrines of issue estoppel, Anshun estoppel and abuse of process.[156] Accordingly, the master's alternative conclusion falls away insofar as, for our earlier reasons, we would uphold ground 1 and set aside the order granting the Shire summary judgment.
[155] Primary reasons [51].
[156] Primary reasons [54] - [55].
We would make orders that:
1.The appeal is allowed.
2.Paragraphs 2 and 3 of the orders of the court made 3 July 2020 in action CIV/1588/2019 are set aside and in substitution thereof it is ordered that:
'2. The defendant's application is dismissed.'
The parties should be heard on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the the Honourable Justice Vaughan
25 JUNE 2021
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