Russo v Kogarah Municipal Council [1999] NSWCA 303

New South Wales Court of Appeal CITATION : Russo v Kogarah Municipal Council [1999] NSWCA 303 FILE NUMBER(S) : CA 40675/98 HEARING DATE(S) : 13 August 1999 JUDGMENT DATE : 13 August 1999

PARTIES : Frank Russo v Kogarah Municipal Council JUDGMENT OF : Meagher JA at 11; Stein JA at 1; Davies AJA at 12

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 10774/97 LOWER COURT JUDICIAL OFFICER : Sheahan J

COUNSEL : D Russo (Solicitor) - Appellant W Davison SC/G Newport - Respondent SOLICITORS : Deane Russo - Appellants Abbott Tout - Respondent CATCHWORDS : LAND AND ENVIRONMENT COURT - preliminary question of law - 'res judicata' - whether childcare centre proposal within 4(B) Light Industrial zoning - appeal and leave application heard concurrently ACTS CITED : n/a Henderson v Henderson (1843) 3 Hare 100 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 CASES CITED: Blair v Curran (1939) 62 CLR 464 Deputy Commissioner of Taxation v Edelsten (unreported, FCA, 10 March 1998) Wiest v Director of Public Prosecutions (1988) 23 FCR 472 DECISION : Leave to appeal granted; Appeal upheld in part and orders 1 and 2 made by the Land and Environment Court on 14 August 1998 set aside; Substituted order that appeal be dismissed as an abuse of process of the Land and Environment Court; The appeal before the Court of Appeal otherwise dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40675/98 MEAGHER JA STEIN JA DAVIES AJA Friday, 13 August 1999 Frank RUSSO v KOGARAH MUNICIPAL COUNCIL JUDGMENT 1 STEIN JA: This is a curious case in many ways. It is an application for leave to appeal, and if leave is granted, to appeal from orders made by Sheahan J in the Land and Environment Court. The first order was the answer to what was said to be a question of law filed on 21 January 1998. The question was whether or not the proposal (a childcare centre) is permissible within the 4(B) Light Industrial zoning pursuant to the Kogarah Planning Scheme Ordinance. Leaving aside the words 'or not' in the first line of the question (because it really does not make a great deal of sense) the answer given by his Honour was 'No'. 2 The second 'order' was as follows: The subject matter of the appeal is res judicata . 3 The applicant, represented by Mr Russo, solicitor, submits that the matter was not res judicata and that his Honour's answer to the first question was in some way affected by his approach to the issue of res judicata, as indicated by his reasons for judgment. 4 I should first mention that Mr Russo submits that his Honour was in error in not considering whether the proposal, which was for a childcare centre as defined in the Ordinance, was 'light industry' within the plan. His Honour cannot be criticised for this because, as his Honour said, although counsel then appearing for the claimant had flagged that he wished to argue the matter, it was expressly disavowed. This is plain from his Honour's judgment. The references are to be found at pages 18 and 19 of the judgment. It seems to me that the matter cannot be raised in this application for leave to appeal. It is an entirely new matter. The opportunity was there for it to be argued. The point was abandoned. 5 The second matter, arising from Mr Russo's submissions, which is also curious, is that he wishes to raise an issue concerning Development Control Plan No 15 of the Council, which concerns the regulation of brothels in the subject zone. That plan was made, so we are informed, in 1997. The proceedings before Sheahan J were heard in 1998 and determined on 14 August of that year. It is common ground that neither party drew attention to the Development Control Plan, and therefore his Honour did not deal with it. Mr Russo submits that the matter should be remitted to the Land and Environment Court so his Honour can deal with the matter. Apart from the fact that I am not persuaded that the Development Control Plan has any relevance to the issue for the court to determine, which was the permissibility of the childcare centre in the light industrial zone, we do not have the benefit of any reasons from his Honour relating to it. Again, this aspect of the appellant's argument should not be permitted to be litigated on the appeal. 6 This bring me to the two orders in question. As has been pointed out in argument, although question 1 purports to be a question of law, there must be serious doubt that it is a question a law. It seems to me that it is almost certainly a pure question of fact. It is not clear whether his Honour dealt with it on the basis of a question of fact. Rather, seems to have dealt with it in the context, at least in part, of his discussion of whether the subject proceedings were res judicata. I think so much is conceded by Mr Davison, of Senior Counsel, appearing on behalf of the opponent Council. Mr Davison indicated that he accepted that the question of consistency with the objectives of the 4(B) Light Industrial zone was not a question of law but a question of fact. In the circumstances, I am of the view that order No. 1 should go. I note that on its face the question purports to one of law, but that is not determinative. Courts should be careful to scrutinise preliminary questions put to them by the parties to ensure that they are questions of law and that it has sufficient agreed facts before it in order to determine the question. 7 The second issue relates to the finding of res judicata. His Honour's order says that the subject matter of the appeal is res judicata. His Honour observed that the application before him was conceded by Mr Russo's counsel as being, for all intents and purposes, identical with the two previous development applications in that they were submitted for the same purpose, that of establishing a childcare centre at No 1 Rocky Point Road, Kogarah, and that all three applications involved the same number of children and the same number of staff, although there were some small differences in internal layout and external changes. 8 Sheahan J recounted the fate of each of the first two applications. The first was heard by Assessor Nott, who dismissed the application on the basis that the proposed development was not consistent with the objectives of the relevant zone. From that decision there was no appeal. The second application, pursued for all intents and purposes on the same development application, was heard by Assessors Bly and Bull of the Court. Again, they found for the Council on the question of consistency with the zone objectives but there was an appeal on a question of law on that issue. This aspect of the appeal was dismissed by Bignold J, but his Honour raised the question of existing use and sent the matter back to the Assessors. The Assessors then submitted a question of law on existing use for a judge of the Court to determine. This question was determined by Pearlman CJ adversely to the claimant. 9 Then we come to the subject development application with which we are concerned. Mr Davison submits that, in effect, what his Honour was saying was that in the circumstances the virtual identity of the three development applications, and the fate of the first two in the Land and Environment Court, the third application was an abuse of process of the Court. He accepts, as I understand it, that it was not strictly a res judicata but submits that the circumstances are such that the court should refuse leave to appeal. I think that Mr Davison is correct in his interpretation of the judgment. The current application, being more or less precisely the same application as the first and the second, both of which were appealed and dismissed by the court, is an abuse of process of the Land and Environment Court, and ought not be permitted to proceed. In my opinion, it would be inappropriate for this court to leave order No. 2 concerning the res judicata finding on the record, because it could be liable to be misconstrued at a future point of time. It would have the capacity to cause confusion. In any event, it may be that in the area of planning law, the doctrine of res judicata may not be strictly applicable because one can well imagine that there could be changes within an area, whereby the requirements of industry for a childcare centre could lead to a finding of consistency with the objectives. I do not say that this would be the case but I concede that there could be a possibility that changes might lead to the issue of zonal consistency being argued. I would not like to see a situation left whereby an applicant, such as Mr Russo, is met with an order of res judicata. 10 In my opinion, the court should make the following orders: