Smargiassi Nominees Pty Ltd v Shire of Collie

[2021] WASCA 107

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Defendant's application for summary judgment
4. › Whether prior criminal conviction finally determined use to which land was being put
5. › Whether claim for declaration inconsistent with decision and findings in earlier litigation
6. › Rules of Supreme Court 1971 (WA), O 16
1. Estoppel
2. › Issue estoppel
3. › Requirements for issue estoppel
4. › Whether issue necessarily decided in prior proceedings
5. › Distinction between ultimate facts and evidentiary facts
6. › Whether criminal conviction gives rise to issue estoppel in subsequent civil proceedings
1. Estoppel
2. › Anshun estoppel
3. › Scope of Anshun estoppel where prior proceedings were criminal
4. › Whether unreasonable not to have raised claim or issue in earlier criminal proceedings
5. › Whether matter could have provided a defence to prosecution
1. Practice and Procedure
2. › Abuse of process
3. › Collateral attack on criminal conviction
4. › Whether civil proceedings inconsistent with earlier criminal conviction
5. › Principle of incontrovertibility of convictions

Quick Take

A criminal conviction establishes only those matters necessarily decided as the foundation of the conviction — it does not conclusively determine all factual matters canvassed in the criminal proceedings. Where a criminal court found that a particular use of land was not within the scope of a planning approval, this does not preclude the landowner from asserting in subsequent civil proceedings that other uses of the land were lawful non-conforming uses, provided those assertions do not amount to a collateral attack on the conviction itself. Anshun estoppel has limited practical scope where the prior proceedings were criminal.