Warringah Council v Moy [2003] NSWLEC 188

Warringah Council v Moy [2003] NSWLEC 188

The issues raised in the prosecutions are not the same as those determined by the earlier judgment; the satisfaction of the defendant as certifying authority is distinct from the court's satisfaction as consent authority in modification proceedings. Therefore, continuation of the prosecutions does not constitute an abuse of process and the motion for a permanent stay is dismissed.

Parties
Prosecutor: Warringah Council; Defendant: Rick Moy
Jurisdiction
Australia
Judgment Date
22 August 2003
Procedural Posture
Criminal Prosecution / Motion for Permanent Stay of Prosecution (interlocutory)
Outcome
motion dismissed
Legal Topics
Abuse of Process, Issue Estoppel, Construction Certificate, Modification of Development Consent
Administrative Law Planning Law Criminal Law Abuse of Process Issue Estoppel Construction Certificate Modification of Development Consent

Case Brief

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Parties

Warringah Council

Prosecutor

Rick Moy

Defendant

Procedural Posture

Criminal Prosecution / Motion for Permanent Stay of Prosecution (interlocutory)

Legal Issues

  1. 1 Whether continuation of prosecutions constitutes an abuse of process due to prior determination by Commissioner Murrell.
  2. 2 Whether issues determined in prior civil proceedings are identical to those in the criminal prosecutions.
  3. 3 Whether prior judgment operates as a judgment in rem to bar current proceedings.

Ratio Decidendi

The issues raised in the prosecutions are not the same as those determined by the earlier judgment; the satisfaction of the defendant as certifying authority is distinct from the court's satisfaction as consent authority in modification proceedings. Therefore, continuation of the prosecutions does not constitute an abuse of process and the motion for a permanent stay is dismissed.

Court Disposition

motion dismissed

Orders

  • The Defendant's Motion seeking a permanent stay of the pending prosecutions is dismissed.
  • The exhibits be returned.