12 Mr S D Rares SC, who appears for the second respondent, the council, submits that the applicant now seeks to set up the invalidity of the very process upon which Talbot J's judgment is founded. As Talbot J noted in his judgment (at para [180]):
The original plans have been amended to reflect concerns expressed by council officers in some respects and in response to DCP 96 Amendment No. 9 made on 24 June 1999 and LEP 96 Amendment No. 9 made on 9 August 1999.
13 Mr Rares notes that the judicial consent of Talbot J operates as a judgment in rem as to the permissible use of the applicant's land in Kent Street and no appeal has been brought against that judgment. The present proceedings, if successful, would result in an order which would conflict with a law, clause 48A, which Talbot J had to apply and did apply. In his judgment Talbot J said (at para [156]):
Nevertheless the Court is obliged to ensure that the policy objectives are taken into account and that the development does not provide a number of car spaces which is overwhelmingly beyond the demand for short-stay use.
14 Moreover, Talbot J adopted a purposive construction of clause 48A which was advanced by the applicant: "A purposive approach is appropriate. The applicant's construction of clause 48A(5) accommodates the achievement of the aims and objectives of the LEP" (at para [147]). Mr Rares SC relies, in addition to the cases cited by Mr Leeming, upon Blair v Curran (1939) 62 CLR 464 and Brewer v Brewer (1953) 88 CLR 1.
15 Mr N A Hemmings QC, who appears for the applicant, made the following submissions on this issue: Anshun estoppel is inapplicable to proceedings such as that which was heard and decided by Talbot J, (he referred to Rosemount Estates Pty Limited v The Minister (1996) 90 LGERA 1 at 32-33); Anshun has little or no relevance to proceedings such as the present; the proceedings concern public law and are not limited by the conflicts in private interest with which Anshun was concerned; the subject matter of the two proceedings, that is the proceedings before Talbot J and the present proceedings is different; a finding of invalidity would not be inconsistent with the judgment of Talbot J and the development consent which his Honour granted would be unaffected; the validity of the instrument was not in question in the previous proceedings; and the applicant is the owner of the other car parking stations which are the subject of the other proceedings in the Court.
16 I should say at once that there is no evidence to support the last mentioned submission. The amended points of claim upon which the applicant relies contains an assertion that the applicant is only the owner of the Kent Street Parking Station, which assertion is admitted by the respondents. That is the same property which was the subject of the proceeding before Talbot J.
17 In Hoysted v The Federal Commissioner of Taxation it was held (at 299) that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started with a view to obtaining an another judgment upon a different assumption of fact. It was also held that the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case. If this were permitted, litigation would have no end, except where legal ingenuity is exhausted. The same principle applies where a point, fundamental to the decision, taken or assumed by one party and traversable by the other party, has not been traversed. An estoppel occurs.
18 Hoysted was referred to by Dixon J in Blair v Curran (at 532) in the following terms:
In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of that fact' must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation).
19 In Brewer v Brewer Fullagar J (with whom Dixon CJ agreed) explained the decision in Hoysted in the following terms (at 15):
In Hoysted's case the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different…. The point in question had been ' the groundwork of the decision itself , though not then directly the point at issue' (per Coleridge J. in Reg. V. Township of Hartington [(1855) 4 El. & Bl 780, at 794 [119 E.R. 288, at p.293]].
20 In Anshun , Gibbs CJ, Mason and Aickin JJ, in a passage expressly relied upon by Mr Leeming, said (at 603):
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect the discussion in Brewer v Brewer is illuminating.
There it was held that the wife's omission to plead matters which would have constituted a discretionary bar to her husband's suit of dissolution of marriage on the ground of adultery did not estop her from raising those matters in subsequent proceedings for maintenance. [The judgment then set out the passage which I have quoted in paragraph 19 above]. This was also the conclusion reached by Williams , Webb and Taylor JJ.
21 In Cachia v Isaacs , Hope JA (with whom Kirby P agreed), after referring to Blair v Curran and to Anshun , said (at 381-382):
It should be noticed that the present case is not one where the defendant failed to raise some special defence; it is a case where a fact essential to the plaintiff's case was assumed. This seems to bring it squarely within the decision in Hoysted v Commissioner of Taxation [1926] AC 155. There trustees held property the annual income of which was divisible between the testator's six daughters. In respect of one financial year an assessment of land tax was challenged by the trustee, the question being whether there should be a deduction of £5,000 in respect of the share of each daughter. The questions asked were:
'(1) Whether the shares of the joint owners, or of any and which of them, in the land were original shares within s 38.
(2) How many deductions of £5,000 the respondent should make.'
The High Court answered the questions as follows:
'(1) The shares of the six children surviving at the date of the assessment.
(2) Six.'
In the following year the Commissioner of Taxation again only allowed one deduction. In a new case stated to the High Court it was held that the Commissioner was estopped by the earlier decision from denying that the beneficiaries were joint owners, although in that previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were.
…
In Hoysted, Lord Shaw, after discussing various types of situations where a point has not been litigated but has been admitted or assumed, went on to say (at 166):
'…Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs.'
This is the principle that was affirmed by Dixon J in Blair v Curran, and by Diplock LJ, as he then was, in Fidelitas Shipping Co Ltd v V/O Exportcheler [1966] 1 QB 630 at 649; [1965] 2 All ER 4 at 14.
22 In Re Wakim , Gummow and Hayne JJ expressed the view (at 591-592) that even if in the circumstances of a particular case there is no estoppel, the court should not allow a procedural indulgence to permit a party to reagitate an issue raised in earlier proceedings and to do so by instituting a different proceeding.
23 The conclusion to be drawn from the above-mentioned authorities is that the applicant is bound by a point, taken or assumed by it, which was a groundwork of or fundamental to the decision, though not being directly the point in issue. Such matter cannot be raised or questioned in the later proceedings.
24 In the present case the applicant is seeking to raise a point which could not be decided in its favour consistently with the decision in the previous case. It being assumed, in the first case, that the local environmental plan and, in particular, clause 48A, were valid means that the question of validity cannot be raised in these proceedings.
25 It remains to consider, however, the judgment of Stein J in Rosemount v The Minister . In that case Stein J (at 32) noted the purely private law origins of Anshun and said that it has little relevance to public law and to proceedings such as those brought under section 123 of the EP&A Act. Stein J went on to say (at 32):
In my opinion, the Anshun estoppel principle is inapplicable to the applicants' claim that the environmental impact statement is invalid. This is primarily because the principle has no application to public law proceedings under 'open standing' provisions in the environmental legislation such as s 123 of the Act.
26 I am thus faced with a conflict between the principles explained by the High Court and the Court of Appeal in the cases described above and, on the other hand, a judgment of a single judge of this Court (as he then was). The judgments of the High Court and the judgment of the Court of Appeal to which I have referred make no distinction between private and public litigation. I accept, however, that the open standing provisions of the EP&A Act did not exist until 1979, so it might not have been expected that the High Court would have such considerations in mind. But the open-standing provisions of the EP&A Act would certainly have been known to the members of the Court of Appeal who decided Cauchia v Isaacs . The judgments of the High Court (and the judgment of the Court of Appeal) set out principles of general application and are, of course, binding upon me: the judgment of Stein J is not.
27 It is apparent, however, that Rosemount is distinguishable from the present case on its facts. In that case the applicants claimed, inter alia , that a development consent was invalid because an environmental impact statement was not a valid environmental impact statement for the purposes of the Act and Regulation. The respondents had pleaded that the applicants were estopped from so alleging, or that the claim was an abuse of process. After referring to the principle in Anshun , Stein J said (at 32):
One reason for the principle is the desire to avoid conflicting judgments. No such conflict arises in the present case. The validity of Mr Cleland's report did not rest on the environmental impact statement's validity. A finding that the environmental impact statement is invalid would not be inconsistent with the judgment of Waddell AJ. The subject matter of the two cases is different. The first was concerned with the report of Mr Cleland and the second with the validity of State Environmental Planning Policy No.45 and the decision to grant development consent.
28 It follows that the views of Stein J which I have set out in paragraph 25 above are obiter . I continue to be bound, therefore, by the principles explained in the judgments of the High Court and the Court of Appeal to which I have referred.