SUPREME COURT OF QUEENSLAND

1. McMURDO P and THOMAS JA:  The appellant T M Burke Estates Pty Ltd ("Burke") is a land developer with a pending claim against the Council of the Shire of Noosa ("the Council") for compensation for injurious affection pursuant to s 3.5 of the Local Government (Planning and Environment) Act 1990 (“the Act”) by reason of changes made on 5 May 1995 to the Council's Planning Scheme affecting Burke's land. 

History of the Litigation

2. This claim has a considerable history. On 1 March 1996 Burke claimed compensation of $4,530,000 for diminution of the value of the land. No decision having been made by the Council within the prescribed time, on 15 April 1996 Burke appealed to the Planning and Environment Court against the Council's deemed refusal of the claim.

3. In August 1996 the Council made an application to the Planning and Environment Court for the determination of preliminary questions in the litigation. The Council claimed that compensation was not payable by reason of certain provisions in s 3.5(4) of the Act. That section contains seven subparagraphs, each of which states a basis upon which "compensation is not payable". At various stages the Council placed in issue the applicability of three of the subparagraphs of s 3.5(4), namely (c), (d) and (g). Much of the contention in the present appeal concerns the question whether, in the ensuing litigation concerning these preliminary points, all three subparagraphs or only subparagraphs (c) and (g) remained in issue. Shanahan CJDC upheld the Council's eventual submissions that subparagraphs (c) and (g) applied, and ordered in the following terms:

"IT IS ORDERED THAT compensation is not payable to the appellant by virtue of sections 3.5(4)(c) and 3.5(4)(g) of the Local Government (Planning and Environment) Act 1991."

4. However Burke successfully appealed to the Court of Appeal. Its order (2 September 1997) was made in the following terms:

"1. The appeal be allowed.

2. Preliminary questions answered as follows:

1. Compensation is payable, in accordance with ordinary principles of valuation, by comparing the value of the land, immediately before 5 May 1995, with the prospect it had that its likely future use was residential in a residential single unit zone with its value, immediately after 5 May 1995 without that prospect and with the likelihood that its future use would be public and private open space.

2. The planning scheme does not by its operation limit the size of allotments nor is it one under which the subdivision of land is restricted.

3. The respondent to pay the appellant's costs of the appeal."

5. Such an order could only have been made on the assumption that no defence was available to the Council under any part of s 3.5(4) of the Act. Plainly, subparagraph (i) of the order was a decision that compensation was payable by the Council to Burke, with a statement of principles applicable to the assessment. Subparagraph (ii) was an answer that specifically excluded the bases upon which ss 3.5(4)(c) and 3.5(4)(g) had been said to apply.

6. The parties then engaged in other litigious exercises including a skirmish over the question of validity of Burke's lease over the land in question. That involved an action in the Supreme Court and an appeal, resulting in recognition that such an issue should be determined in the proceedings pending in the Planning and Environment Court. Some delay occurred in prosecution of the claim for compensation while the parties corresponded, and while the Council litigated another claim by an appellant named Sparke. Burke's solicitors sought assurance from the Council's solicitors that in the further determination of the claim for compensation the Council would not be relying upon s 3.5(4)(d) as a defence to the claim. The Council delayed its answer until after the determination of Sparke v Noosa Shire Council,^[1] upon which it indicated that it did intend to rely upon such a defence.  Burke's solicitors then asserted that question had already been determined as between the present parties by the Court of Appeal decision referred to in para [4] above. 

7. Burke then brought a further application in the Planning and Environment Court for the determination of a further preliminary question. Shortly stated, Burke claimed that in the events that had happened, that question had already been litigated between the parties and that the Council was precluded by means of an issue estoppel or alternatively an Anshun^[2] estoppel from asserting that s 3.5(4)(d) of the Act prevented compensation being payable to Burke.  The learned judge in the Planning and Environment Court, Skoien SJDC, dismissed that application and the present appeal is Burke's appeal against that dismissal.

Issues for determination

8. Mr Doyle QC, for the Council, does not dispute that an issue estoppel may arise in relation to the determination of a preliminary point. The authorities support this concession.^[3]  A determination of liability, or of non-liability may well constitute a final judgment notwithstanding that other issues remain such as the quantification of damages. Mr Doyle further accepts that the issues submitted to the Planning and Environment Court and in turn to the Court of Appeal were capable of giving rise to an issue estoppel.  However he argues that there is no estoppel against the Council raising s 3.5(4)(d) as a defence.  The issue for determination then is the extent of the estoppel which arose.

9. In the event that an estoppel arose against the Council in relation to the s 3.5(4)(d) point by reason of this court's decision of 2 September 1997, Mr Doyle sought an order that that judgment "be corrected" by deleting the answer given to the first question referred to in the order. This application was initially said to be brought pursuant to the slip rule,^[4] but later written submissions place it upon a wider basis, namely the correction of error in the interests of justice.  These will be considered in due course.  However it is first necessary to consider whether the Planning and Environment Court erred in failing to hold that the Council is estopped from relying on a s 3.5(4)(d) defence.

Scope of the 1997 application and appeal

10. Mr Gore QC, on behalf of Burke, submitted that the issue between the parties at material times was whether compensation was payable to Burke pursuant to s 3.5(1) of the Act notwithstanding the preclusionary provisions of s 3.5(4). If that correctly characterises the issue and determination there can be no doubt that the Council is now prevented from again raising a defence based on s 3.5(4)(d).

11. Section 3.5(4) provides seven exclusions under which the Act declares that compensation is not payable. A similar structure is to be found in other statutory schemes which give a right of compensation for injurious affection.^[5]  Section 3.5(4), relevantly for present purposes provides:

"Compensation is not payable –

1. …
2. …
3. where an interest in premises is affected by a planning scheme which by its operation … limits the size of allotments …
4. subject to subsection (2), where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a building or other structure thereof for the particular purpose which is so prohibited or restricted.
5. …
6. …
7. in respect of any affection of an interest in premises by or pursuant to a planning scheme or a local law made by a local government under which the subdivision of the land is prohibited or restricted."

12. The necessary background facts against which the application and appeal are to be understood include the fact that Burke was at material times the lessee of land including a portion comprising 59.7 hectares. That land was at material times included in the Rural Pursuits zone under the relevant planning scheme. Under the applicable by-laws such land could not be subdivided into lots of less than 40 hectares, and therefore could not have been subdivided at all unless rezoned. Prior to 4 May 1995 the land was designated "Urban Area" under the Strategic Plan, with prospective use for "residential purposes comprising both permanent and tourist accommodation". However on 5 May 1995 the Strategic Plan designation for this land was altered to "Public and Private Open Space". Simultaneously, a Development Control Plan was introduced specifically in respect of this land, having as one of its stated objectives the institution of controls "that ensure that no forms of urban development are permitted within the development control area" and stating the preferred future use of the land to be "limited to open space purposes with an associated appropriate tenure providing for its permanent preservation and for certain road reservation purposes". The road reservation purposes included the widening of David Low Way. As Skoien SJDC observed, "The effect of these amendments was to put an end to any prospects Burke had of rezoning the land and subdividing it into residential lots".

13. The above provisions of 4 May 1995 were "provisions contained in a planning scheme" and were the basis of what was said to be a prima facie entitlement on Burke's part to compensation under s 3.5(1) of the Act. This much was clear from the claim which Burke made to the Council and brought in the Planning and Environment Court by way of "appeal" on 15 April 1996. The Council then filed an application on 20 August 1996, seeking:

"…the determination of a preliminary question of law arising out of the issues in this appeal.  Such preliminary question is whether compensation is payable in respect of the development of the land in accordance with Plan X329-280B (attached to the claim), when the appellant did not have a legal right to develop the land in accordance with that plan immediately before 5 May 1995 …"

14. The application as originally framed would seem to have been directed to a defence under s 3.5(4)(d). When the matter came to be heard by Shanahan CJDC the original application became paragraph (a) of the application and the following further paragraph was added:

"(b) whether compensation is payable in respect of development in accordance with that plan:

1. when under the planning scheme such development could not be carried out by reason of the fact that the scheme by its operation limits the size of allotments; and

2. when the affection relied upon is pursuant to a planning scheme under which the subdivision of land is restricted."

That would seem to have been directed to further defences under ss 3.5(4)(c) and 3.5(4)(g).

15. The Council's outline of argument did not develop any submission based on subparagraph (d) of s 3.5(4), but concentrated upon preclusion under subparagraphs (c) and (g). With respect to subparagraphs (c) and (g) the Council submitted that "in contrast with s 3.5(4)(d), the prospect of an approval which would overcome the provisions limiting the size of allotments or restricting subdivision, does not assist the claimant". In turn, the submissions of Burke's counsel noted that "Paragraph (a) of the application is no longer relied on by the Council" and that "the preliminary questions relate to the provisions of ss 3.5(4)(c) and (g)" of the Act. In due course, Shanahan CJDC upheld the Council's submissions^[6] and ordered in terms which have been set out above in para [3].

16. Mr Gore, for Burke, submitted that the Council's application could fairly be described as the seeking of a preliminary determination on the issue of liability, that is to say liability to pay compensation to Burke. It might equally be described as an application in the nature of a demurrer or as an application raising a point of law which on admitted facts shows the claim to be not maintainable. There were no traditional pleadings, but the parties had the benefit of having complied with a directions order and had provided particulars of the issues upon which they respectively relied. The reasons for judgment of both Shanahan CJDC and Skoien SJDC both show that there was no dispute as to the essential facts upon which the legal questions were to be determined. Clearly enough the respondent made an application to dispose of the claim, and initially it succeeded.

17. The determination of a preliminary point may be a useful means of avoiding litigation on other issues which will not need to be determined if the preliminary point is determined in a certain way. Such procedures have come to be used more frequently in recent years, and amendments have been made to rules of court to facilitate their use. However the unnecessary fragmentation of such applications can achieve the opposite effect and can make litigation a very tortuous and expensive process.

18. In this instance the Council initially raised reliance upon subparagraphs (c), (d) and (g). Obviously the other subparagraphs (a), (b), (e) and (f) were not arguably relevant. By the time of the hearing, the Council seems to have seen greater strength in subparagraphs (c) and (g) than in (d), and no argument was presented in support of subparagraph (d), either to Shanahan CJDC or to the Court of Appeal. But that is not to say that it did not remain in issue. We agree with the statement of Higgins J in Hoysted v The Federal Commissioner of Taxation^[7] that "a point or an issue may be actually controverted, may be an actual controversy, in actual litigation, although it is not argued or argued properly.  A point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects".

19. Having studied the history of this litigation, this particular application for the determination of preliminary questions seems to have been a quite understandable attempt on the part of the Council to determine whether any of the provisions of s 3.5(4) provided an answer to the claim. There was at no point, either in written submissions or oral argument, at which any attempt was made to reserve the question of s 3.5(4)(d) for later determination.

20. As quoted earlier, Shanahan CJDC's order declared that compensation was not payable, and his reliance upon subparagraphs (c) and (g) was sufficient for that conclusion. Although it was unnecessary to do so, the basis of that conclusion was incorporated into the order. By its notice of appeal Burke sought orders that the appeal be allowed and that "the determination of the preliminary question of law be that the payment of compensation to the appellant in respect of development in accordance with the plan of development is not excluded by s 3.5(4)(c) or s 3.5(4)(g) of the Act."

21. In the Court of Appeal, Burke's counsel, Mr Gibson QC, indicated that for the purpose of the preliminary point there was no dispute about Burke's satisfaction of the requirements of s 3.5(1), and that "the issue then is as to the scope of operation of s 3.5(4)". The presiding judge asked whether the court was only concerned with (c) and (g) "for the moment", and asked counsel for the Council (Mr Lyons QC) whether (d) had been abandoned or whether it would be argued. Mr Lyons responded:

"Your Honour, our position is that the claim which was made was made in respect of subdivision, not use, and on that basis we've brought the preliminary point and we don't depart from that.  We do say that it's odd that the appellant seems to suggest that really it's loss of use right but our contention is its claim is not a loss of use right.

DAVIES JA:  Well, are you relying on (d) or not?  That's all I'm asking you.

MR LYONS:  No, not on the basis we take.  No."

22. A similar point had been made in the written outline submitted on behalf of the Council, including the statement, "The proposed subdivision, not being a form of 'use' does not come within s 3.5(d) (sic)".

23. Mr Gibson proceeded to develop an argument that on the construction of s 3.5(4) below, the disentitling provisions would have such a wide operation as to largely strip the entitlement provision of efficacy. He contended that subparagraphs (c) and (g) should be construed as applying only when the new Planning Scheme provisions directly brought about such an effect. When Mr Gibson raised possible submissions on subparagraph (d) the learned presiding judge said, "No, no, you don't have to, Mr Lyons has said he's not going to raise them". Mr Gibson proceeded to make the same point as stated by Mr Lyons in disavowing reliance upon subparagraph (d), namely that a restriction or prohibition of urban development was not on the use of land for a particular purpose.  Authority was referred to which supports the distinction between measures affecting the use of land and those affecting the subdivision of land.^[8]  Mr Lyons then submitted that subparagraphs (c) and (g) would operate irrespective of the manner in which the Planning Scheme took effect, that is to say whether there was a direct prohibition by the introduction of a down-zoning or whether indirectly through policy provisions (such as in a Strategic Plan or Development Control Plan) which might have the effect of destroying a previously existing subdivisional potential.  The presiding judge observed that those claims that were not caught by (c) and (g) were going to be caught by (d).  Counsel when faced with this was unable to postulate any claim that could succeed.  Mr Lyons later reverted to his position in relation to subparagraph (d), observing that, "We don't contend that paragraph (d) applies … because its claim is based on a rezoning for subdivision purposes not for a change of use rights …"  The following exchange then occurred:

"DAVIES JA:  You don't need to explain yourself, you're not relying on it, that's fine.

MR LYONS:  Yes."

24. Some aspects of the judgment subsequently given by the Court of Appeal require comment. Plainly, the court interpreted the proceedings as seeking a determination whether compensation was or was not payable. Either it was right or it was wrong in that conclusion, but there does not seem to be any doubt as to the true intention of the court. This will be relevant to later consideration of whether the order can or should be corrected at this stage. Secondly, we do not interpret any of counsel's statements of "non-reliance" upon subparagraph (d) as a reservation of any right to bring forward such a point at a later time. Indeed, it would be a misuse of the procedure of the court to take the various provisions of s 3.5(4) piecemeal and proceed to litigate them one at a time. When this particular exercise in litigation is looked at objectively it can be seen to have been an attempt by the parties to settle the question of liability for compensation. Initially three of the exclusionary provisions were considered to be potentially applicable, but by the time of hearing counsel had decided that only two of them were worth arguing. That position was maintained on appeal.

25. We do not imply that counsel gave away a good point, or that Burke's claim, which is essentially based upon a loss of subdivisional potential, could properly be held to have been defeated under s 3.5(4)(d). Obviously something arising out of Sparke's case^[9] has engendered a desire in the Council to re-litigate the capacity of s 3.5(4)(d) to defeat the claim.  It may be mentioned in passing that the decision in Sparke is concerned only with the proper construction of the proviso to s 3.5(4)(d).  It was a "use case" and it did not involve any potential loss of subdivisional potential.  It was by concession of the parties, not by reasoning of the court, that the first part of s 3.5(4)(d) was assumed to be applicable. It may also be the case that both decisions, Burke and Sparke, produce troublesome consequences in reaching a workable interpretation of the compensation scheme provided by s 3.5.  Perhaps they are both wrong.  But the parties in each are bound by them, and prima facie the only means of correction is by appeal to the High Court.

26. In short, we interpret the conduct by the parties of this litigation as leaving open for determination the question whether compensation was precluded on any basis. The onus was on the Council to make good the application of any such exclusionary provision.^[10]  The Council raised three such provisions and argued two.  This is the basis upon which the Court of Appeal responded, observing in its reasons for judgment that, "Unless paragraphs (c) or (g) apply, as these are the only preclusion provisions relied on, the appellant is entitled to compensation for the injurious affection to its interests".^[11]  Although the order of the Court of Appeal went further than the order requested by Burke in the notice of appeal, it would seem to have been framed on its understanding that the overall question of entitlement to compensation was in issue.

27. Leaving aside for the moment the question whether the court erred in acting on that basis, there is one respect in which the court's order would clearly seem to have exceeded the issues which were presented to it by the parties for decision. This was the determination in subparagraph (i) of the order of the principles upon which the compensation was payable. Counsel were unable to refer to any document or oral submission which sought such a determination. However we did not understand Mr Doyle, for the Council, to raise any question about that particular point, which seems to depend upon the application of s 3.5(8)(a) of the Act. Mr Doyle's submissions were focused upon the fact that argument was addressed only to subparagraphs (c) and (g), and particularly upon the terms of the notice of appeal which tended to support his submission that the issues had been limited to those subparagraphs. However taking a wider view, we consider that the question of entitlement was litigated by the parties^[12] and that the final determination of that issue is in the judgment of the Court of Appeal dated 2 September 1997.

Issue estoppel

28. In the Planning and Environment Court Skoien SJDC concluded that no issue estoppel arose because there was no identity of issue, and that the s 3.5(4)(d) issue now sought to be determined was not fundamental to the previous determination. The first of these conclusions was based upon an interpretation of the proceedings as relating only to ss 3.5(4)(c) and (g). His Honour considered that the non-applicability of s 3.5(4)(d) could not have been decided in the absence of argument and a reasoned consideration of it. However for reasons stated above, including the onus upon a party which relies upon an exclusionary provision, we do not think that that view was valid. Further, the same reasoning as led the court to eliminate subparagraphs (c) and (g) must equally eliminate the possible application of subparagraph (d).

29. His Honour further observed that the Court of Appeal's decision was based on an assumption that there was no preclusion arising under para (d) and that compensation should therefore be assessed on ordinary principles. His Honour continued, "That assumption, which has now been tested by full argument before the Court of Appeal in Sparke, has proved to be incorrect".  Again we respectfully disagree for reasons earlier mentioned.^[13] 

30. His Honour further expressed the view that the principles of Hoystead v Commissioner of Taxation^[14] were not applicable when a preliminary point is litigated, stating "I am aware of no such principle in respect of preliminary point arguments".  However, as has been observed earlier,^[15] the principles of issue estoppel are applicable to a determination of the present kind.

31. Mr Doyle submitted that even if the Planning and Environment Court erred in its decision as to the nature of the issues litigated by the parties, that was an error on a question of fact. The present appeal is relevantly limited to the ground of error or mistake in law.^[16]  In our view the matters to which we have just referred disclose legal error sufficiently material to enliven the jurisdiction of this Court, and to make it reviewable for error of law.^[17]

32. We do not understand any reliance to have been placed upon the doctrine of res judicata. The only issues relied on by Mr Gore were issue estoppel and Anshun estoppel. The effect of issue estoppel is limited to those matters which are necessarily established as the legal foundation of a judicial conclusion.  The nature of such an estoppel was stated by Dixon J in Blair v Curran^[18] in the following passages:

"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 the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared."

"Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.  In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.  Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived."

"But matters of law or fact which are subsidiary or collateral are not covered by the estoppel.  Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion.  Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation."

33. In the present matter we consider that the actual issue of Burke's entitlement to compensation from the Council on the basis of commonly accepted facts was submitted to the court and finally determined. On this footing there is an estoppel as to the existence of the right, and all that remains open for the parties to litigate is the quantification or valuation of that right.

Anshun estoppel

34. If we are wrong in that conclusion, and if for example the applicability of s 3.5(4)(d) to the facts were regarded as a matter of law which is a step in a process of reasoning of the kind described by Dixon J in the last passage quoted above, consideration would need to be given to application of the Anshun principle.  Here we are concerned, very broadly speaking, with a matter which fails to become the subject of issue estoppel, but which would have done so had it been brought forward when it should have been brought forward.  The principles applicable to an extended estoppel of this kind were stated by the majority in Anshun in the following statement, after a reference to cases in which their Honours thought that the Henderson v Henderson^[19] principle had been taken too far:

"… there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.  Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.  In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."^[20]

35. In the present matter there could have been no justification for the Council holding back any point it could make under subparagraph (d) when it raised the applicability of subparagraphs (c) and (g). Our primary view is that all available defences under s 3.5(4) were litigated and that counsel, for reasons which seemed good, refrained from supporting a defence based on subparagraph (d). It seems to me to be a clear case of a defence that was so relevant to the subject matter of the preliminary point that it would have been unreasonable not to bring it forward. We would conclude that an estoppel of the kind referred to by Gibbs CJ, Mason and Aickin JJ at pages 602 to 603 of Anshun would arise in the present circumstances. 

36. It was further stated in Anshun that:

"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."^[21]

and

"The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding."^[22]

37. In our view an estoppel arises in the present case on this footing also. If the Council were now permitted to rely upon a defence based on section 3.5(4)(d) it would, if it succeeded in such a plea, achieve a judgment which conflicts with the earlier judgment of the Court of Appeal.^[23] 

Application to correct Court of Appeal order of 2 September 1997

38. There remains for consideration the Council's application to correct this court's order of 2 September 1997 by deleting the first part thereof, that is to say by deleting the declaration of entitlement. The present proceeding is, of course, not an appeal against that decision. The only court to which such an appeal could be brought is the High Court. The circumstances in which a court of record may alter its own judgments after they have been formally entered are very limited. The circumstances in which they may do so were recently reviewed in DJL v Central Authority.^[24]  This court recently considered the application of those principles in relation to its own process in Stubberfield v Paradise Grove Pty Ltd.^[25]  The following statement briefly states the position:

"Familiar examples where alterations may be made after recording of judgment are the correction of an accidental slip or omission, the rectification of the record of the court to ensure that the order truly represents what the court had intended to pronounce, orders by consent, and the setting aside of judgments fraudulently obtained (usually by the institution of a separate proceeding).  However these qualifications apart, the rule that is regarded as applicable for a Court of Appeal such as the New South Wales Court of Appeal is:

'Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in our opinion, beyond recall by that court.  It would, in our opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.' (per Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529, 530). 

This was cited with approval by the court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in DJL v The Central Authority at para 38)."^[26]

39. The effect of DJL v The Central Authority upon an earlier decision of this Court in R v Pettigrew^[27] was considered in Stubberfield, and need not be further discussed here.

40. Mr Doyle submitted however that this court has power to alter an order which deals with matters which were not submitted to the court for its determination.  That of course is based on an assumption contrary to our interpretation of the conduct of the litigation.  He cited a number of decisions including De L v Director-General, New South Wales Department of Community Services (No 2),^[28] Autodesk Inc v Dyason (No 2)^[29]  and Wentworth v Woollahra Municipal Council.^[30]  Mr Doyle also referred to DJL v Central Authority, above, with particular reference to statements by Kirby J^[31] and by Callinan J.^[32]  Before turning to these, it is desirable that the majority view (that of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) be understood. 

41. The issue in DJL v The Central Authority was the power of the Full Court of the Family Court of Australia to re-open an order after formal entry.  Having stated the position in the superior courts of record at Westminster and having referred with approval to the statement of Barwick CJ in Bailey v Marinoff  their Honours referred to the limited nature of the analogy that could be drawn from the courts of Westminster when those courts did not exercise appellate jurisdiction.  Their Honours found little assistance in general references to the position in "intermediate Courts of Appeal", observing that in each such court attention must be given to the text of the governing statutes.^[33]   Neither did their Honours consider it to be of assistance to consider the position with respect to the High Court in the exercise of its entrenched jurisdiction as a court of final appeal under the Constitution, or indeed with respect to other final courts of appeal such as the Privy Council or the House of Lords.

42. Their Honours then referred to DeL v Director-General^[34] and to four cases referred to in that case,^[35] (which cases are again relied on by the Council in its present submissions).  Their Honours warned against misconstruction of DeL v Director-General, pointing out that in that case and in all of the other authorities to which reference had been made the applications to re-open the orders were made before entry of the orders in question.  Their Honours observed, "There is, as yet, no decision of this court which turns upon the position after entry of its final orders".  After further consideration of the statutory structure and absence of conferral of special powers upon the Full Court of the Family Court, the court determined that the power of re-opening after entry of final orders made by that court was not necessary to protect its appellate functions conferred by the Family Law Act. 

43. The view of Callinan J was substantially consistent with that of the majority. Mr Doyle has referred us to the following passage, no doubt with particular focus on its last phrase:

"The decisions of the majority in Bailey and Gamser confirm that intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings.  Those authorities have not been doubted in this court.  The stated exceptions to this general rule are few and rarely found in practice.  On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing."^[36]

44. Kirby J, whilst recognising the need for strict limits upon the powers of courts to alter their own final judgments^[37] took a wider view than the other members of the court of the power of the High Court to amend its own judgments.^[38]  His Honour also took a wider view of the power of an intermediate Court of Appeal to do likewise, placing considerable store by the limited capacity of the High Court to review all such decisions, and the practical consideration that such courts are in effect the final appellate court for the vast majority of proceedings in their jurisdiction.^[39] 

45. Upon analysis, DJL v Central Authority does not support Mr Doyle's submission that the power of this court to re-open its previous orders is as wide as that of the High Court.  The ambit of the High Court's powers in this regard were not spelled out by the majority in DJL v The Central Authority, but it remains clear that the High Court would only vacate its own order in quite exceptional circumstances.^[40]  The circumstances in which this Court should amend a perfected judgment cannot be less stringent than those that would be necessary in the High Court which is plainly the court of last instance in this country.  The tenor of the majority judgment in DJL v Central Authority suggests that reference to cases such as DeL v Director-General are of limited assistance on the amendment of judgments after formal entry, and that considerable reserve would attach to alteration of such a judgment.  The majority resisted the temptation to recognise any greater power in the particular intermediate appellate court involved in that case than was necessarily to be implied from the relevant legislation.  Further, the undesirability of eroding the principle of finality was strongly affirmed.

46. There are some recognised situations where alteration may be made,^[41] and cases can be conceived in which it would be appropriate for this court to re-open an order if it were clear that a party had not been heard in connection with the making of an order.  One would however need to see a clear miscarriage of justice before doing so.

47. The present case in our view is not such a case. In the first place the original Court of Appeal was entitled to infer from the conduct of the litigation that the question of entitlement had been submitted by the parties for determination. In the second place the Council has waited for almost three years since the judgment was delivered before applying to amend it. Perceived changes in the law between that time and now would seem to have influenced it to seek the advantage of re-opening the issue. The temptation to allow a party to litigate its rights under changes that have happened since the matter was first raised is easily resisted when one considers the benefit of achieving finality in litigation. Furthermore, even in relation to the power of the High Court to amend its judgments before the judgment has been perfected, Mason CJ observed "… it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put.".^[42]  His Honour added, "The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases".

48. The position of the Council in the present matter may be measured against the familiar situation described by Kirby J of correction before perfection of an order –

"In the course of judicial life it can happen that a party, receiving reasons for a decision pronounced in open court, notices a fundamental mistake, quickly calls it to the attention of the judge or judges involved and, before perfection of the orders, gains correction and even reversal of the previously announced decision.  This has happened to most judges."^[43]

The contrast between that description and the Council's conduct here is striking.

49. As we see this matter, there would be a considerable injustice imposed upon Burke if the Council were now permitted to set aside the first part of the order. The Council would have a stronger case for setting aside that part of the order which states the principles upon which the assessment is to proceed, but we do not understand the Council to seek that particular deletion. The burden of its application is to obtain the right to relitigate the question of entitlement through reliance upon s 3.5(4)(d) of the Act.

50. The application should be dismissed.

Orders

51. The appeal should be allowed and the order of the Planning and Environment Court of 20 April 2000 be set aside and replaced with a declaration that the respondent Council is precluded from asserting that compensation is not payable to the appellant pursuant to s 3.5(4)(d) of the Local Government (Planning and Environment) Act 1990.  The respondent should pay the appellant its costs of the appeal to be assessed.  The respondent's application dated 2 August 2000 should be dismissed with costs to be assessed.

52. PINCUS JA:  The appellant ("T M Burke") seeks compensation for a loss of value of land at Marcus Beach.  It says that its interest in that land, as Crown lessee, has been injuriously affected by the coming into force of certain provisions in the planning scheme for the Shire of Noosa, by a development control plan and by an amendment of a strategic plan map.  The difference between the value of the land before these changes to planning provisions and its value after them is alleged to be over $4.5M.

53. Aspects of the claim have previously been before this Court twice, in 1997 and 1998. On this third occasion, the question is whether in view of this Court's 1997 decision the only point the respondent Council is allowed to argue about (subject to one exception) is the amount of compensation; that is, the appellant would have it that the Court has (subject to that exception) decided it is entitled to compensation, on a basis which has been stated by this Court, and so all that remains is to fix the amount. One can hardly feel any sympathy for the Council's position, since it has so acted as to at least contribute to the difficulty which has arisen. But as will appear, I have come to the view that it should be granted some relief, to correct what appears to me to be a defective order.

54. The respondent Council asserts that the 1997 decision had only limited operation on the question of liability for compensation. The formal 1997 order, dated 2 September 1997, includes the following:

"Compensation is payable, in accordance with ordinary principles of valuation, by comparing the value of the land, immediately before 5 May 1995, with the prospect it had that its likely future use was residential in a residential single unit zone with its value, immediately after 5 May 1995 without that prospect and with the likelihood that its future use would be public and private open space". 

55. The language used conveys the implication that the issue in the case was not whether compensation was payable, but rather on what basis it should be assessed; the basis of assessment was not in truth in question. Nevertheless, the part of the order quoted begins with the words "Compensation is payable" and this creates a problem for the respondent: if this Court has decided that compensation is payable then one would not expect it to be open to it or to the Planning and Environment Court to hold otherwise.

56. The second occasion, in 1998, on which the dispute required this Court's intervention was when the Council appealed to it, unsuccessfully, from an order made in the Supreme Court in proceedings begun by writ. In that action the Council was attempting to establish that the lease under which the property in question was held was invalid. This Court, on 3 November 1998, upheld the decision given at first instance, to refuse leave to amend the statement of claim. In that second case, this Court gave its judgment on the assumption that it was still open to the Council to contest liability for compensation; there was no contention put forward on behalf of T M Burke that the Court's judgment in the first (1997) case precluded any further challenge to the right to compensation.

Issue estoppel

57. In this third case, T M Burke challenges a decision of the Planning and Environment Court to the effect that the Council is not estopped by its conduct in, or the outcome of, the first (1997) case I have mentioned from raising against T M Burke's claim a contention which if accepted would defeat that claim.  As I have mentioned, the Court's order in the first case included the expression "Compensation is payable ...", but as I understand the argument for T M Burke, it does not contend that there exists a "cause of action estoppel" against the Council.  Ordinarily a cause of action estoppel (or "res judicata") arises when a right of action merges in the judgment on it;  but there does not appear to be any doubt that a declaratory judgment can be sufficient:  Spencer-Bower, Turner and Handley, "The Doctrine of Res Judicata", par 159.

58. It has been argued on behalf of T M Burke, not that the Council is absolutely precluded from resisting liability for compensation, but merely that it cannot resist the claim on a particular basis. Section 3.5(4) of the Local Government (Planning and Environment) Act 1990 ("the Act") makes compensation not payable in six defined circumstances, those which are relevant here being pars (c), (d) and (g).  These deal with prescriptions of the space about buildings and the like (c), with prohibitions or restrictions on the use of land (d), and with prohibitions or restrictions of subdivision (g).

59. The provision which is in dispute here is (d); the Council says and T M Burke denies that the Council is entitled to resist the claim for compensation on the grounds set out in (d). As to issue estoppel, it is T M Burke's argument that the first decision of this Court finally determined all three questions arising under s 3.5(4). This contention is put although no court has ever determined the applicability of par (d) to T M Burke's claim.  The par (d) question was the sole topic raised by the original application to the Planning and Environment Court which resulted in this Court's first (1997) decision;  but when the matter came before the Planning and Environment Court, it was invited to determine only the other two points – those arising under pars (c) and (g).

60. I see no particular reason for treating this Court's decision in the first case as necessarily embracing all the s 3.5(4) points. On issue estoppel, T M Burke must in my view succeed wholly or not at all; that is, it must succeed on the footing that the judgment given makes all defences to the claim unavailable, or it must fail. If the former view is adopted, that must be done on the basis that this Court's first judgment was necessarily based on the negation of all defences, i.e. that the Court could not otherwise have concluded that compensation is payable. Yet T M Burke does not rely on res judicata;  it does not say that the question of liability to pay compensation can by no means be re-litigated, once having been decided against the Council.  This is consistent with the implicit concession made by T M Burke in the second (1998) case, that it remained open to the Council to attack the validity of T M Burke's lease, as a basis for saying that there was no compensation payable.

61. We were referred to no authority which gives direct support to the issue estoppel case of T M Burke. And the decision of the High Court on this point in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597, 598 is in my respectful opinion against the appellant's contention;  I refer particularly to the sentence at 598:  "The defence of indemnity not having been raised, the judgment for Anshun did not involve a determination of that issue".

Anshun estoppel

62. The Council points to a number of circumstances which might be thought inconsistent with a conclusion that it unreasonably failed to raise par (d) as an answer to the claim for compensation, in the first case.  Examples are that in the first case T M Burke's notice of appeal asked for a determination to the effect that payment of compensation was not excluded by par (c) or (g), making no mention of par (d);  that the T M Burke outline of argument on appeal in the first case treated the appeal as relating only to pars (c) and (g), not (d);  and that T M Burke's written reply in that appeal opposed discussion of any question relating to par (d).

63. On the other hand, when invited by this Court at the hearing of the first case to say whether or not reliance was placed on (d), senior counsel for the Council answered "No, not on the basis we take. No.". The reference to the "basis" means, in the context, that the Council did not treat T M Burke's claim as relating to loss of use, a subject dealt with by par (d);  but counsel also remarked that it was thought "odd" that T M Burke seemed to suggest that the compensation claim was one for loss of use.  There was thus, as it appears to me, not a clear abandonment of any reliance on par (d).  It was abandoned only "on the basis we take", that not being inconsistent with the proposition that if that basis was held to be erroneous, (d) might have been relied on.  The course taken by the Council appears to me to have been an inconvenient one;  the basic facts not being in issue, it should either have abandoned (d) altogether or asked the primary judge and this Court for a determination of that provision's applicability.  And this Court, understandably, came away from the 1997 hearing with the impression that the only points of resistance to the claim in the first case, present or prospective, were under pars (c) and (g).

64. Nevertheless, I am of the respectful opinion that there is no Anshun estoppel, for the following reasons:

1. After the conclusion of the first case, there was a second appeal here which, as I have explained, was conducted on the assumption that a ground other than those raised in the first case could be put forward in answer to the claim.  T M Burke did not, it appears, believe that this Court's judgment in the first case finally determined the question of liability.

2. Whether or not there is held to be an Anshun estoppel, the question of the amount of compensation would remain to be determined.  If the court deciding that takes the view that the provisions the coming into force of which is the basis of the claim properly fall within par (d) (see the first sentence of AB 135) then it would perhaps be an embarrassment for the judge to have to award compensation as if that were not so.

3. There is a tendency in courts to decline to hold that an estoppel can defeat the operation of a statutory provision:  e.g. Webb Distributors (Aust) Pty Ltd v Victoria (1993) 179 CLR 15.  This point is related to (ii).

4. In the first case, the Council did not unequivocally abandon all reliance on (d), as opposed to disclaiming reliance on it on the basis of the Council's then understanding of the legal nature of the claim made.

Variation of 1997 Order

65. The order of this Court made in 1997 appears to have been based on the assumption that the only contentions which the Council proposed to advance against T M Burke's right to compensation were those based on pars (c) and (g).  To some extent, the Court's view might have been based on the rather obscure wording of the Council's application, which said in part that the relevant preliminary question was -

"whether compensation is payable in respect of development in accordance with [the relevant plan] ... when under the planning scheme such development could not be carried out by reason of the fact that the scheme by its operation limits the size of allotments ...".

What was, I think, meant could have been better expressed by asking whether the fact that the planning scheme limits the size of allotments has the result that no compensation is payable.  Instead of saying that the question was whether either of two particular considerations made compensation not payable, the application was so framed as perhaps to convey the idea that its outcome was to be a decision whether compensation was payable, or not.  In truth I think the intention of the parties was, at least initially, to have a determination in the first case whether one or both of two factors relied on by the Council destroyed the right to compensation – leaving it open to the Council, if it lost, to argue that for some other reason no right to compensation existed.

66. As I understood the argument before this Court, it appeared to be suggested that the Council was at first content to treat this Court's 1997 decision as putting an end to the question whether or not under s 3.5 compensation was payable, but changed its mind because of this Court's decision in Sparke v Noosa Shire Council, (1999) 107 LGERA 1;  Appeal No 435 of 1998, decided on 27 August 1999.  In that case an important point was decided – correctly as it appears to me – about the effect of s 3.5(5) on par (d).  But the decision in Sparke can hardly have caused a reconsideration by the Council of the attitude it adopted in the 1997 case before this Court, because par (d) was not in issue in that case.  The reason why the Council has, years after the decision of this Court in 1997, voiced dissatisfaction with the terms of the order made is unclear;  the Council could have, but has not, gone into evidence explaining the course of events.

67. But on the material we have, it does not appear to me to be a reasonable inference that either party treated this Court's 1997 decision as entirely concluding the question of liability for compensation. That they did not do so may safely be deduced from their conduct in the case this Court decided in 1998, which was argued on the basis that liability to pay compensation was still a live issue. This attitude is to some extent consistent with that adopted by the Council in the present case where, as I have mentioned, it has not argued that the cause of action for compensation has been extinguished by the terms of the order made in this Court in 1997.

68. In my respectful opinion, there is room for argument as to what the expressions used in this Court's 1997 order were intended to achieve. A possible view, which the parties acted on, is that read in its context the order was not designed to put an end to all disputes about the right to compensation: see Australian Energy Limited v Lennard Oil NL (No 2) [1988] 2 Qd R 230 at 232.

69. The most potent consideration against acceding to the Council's application to vary the 1997 order is the long delay; no evidence has been adduced to explain it. But the case is not one in which that delay has produced the consequence that T M Burke has acted on the assumption that the right to compensation was finally established in 1997;  it has, it appears, assumed the contrary.

70. In these circumstances, it is my view that the order made in 1997 should be varied, if the law permits that to be done. An important advantage of this course is that the possibility of a judge having to award T M Burke compensation, even if of the view that par (d) precludes such an award, will be avoided. I should add that, in saying this, I do not attempt to express any opinion as to the effect of par (d) in the present case, a point which neither side has asked us to determine.

71. The remaining question is whether this Court may lawfully alter the order made in 1997, which was entered on 1 October 1997. The extent of the inherent power to alter a final order, otherwise than by way of appeal, has been the subject of much authority. One point which is clear is that the onus on the party seeking an alteration becomes much heavier once the order is entered. Although well established, that principle is as a practical matter a little surprising; an order may well be entered very soon after it is made and before the parties have had a reasonable opportunity to study the reasons for judgment, and perhaps other documents, in order to determine whether the terms of the order are truly appropriate.

72. It can happen that an incorrect order "slips through" the scrutiny even of lawyers of supreme ability. A possible example is R v Gray, ex parte Marsh,  (1985) 157 CLR 351, where the order appears to have been drawn up on an assumption whose correctness required examination, namely that the case was not one in which a decision of the Federal Court of Australia was "called in question by appeal or otherwise":  s 23 of the Judiciary Act 1903 (Cth).

73. In Pantorno (1989) 166 CLR 466, the power of the Victorian Court of Criminal Appeal to alter one of its own judgments after it had been perfected was discussed, but not decided;  the principal judgment pointed out that "where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that Court".  In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, an application was made to vacate a judgment of the High Court on the ground of failure on the part of the Court to hear a party on the issues which turned out to be critical.  The case affirms that the High Court has jurisdiction to grant relief in such a case, but that conclusion depended at least in part on the fact that judgment had not been formally entered (308, 322).

74. In Nintendo Company Limited v Centronics Systems Pty Limited (1994) 181 CLR 134 at 168, a similar application failed on the merits, but the reasons assumed that the Court had jurisdiction to grant relief.  Postiglione (1997) 189 CLR 295, is also relevant, although it was about power to allow a second application for leave to appeal to a court of criminal appeal, not about power to vary an allegedly incorrect order.  This distinction was emphasised by Dawson and Gaudron JJ at 300:

"The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected ... Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected". 

Gummow J agreed with what Dawson and Gaudron JJ said about Pantorno (3­27).  In De L v Director General (1997) 190 CLR 207, the High Court, while dismissing an application to vary an order it had made, took the view that there was power to do so, treating the fact that there had been no formal entry as "an important consideration".

75. In DJL v Central Authority [2000] HCA 17, 74 ALJR 706 a question determined was whether the Family Court had inherent jurisdiction to set aside one of its own decisions.  It was held that the Family Court could not reopen perfected orders because the relevant statute did not expressly or implicitly give any such power and because it has not any relevant inherent jurisdiction;  but see Taylor v Taylor (1979) 143 CLR, at 7, 8, 16, 22.  The court recognised that where there is inherent jurisdiction a perfected order may, in some circumstances, be altered – par [34].

76. Although DJL was concerned only with the position of the Family Court and was decided on the basis that that court has no relevant inherent jurisdiction, it is possible to read dicta in the case as denying Australian appellate courts (other than the High Court) power to correct a perfected order in circumstances such as the present, i.e. where the terms of the order do not appear properly to reflect the scope of the matter for decision.  So understood, DJL would prevent this Court from correcting a perfected order determining an issue which the application before the Court did not raise and on which no submissions have been heard.

77. The reading of DJL just mentioned is most strongly supported by par 38 of the reasons:

"These qualifications apart, the rule was that restated by Barwick CJ in Bailey v Marinoff with respect to the New South Wales Court of Appeal:

'Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court.  It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed'".

Two points should be noted about the quotation from Bailey v Marinoff.  One is that it does not exclude from its scope even the qualifications to which the judges in DJL referred.  The second is that there what the Supreme Court attempted to do was to vary an order the making of which had been attended by no irregularity whatever;  for that reason Barwick CJ referred to the "recall" of the proceeding, which was simply re-heard, with a different outcome from that previously reached.

78. Lastly, I refer to the discussion in Allesch v Maunz [2000] HCA 40, 74 ALJR 1206 at 1211, of the power to set aside an order on the ground that there has been a miscarriage of justice, a party not having been heard.

79. It appears to me that, having regard to the previous decisions in the High Court demonstrating that there is inherent jurisdiction to make a variation of a perfected order on the ground that a party has not been heard, it would be going too far to treat DJL as attempting to set out exhaustively all the circumstances in which it can be proper to vary or correct a perfected order.  It is my respectful opinion that an order made by this Court, in which such a defect is brought to light after entry, is not beyond the scope of the Court's power to vary.  Here, the Council's case is analogous to that discussed in Allesch, and is that it was heard (in 1997) only on the issues identified in the Court documents, the Court's order on its face deciding other issues – or, more generally, that the 1997 order is capable of the construction that it put an end to all issues of liability for compensation.

80. It is unnecessary to reach a conclusion on another question which arises, namely whether s 8(1) of the Supreme Court of Queensland Act 1991 which gives the Supreme Court "all jurisdiction that is necessary for the administration of justice in Queensland" provides a basis for the variation sought;  but it is desirable to discuss that briefly.  One possible view of that provision is that it is essentially surplusage;  that it gives the Court no additional jurisdiction and its enactment was in reality unnecessary.  Strong reasons would be needed to justify construing an enactment of the legislature as bootless.

81. The observations of Wilson and Dawson JJ in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 617, concerning the corresponding New South Wales provision, give some support to this interpretation.  I discussed that case and others on the New South Wales provision in Pettigrew [1997] 1 Qd R 601 at 617, 618.  I referred to New South Wales authority, existing at the time of enactment of our s 8(1), which appeared to me to be inconsistent with the notion that s 8(1) makes no difference to the Court's power;  perhaps the clearest statement is that of Young J, quoted at p 617 of Pettigrew.  At 618 I also referred, without then quoting them, to observations of McHugh J in Herron v McGregor (1986) 6 NSWLR 246 at 252:

"Moreover, in the case of this Court the matter seems settled by the terms of the Supreme Court Act 1970, s 23, which provides that the 'Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'.  In Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 this Court saw s 23 as one of the two bases for the 'new' remedy of Mareva injunction. The jurisdiction conferred by s 23 is in my opinion wide enough to enable this Court to make orders protecting inferior courts and tribunals against any abuse of their processes". 

That passage was quoted in the principal judgment in the High Court in Walton v Gardiner (1993) 177 CLR 378 at 390, with apparent approval.  In the same set of reasons one finds reference to the acceptance in the Court of Appeal –

"... of the jurisdiction of the Court of Appeal, in the exercise of its general supervisory powers under s 23 of the Supreme Court Act 1970 (NSW), to intervene in an appropriate and exceptional case to stay proceedings in the Tribunal". (388)

The reasons given in Walton v Gardiner appear to me inconsistent with the doctrine that s 8(1) of the Supreme Court Act 1991 makes no significant difference to this Court's powers and the same may I think be observed, although with less force, of what was said in Reid v Howard (1995) 184 CLR 1 at 16-17.

82. The relevance of this discussion is to the decision of this Court in Stubberfield v Paradise Grove Pty Ltd [2000] QCA 299;  Appeal No 4796 of 2000, 28 July 2000.  It is not, with respect, clear to me that it is open to this Court, having regard to what was said in Walton v Gardiner and to the state of the law when our 1991 Act was passed, to hold that s 8(1) of that Act is to be given a very narrow construction.  In particular, it does not appear in accord with the cases to say that if no specific authority exists for taking a particular course under the inherent jurisdiction, then s 8(1) cannot fill the gap.

Summary

1. In my opinion neither of the varieties of estoppel relied on – issue estoppel or Anshun estoppel – exists.

2. I would vary the order made by this Court in 1997, on the respondent's application.

Orders Proposed

84. I would:

1. Dismiss the appeal from the order of the Planning and Environment Court dated 20 April 2000.

2. Vary the order of this Court, in Appeal No 7781 of 1996, made on 2 September 1997, by replacing par 2 of that order by the following:

"Preliminary questions answered as follows:  Neither paragraph 3.5(4)(c) nor paragraph 3.5(4)(g) of the Local Government (Planning and Environment) Act 1990 has the effect, in the circumstances of this case, of making compensation not payable to the appellant".

3. Give the parties leave to make written submissions, within 2 days, on costs.