Spencer v Australian Capital Territory

Link copied
Case Copied 35 min read
CITATION: Spencer v Australian Capital Territory & Ors [2007] NSWSC 303
HEARING DATE(S): 19 March 2007
 
JUDGMENT DATE : 

4 April 2007
JURISDICTION: Equity Division
JUDGMENT OF: Brereton J
DECISION: As against NSW and Commonwealth, proceedings summarily dismissed. As against ACT, summary dismissal refused; Statement of Claim struck out with leave to replead.
CATCHWORDS: PROCEDURE – Summary disposal – Pleading – striking-out – Interim payment – whether court can be satisfied that plaintiff will succeed – high degree of certainty required - NUISANCE – incursions of feral animals from defendant’s land onto plaintiff’s land – REAL PROPERTY – whether State can make laws restricting use of land held in fee simple.
LEGISLATION CITED: Commonwealth Constitution s 51(xxxi)
(CTH) Judiciary Act 1903, s 64
(NSW) Civil Procedure Act 2005, s 82
(NSW) Land Acquisition (Just Terms Compensation) Act 1991
(NSW) Native Vegetation Act 2003
(NSW) Uniform Civil Procedure Rules 2005 rr 13.4, 14.28
(SA) Valuation of Land Act 1971
CASES CITED: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27
Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Burns v Queensland [2006] QCA 235
Commonwealth v Tasmania (1983) 158 CLR 1
CSR Ltd v Valuer-General (1977) 17 SASR 446
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dore v Penny [2006] QSC 125
Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399
Fejo v Northern Territory (1998) 195 CLR 96
Gargan v Commonwealth Bank of Australia [2004] FCA 641
Gargan v Director of Public Prosecutions (2004) 144 A Crim R 296
Gargan v Magistrate Dillon [2005] NSWSC 1106
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Glasgow v Hall [2007] QCA 19
Ibralebbe v The Queen [1964] AC 900
Jago v District Court of New South Wales (1989) 168 CLR 23
Jerusalem-Jaffa District Governor v Suleiman Murra [1926] AC 321
Little v State of Victoria [1999] VSCA 113
McKernan v Fraser (1931) 46 CLR 343
Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628
Penthouse Publications Ltd v McWilliam (NSWCA, 14 March 1991, unreported, BC9102223)
Perpetual Trustee Co Limited v Valuer-General (2006) 95 SASR 338
Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (Hunt J, 6 May 1980, unreported)
Pye v Renshaw (1951) 84 CLR 58
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489
Riel v The Queen (1885) 10 App Cas 675
Spellson v George (1992) 26 NSWLR 666
Stockwell v State of Victoria [2001] VSC 497
Tampion v Anderson [1973] VR 321
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Walton v Gardiner (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wickstead v Browne (1992) 30 NSWLR 1
Willis…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Spencer v Australian Capital Territory and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2007] NSWSC 303
Decision Date

CaseChat Overview and Summary

The case of Spencer v Australian Capital Territory involved a dispute between the plaintiff, Spencer, and the defendant, the Australian Capital Territory. The plaintiff sought to have nuisance claims relating to incursions of feral animals from the defendant’s land onto the plaintiff’s land struck out, while also challenging the legality of the defendant’s legislative framework restricting the use of land held in fee simple. The matter was heard in the Federal Court of Australia.

The primary legal issues the court addressed were whether the court could be satisfied that the plaintiff would succeed in the nuisance claims, requiring a high degree of certainty, and whether the defendant’s legislative framework, which restricted the use of land held in fee simple, was valid. The court needed to determine if the plaintiff's claims had merit and if the defendant's legislative measures were consistent with the constitutional framework.

In its decision, the court found that the plaintiff's claims were not likely to succeed due to insufficient evidence to meet the high degree of certainty required for summary disposal. The court held that the legislative framework of the defendant, which imposed restrictions on land use, was valid as it did not contravene any constitutional principles. Consequently, the court dismissed the plaintiff's claims and ruled in favour of the defendant.

The court ordered that the plaintiff's claims be struck out and that the defendant was not required to make any interim payment to the plaintiff. The decision upheld the constitutionality of the legislative measures put forth by the defendant and rejected the plaintiff’s claims of nuisance.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.