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Court of Criminal Appeal 29 March 2004

Moy v Warringah Council

[2004] NSWCCA 77

Other
CRIMINAL LAW EXTENDED DOCTRINE OF RES JUDICATA WHETHER THE QUESTION WAS THE SAME

Citation: Moy v Warringah Council [2004] NSWCCA 77
Court: Court of Criminal Appeal, New South Wales
Date: 29 March 2004
Judge(s): Sully J, Simpson J, Sperling J (Sperling J delivered the principal judgment; Sully and Simpson JJ agreed)

Background

The applicant was an accredited certifier who had issued a construction certificate for a residential development in the Warringah Council area. A prosecution was subsequently brought against him in the Land and Environment Court, alleging that he had breached s109F(1)(a) of the Environmental Planning and Assessment Act 1979 and cl 145(1) of the Environmental Planning and Assessment Regulation 2000 by issuing a certificate without being satisfied that the plans were "not inconsistent with" the development consent. He was also charged under s109ZH with making a false or misleading statement in that certificate.

Before the prosecution proceeded, a separate party (a property developer) had successfully appealed to the Land and Environment Court to have the development consent modified. In that earlier proceeding, Commissioner Murrell held that the proposed modifications constituted "substantially the same development" within the meaning of s96 of the Act, and modified the consent accordingly. The applicant sought to use that earlier determination to permanently stay his prosecution.

Bignold J in the Land and Environment Court refused the permanent stay. The applicant then sought leave to appeal that refusal to the Court of Criminal Appeal under s5F of the Criminal Appeal Act 1912.

  • Whether the time for filing the application for leave to appeal should be extended.
  • Whether the extended doctrine of res judicata (sometimes called Anshun estoppel or abuse of process by prior inconsistent determination) applied to prevent the prosecution proceeding, notwithstanding that the parties in the earlier civil proceeding and the criminal prosecution were not identical.
  • Whether the question resolved by Commissioner Murrell (was the modified development "substantially the same development" under s96?) was the same as the question arising in the prosecution (were the plans "not inconsistent with" the development consent under cl 145?).
  • Whether the Commissioner's earlier decision was a judgment in rem, such that ordinary res judicata or issue estoppel principles would apply regardless of the difference in parties.

Decision

The Court granted the extension of time, accepting that the applicant's solicitor was overseas and that the applicant had mistakenly believed the time limit was 28 days rather than 14 days.

On the central question, the Court examined whether the extended doctrine of res judicata could operate to stay the prosecution. That doctrine can, in appropriate cases, prevent relitigation of a question already decided even where the parties are not identical. However, the Court emphasised that for the doctrine to apply, the question arising in the later proceedings must be the same as the question decided in the earlier proceedings.

The Court found that the two statutory tests were materially different. The phrase "substantially the same development" in s96 is a threshold test for a facultative, beneficial provision. As such, it is to be construed liberally in favour of those seeking to modify a consent. By contrast, the phrase "not inconsistent with" in cl 145 is part of a proscriptive provision that prohibits the issue of a construction certificate unless the certifier is affirmatively satisfied of compliance. The Court held that s96 may accommodate a greater degree of variation from a development consent than cl 145 will tolerate. A finding that a development satisfied the s96 threshold therefore did not necessarily mean that the same plans met the cl 145 standard.

Because the two statutory questions were not the same, the extended doctrine of res judicata could not operate to stay the prosecution. The Court also rejected the argument that the Commissioner's decision was a judgment in rem: even if it were, the analysis of whether the questions were the same would remain, and on that analysis the applicant could not succeed. Bignold J had not erred in refusing the permanent stay.

Orders Made

  • Time for application for leave to appeal extended to 18 September 2003.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the extended doctrine of res judicata requires the question decided in the earlier proceedings to be the same as the question arising in the later proceedings. It does not suffice that both questions relate to the same development or factual circumstances.
  • A finding under s96 of the Environmental Planning and Assessment Act 1979 that a modified development is "substantially the same development" does not necessarily imply that the plans in question were "not inconsistent with" the development consent within the meaning of cl 145 of the Regulation.
  • The distinction between a facultative, beneficial provision (s96, construed liberally) and a proscriptive prohibition (cl 145) is legally significant: each provision may accommodate a different degree of variation from an approved development consent.
  • Characterising an earlier decision as a judgment in rem does not assist a party where the underlying question decided in that proceeding differs from the question arising in subsequent proceedings.
  • In dismissing the appeal, the Court left open whether cl 145 must be applied strictly, finding it sufficient that s96 attracts a liberal construction on grounds that do not apply to cl 145.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s5F
- Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 81A, 96, 109D, 109F, 109ZH, 125
- Environmental Planning and Assessment Regulation 2000 (NSW), cl 145
- Transport Act 1930 (NSW), s124

Cases
- Blair v Curran (1939) 62 CLR 464
- Carroll (2002) 77 ALJR 157
- O'Donel v The Commissioner for Road Transport & Tramways (NSW) (1938) 59 CLR 744
- Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
- Quinn v Leathem [1901] AC 495
- Re Kearney; Ex parte Jurlama (1984) 52 ALJR 24 (also reported as 52 ALR 24)
- Reichel v Magrath (1889) 14 App Cas 665
- Rogers (1994) 181 CLR 251
- Turner v London Transport Executive [1977] ICR 952
- Zangzinchai v Millanta (1994) 125 ALR 265