Smargiassi Nominees Pty Ltd v Shire of Collie
[2020] WASC 94
•20 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2020] WASC 94
CORAM: ACTING MASTER WHITBY
HEARD: 27 FEBRUARY 2020
DELIVERED : 20 MARCH 2020
FILE NO/S: CIV 1588 of 2019
BETWEEN: SMARGIASSI NOMINEES PTY LTD
Plaintiff
AND
SHIRE OF COLLIE
Defendant
Catchwords:
Order 16 r 1 Rules of the Supreme Court 1971 (WA) - Application for summary judgment - Order 20 r 19 Rules of the Supreme Court - Application to strike out statement and claim and to dismiss action - Issue Estoppel - Anshun Estoppel - Abuse of process
Legislation:
Planning and Development Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application for summary judgment, alternatively to strike our statement of claim and to dismiss action, granted.
Category: B
Representation:
Counsel:
| Plaintiff | : | P G McGowan |
| Defendant | : | M D Cuerden SC |
Solicitors:
| Plaintiff | : | Rowley Legal |
| Defendant | : | McLeods |
Case(s) referred to in decision(s):
Agar v Hyde (2000) 201 CLR 552
Bankstown Football Club Ltd v CIC Insurance Ltd (1998) 10 ANZ Ins Cas 61-406
Barrack Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186
Blair v Curran [1939] HCA 23; (1939) 62 CLR 462
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Lawrance v Lord Norreys (1890) 15 App Cas 210
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118
Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Webster v Lampard (1993) 177 CLR 598
Westpac Banking Corporation v Anderson [2017] WASC 106
ACTING MASTER WHITBY:
The plaintiff is the owner of Lot 1, Hn 650 Collie River Scenic Drive, Collie (Land). The Land is zoned Rural 1 under the Shire of Collie Local Planning Scheme No 5 (TPS5). The plaintiff is seeking a declaration that its uses of the Land are non‑conforming uses which are permitted under TPS5.
The defendant is applying for summary judgment, alternatively for orders striking out the plaintiff's substituted statement of claim and to dismiss the action.
The defendant's application is founded upon the proposition that the plaintiff's claim is inconsistent with the decision and findings of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118.
For the reasons which follow, the plaintiff's claim is inconsistent with the Court of Appeal's findings and cannot proceed. The defendant's application should be granted.
The evidence
I read the affidavit of David Blurton sworn 20 September 2019 filed by the defendant in support of its application.
Background
In July 2006, Arc‑Right Engineering Pty Ltd (Arc‑Right), the then owner of the Land, applied to the defendant for planning approval in respect of the Land. In that application, the proposed development and/or uses of the Land were described as 'earthmoving, trucking and concrete batching, engineering consulting/engineering manufacturing business' (2006 Application).[1]
[1] Substituted Statement of Claim, par 11.
The 2006 Application was accompanied by a letter attaching plans and other documents. In that letter, the existing uses of the land were described as 'engineering fabrication and truck maintenance'.
On 8 August 2006 the defendant granted approval pursuant to the Shire of Collie Town Planning Scheme No 1 and the Shire of Collie Interim Development Order No 6 to undertake development described as 'light industry (engineering, fabrication and earthmoving services)' in accordance with the 2006 Application.[2]
[2] Substituted Statement of Claim, par 12.
The plaintiff acquired the Land from Arc‑Right in June 2008.
On 2 October 2009 TPS5 came into effect. Under TPS5 the Land was zoned Rural 1 which meant that the following uses were prohibited:
(a)industry general;
(b)industry light; and
(c)storage.[3]
[3] Substituted Statement of Claim, par 13 and 14.
Clause 4.8 of TPS5 provides:
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 of 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.[4]
[4] Blurton affidavit page 25.
Clause 4.10 of the TPS provides:
DISCONTINUANCE OF NON-CONFORMING USES
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.
By a prosecution notice lodged at the Magistrates Court in Collie on 18 March 2015 (Prosecution Notice), the defendant charged the plaintiff with contravening the provisions of a planning scheme contrary to s 218(a) of the Planning and Development Act 2005 (WA) (Charge).[5]
[5] Blurton affidavit par 6 and Annexure DB4.
On 5 October 2016, Magistrate Maughan dismissed the Charge (Magistrate's decision).[6]
[6] Blurton affidavit par 7 and Annexure DB5.
The defendant appealed the Magistrate's decision to the general division of the Supreme Court. On 22 August 2017, Justice Martino allowed the defendant's appeal and entered a conviction against the plaintiff.[7]
[7] Blurton affidavit par 8 and Annexure DB6.
The plaintiff sought leave to appeal the decision of Martino J to the Court of Appeal. On 19 July 2018, the Court of Appeal refused the plaintiff's application for leave to appeal and dismissed the appeal. The Court of Appeal's reasons for decision are reported at Smargiassi Nominees Pty Ltd v Shire of Collie.[8]
[8] Blurton affidavit par 9 and Annexure DB7.
Current action
The plaintiff now seeks a declaration that it is entitled to continue to use the Land for certain non‑conforming uses pursuant to cl 4.8 of TPS5. Those non‑conforming uses are pleaded at par 16 of the plaintiff's substituted statement of claim dated 13 November 2019.
Paragraph 16 of the substituted statement of claim provides:
16.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;
16.6 processing, including cutting, cleaning, sandblasting and disassembling of steel and other metals for recycling and incidental storage thereof;
16.7 processing, including cutting, cleaning, sandblasting and disassembling, and sorting of metal flanges and bolts for further machining off site and incidental storage thereof;
16.8 processing, 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;
16.9 processing, including cutting, cleaning and sorting of various steel, other metals, rubber, rubber pipe and hoses for fabrication and engineering uses and incidental storage thereof;
16.10 fabrication and repair of skip bins and incidental storage thereof;
16.11 repair and recycling of wooden pallets and incidental storage thereof;
16.12 the use of two sea containers for sandblasting purposes.
Summary judgment – leave to make application out of time
Order 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC) states:
1.Application by defendant for summary judgment
(1)Any defendant to an action may within 21 days after appearance or at any later time by leave of the Court, apply to the Court for summary judgment, and the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings, may order -
(a)that judgment be entered for the defendant with or without costs; or
(b)that the plaintiff shall proceed to trial without pleadings,
or if all parties consent, may dispose of the action finally and without appeal in a summary manner.
The defendant seeks leave to make the application for summary judgment out of time. The onus is on the defendant to justify any delay in making the application.
The plaintiff submits that the absence of any evidence from the defendant as to the reasons for delay is fatal to an application pursuant to O 16 r 1 RSC.[9]
[9] Barrack Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186.
The defendant submits that the court need only look at the history of these proceedings to be satisfied that it is appropriate to grant leave to make the application out of time. The relevant history being:
(a)on 2 April 2019 the plaintiff filed the writ of summons;
(b)on 17 June 2019 the plaintiff filed a statement of claim;
(c)on 3 July 2019, the defendant's solicitors wrote to the plaintiff's former solicitors outlining the issues they had with the statement of claim and foreshadowing an application for summary judgment pursuant to O 16 r1 RSC or to strike out the pleading;[10]
(d)on 20 August 2019, the plaintiff filed an amended statement of claim;
(e)on 22 August 2019, the solicitors for the defendant again wrote to the former solicitors for the plaintiff and foreshadowed an application for summary judgment or strike out;[11]
(f)on 26 September 2019, the defendant filed an application for summary judgement or to strike out the statement of claim;
(g)on 13 November 2019, the plaintiff filed a Substituted Statement of Claim; and
(h)on 29 November 2019, the defendant filed an amended application for summary judgment or to strike out the statement of claim.
[10] Blurton Affidavit Annexure DB11.
[11] Blurton Affidavit Annexure DB12.
In my view, it was entirely appropriate and reasonable for the defendant to consider the various amendments to the statement of claim and confer with the plaintiff prior to filing any application for summary judgment. The court encourages such an approach in order to minimise parties making unnecessary applications. The defendant's application was filed when it became clear the conferral would not result in a resolution of the dispute between the parties. The defendant should not be penalised for refraining from filing an application for summary judgment until it they had exhausted the conferral process.
Accordingly, I grant leave for the defendant to make the application for summary judgment out of time.
Summary Judgment – Legal Principles
Whether it is a defendant or a plaintiff that seeks summary judgment, the same principles apply.
It is well established that the discretion to order summary judgment should be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried.[12]
[12] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99; Webster v Lampard (1993) 177 CLR 598.
Summary judgment must only be granted where the court has a high degree of certainty of the outcome of the proceedings if they went to trial.[13]
[13] Agar v Hyde (2000) 201 CLR 552 [57].
The question, where a defendant is applying for summary judgment, is whether the plaintiff's case is so clearly untenable that it must fail. Extensive argument may still be required to demonstrate that the plaintiff's case cannot succeed.[14]
[14] Westpac Banking Corporation v Anderson [2017] WASC 106 [52].
The issue in this case
Is it open to the plaintiff, in light of the Court of Appeal decision, to maintain its plea of non‑conforming uses in par 16 of the substituted statement of claim?
The defendant's submissions
The defendant submits that the Court of Appeal made the following findings:
(a)in order for the plaintiff to establish a permitted non‑conforming use of the Land pursuant to cl 4.8 of TPS5, it was required to prove that it had continuously used the Land in accordance with the 2006 Approval;
(b)therefore, the plaintiff was required to prove that it has continuously used the Land for the primary purpose of engineering, fabrication and/or earthmoving and that any storage use of the Land was ancillary to the primary use;
(c)during the period of 1 March 2014 to 12 January 2015 (for a period of more than six months) the plaintiff did not use the Land in accordance with the 2006 Approval because:
(1)the primary or predominant use to which the Land was put was for the storage of various items; and
(2)that use of the Land was not a use for which approval was granted by the 2006 Approval.
The defendant submits that the plea of non‑conforming uses of the Land now made in par 16 of the substituted statement of claim is inconsistent with the findings of the Court of Appeal.
The defendant submits that the plaintiff's claim in the current action is barred by either issue estoppel, Anshun estoppel and/or the principles governing abuse of process.
Plaintiff's submissions
The plaintiff submits that the only issue which the Court of Appeal was required to determine was whether the use particularised in the Prosecution Notice was permitted by the 2006 Approval – the Court of Appeal was not required to and did not engage in an open ended enquiry as to the totality of uses to which the Land was being put by the plaintiff. The plaintiff says that there remains an unresolved issue as to the extent to which the totality of uses of the Land are able to be continued – this was an argument that was never agitated before the Court of Appeal.
Legal principles – issue estoppel/Anshun estoppel/Abuse of Process
Issue estoppel operates to preclude a party from raising an ultimate issue of fact or law in a later proceeding where such issue was resolved in a step in reaching a determination in earlier proceedings.[15]
[15] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 597; Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22].
In Blair v Curran,[16] Dixon J said:
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, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue‑estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel 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.
In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation [1926] AC 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
[16] Blair v Curran [1939] HCA 23; (1939) 62 CLR 462, 531 – 533.
Anshun estoppel 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 the first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.[17]
[17] Tomlinson v Ramsay Food Processing Pty Ltd [22].
An abuse of process will occur where a plaintiff effectively seeks to re‑litigate an issue which was in issue in previous proceedings and in which findings of fact were made against the plaintiff.[18]
[18] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [11] – [12], [21], [118] – [122], [136].
In Westpac Banking Corporation v Anderson,[19] Pritchard J said:
[19] Westpac Banking Corporation v Anderson [2017] WASC 106 [61]
Whether a subsequent action constitutes an abuse of process must be assessed by reference to guiding considerations of oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Among the matters which may be relevant to that issue will be:
(a)The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue;
(b)The opportunity available and taken to fully litigate the issue;
(c)The terms and finality of the finding as to the issue;
(d)The identity between the relevant issues in the two proceedings;
(e)Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)The extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
The findings of the Court of Appeal
Although the previous matter between these parties was first before the Magistrate and then a single judge of the Supreme Court, it is the Court of Appeal's decision to which I am to have regard. The Court of Appeal's decision give the findings of fact of the Magistrate and/or the trial judge the status of an ultimate fact fundamental to the Court of Appeal's decision.[20]
[20] Bankstown Football Club Ltd v CIC Insurance Ltd (1998) 10 ANZ Ins Cas 61-406 at 74,458
It is not in dispute between the parties that the central finding of the Court of Appeal is contained at [52] of the judgment:
52.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.
The central finding is essentially that the use to which the Land was being put by the plaintiff, that is storage of various metal items, was not use which was ancillary to use for which approval was granted by the 2006 Approval.
The defendant says that the Court of Appeal was required to find and determine, as an ultimate fact, the primary use of the Land by the plaintiff. It did so determine, the defendant says, in the following paragraphs of the judgment:
22.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.
23This description of the uses to which the land was being put during the offence period is taken from a document provided to the magistrate by counsel for the appellant and which the magistrate adopted as an 'accurate representation of the evidence'. It seems reasonable to conclude that the magistrate intended, by that expression, to make findings of fact in those terms, … (citations omitted).
24This description of the uses to which the land was being put during the offence period was amplified by photographs tendered in evidence. …
…
44… the approval granted in 2006 was for development in accordance with the application and plans attached to the application. …
45The letter supporting the application and the attached plan showed that a significant portion of the land was to be used as a storage area. There is no suggestion in either the application or the approval granted by the Shire that storage was to be undertaken other than storage for purposes ancillary to the uses for which approval was being sought and was granted. The judge 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.
46Both 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. …
47The 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.
Determination – Issue Estoppel
The defendant says that the plaintiff is now, by virtue of issue estoppel, prevented from re‑litigating that issue, that is the use to which the Land is being put by the plaintiff, in these proceedings.
The plaintiff submits that, while the Court of Appeal found that the Land was being put to a use not permitted pursuant to TPS5, such a finding does not now prevent the plaintiff from asserting other uses of the Land. The plaintiff says that the Court of Appeal did not find that the non-conforming uses now pleaded were not uses being carried out by the plaintiff during the relevant period.
The plaintiff says that it is not, by virtue of issue estoppel, precluded from now pleading those non‑conforming uses because it was not charged with carrying out those uses unlawfully in the prior proceedings. Therefore, the Court of Appeal was not required, in reaching its determination, to ultimately make a finding of fact as to the totality of uses to which the Land was being put by the plaintiff.
In my view the Court of Appeal, in determining whether the use the subject of the Prosecution Notice was permitted by TPS5, was required to determine the totality of use of the Land by the plaintiff. It was a central issue because the Court of Appeal was required to determine whether the storage use by the plaintiff was ancillary to any other use of the Land by the Plaintiff. The findings of fact at [22] of the Court of Appeal's reasons 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 plaintiff – 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 plaintiff. No other uses can now be asserted by the plaintiff.
The plaintiff 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 Substituted Statement of Claim are inconsistent with the findings of the Court of Appeal.
Determination – Anshun estoppel
Even if I am wrong about the plaintiff being estopped from asserting additional uses of the Land in these proceedings by way of issue estoppel, Anshun estoppel would, in my view, operate to arrive at the same result. It is unreasonable for the plaintiff to now assert that it was putting the Land to uses which constitute non-conforming uses where it did not seek to prove those uses in the earlier proceedings. The plaintiff should have, and had an opportunity to, assert all of the uses to which the Land was being put at the relevant time before the Magistrate, and ultimately to be considered by the Court of Appeal. If it chose not to do so at in those proceedings, it cannot take the opportunity to do so now.
Determination – Abuse of Process
Having found that the plaintiff is prevented from asserting uses of the Land pleaded in par 16 of the Substituted Statement of Claim because they are inconsistent with the findings of the Court of Appeal, it follows that to allow these proceedings to remain on foot would constitute an abuse of process. The plaintiff's use of the land was a key issue in the earlier proceedings. It is unfair and oppressive to the defendant to allow the plaintiff to now assert uses of Land which it did not seek to assert in the earlier proceeding when it had the opportunity to do so.
Determination - Summary Judgment
On the basis of either issue estoppel, Anshun estoppel and/or abuse of process, the defendant's application for summary judgment pursuant to O 16 r 1 is granted.
Legal principles – strike out O 20 r 19(1)(d)
While it is not necessary to consider the defendant's application to strike out the Substituted Statement of Claim because I have granted the application for summary judgment, I will do so in the event that I was wrong to grant leave to the defendant to bring the application for summary judgment out of time.
Order 20 r 19(1)(d) provides:
19.Striking out pleadings etc
(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
…
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
The application to strike out the Substituted Statement of Claim was commenced within time.
The considerations on an application for strike out and an application for summary judgment are essentially the same - the striking out of pleadings is a power which must be exercised with great care.[21] The doctrines of issue estoppel, Anshun estoppel and abuse of process apply equally to a consideration of whether a pleading ought be struck out as they do to an application for summary judgment.
[21] Lawrance v Lord Norreys (1890) 15 App Cas 210, 219.
Having found that the plaintiff is prevented from maintaining its plea as to non‑conforming uses by reason of issue estoppel and/or Anshun estoppel, and that it would amount to an abuse of process to allow the plaintiff to so plead, I consider that Substituted Statement of Claim ought be struck out in its entirety.
Given this is the third iteration of the plaintiff's statement of claim, and the very foundation upon which the plaintiff seeks to bring these proceedings, I consider that it is inappropriate to grant leave to the plaintiff to amend the Substitute Statement of Claim.
Summary
It is not open to the plaintiff, in light of the Court of Appeal decision, to maintain its plea of non-conforming uses in par 16 of the Substituted Statement of Claim. The principles of issue estoppel, Anshun estoppel and/or abuse of process preclude the plaintiff from so doing.
I grant the defendant's application for summary judgment pursuant to O 16 r 1 RSC (including an order for leave to bring that application out of time), alternatively, the defendant's application to strike out the Substituted Statement of Claim and dismiss the action.
I will the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to Registrar Whitby20 MARCH 2020
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