SMARGIASSI NOMINEES PTY LTD -v- SHIRE OF COLLIE [2021] WASCA 107 (25 June 2021)

1. The appellant acquired the Land from Arc-Right Engineering Pty Ltd (ARE) in June 2008. In July 2006, ARE, as the then owner of the Land, consented to an application to the Shire for planning approval in respect of the Land. The formal applicant for the planning approval was a different intended purchaser of the Land. The proposed development and uses of the Land were described as:

[E]arthmoving, trucking and concrete batching, engineering consultancy/engineering manufacturing business.[3]

1. The approval application was accompanied by a letter dated 6 July 2006 attaching plans and other documents.[4] In the letter the existing uses of the Land were described as engineering, fabrication, earthmoving, concrete batching and truck maintenance. On 9 August 2006 the Shire granted ARE approval to undertake development described as 'Light Industry (Engineering, Fabrication and Earth moving services)' in accordance with the plans attached to the application for planning approval (2006 approval). The 2006 approval was granted pursuant to the Shire of Collie Town Planning Scheme No 1 and the Shire of Collie Interim Development Order No 6.[5]
2. The 2006 approval stated that the application to undertake development was granted subject to a number of specified conditions including:
   1. Designated Parking areas not being used for general storage or any purpose other than the parking of motor vehicles;

1. Any additional development which is not in accordance with the original application or conditions of approval, as outlined above, will require further approval by the Shire of Collie.[6]
2. The 2006 approval also noted that:

Note 1: If the development the subject of this approval is not substantially commenced within a period of 2 years from the date of this approval, the approval shall lapse and be of no further effect.

Note 2: Where an approval has so lapsed, no development shall be carried out without the further approval of council having been first sought and obtained.[7]

1. The Scheme came into effect on 2 October 2009. Under the Scheme the Land was zoned 'Rural 1' which meant a number of uses of the Land were prohibited including, relevantly, uses described as 'Industry-general', 'Industry-light' and 'Storage'.[8] However, cl 4.8 of the Scheme provided for certain 'Non-Conforming Uses':

Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent:

(a) the continued use of any land for the purpose for which it was being lawfully used immediately prior to the Gazettal date;

(b) the carrying out of any development on that land for which, immediately prior to the Gazettal date, an approval or approvals, lawfully required to authorise the development to be carried out, were duly obtained and are current.

1. Clause 4.8 of the Scheme has to be read with cl 4.9.1 and cl 4.10.
2. Clause 4.9.1 of the Scheme provides:

A person must not:

(a) alter or extend a non-conforming use;

(b) erect, alter or extend a building used in conjunction with or in furtherance of a nonconforming use; or

(c) change the use of land from a non-conforming use to another non-conforming use,

without first having applied for and obtained planning approval under the Scheme.

DISCONTINUANCE OF NON-CONFORMING USE

Where a non-conforming use of any land has been discontinued for a period of 6 months the land must not be used after that period otherwise than in conforming with the provisions of the Scheme.

1. On 18 March 2015, in the Magistrates Court at Collie, the Shire charged the appellant with contravening the provisions of a planning scheme (ie the Scheme) contrary to s 218(a) of the Planning and Development Act 2005 (WA). As and by way of details of the alleged offence, the prosecution notice alleged that between 1 March 2014 and 12 January 2015 (offence period) at the Land (being zoned Rural 1 under the Scheme) the appellant:

carried out development namely the use of the land for storage of scrap metal, skip bins, car bodies, old machinery, timber, builders rubble and construction materials on [the Land] without first having applied for and obtained the planning approval of [the Shire] under Part 9 of the Scheme and thereby contravened Clause 8.1 of the Scheme.[9]

Subject to clause 8.2 [which is irrelevant for present purposes], all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.

1. On 5 October 2016, after a five-day trial, Magistrate Maughan dismissed the charge.[10] The magistrate concluded that:
   1. The Shire had failed to establish beyond reasonable doubt that the appellant did not have the right to use the Land as it was being used during the offence period pursuant to the non-conforming use provisions of the Scheme.
   2. The right of non-conforming use extended to all uses falling within the use class of 'Industry-light' under the Scheme and the Shire had failed to prove beyond reasonable doubt that the Land was being used for purposes outside those uses during the offence period.
2. In the course of the magistrate's reasons, his Honour stated that it was not in dispute, and found it proven beyond reasonable doubt, that during the offence period materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble were stored on the Land.[11] The magistrate also referred to the Shire having relied on evidence of the appellant's director to the effect that the use of the Land involved 'mainly a lot of storage'.[12] His Honour stated, however, that 'any evidence as to the extent to which storage and/or industrial activity was conducted on the Land is vague'.[13]
3. The magistrate also adopted what were described as 'key factual circumstances' put forward on behalf of the appellant as being an accurate representation of the evidence.[14] As will be seen, these primary facts were not in dispute in subsequent appeals from the magistrate's decision. Also, among other things, the magistrate found that in 2008 a portion of the Land was leased to a Mr Menezes.[15] As at the time of the prosecution Mr Menezes continued to operate his business from that leased portion of the Land using it for the purpose of repairing vehicles, storing salvaged materials and processing timber for re-use.[16]
4. The Shire appealed against the acquittal. On 22 August 2017 a judge in the General Division of the Supreme Court, Martino J, allowed the respondent's appeal and entered a conviction against the appellant.[17] Martino J held that:
   1. The magistrate had erred in concluding that the Shire had the burden of proving that the appellant was using the Land otherwise than in accordance with the rights of non-conforming use conferred by the Scheme. The magistrate should have held that the appellant carried the burden of proving on the balance of probabilities that its use of the Land during the offence period fell within the scope of the non-conforming use rights provided under the Scheme.[18]
   2. The magistrate's conclusion that the ambit of the appellant's right of non-conforming use was to be determined by reference to a class of use specified in the Scheme was contrary to the decision of the High Court in Shire of Perth v O'Keefe.[19] The non-conforming use exemption was to be determined by reference to the actual use to which the relevant land had been put.[20]
   3. The only right of non-conforming use which might be available to the appellant was a right to use the Land in accordance with the 2006 approval.[21]
   4. The evidence established, and the magistrate had found, that during the offence period the Land was being used for storing scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble.[22]
   5. To the extent that use of the Land for storage was approved in 2006, the approval was for storage associated with the use of the Land for the purposes approved - namely, general fabrication and engineering purposes.[23]
   6. However, during the offence period, the Land was not being used for general fabrication or engineering purposes; and the storage of the various items on the Land was not associated with the use of the Land for those purposes.[24]
5. Martino J stated:

The approval granted was for the use of [the Land] for general fabrication and engineering purposes with a storage area, a workshop, staff amenity areas and car parking. The evidence of the use of [the Land] in the period covered by the charge [ie the offence period] was that it was being used for the purpose of storage. While the approval included approval of a storage area it is my view that on a proper construction of the approval, the approval of storage was of storage associated with the use of [the Land] for general fabrication and engineering purposes. In the period covered by the charge [the Land] was not being used for general fabrication or engineering purposes and the storage was not associated with the use of the land for that purpose.

In my view the use of [the Land] to store the materials that his Honour found were stored on it was not authorised by the 2006 approval ...[25] (emphasis added)

1. The appellant applied to this court for leave to appeal. The appellant accepted that it had to establish that its use of the Land during the offence period was within the scope of the 2006 approval.[26] The appellant contended that: (1) Martino J took an unduly narrow view of the 2006 approval which, properly construed, included the uses to which the appellant put the Land during the offence period;[27] or (2) the non-conforming use right in the 2006 approval should be construed by reference to the light industry use characterisation within the Scheme rather than by reference to what was actually being done on the Land.[28] Both contentions were rejected. Leave to appeal was refused and the appeal was dismissed.[29]
2. In its reasons for decision, this court observed that:

The grounds of appeal do not challenge any findings of primary fact made by either the magistrate or [Martino J]. Rather, the grounds of appeal challenge the conclusions which [Martino J] drew from those facts.[30]

1. In terms of the use of the Land by the appellant, this court noted (at [22] of the 2018 CA Decision) relevant factual findings that:

The appellant acquired the land in August 2008. Since acquiring the land, and during the offence period, the appellant has used the land for:

• the sorting and storage of metal components including an industrial silencer, miscellaneous pipes and flanges, stainless steel screens, copper, rubber conveyor belt, machinery and equipment;
• the sorting and processing of metal flanges and bolts for further machining at a different site owned by the appellant;
• the storage of two sea containers (used as a sandblasting unit);
• the storage of transportable building;
• the maintenance of vehicles and equipment; and
• the storage of motor vehicle bodies.[31]

1. Similarly, the court referred to a factual finding that, during the offence period, materials including scrap metal, skip bins, car bodies, old machinery, timber and builders' rubble were stored on the Land.[32] Earlier the court had, in terms, essentially adopted the finding made by the magistrate as to the lease of part of the Land to Mr Menezes and the continuing use that Mr Menezes made of that part of the Land (refer to [[18 found that during the offence period, the land was not being used for general fabrication or engineering purposes, and that the storage of the various items on the land was not associated with the use of the land for those purposes.[34]

1. The court agreed with the conclusions of Martino J as summarised at [19.1] and [[[35]](2021_107.html#_Ref73 The judge [ie Martino J] was therefore correct to conclude that the only storage permitted by the 2006 approval was storage for purposes ancillary to the primary uses approved, namely, engineering, fabrication and earthmoving.

Both the magistrate and the judge found that the primary use to which the land was being put during the offence period was for the storage of the various items which we have described. The appellant carried the burden of establishing that use of the land for that purpose came within the ambit of the approval granted by the Shire in 2006. However, no evidence was adduced to the effect that the storage of the scrap metal, motor vehicle bodies, skip bins and miscellaneous items were ancillary to any use to which the land was being put during the offence period. To the contrary, such evidence as there was went no further than to suggest that some of the items might be stored on the land for use by the appellant in connection with a business conducted on other land.

The appellant failed to establish, on the balance of probabilities, that the use to which the land was being put during the offence period came within the uses approved by the Shire in 2006. As a result, even if the appellant had established that the land was being used for those purposes immediately prior to the promulgation of the Scheme, it could not have established that those uses were lawful and therefore came within the scope of any right of non-conforming use conferred by the Scheme.[41] (emphasis added)

1. The court rejected the appellant's two contentions which sought to overcome these conclusions. First, the appellant asserted that the 2006 approval should be construed as granting approval to use the Land for 'light industry'. However, the approval was not in those terms.[42] Second, the appellant relied on authorities which established that, in determining the ambit of a right of non-conforming use, the purpose for which land is being used should be characterised at a level of generality. As to that the court held:

No amount of generality of characterisation or liberality of reading can result in the use to which the land was being put during the offence period falling within the terms of the approval granted in 2006. The use to which the appellant's land was put during the offence period was entirely different from the use for which approval was granted in 2006. During the offence period, the land was predominantly used for the storage of various metal items. That storage was not ancillary to any metal fabrication, engineering or earthmoving business being conducted on the land. It was clearly not within the scope of the 2006 approval and, as a consequence, could not have been a use lawfully carried on immediately prior to the promulgation of the Scheme. The judge was correct to so conclude.[43] (emphasis added)

1. On 2 April 2019 the appellant commenced proceedings against the Shire. The appellant sought a declaration that it was entitled to continue to use the Land for certain permitted non-conforming uses in accordance with cl 4.8 of the Scheme. The appellant's pleaded case had various iterations. The last was a substituted statement of claim dated 13 November 2019 (SOC).
2. Paragraph 16 of the SOC provided:

Prior to and since at least October 2009, the Land has been used for the following purposes authorised by the 2006 Approval without any break in excess of six months (the Non-Conforming Uses):

16.1 engineering fabrication;

16.2 earth moving purposes including temporary storage of material incidental to that use, including but not limited to gravel and concrete;

16.3 transportable home construction including but not limited to engineered steel house stumps and steel floor supports, engineering of timber trusses and wall frames, incidental storage of materials including wood, steel, fabricated items and consumables for use in the fabrication and engineering of the above mentioned items;

16.4 sandblasting;

16.5 plant, equipment and commercial vehicle maintenance including incidental storage thereof;

16.6 processing, including cutting, cleaning, sandblasting and disassembling of steel and other metals for recycling and incidental storage thereof;

16.7 processing, including cutting, cleaning, sandblasting and disassembling, and sorting of metal flanges and bolts for further machining off site and incidental storage thereof;

16.8 processing, including cutting, cleaning, sandblasting, disassembling and sorting of various metal parts, including but not limited to vales, piping, traps and cages for further machining off site and incidental storage thereof;

16.9 processing, including cutting, cleaning and sorting of various steel, other metals, rubber, rubber pipe and hoses for fabrication and engineering uses and incidental storage thereof;

16.10 fabrication and repair of skip bins and incidental storage thereof;

16.11 repair and recycling of wooden pallets and incidental storage thereof;

16.12 the use of two sea containers for sandblasting purposes.

1. The Shire's defence pleaded as follows:
   1. [The Shire] denies each and every allegation in paragraph 16 of the statement of claim, and further says that:

(a) [the appellant] has used the Land solely or predominantly for storage other than for a purpose or purposes ancillary to the primary uses approved by the 2006 Approval;

(b) further and alternatively, if (which is denied) the Land was used for a purpose authorised by the 2006 Approval, [the appellant] discontinued such use by no later than 1 March 2014 for a period of not less than 6 months within the meaning of clause 4.10 of [the Scheme].

1. Further, [the Shire] says that in proceedings to which [the appellant] and [the Shire] were the parties, the Court of Appeal found that:

(a) [the appellant] failed to establish, on the balance of probabilities, that the use to which the Land has been put came within any of the uses approved by the 2006 Approval;

(b) further, during the period 1 March 2014 to 12 January 2015 the Land was predominantly used for the storage of various metal items, such storage not being ancillary to any of the primary uses approved by the 2006 Approval and therefore not within the scope of the 2006 Approval;

(c) further, the use to which the Land was put during the period 1 March 2014 to 12 January 2015 was entirely different from the use for which approval was granted by the 2006 Approval.

Particulars

[The Shire] relies on the reasons for decision of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 188.

1. [The Shire] says that by reason of the matters pleaded in the preceding paragraph:

(a) [the appellant's] allegations pleaded in paragraph 16 of the statement of claim and the claim for relief are not maintainable by reason of an issue estoppel in favour of [the Shire] in respect of those allegations and the relief claimed;

(b) further and alternatively, [the appellant] is prevented by Anshun estoppel from pleading or otherwise maintaining those allegations and claiming that relief;

(c) further and alternatively, [the appellant's] allegations and claim for relief herein are an abuse of process.

1. Accordingly, it is the findings identified at par 11 of the defence that are relied on by the Shire to make out its defences based on issue estoppel, Anshun estoppel and abuse of process. The pleading does not pinpoint the paragraphs within the 2018 CA Decision that are relied on. It is clear, however, that par 11(a) of the defence refers to [47] of the 2018 CA Decision[44] and pars 11(b) and (c) of the defence refer to [52] of the 2018 CA Decision.[45]
2. The Shire sought summary judgment dismissing the action pursuant to O 16 of the Rules of the Supreme Court 1971 (WA) (RSC). In the alternative the Shire sought that the SOC be struck out and the action be dismissed pursuant to O 20 r 19(1)(d) of the RSC. The grounds for the application were expressed as being:

The [appellant's] claim is directly inconsistent with the decision and findings of the Court of Appeal in Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118, is not maintainable in light of that decision, and the claim is barred by issue estoppel and/or Anshun estoppel and/or is an abuse of process.[46]

1. Accordingly, the Shire's summary dismissal application was grounded on the proposition that the appellant's claim was inconsistent with the Court of Appeal's decision and findings in the 2018 CA Decision.[47]

1. The Shire required leave to file its application as it was made out of time. The master was satisfied that leave should be granted.[48] There is no challenge to that aspect of the decision. Nor is there any challenge to the legal principles attending a defendant's application for summary judgment as were stated by the master.[49]
2. The master identified the relevant issue to be whether it was open to the appellant to maintain its plea of asserted lawful non-conforming uses of the Land in light of the 2018 CA Decision.[50]
3. After referring to the parties' submissions,[51] the master referred to some of the legal principles relevant to the doctrines of issue estoppel, Anshun estoppel and abuse of process.[52] There is no direct challenge to the legal principles as identified by the master. The master then referred to the findings of the Court of Appeal in the 2018 CA Decision.[53] The master recounted that the parties were, in effect, agreed that the central finding of the Court of Appeal for the purpose of the application before her was that reproduced at [2[54]] above54 - thereby echoing the Shire's defence at pars 11(b) and (c). The master characterised that as a finding that the use to which the Land was being put by the appellant - ie the storage of various metal items - was not a use for which approval was granted by the 20[55] approval.55
4. As to issue estoppel, the master then held:

In my view the Court of Appeal, in determining whether the use the subject of the Prosecution Notice was permitted by [the Scheme], was required to determine the totality of use of the Land by [the appellant]. It was a central issue because the Court of Appeal was required to determine whether the storage use by [the appellant] was ancillary to any other use of the Land by [the appellant]. The findings of fact at [22] of the Court of Appeal's reasons [reproduced in these reasons at [23] above] finally set out the use to which the Land was being put at that time. The Court of Appeal's role was not to make a finding in the negative - that is to what uses the Land were not being put by [the appellant] - such a finding is inherently illogical and potentially impossible. Rather the Court of Appeal was required to and did determine what use the Land was being put to by [the appellant]. No other uses can now be asserted by [the appellant].

[The appellant] is estopped from asserting alternate uses of the Land in these proceedings which are inconsistent with the findings of the Court of Appeal. The uses pleaded at par 16 of [the SOC] are inconsistent with the findings of the Court of Appeal.[56] (emphasis added)

1. The master also upheld the Shire's contentions based on Anshun estoppel[57] and abuse of process.[58] In summary the master held that the appellant's claim in par 16 of the SOC was inconsistent with this court's finding in the 2018 CA Decision.[59] Accordingly, the Shire's application for summary judgment was granted on the basis of each of issue estoppel, Anshun estoppel and abuse of process.[60]

Issue Estoppel, Anshun Estoppel and Abuse of Process

1. It is appropriate, before turning to the grounds of appeal, to outline the basis of the doctrines of issue estoppel, Anshun estoppel and abuse of process. The applicable principles of the doctrines relied on by the Shire in obtaining summary dismissal of the appellant's action inform consideration of the grounds of appeal insofar as the grounds direct attention to the proper characterisation of the determination and findings in the earlier litigation between the parties. The references within the grounds of appeal (see [67] below) to the relevant 'determination' and 'finding' of facts by the Court of Appeal in the 2018 CA Decision must be understood in the framework of what may properly ground an issue estoppel, Anshun estoppel or abuse of process.
2. Each doctrine is informed by the public interest in finality in litigation and the conclusiveness of judicial decisions: controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
3. Issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching a final judgment in an adversarial proceeding.[61] In Blair v Curran Dixon J (as his Honour then was) stated:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as a legal foundation or justification of its conclusion ...[62]

1. The requirements for the doctrine of issue estoppel to apply in a second set of proceedings are that:[63]
   1. The same question has been decided.
   2. The judicial decision which is said to create the estoppel was final.
   3. The parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
2. Accordingly, an issue estoppel may arise where a state of fact or law is alleged or denied, the existence of which is 'a matter necessarily decided' by a prior final judgment between the parties or their privies. However, only that which is 'legally indispensable to the conclusion' is finally precluded.[64] In Blair v Curran Dixon J explained that:

In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action ... [However] the estoppel [is not] confined to the final legal conclusion expressed in the judgment, decree or order. ... the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.[65]

1. Dixon J distinguished between:[66]
   1. Matters of fact or law which are 'fundamental or cardinal' to the prior judicial determination or 'necessarily involved' in it as its legal justification or foundation. In short, the 'immediate foundation' of the prior judicial determination.
   2. Matters of fact or law which are 'subsidiary or collateral'; for example, evidentiary facts - rather than ultimate facts - not being part of the 'essential foundation or groundwork' of the prior judicial determination. In short, 'no more than part of the reasoning supporting the conclusion'.
2. The former will ground an issue estoppel. The latter will not. Thus Fullagar J has stated: 'Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue' (emphasis added).[67] So too issue estoppel has been said to be confined to: (1) an issue of fact or law directly involved in a judicial determination; (2) a matter which has been put in issue and determined; or (3) an essential element in a cause of action or defence in proceedings in which judgment has been entered.[68]
3. The author of Spencer Bower and Handley: Res Judicata suggests that the question is whether the matter of fact or law was so fundamental that the prior judicial determination cannot stand without it.[69] There is support for that in Brewer v Brewer so far as Fullagar J (Dixon CJ agreeing) explained the decision in Hoysted v Federal Commissioner of Taxation in the following terms:[70]

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. As Somervell LJ said: 'He was therefore seeking to obtain an order which was on the face of it and in form in direct conflict with the order which had been made previously'.[71] The point in question had been 'the groundwork of the decision itself, though not then directly the point at issue'[72] (per Coleridge J).[73] (emphasis added)

1. The argument before and decision of the master assumed that an issue estoppel could arise out of a criminal conviction. That was also the basis on which the appeal was argued up to and including the appeal hearing.
2. Neither party developed the relevant legal principles as to the doctrines of issue estoppel, Anshun estoppel or abuse of process in its initial written submissions. At the appeal hearing, the court having raised some questions as to applicable principles, senior counsel for the Shire sought and was granted leave to file supplementary written submissions as to the potential application of issue estoppel and Anshun estoppel. The Shire subsequently filed supplementary written submissions contending that a judicial determination in criminal proceedings may be relied on as giving rise to an issue or Anshun estoppel in subsequent civil proceedings between the same parties or their privies.
3. The appellant contested that proposition in its responsive supplementary submissions - seemingly suggesting that, as a matter of law, there could never be an issue or Anshun estoppel in civil proceedings that followed a criminal conviction. However, there was no ground of appeal to that effect. There ought to have been were the appeal to have been fought and decided on that basis. Nor, beyond assertion, did the appellant's supplementary submissions grapple with the legal issues implicit in the proposition. For the reasons that follow we have not found it necessary to determine the point - or to consider whether the point should be determined given the absence of any relevant ground of appeal and the manner in which the litigation proceeded until the appellant's responsive supplementary submissions.
4. The accepted position in Australia is that an issue estoppel of the kind recognised in civil proceedings has no application to a case where both the earlier and the subsequent proceedings are criminal.[74] No party made submissions as to the principle of incontrovertibility and its application in civil proceedings to a prior conviction.[75] It is accepted that the principle of incontrovertibility applies in the case of a prior conviction.[76] The principle precludes a person, in subsequent civil or criminal proceedings, from impugning his or her earlier conviction.[77] Moreover, in this State there is some support for the proposition that, in the case of a judgment of conviction, the fact of the conviction and the material facts comprising the elements of the offence the subject of the conviction are matters that are incontrovertible between an accused and the State.[78]
5. Neither the parties nor the master referred to these principles. That may be because it would be difficult to contend that the appellant's claims in par 16 of the SOC impugned its conviction in any relevant sense. In any event, the application and the parties' contentions were put primarily in the framework of issue estoppel. Consequently, the question presented by the respondent's summary dismissal application was whether, as the application asserted and the master accepted, a finding in an earlier criminal proceeding could constitute an issue estoppel in a subsequent civil proceeding. There are some Victorian decisions which answer that question in the affirmative.[79]
6. As will be seen, the grounds of appeal are confined. There was no challenge before the master or in any ground of appeal before this court to whether a criminal conviction may give rise to an issue estoppel in a subsequent civil proceeding. Consistently with the manner in which the parties approached the litigation, we will assume, without deciding, that the doctrine of issue estoppel may apply in the present circumstances. Necessarily, however, identification of the issue or issues as determined by the earlier proceedings is informed by its character as a criminal proceeding that resulted in conviction.
7. Anshun estoppel is so-called in recognition of the relevant principle as expounded in Port of Melbourne Authority v Anshun Pty Ltd[80] (although sometimes[81] it is referred to as the 'extended principle' in Henderson v Henderson).[82] It is an extension of cause of action estoppel and issue estoppel and also potentially precludes assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. In Tomlinson v Ramsey Food Processing Pty Ltd the plurality referred to Anshun estoppel in these terms:

[It] operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.[83]

1. So described there will often be, at best, limited practical scope for the operation of the doctrine where the same parties or their privies are first involved in criminal proceedings and thereafter in civil proceedings. The requirement that the matter sought to be raised in the civil proceeding be 'so connected' (or, as put in Anshun itself, 'so closely connected')[84] with the subject matter of the first proceedings as to make it 'unreasonable' not to have raised the claim or issue in the anterior criminal proceeding will often be difficult to establish. For example, there are potentially numerous reasons why a party to earlier criminal proceedings directed to a discrete allegation may justifiably refrain from litigating an issue in those proceedings yet wish to litigate the issue in other proceedings.[85]
2. In supplementary submissions in this court, the Shire clarified that it relied on the doctrine of Anshun estoppel only to the extent that the allegations in par 16 of the SOC would, if raised in the earlier proceedings, have provided a defence to the prosecution by establishing the existence of a permitted non-conforming right use of the Land.[86] (Counsel for the appellant had previously accepted, at the appeal hearing, that if the appellant had been able to show that the storage as found was ancillary to a use in par 16 of the SOC, the appellant could not have been convicted of the relevant charge - this assumed that the relevant primary use was a lawful non-conforming use by reason of the 2006 approval.)[87] In so fastening on the appellant's apparent concession, the Shire's case for Anshun estoppel did not explain why it was unreasonable for the appellant to have failed to advance such a defence. Thus the case was seemingly put on the basis that the fact that the matter could have been raised as a defence in the earlier prosecution meant that it should have been so asserted in the sense that it was unreasonable not to do so. Such reasoning has recently been rejected by the High Court as involving 'fundamental error'.[88]
3. The Shire's post-appeal hearing clarification recognises the limited scope for any Anshun estoppel. It also exposes a number of difficulties with the order for summary dismissal so far as it was based on Anshun estoppel. First, this is not how the reliance on Anshun estoppel is pressed in pars 11 and 12 of the Shire's defence. Second, this is not how the summary dismissal application was couched. There it was said only that the claim was 'directly inconsistent' with the decision and findings in the 2018 CA Decision.[89] Third, this is not how the master determined the Anshun estoppel point. The master held that the appellant should have, and had an opportunity to, assert all of the uses to which the Land was being put during the offence period and it was unreasonable to now assert non-conforming uses where it did not seek to prove those uses in the earlier proceedings.[90] There was no consideration of whether and how, if at all, such uses might have provided a defence. More generally, the master held that the appellant's claim was inconsistent with the findings in the 2018 CA Decision and thus could not proceed.[91]
4. At least some of the uses alleged in par 16 of the SOC could not, prima facie, have provided any reasonably arguable defence. For example, it is not reasonably arguable that the storage as found could have been ancillary to the pleaded uses in pars 16.2 ‑ 16.4 and 16.12 of the SOC. Indeed, on the eventual findings of the Court of Appeal in the 2018 CA Decision, as discussed further below, the pleaded uses could not have been a defence at all so far as the storage as charged and found was a primary use of the Land - the storage was not incidental or ancillary to any other use.
5. The evaluative aspect of the Shire's defence based on Anshun estoppel is not addressed in the master's reasons. Nor is there explanation of why, in the context of the prosecution, the appellant should have asserted all of the uses to which the Land was being put during the offence period. There is, for example, no consideration of either the basis on which the appellant sought to defend the prosecution or how the uses now asserted in par 16 of the SOC might have provided a defence to the prosecution.
6. On one reading of the grounds of appeal it might be thought that, strictly speaking, they do not impugn the master's decision so far as it is based on Anshun estoppel. The grounds of appeal challenge the master's finding that the 2018 CA Decision provided for a conclusive determination of all uses of the Land. There can, however, only be an Anshun estoppel where a point was not determined in the earlier litigation - the claim or issue having, unreasonably, not been made or raised in the earlier litigation. Nevertheless, the Shire has not suggested that the master's summary dismissal determination can survive, based solely on Anshun estoppel, if one or more of the grounds of appeal are upheld. The Shire's restraint is explicable and is to be understood by the Shire's clarification as to the limited basis on which it relies on the doctrine of Anshun estoppel.
7. On appeal the Shire only relies on the doctrine of Anshun estoppel where and to the extent that an allegation in par 16 of the SOC would have provided a defence to the prosecution. However, the master made no finding in this regard - the primary reasons cannot be interpreted as having upheld the Shire's claim for summary dismissal on the clarified basis on which it was advanced in this court. Nor is there any notice of contention seeking to uphold the master's decision on the basis as is now articulated on appeal. Accordingly, the Anshun estoppel point has essentially become a non-issue on appeal. The basis on which the Shire seeks to sustain the Anshun estoppel on appeal is, for the reasons explained above, without foundation.
8. It follows that, if one or more one or more of the grounds of appeal are upheld, it is not necessary to give independent consideration to whether the summary dismissal of the appellant's claim may be sustained on the basis of Anshun estoppel.
9. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness as underpin both issue estoppel and Anshun estoppel. However, the doctrine is inherently broader and more flexible than issue or Anshun estoppel and is capable of application in any circumstance in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[92] In that respect:

[I]t has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.[93]

1. In Rogers v The Queen Deane and Gaudron JJ said, by way of example, that subject to identified exceptions it was an abuse of process 'to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial'.[94] It is obvious why that will ordinarily be the case. Where, in order to succeed, a later civil proceeding must establish that a subsisting criminal conviction is wrong, permitting the subsequent action to proceed with the consequent risk of inconsistent judgments will 'in the overwhelming majority of cases' bring the administration of justice into disrepute.[95]
2. Before the master, the alleged abuse of process was put by the Shire in terms that the appellant effectively sought to re-litigate something squarely put in issue in the earlier proceedings in respect of which comprehensive findings of fact were made against the appellant.[96] In this court, senior counsel for the Shire accepted that a contended for inconsistency was at the heart of the case for summary dismissal. Accordingly, if, on appeal, the court found that there was not an inconsistency in the manner as contended by the Shire, the abuse of process argument was accepted to add nothing to the analysis.[97]

1. There are two grounds of appeal:
   1. The Acting Master erred in law in finding that the Court of Appeal conclusively determined all uses carried out on the land at the date of prosecution (and conviction) when the Court of Appeal did not make such a determination; determining only that the uses identified in the Prosecution Notice were uses which were not permitted.
   2. Alternatively, if the Court of Appeal did, as a finding of fact, determine all uses carried out on the land at the date of prosecution (and conviction) then in doing so it was obiter as it was not necessary to nor essential to the determination of the question before the Court and the Acting Master should so have found.
2. Both grounds are defective. They fail to identify the paragraph number of the primary reasons where the alleged error is said to have occurred.[98] In written submissions the appellant said that, for ground 1, the relevant finding is that reproduced at [39[99]] above.99 With ground 2 the alleged error was said to arise from par 1 as reproduced at [[[100]](2021_107.html#_Ref '2. The defendant's application is dismissed.'

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Smargiassi Nominees Pty Ltd v Shire of Collie [2020] WASC 94 (Primary reasons).

[8] Part 4 of the Scheme provided for 'Zones and the Use of Land'. Included within pt 4 was a 'Zoning Table'. The Zoning Table designated, by an 'X', that in relation to Rural 1 zoned land each of 'Industry-general', 'Industry-light' and 'Storage' was a use that was not permitted by the Scheme. See also Scheme cl 4.3.1, cl 4.3.2 and Table 1 items 45, 46 and 77.

[17] Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238 (2017 GD Decision).

[19] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.

[21] 2017 GD Decision [118] - [119], [121].

[24] 2017 GD Decision [126], [128].

[25] 2017 GD Decision [126] - [127].

[26] Smargiassi Nominees Pty Ltd v Shire of Collie [2018] WASCA 118 (2018 CA Decision) [6], [40].

[31] 2018 CA Decision [22]. The finding can be seen as being derived from the magistrate's reasons: GAB 154 par 17(15). See also [23] - [24].

[32] 2018 CA Decision [23]. The finding can be seen as being derived from the magistrate's reasons: GAB 147 par 4(iv). See [17] above. Martino J made a concurrent factual finding: 2017 GD Decision [128].

[34] 2018 CA Decision [4]. This replicates the findings of Martino J at 2017 GD Decision [126], [128] as reproduced above, in part, at [20].

[36] 2018 CA Decision [35]. See also [36].

[44] See [28] above (refer to the italicised portion of par 3 thereof).

[45] See [29] above (refer to the italicised portions thereof).

[47] See also Respondent's submissions dated 29 January 2020 in CIV 1588 of 2019 pars 2, 24.

[53] Primary reasons [39]. See also [42].

[61] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22]. See also: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 510, 531 - 533; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466 ‑ 467.

[63] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [21] (referring to Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, 935); Tomlinson v Ramsey Food Processing Pty Ltd [90].

[67] Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1, 15. See also Jackson v Goldsmith (467).

[68] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 274.

[69] K R Handley QC, Spencer Bower and Handley: Res Judicata (5th ed, 2019) [8.24].

[70] Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290.

[71] Re Koenigsberg; Public Trustee v Koenigsberg [1949] 1 Ch 348, 360.

[72] R v Township of Hartington [1855] EngR 264; (1855) 4 El & Bl 780, 794; [1855] EngR 264; 119 ER 288, 293.

[74] Rogers v The Queen (254 - 255), (278); R v Carroll [2002] HCA 55; (2002) 213 CLR 635 [33], [90] ‑ [91]; Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 [51].

[75] See however: Rogers v The Queen (273), (277 - 278); Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [53] ‑ [56]; R v Carroll [35] ‑ [38], [40], [45], [47] ‑ [50], [86], [93]; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [77] ‑ [79]; Island Maritime Ltd v Filipowski [41] ‑ [43], [50] ‑ [52], [55] ‑ [57].

[76] R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308 [110] ‑ [111], [200] ‑ [202], [237], [274], [275].

[77] Rogers v The Queen (274); D'Orta-Ekenaike v Victoria Legal Aid [74] - [77]; Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529.

[78] Bennett v The State of Western Australia [2012] WASCA 70 [130]. See also [135].

[79] Cameron v James [1944] VicLawRp 58; [1945] VLR 113, 116; Carter v Walker [2010] VSCA 340; (2010) 32 VR 1 [79]. See also Stimac v Nicol [1941] VicLawRp 60; [1942] VLR 66.

[80] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598, 602 ‑ 604.

[81] See eg Tomlinson v Ramsey Food Processing Pty Ltd [22].

[82] Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; 67 ER 313.

[83] Tomlinson v Ramsey Food Processing Pty Ltd [22].

[84] Port of Melbourne Authority v Anshun Pty Ltd (604).

[85] See eg Port of Melbourne Authority v Anshun Pty Ltd (603); Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34 [31].

[86] Respondent's supplementary submissions dated 20 May 2021 par 20.

[89] See [34] - [35] above.

[92] Tomlinson v Ramsey Food Processing Pty Ltd [24] - [25].

[93] Tomlinson v Ramsey Food Processing Pty Ltd [26].

[94] Rogers v The Queen (274). See also: Hunter v Chief Constable of the West Midlands Police (541 - 545); Arthur JS Hall & Co v Simons [2002] 1 AC 615, 679. There are, however, circumstances in which re-litigation has been found not to be abusive. See eg K R Handley QC, Spencer Bower and Handley: Res Judicata (5th ed, 2019) [26.12].

[95] Arthur JS Hall & Co v Simons (685). See also (679), (706).

[96] Respondent's submissions dated 29 January 2020 in CIV 1588 of 2019 par 29. That was also, in substance, the way the master referred to the doctrine of abuse of process: Primary reasons [37]. See also Primary reasons [49] (there was an abuse of process as the uses of the Land pleaded in par 16 of the SOC 'are inconsistent' with the findings in the 2018 CA Decision).

[98] Compare Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(d).

[99] Appellant's submissions par 1 WAB 6.

[100] Appellant's submissions par 32 WAB 12.

[101] Appeal ts 3; appellant's submissions pars 14 - 23, 26 - 27 WAB 9 - 11.

[104] Appellant's submissions par 30 WAB 11 - 12.

[105] Appellant's submissions par 19 WAB 10.

[106] Appellant's submissions par 25 WAB 11.

[107] Appellant's submissions par 24 WAB 10.

[109] Respondent's submissions par 1 WAB 18.

[110] Respondent's submissions par 13 WAB 20.

[111] Respondent's submissions pars 16 - 17 WAB 20 - 21.

[112] Respondent's submissions par 23 WAB 22.

[113] Respondent's submissions pars 18 - 21 WAB 21 - 22.

[114] Appellant's submissions pars 38, 42, 44 WAB 13 - 14.

[115] Appellant's submissions par 40 WAB 13.

[116] Appellant's submissions pars 33 - 36 WAB 12. See also par 31 WAB 12.

[117] Respondent's submissions par 25 WAB 23.

[119] Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 217 (citing Foodbarn Pty Ltd v Solicitor‑General (1975) 32 LGRA 157, 161); Gull Petroleum v Nashville Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431, 447.

[120] Lizzio v Ryde Municipal Council (216 - 217) (citing Foodbarn Pty Ltd v Solicitor-General (NSW) (161)).

[121] The appellant and the Shire effectively accepted that these were the essential elements as established by the conviction. See appeal ts 6, 12.

[127] This formulation repeats the terminology employed by senior counsel for the Shire. More correctly, the storage had to be ancillary to one or more of the primary uses approved under the 2006 approval, namely, engineering, fabrication and earthmoving. See 2018 CA Decision [45].

[128] Appeal ts 14 - 16. Mention was made of the 2018 CA Decision at [4], [22], [41] - [43] (see above at [25], [23], [26] - [27] above).

[129] Appeal ts 16; respondent's submissions par 23 WAB 22. See Primary reasons [46] (reproduced at [39] above). The phrase 'totality of ... use' had its provenance in a submission on the part of the Shire before the master: ts 14 - 15.

[131] See Primary reasons [42] - [43].

[133] Primary reasons [46] (emphasis added).

[134] Reproduced at [23] above.

[136] Respondent's submissions pars 16, 18 - 21 WAB 20 - 22; appeal ts 14 - 16.

[137] See [23] - [24] above.

[138] 2018 CA Decision [21] (see [18], [24] above).

[139] See [26] - [27] above.

[140] Reproduced at [28] above

[141] Reproduced at [29] above.

[142] Primary reasons [40] - [41]. The relevant passage is reproduced at [29] above.

[144] See 2017 GD Decision [126], [128] (reproduced in part at [20] above).

[145] Reproduced at [25] above.

[149] Reproduced at [23] above.

[152] Appeal ts 4 - 5. See also appellant's submissions par 28 WAB 11.

[156] Primary reasons [54] - [55].