New South Wales Court of Appeal CITATION : Pittwater Council v Moore Development Group Pty Ltd & Anor [2004] NSWCA 278 HEARING DATE(S) : 9 August 2004 JUDGMENT DATE : 9 August 2004 JUDGMENT OF : Handley JA at 1; Beazley JA at 18; Ipp JA at 19 DECISION : 1. Summons for leave to appeal dismissed as incompetent.; 2. No order as to costs. CATCHWORDS : APPEAL - no right to appeal from interlocutory order which did not affect the final decision in the proceedings adversely to the appellant - RES JUDICATA - interlocutory decision - adverse to party who succeeded in the final decision - no issue estoppel for other proceedings Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Blair v Curran (1939) 62 CLR 464 CASES CITED : Commonwealth v Bank of New South Wales [1950] AC 235 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Pittwater Council (Claimant) PARTIES : Moore Development Group Pty Ltd (First Opponent) Anna Maria Romeo & Giuseppe Romeo (Second Opponents) FILE NUMBER(S) : CA 40830/03 B J Preston SC/J M Jagot (Claimant) COUNSEL : Submitting appearance (First Opponent) P Tomasetti/J Johnson (Second Opponents) Mallesons Stephen Jaques (Claimant) SOLICITORS : Ellis Reuben (First Opponent) Carbone Anderson (Second Opponents) LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 10710/02 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40830/03 HANDLEY JA BEAZLEY JA IPP JA 9 AUGUST 2004 PITTWATER COUNCIL v MOORE DEVELOPMENT GROUP PTY LTD & ANOR CATCHWORDS APPEAL – no right to appeal from interlocutory order which did not affect the final decision in the proceedings adversely to the appellant RES JUDICATA – interlocutory decision – adverse to party who succeeded in the final decision – no issue estoppel for other proceedings FACTS A Class 1 appeal to the Land and Environment Court from the deemed refusal of development consent was dismissed following a final hearing. The Court had earlier determined, adversely to the Council, a preliminary question relating to the existing use rights on the property. The Council filed a summons for leave to appeal from that interlocutory decision but the case had proceeded to a final hearing before the summons was heard. After the final decision in favour of the Council it sought to proceed with its summons for leave to appeal from the interlocutory order. HELD : Leave to appeal from the interlocutory order should be refused because it had not affected the final decision in the Class 1 appeal adversely to the Council and did not create any issue estoppel for other proceedings: Blair v Curran (1939) 62 CLR 464, 533 applied. ORDERS 1. Summons for leave to appeal dismissed as incompetent. 2. No order as to costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40830/03 HANDLEY JA BEAZLEY JA IPP JA 9 AUGUST 2004 PITTWATER COUNCIL v MOORE DEVELOPMENT GROUP PTY LTD & ANOR Judgment 1 HANDLEY JA : In a Class 1 appeal to the Land and Environment Court from the deemed refusal of a development consent the parties agreed to the separate determination of a question relating to the extent of existing use rights in the subject property. 2 On 29 May 2003 Lloyd J decided that question in favour of the appellants in the Land and Environment Court and the Council filed the summons for leave to appeal which is before the Court today. In the meantime however the Class 1 appeal has proceeded to a hearing on the merits. On 17 October 2003 final judgment was given and the appeal was dismissed. Counsel for the Council has very properly drawn this matter to the attention of the Court but nevertheless indicated that they wish to proceed. 3 The legal nature of an appeal is well recognised. As Lord Porter said in the Commonwealth v Bank of New South Wales [1950] AC 235 at 294: "An appeal is the formal proceeding by which an unsuccessful party seeks to have the formal order of the Court set aside or varied in his favour by an appellate court." 4 It is therefore clear that the Council has no right of appeal from the final order made in the Land and Environment Court. However it did lose the preliminary issue. This was an interlocutory order because it did not finally decide the rights of the parties in the Class 1 appeal and that appeal proceeded to a final hearing. 5 It is established law that the order of Lloyd J answering the preliminary question was interlocutory when it was pronounced (see Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 per Diplock LJ, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 360). 6 At that stage the interlocutory order created issue estoppels for the purpose of the subject proceedings but not necessarily for any other purpose. Whether the interlocutory decision would have that result would depend on the final decision in the proceedings. If the Class 1 appeal had succeeded the decision on the preliminary issue would have been fundamental to that decision and part of its legal justification or foundation, to use the language of Dixon J in Blair v Curran (1939) 62 CLR 464 at 533. 7 If the Class 1 appeal had succeeded the Council would have had an appeal as of right from the final decision and on that appeal it could have challenged the interlocutory order. It could have done this because that interlocutory order would have affected the final result. See Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. Since the final decision was in favour of the Council it had no right of appeal from the final order and no right in such an appeal to challenge this interlocutory order. 8 Mr Preston SC for the Council has endeavoured to persuade the Court that an appeal from the interlocutory order remains competent despite the final result in the proceedings. 9 There can be no doubt that if the scope of the existing use rights had been determined in the course of a single final hearing along with the planning issues the Council would have had no right of appeal from the final decision dismissing the appeal. Mr Preston's submission is that the result is different where the hearing at first instance has been split into preliminary and final hearings. 10 In my judgment this is not the result of splitting the hearing into parts. The proposed appeal from the interlocutory decision is neither more nor less competent than an appeal from an adverse decision on existing use rights as part of a final decision in favour of the Council. 11 The Council was concerned that the interlocutory order of Lloyd J might create an issue estoppel which would embarrass it in the enforcement of the planning laws at some future time. Mr Preston submitted that if this were so the Council must have a right to challenge that order to displace the estoppel. The short answer is that the interlocutory order will not create any issue estoppel for future proceedings because it was not fundamental to the final decision. 12 The point is covered in Spencer Bower, Turner and Handley on Res Judicata, 3rd ed, at p 107: "A decision of fact or law against the party who succeeded will not found an estoppel because it cannot be fundamental to the decision. It would be unjust to make such a decision the foundation of an estoppel for no appeal is available to the person against whom it was given." 13 This passage is supported by authorities cited in the footnotes. In my judgment therefore the proposed appeal for which leave is sought would be incompetent and the summons for leave to appeal should be dismissed. 14 SCR Pt 51 r 26 requires a respondent who objects to the competency of an appeal to lodge a notice of objection within twenty-one days. The rule does not apply of its own force to applications for leave to appeal but the Court can apply it by analogy. Such an application is really an a fortiori case because the claimant does not have an appeal as of right and seeks the permission of the Court to bring the appeal. 15 Rule 25(2) provides that if the respondent fails to comply with sub-r (1) and the appeal is dismissed as incompetent he shall not receive any costs of the appeal, unless the Court of Appeal otherwise orders. In the present case the Court itself raised the question of competency. 16 Mr Preston argued in support of competency. Mr Tomasetti, appearing for the opponent, has taken a more neutral position. He did raise a question of competency as to whether the proposed appeal raised any question of law. The Court is dismissing this summons as incompetent for reasons which were not raised by either of the parties. The incompetence of the proposed appeal became apparent once the Class 1 appeal was dismissed on the merits in October 2003. The costs that have been incurred since have been incurred by both parties as a result of their failure to appreciate that the proposed appeal had become incompetent and that the summons for leave to appeal now raised an academic question which could not properly be decided by this Court. 17 I would therefore propose that the following orders be made: 1. Summons for leave to appeal dismissed as incompetent. 2. No order as to costs. 18 BEAZLEY JA : I agree. 19 IPP JA : I agree. ********** Last Modified: 08/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.