Warringah Council v Moy

[2003] NSWLEC 188

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Reported Decision: 128 LGERA 212

Land and Environment Court

of New South Wales

CITATION:	Warringah Council v Moy [2003] NSWLEC 188
PARTIES:	PROSECUTOR: Warringah Council DEFENDANT: Rick Moy
FILE NUMBER(S):	50042; 50043 of 2002
CORAM:	Bignold J
KEY ISSUES:	Prosecution :- Construction certificate
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 81A, 96, 109C, 109F, 109ZH, 125(1) Environmental Planning and Assessment Regulation 2000, cl 145(1)(a)
CASES CITED:	Hunter v Chief Constable of West Midlands Police (1982) AC 529; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158; P.E. Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437; R v Carroll (2002) 77 ALJR 157; Reichel v Magrath (1889) 14 App Cas 665; Rogers v The Queen (1994) 181 CLR 253; Turner v London Transport (1977) ICR 952; Walton v Gardiner (1993) 177 CLR 378
DATES OF HEARING:	22-24/04/2003
DATE OF JUDGMENT:	08/22/2003
LEGAL REPRESENTATIVES:	PROSECUTOR: G Miller QC and T Howard (Barrister) SOLICITOR: Wilshire Webb DEFENDANT: P McEwen SC and V Culkoff (Barrister) SOLICITOR: S Klinger

JUDGMENT:

IN THE LAND AND 50042 of 2002; 50043 of 2002

ENVIRONMENT COURT Bignold J

OF NEW SOUTH WALES 22 August 2003

WARRINGAH COUNCIL

Prosecutor
v

RICK MOY

Defendant

Judgment

JUDGMENT

A. INTRODUCTION

1 The Defendant who has been charged with two separate offences against the Environmental Planning and Assessment Act 1979 (the EP&A Act) in his capacity as an “accredited certifier” under that Act has moved the Court for orders permanently staying both prosecutions on the ground that their continuation constitutes an abuse of process after, and in light of, the delivery on 22 August 2002 of the judgment of Commissioner Murrell in Proceedings Nos. 10289 and 10290 of 2002 (McIntosh Properties Pty Ltd v Warringah Council).

2 The Prosecutor resists the claim for a permanent stay of the prosecutions. It disputes the Defendant’s allegation of any abuse of process and says that the Defendant should be called upon to answer the charges at trial.

3 It is not disputed that the Court is invested with the power to prevent its procedures being abused: see Hunter v Chief Constable of West Midlands Police (1982) AC 529; Rogers v the Queen (1994) 181 CLR 253; and R v Carroll (2002) 77 ALJR 157.

4 The disputed question on the Defendant’s Motion is whether the Defendant has established his claim of abuse of process. That claim is entirely founded upon the cited judgment of Commissioner Murrell (the earlier judgment) and the relationship between that judgment and the two charges brought against the Defendant.

5 Accordingly it is first necessary to consider in the light of the relevant provisions of the EP&A Act:

(i) the charges brought against the Defendant; and

(ii) the earlier judgment.

6 The Prosecutor accepts the appropriateness of determining the Defendant’s Motion in advance of the trial of the charges. To facilitate such course the parties have tendered on the voir dire the relevant documentary evidence.

B. THE CHARGES LAID AGAINST THE DEFENDANT

7 The Summonses charging the two offences against the Defendant were filed in this Court on 24 April 2002 in its class 5 jurisdiction.

8 The first charge (Matter no 50042 of 2002) alleges an offence against s125(1) of the EP&A Act in that “on or about 25 October 2001 the Defendant, being an accredited certifier…did issue a construction certificate in purported compliance with Part 4A…with respect to plans and specifications…in breach of s109F(1)(a) of the Act and clause 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 in that in the circumstances in which the construction certificate was issued a certifying authority could not be satisfied that the design and construction of the building as depicted in the plans and specifications for the construction certificate were not inconsistent with the development consent”.

9 According to the Particulars endorsed on the Summons:

(i) the relevant construction certificate was No. CC2002-08311 dated 25 October 2001; and

(ii) the relevant development consent was development consent No.2001-422 DA dated 1 August 2001 issued by the Prosecutor qua consent authority under the EP&A Act ; and

(iii) the relevant “inconsistencies between the plans and specifications for the construction certificate and the development consent” were as follows:

“ - The carparking on the development consent is below ground whereas the carparking for the construction certificate plans is above ground.


- The heights and levels of the building approved by the construction certificate have been increased compared to the development consent.

- The southern façade, and the western and eastern walls of the construction certificate plans depict a three storey building whereas the development consent depicts a two storey building consent.

- The southern front setback to Old Pittwater Road and the side eastern and western setbacks have been reduced between the development consent and the construction certificate.

- The lengths of the eastern and western walls of the building have been increased in the construction certificate plans compared to the development consent.

- The setback from the boundary to the walls of the aboveground stormwater drainage detention basis in the front setback area has decreased between the construction certificate plans and the development consent plans.

- Balconies areas/sizes have been altered on the construction certificate plans compared to the development consent plans.

- The external openings (windows/door) for all elevations on the construction certificate plans have been changed compared to the development consent plans.

- There are internal unit layout changes (including increased and reduced floor areas) to units in the construction certificate plans compared to the development consent.

- Mechanical ventilation is required for the underground carparking in the development consent plans whereas no mechanical ventilation is referred to in the construction certificate plans.

- Access to the entry foyer via a pathway on development consent changed to access via stairs on the construction certificate.

- The stairs servicing the carpark are not enclosed for the development consent but are enclosed for the construction certificate.

- The width of the carpark entry is reduced by 600mm bewteen the development consent and the construction certificate.

- Changes to the exterior finishes from ground level to window sills of top storey from the development consent to the construction certificate.

- No soil and sediment plan was submitted prior to the issue of the construction certificate as required by condition 41 of the development consent. ”

10 The second charge (Matter No 50043 of 2002) alleges an offence against s109ZH of the EP&A Act “in that the Defendant on 25 October 2001 did make a statement that was false or misleading in a material particular in a Part 4A Certificate issued by the Defendant as an accredited certifier under the Act”.

11 According to the particulars endorsed upon the Summons:

(i) “the relevant Part 4A Certificate was a Construction Certificate No. CC2002/08311 dated 25 October 2001 issued for development consent No. 2001-422DA dated 1 August 2001 issued by the Prosecutor for the demolition of two dwellings and the construction of a two storey residential flat building on lot 10-11 DP 6040 No. 50-52 Old Pittwater Road Brookvale”;

(ii) the relevant statement is:

The defendant made the following statement in the construction certificate:

“I hereby certify that the work if completed in accordance with these plans and specifications will comply with the requirements of s81A(5) of the EP&A Act”; and

(iii) the statement that was false or misleading in a material particular was:

The statement was false or misleading in that the plans and specifications for the construction certificate were inconsistent with the development consent in that – (and there is next recited the same 15 paragraphs that are particularised as “inconsistencies between the plans and specifications for the construction certificate and the development consent” in support of the first charge brought against the Defendant as recited in paragraph 9 of these reasons).

12 It will be convenient if I now note the content of the provisions of the EP&A Act that are relevant to the charges.

13 The first charge alleges an offence against s125(1) of the EP&A Act which provides as follows:

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

14 That general offence creating provision operates inter alia where any matter or thing is by or under this Act…forbidden to be done…and (it) is done…”.

15 The relevant “forbidding” provision of the EP&A Act averred in the Summons is s109F(1)(a) of the EP&A Act and cl 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) which respectively provide as follows:

109F Restriction on issue of construction certificates
(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:
(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,

16 Section 81A(5) of the EP&A Act provides as follows:

(5) Regulations may provide for the issue of certificates
The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

17 Part 8 of the Regulation which is headed “Certification of Development” contains detailed provisions in relation to the various types of “Part 4A Certificates” which are defined by s109C(1) of the EP&A Act, including a ‘construction certificate’ which is defined in s109C(1)(b) as follows:

(b) a construction certificate , being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),

18 Relevantly Division 2 of Part 8 of the Regulation sets forth the detailed provisions relating to ‘construction certificates’ which provisions include cl 145.

19 The second charge alleges an offence against s109ZH(1)(b) which relevantly provides as follows:

109ZH False representations

(1) A person who:
… …

(b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate,
is guilty of an offence against this Act.

C. THE EARLIER JUDGMENT

20 Both proceedings (Nos. 10289 and 10290) were commenced on 4 April 2002 in class 1 of the Court’s jurisdiction and both proceedings concerned a development site known as No. 50-52 Old Pittwater Road Warringah and the partially completed building work as it existed on that site. In both proceedings the Applicant was McIntosh Properties Pty Ltd (apparently the owner of the land) and the Respondent was Warringah Council. The present Defendant was not a party to those proceedings.

21 Proceeding No 10289 was an appeal pursuant to s149F of the EP&A Act against the Council’s refusal to issue a building certificate in respect of partial building works that had already been carried out on the development site. Proceeding No. 10290 was an appeal pursuant to s96 of the EP&A Act against the Council’s refusal of an application to modify the development consent that had been granted by the Council for the erection on the development site of a two storey residential flat building above basement carparking.

22 The earlier judgment upheld both appeals (which by consent were heard together). Since it is only the upholding of the s96 appeal that is relied upon by the Defendant in support of his application for a permanent stay of the prosecutions I shall confine attention to those parts of the earlier judgment which granted the modification application.

23 However the relevant provisions of s96 of the EP&A Act should first be noted. They are as follows:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
(6) Appeals

Except in the case of State significant development, an applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal.

24 The background to the proceedings and the nature of those proceedings is readily discernible from the following passages from the earlier judgment under the heading “Introduction”:

1. These proceedings concern two separate appeals against the decisions of Warringah Shire Council (the Council) for refusal of: a modification application for a residential flat building; and a building certificate in respect of works carried out for the site known as 50-52 Old Pittwater Road, Warringah.

2. The Council issued Development Consent on 1st August 2001 for a residential flat building of two storeys containing 16 units above basement parking. Shortly thereafter Council also approved similar residential flat buildings proposed by the then same applicant and architect for sites either side of the subject development. That is: 46-48 Old Pittwater Road in October 2001; and 56-58 Old Pittwater Road in February 2002.

3. From the evidence it would appear that a Construction Certificate was subsequently issued which was not in accordance with the approved development plans. Construction of the flat building commenced and further variations occurred. Works existing on site include: the external walls; internal stairs; and concrete slabs for the parking level and first and second residential levels. Work ceased on the site and amongst other things the level of the basement parking was not constructed below natural ground level at the front. But instead at grade and the front setback as constructed is less than the development as approved. The basement garage floor was approved at 16.5 RL and it has been constructed at an RL of 18 m.

4. Appeal No. 10289 is under s 149F of the Environmental Planning and Assessment Act (the Act) wherein Council refused to issue a Building Certificate in respect of the works carried out. The reason stated was that the works undertaken on site are not in accordance with the development consent issued and because of this contravention the building certificate was not issued.

5. Appeal No. 10929 of 2002 is in respect of an application submitted under s96(2) of the Act wherein Council refused an application to modify its consent. The applicant seeks to have the approved development modified by increasing the relative height of the building by about 1.5 m and a reduction in the front setback. The modifications sought include the building as constructed to date. The Council refused the modification application on the basis that it is not substantially the same development as that approved by the Council; it does not comply with the landscape and two storey requirements as contained in the LEP and its locality statement; and it increases the visual bulk of the building.

25 A more detailed description of the s96 application is provided in the following extracts from the earlier judgment:

10. The s96 modification application currently before the Court seeks to modify the consent issued by the Council on 1st August 2001. The approved plans show a basement level of parking below grade for 21 vehicles and two levels of residential units above totalling 16 dwellings.

11. The s96 plans show a basement level 1.56 m higher than that approved. With the reduction in the thickness of slabs and ceiling heights the overall development is 200 mm higher than the approved development. The roof form is also proposed to be modified so that the overall maximum height of 8.5 m is not breached.

12. In terms of Council’s definition of storey the modified plans show a three storey development as opposed to two storeys with basement parking.

13. The front setback is also reduced by a variation between 0.3 and 1.3m.

14. Mr Robinson in his Statement of Evidence for the Council provides a convenient and comprehensive description of the amendments sought in the modification application:-


Car park Level
- Front setback varied from 8-9.5 m to 7.5-8.5 m;
- Change to floor level of basement from RL16.5 to RL18.06;
- Shape of carpark altered by the off set in the front and rear walls;
- Vehicle access driveway reduced in width from 5.3 m to 2.9 m;
- Openings in external walls of carpark for natural ventilation.

Ground Floor Level
- Minor changes to the internal layout of dwellings and general changes to the size and configuration of windows and doors;
- Change to ground floor level from RL19.7 to RL20.9;
- Balconies to dwellings 1, 4, 5 and 8 increased in width;
- Steps to front courtyards of dwellings 6 and 7 deleted;
- Floor to ceiling height reduced from 3 m to 2.5 m.

First floor level
- Minor changes to the internal layout of dwellings and general changes to the size and configuration of windows and doors;
- Change to first floor level from RL22.7 to RL23.55;
- Balconies to dwellings 9, 12, 13 and 16 increased in width;
- Front setback to dwellings 14 and 15 increased to 8-9.5 m;
- Balconies to dwellings 14 and 15 reduced in size;
- Roof skirt added to the front setback over the ground level below;
- Floor to ceiling height reduced from 2.5 m to 2.45 m.

Roof
- Roof pitch of sloping metal roofs reduced;
- Finished roof height increased from RL26.7 to RL26.9 at the highest point.

The related amended plans are plans No. DA-O2, DA-O3, DA-O4, dated 10 May 2002 and DA-O1 (Amendment A), DA-O5 (Amendment A) and DA-O6 (Amendment A) dated 14 May 2002, prepared by Herwig Hartl Architect.

The as built plans for the purpose of the Building Certificate are plans No. BC1 (Amendment A) dated 15 May 2002 and No. BC2, BC3, BC4, and BC5, dated 9 May 2002, prepared by Herwig Hartl Architect.

26 In her reasons containing relevant findings Commissioner Murrell first dealt with what she said was the threshold question raised by the Respondent ( the present Prosecutor) whether “the modified development was substantially the same as that approved by the Council which is required by s96(2)(a) of the Act”; the Respondent having submitted that the modified development would not be substantially the same “because it would result in a three storey building. (I)n particular the basement parking constitutes a storey being at grade rather than below ground and the development will present as a bulky building in the streetscape with a reduced setback” (paragraph 44).

27 After referring to a number of decided cases on the proper approach to be taken to s96 Commissioner Murrell’s judgment proceeds as follows to the conclusion that the threshold question is to be answered in the affirmative:

47. Having regard to the principles established in the authorities it is incumbent on the Court to make an ultimate finding on the facts of each case. And in this case I am satisfied that the development as proposed to be modified is substantially the same development to that approved by the Council. I make this finding of fact based on a comparative assessment of the two sets of plans and elevations (refer to Figures 2, 3, 4, and 5) of not only the whole of the development but the various features elements and components. In this regard I agree with the applicant’s submission that the development as approved will read as a two storey residential flat building above basement parking and that the proposed modification will result in a similar building. It will also read as two floors of residential above parking containing 16 units with a similar footprint and landscaped area.

48. In my assessment the application will not radically transform the development as approved or change its character and it will remain essentially the same as the development approved by the Council. That is a residential flat building of similar height, size , bulk and scale with two levels of residential above parking.

49. In the matter of Schroder there were some 43 amendments proposed. However, I agree with Counsel for the respondent that this is of little assistance when looking at the question of fact and degree. Furthermore, this case was not a s96 modification but rather an amendment to plans before determination. In my assessment while there are numerous changes proposed in terms of internal configuration the roofline setback, etc., I am satisfied that the essential character of the building will not be changed by the modifications proposed whether that be in the plans submitted to the Council or the amended plans prepared to comply with Mr Robinson’s comments. It is not simply a matter of the number of changes which is relevant and I am satisfied that in isolation and in combination the proposed development will remain essentially, materially and substantially the same.

28 Thereafter her judgment proceeds to assess the modification application upon the planning merits concluding at paragraph 65 as follows:

“I am not only satisfied that the modifications are substantially the same development but there are no significant adverse impacts, including privacy and overlooking concerns, that would warrant refusal of the application”.

29 In her Orders Commissioner Murrell approved, subject to specified conditions, the “s96 application submitted to Warringah Council, and as amended”. (The reference to the amendment is a reference to an amended plan prepared showing additional building setbacks at the top most level of the proposed building, as discussed at paragraphs 37 to 40 of her judgment ).

D. THE EVIDENCE

30 On the hearing of the Defendant’s Motion the evidence admitted on the voir dire included the following documents:

(i) the original development consent and the plans depicting the development ( Exhibits 3 and 4 );

(ii) the construction certificate and the plans it approved ( Exhibit 5 );

(iii) the plans comprising the modification application approved by Commissioner Murrell ( Exhibit 6 )

31 In addition to those plans there was a series of plans (Exhibit A) depicting in composite fashion various cross-sections and elevations of the approved development according to each of three referenced series of plans (ie. (i) the original development consent plans; (ii) the construction certificate plans and (iii) the modification approval plans).

32 It is not necessary for present purposes to further describe what is depicted in Exhibit ‘A’ (the composite plans) other than to note that their admission into evidence was accompanied by a document (Exhibit 8) containing the Prosecutor’s verbal responses, generally by way of agreement, to what is depicted in those composite plans.

33 Referring globally to all of the referenced documentary evidence it is sufficient for present purposes, to note that at the respective times that the original development consent and the construction certificate were granted the approved development was entirely prospective whereas when Commissioner Murrell approved the modification application physical works commencing the approved development had already been undertaken. However what is more important for present purposes is the agreed fact that the plans accompanying the modification application (ultimately approved by Commissioner Murrell) include the changes made to the originally approved development by the plans approved by the Defendant when he issued the construction certificate.

34 A further agreed fact included in the Statement of Agreed Facts (Exhibit 3) is that the Defendant was at all material times an “accredited certifier” in terms of the EP&A Act and that in that capacity he issued the construction certificate, particularised in the two summonses in respect of the charges laid against the Defendant.

35 What I have said is a sufficient statement of the relevant facts for the purpose of adjudicating upon the Defendant’s application for a permanent stay of the prosecutions brought against him. Accordingly it can be accurately said that his application is founded upon the fact that whatever be the differences to the approved development that were created by the construction certificate issued by the Defendant those differences were included in, and encompassed by, the modifications to the development consent subsequently approved by the Court’s earlier judgment.

E. THE DEFENDANT’S SUBMISSIONS ON ABUSE OF PROCESS

36 The Defendant’s submissions are founded upon the proposition that the issues to be determined at the trial of the two charges laid against the Defendant are the same as the issue that was determined by the earlier judgment when Commissioner Murrell found that the development to which the modified development consent related was “substantially the same development as the development for which consent was originally granted…”, thereby satisfying the precondition on the statutory power to modify a development consent that is prescribed by s96(2)(a) of the EP&A Act.

37 In advancing that proposition Senior Counsel for the Defendant necessarily had to acknowledge that the statutory language founding the basis of each of the charges laid against the Defendant is not couched in the same language of s96(2)(a) of the EP&A Act.

38 Thus the first charge raises the issue whether in issuing the construction certificate the Defendant as certifying authority was “satisfied that …(a) the requirements of the regulations…have been complied with” – those relevant requirements being that “the certifying authority must not issue a construction certificate unless it is satisfied…(a) that the design and construction of the building…are not inconsistent with the development consent” vide: cl 145(1)(a) of the Regulation.

39 Similarly the second charge based upon s109ZH of the EP&A Act raises the issue whether the Defendant in issuing the construction certificate ‘made any statement that is false or misleading in a material particular…” in circumstances where the certificate contained the following statement:

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

40 (It may be noted that the content of the Statement included in the construction certificate issued by the Defendant accords with the requirement prescribed by cl 147(1)(e) of the Regulation.)

41 Senior Counsel for the Defendant sought to overcome the acute problem posed for his case created by the lack of precise identity in the issues raised by the two prosecutions and the issue determined by Commissioner Murrell by submitting that the statutory phrases “not inconsistent with” (the language of cl 145(1)(a) of the Regulation) and “substantially the same” (the language of s96(2)(a)) “resonate with a similarity such that both conceptually , and in application, they are consonant one with the other”.

42 However even if this submission were accepted it would not constitute a legally sufficient basis for the Defendant’s case because it is clear on the authorities (concerning issue estoppel and extended res judicata and abuse of process) that the issues must be the very same (even though they may be raised in a different form of proceedings: see Reichel v Magrath (1889) 14 App Cas 665).

43 Assuming for the moment that the Defendant can establish that the issues raised by the two prosecutions are relevantly the same issue as was determined by the earlier judgment the Defendant submits that the continuation of the prosecutions would constitute an abuse of process because a conviction on the charges would necessarily controvert or contradict the earlier judgment which “unless set aside or quashed, must be accepted as being incontrovertibly correct”: R v Carroll (2002) 77 ALJR 157.

44 The Defendant advanced two subsidiary arguments to its principal submission of abuse of process based upon the risk of contradiction of the earlier judgment . One was that the earlier judgment was a judgment in rem: see P.E. Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 – and accordingly the Defendant was entitled to rely upon the earlier judgment as providing a total answer to the two prosecutions brought against him. The other was that it was unfair to the Defendant to allow the prosecutions to be continued: Walton v Gardiner (1993) 177 CLR 378 – and that unfairness justified the grant of a permanent stay of the prosecutions.

F. THE PROSECUTOR’S COMPETING SUBMISSIONS

45 The Prosecutor challenged the foundational premise for the defendant’s case, by submitting that it is clear beyond reasonable argument that the issues or questions raised by the prosecutions are not the same as the issue raised by s96(2)(a) that was determined by the earlier judgment.

46 In particular the Prosecutor submitted that a comparison of the issues raised by s96(2)(a) (the subject of the earlier judgment) and cl 145(1)(a) of the Regulation (the subject of the first of the charges laid against the Defendant) yielded the following overall results:

“they (ie the several issues) incorporated different words to convey different meanings in different statutory contexts for different reasons with respect to different plans as at different times”.

47 Moreover the Prosecutor emphasised that the question or issue raised by cl 145(1)(a) (unlike the question or issue raised by s96(2)(a)) was whether a particular person (ie. the certifying authority) was “satisfied about something at a particular point of time”, namely when issuing the construction certificate whether the accredited certifier was satisfied that the plans and specifications referred to in that certificate were not inconsistent with the development consent.

48 In elaboration of these submissions the Prosecutor emphasised the different statutory language employed by cl 145(1)(a) of the Regulation from that employed by s96(2)(a) of the EP&A Act, noting that if the legislature had intended that the duty imposed upon the certifying authority by cl 145(1)(a) were to operate by reference to the standard that, it be satisfied that the plans and specifications of the building “be substantially the same as the development consent” the legislature could have readily adopted that statutory language. The fact that it adopted quite different statutory language was a significant fact in itself. But examining the matter beyond considerations of statutory language and syntax the Prosecutor submitted that it was apparent that the legislative object of providing the statutory modification power in s96 was to confer a “beneficial and facultative” power upon a consent authority – see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 – whereas the legislative object of s109F (read with cl 145 of the Regulation) and of s109ZH was to constrain or circumscribe the power of a certifying authority to issue a construction certificate so that the relevant construction certificate plans were not inconsistent with the development consent.

49 Given the quite different legislative objects of s96 on the one hand and s109F on the other, the Prosecutor submits that the different statutory language employed in the separate provisions was both deliberate and appropriate – the test or standard of “substantially the same development” employed by s96(2)(a) conferring upon the consent authority the desired flexibility in the application of the statutory condition precedent, which if fulfilled, enabled a full planning appraisal on the merits of the modification application whereas the stricter test or standard of “not inconsistent with the development consent” employed by cl 145(1)(a) of the Regulation deliberately circumscribed and constrained the power of the certifying authority (which as in the present case may be an accredited certifier and not the consent authority) to issue a construction certificate.

50 Since the Court’s earlier judgment did not involve the same issues and the same parties as are involved in the two prosecutions the Prosecutor submitted that there was no relevant issue estoppel or basis for an extended res judicata and that there was no abuse of process involved in the continuation of the prosecutions.

G. ADJUDICATION

51 As I have earlier noted it is not in dispute that this Court is vested with the power to permanently stay proceedings on the ground of abuse of process.

52 The nature of this power has been expounded in a number of decisions of the High Court of Australia, as is reflected in the following extract from the joint judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 392-393 (cited by McHugh J in Rogers v The Queen (1994) 181 CLR 253 at 288):

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of the court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

53 The principal basis for the Defendant’s submission of abuse of process in the present case falls within the last mentioned category. This particular category was formulated and illustrated by McHugh J in Rogers in the following passage at 287:

One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings ((132) See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 App Cas 665.) is the paradigm example of such a case.

In Reichel , the appellant, a clergyman, sought to relitigate the ultimate issues which he had lost in an earlier action that he had brought against his Bishop and others. In the earlier action, he had claimed a declaration that he was vicar of a benefice and an injunction to restrain the Bishop from instituting, and the other defendants from presenting, any other person to the benefice. Judgment was given against the appellant. Subsequently, the respondent was appointed to the benefice as the appellant's successor. He later brought an action against the appellant for a declaration that the respondent was the vicar of the benefice and an injunction to restrain the appellant from depriving the respondent of the occupation of the house and lands of the parsonage. In his statement of defence, the appellant set up the same case as that on which judgment had been given against him in the first action. Because the parties were different, no estoppels could arise. But because the appellant was seeking to relitigate the very issues on which judgment had been given against him, the House of Lords held that his statement of defence was an abuse of process.

54 In Reichel all of their Lordships emphasised the fact that it was the same issue or question that had already been conclusively decided that was being attempted to be relitigated. Thus Lord Halsbury LC said at 668:

“…it would be a scandal to the administration of justice if , the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again”.

55 Similarly Lord Watson said at 668:

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

56 Reichel is discussed in a number of chapters in Spencer Bower, Turner and Handley “The Doctrine of Res Judicata” (3rd ed 1996). In Chapter 26 (“The extended doctrine of res judicata”) paragraph 445 includes the following discussion:

Subsequently, and without reference to Henderson , attempts to relitigate issues determined in earlier proceedings which were not strictly res judicata were held to be an abuse of process. The seminal case was Reichel v Magrath already considered, where a defence was struck out. It would appear however that the issue was res judicata, because the earlier decision was in rem, and the plaintiff was a privy of the successful parties, but this has not affected the vitality of the principle applied by the House. It was followed in Macdougall v Knight , where the plaintiff who had failed in a libel action based upon parts of a pamphlet brought a second action based on other parts. The court held that the action was barred by res judicata, but in any event was an abuse of process.

57 The requirement that the same question or issue be raised in the subsequent proceedings as that which has been conclusively determined in the earlier proceedings is a prerequisite that is common to the doctrines of issue estoppel and res judicata in its ordinary and extended application (including in the latter case the doctrine of abuse of process). As to the requirement that the question or issue be the same in the case of issue estoppel see paragraphs 198 and 199 of Spencer Bower, Turner and Handley which includes the following statement of principle from the judgment of Browne LJ in Turner v London Transport (1977) ICR 952:

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

58 In my judgment the Defendant has failed to establish that the issues raised by the two prosecutions of offences under the EP&A Act brought against him are the same issue or question that was determined in the Court’s earlier judgment.

59 The most obvious reason for so concluding does not depend upon the rejection of the Defendant’s principal submission that the expression “not inconsistent with the development consent” appearing in cl 145(1)(a) of the Regulation (which is central to both charges) when referring to the construction certificate plans may be legitimately interpreted as meaning “substantially the same as (the development) for which the development consent was originally granted” which is the statutory expression employed by s96(2)(a) of the EP&A Act (which was central to the Court earlier judgment). The reason why the issues or questions raised by the current proceedings are clearly not the same as the issue determined by the earlier judgment is simply that the issues raised by the prosecutions concern the relevant “satisfaction” of the Defendant in his capacity as the relevant certifying authority (in issuing the construction certificate) as to whether the construction certificate plans were not inconsistent with the development consent whereas the earlier judgment concerned the relevant “satisfaction” by a different person, namely a Commissioner of this Court in determining an appeal pursuant to s96(6) of the EP&A Act against the decision of the Council (as the consent authority) in respect of a modification application made by another different person.

60 In other words the question whether person X is satisfied of a state of affairs is not the same question as whether person Y is also satisfied when persons X and Y are entirely independent of one another and are acting in different capacities from one another.

61 Thus, even assuming that the expression “not inconsistent with” has the meaning contended for by the Defendant, the issue or question raised by the prosecutions is not the same as the issue determined by the earlier judgment because in the present proceedings the question or issue is whether the Defendant, as the relevant certifying authority, held the relevant “satisfaction” whereas the earlier judgment expresses the relevant “satisfaction” held by a different person, namely Commissioner Murrell in an entirely different capacity to that held by the Defendant.

62 It follows from that simple, yet essential difference that the earlier judgment has not determined the issue(s) or question(s) that are raised by the present prosecutions and that those issues or questions are not the same as the issue determined by the earlier judgment. Accordingly there is no abuse of process involved in the continuation of the prosecutions against the Defendant.

63 In the light of this conclusion, it is, I think, clearly preferable, that I do not, in what are essentially interlocutory proceedings, adjudicate upon the disputed question of construction of the provisions of the EP&A Act and Regulation (in particular cl 145(1)(a) of the Regulation) that are relevant to the charges. This is a matter that is best left for the trial Judge if it arises at the trial. The proper construction of cl 145(1)(a) of the Regulation will require consideration of the relevant provisions of the EP&A Act and the Regulation many of which are discussed in my judgment in Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158.

64 My conclusion that the issues raised by the present prosecutions are not the same as the issue determined by the Court’s earlier judgment means that the Defendant’s subsidiary argument based upon the earlier judgment operating as a judgment in rem also must be held to be unavailing.

65 Again this result does not depend upon the rejection of the Defendant’s argument that the earlier judgment operates as a judgment in rem. It simply follows from the fact that that judgment (even if it operated as a judgment in rem) did not determine the same issue(s) that are raised by the present prosecutions.

66 In those circumstances it is not necessary to express a final opinion on the question whether the earlier judgment is a judgment in rem. Other than to assert that proposition in reliance upon the Court of Appeal’s judgment in P.E. Bakers the Defendant did not develop or elaborate the argument.

67 The judgment in P.E. Bakers cited from the second edition of Spencer Bower, Turner and Handley the following passage:

A judicial decision in rem is one which determines the status of a person, or thing, that is the jural relation of the person, or thing, to the world generally, and is conclusive for, or against, everybody, unlike decisions in personam which determine the jural relation of persons to one another.

68 That case held that a decision of this Court upholding and declaring (by implication) the validity of conditions of a development consent granted under the EP&A Act was a judgment in rem, and it was not open to a person to attempt to relitigate the invalidity of the conditions which had been held to be valid in this Court’s earlier judgment.

69 It is to be noted that P.E. Bakers was a civil enforcement proceeding in class 4 of this Court’s jurisdiction that was determined by a Judge of the Court. Whether that decision or its reasoning supports the conclusion contended for by the Defendant that a determination of an appeal in respect of a modification application (being the nature of the proceedings the subject of the Court’s earlier judgment) also operates as a judgment in rem, in my opinion is best left for adjudication in a future case where it is necessary to decide that important question.

70 The only discussion of P.E. Bakers in Spencer Bower, Turner and Handley is in the following passage at paragraph 256:

A decision on the validity of the conditions of a planning consent has been held to be a decision in rem .

71 Accordingly this subsidiary argument of the Defendant must be held to fail.

72 The Defendant’s final submission was that it would be unfair to the Defendant if the prosecutions were allowed to proceed. Other than citing the judgment of the High Court in Walton v Gardiner Senior Counsel for the Defendant did not develop this submission. Although the categories of cases constituting abuse of processes are not closed (Rogers at 286) something more than the bare assertion of unfairness is required before a court could reasonably conclude that its process are being converted into “instruments of injustice or unfairness” (Walton v Gardiner).

73 The only conceivable basis for the Defendant’s otherwise unexplained assertion of unfairness must be related to the fact that the Court’s earlier judgment modifying the development consent has allowed the development to proceed to be built irrespective of the existence and content of the construction certificate that was issued by the Defendant. But the argument breaks down or goes nowhere once it is appreciated that there is no relationship (factual or legal) between (i) the issue of a construction certificate in respect of a building the subject of a pre-exiting development consent and (ii) the subsequent grant of modification approval of that development consent.

74 In my judgment the Defendant has not established that the continuation of the prosecutions against him creates any injustice or unfairness that would constitute any abuse of this Court’s procedures.

75 In so concluding it is sufficient to say that the facts of the present case bear no resemblance whatsoever to the facts in Walton v Gardiner where disciplinary proceedings against three medical practitioners were permanently stayed because it was held that such proceedings would involve unacceptable injustice and unfairness to them.

H. CONCLUSIONS AND ORDERS

76 For all the foregoing reasons the Defendant has failed to substantiate any of his claims of abuse of process.

77 Accordingly I make the following orders:

1. The Defendant’s Motion seeking a permanent stay of the pending prosecutions is dismissed.

2. The exhibits be returned.

3. The question of costs be reserved.