Moy v Warringah Council [2004] NSWCCA 77

Moy v Warringah Council [2004] NSWCCA 77

The application for a permanent stay was properly dismissed because the extended doctrine of res judicata requires the identity of the question or issue determined in earlier proceedings and those raised in the current prosecution. The questions in the two proceedings were not the same: Section 96 concerns the satisfaction of the consent authority or court, while cl 145 concerns the satisfaction of the certifying authority. Statutory construction and functional differences between s96 and cl145 further support the lack of identity between the issues.

Jurisdiction
Australia
Judgment Date
29 March 2004
Procedural Posture
Application for Leave to Appeal / Court of Criminal Appeal; Leave to Appeal From Land & Environment Court Decision Refusing Permanent Stay
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['res Judicata' 'issue Estoppel' 'abuse of Process' 'construction of Statutory Phrases' 'permanent Stay of Criminal Proceedings']
['criminal Law' 'planning Law'] ['res Judicata' 'issue Estoppel' 'abuse of Process' 'construction of Statutory Phrases' 'permanent Stay of Criminal Proceedings']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Criminal Appeal; Leave to Appeal From Land & Environment Court Decision Refusing Permanent Stay

Legal Issues

  1. 1 ['Whether the extended doctrine of res judicata applies only where the question is the same as previously determined' 'Whether the prosecution constitutes an abuse of process due to an earlier Land and Environment Court determination' "Construction of 'substantially the same development' in s96(6) of the Environmental Planning & Assessment Act 1979 and 'not inconsistent with' in cl145(1) of the Environmental Planning & Assessment Regulation 2000"]

Ratio Decidendi

The application for a permanent stay was properly dismissed because the extended doctrine of res judicata requires the identity of the question or issue determined in earlier proceedings and those raised in the current prosecution. The questions in the two proceedings were not the same: Section 96 concerns the satisfaction of the consent authority or court, while cl 145 concerns the satisfaction of the certifying authority. Statutory construction and functional differences between s96 and cl145 further support the lack of identity between the issues.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • ['Time for application for leave to appeal extended to 18 September 2003' 'Leave to appeal granted' 'Appeal dismissed']