Spencer v Commonwealth of Australia [2015] FCA 754
Citation:
Spencer v Commonwealth of Australia [2015] FCA 754
Parties:
PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA and STATE OF NEW SOUTH WALES
File number:
ACD 24 of 2007
Judge:
MORTIMER J
Date of judgment:
24 July 2015
Catchwords:
CONSTITUTIONAL LAW – s 51(xxxi) conditions financial assistance power under s 96 Constitution – Natural Resources Management (Financial Assistance) Act1992 (Cth) and Natural Heritage Trust of Australia Act1997 (Cth) characterised as laws supported by s 96 – s 96 agreements between Commonwealth and State pursuant to those laws – no contravention of s 51(xxxi) – consideration of practical operation and effect of federal laws, intergovernmental agreements and state legislation
CONSTITUTIONAL LAW – s 51(xxxi) Constitution – whether state laws restricting native vegetation clearance effected acquisition of bundle of rights in farming property – state laws effected “taking” of bundle of rights – no acquisition where proprietary rights sterilised by regulatory control without acquisition of a benefit or advantage of a proprietary nature – relevance of history of regulatory control – no contravention of s 51(xxxi)
TORTS – whether any action on the case for legislative and executive conduct alleged intentionally to inflict harm– no correspondence with Northern Territory v Mengel or James v Commonwealth – no cause of action established – no unlawful conduct – no intention to inflict harm – failure to prove any damage caused by impugned conduct
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Spencer v Commonwealth [2015] FCA 754
Case
[2015] FCA 754
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the case of Spencer v Commonwealth involved a dispute concerning the constitutionality of certain federal laws and the impact of those laws on the plaintiff's property, Saarahnlee. The plaintiff, Mr Spencer, alleged that the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth), along with associated intergovernmental agreements and state legislation, had resulted in economic losses for him due to restrictions on native vegetation clearance. The court was required to decide whether these federal laws, supported by section 96 of the Constitution, contravened section 51(xxxi), and whether there was any actionable harm caused by the legislative and executive conduct.
The court examined whether the state laws restricting native vegetation clearance constituted an acquisition of rights in the farming property, which would contravene section 51(xxxi) of the Constitution. It found that the state laws only imposed regulatory control without acquiring any benefit or advantage of a proprietary nature. The court also considered whether there was any actionable harm caused by the legislative and executive conduct, but found no correspondence with the principles established in Northern Territory v Mengel or James v Commonwealth. The court held that no unlawful conduct was established as there was no intention to inflict harm and no damage was proven.
The court dismissed Mr Spencer’s application, concluding that he had not demonstrated any economic losses due to the federal laws and associated agreements and legislation. The court noted that Mr Spencer had not sufficiently established the adverse effect of native vegetation clearance on the market value of his property, nor had he quantified any such effect. Additionally, the court found that Mr Spencer had not demonstrated that the proposed projects on his property were likely to proceed or that the respondents' conduct caused any economic losses.
In its orders, the court dismissed the application and directed the parties to file and serve submissions on the appropriate orders for costs, limiting the length of submissions to manage the proceedings efficiently.
Orders
Orders of the court
1. The application is dismissed.
2. On or before 21 August 2015 the respondents are to file and serve any affidavit evidence and submissions on the question of the appropriate orders for costs in this proceeding, submissions to be limited to ten pages for each respondent.
3. On or before 18 September 2015 Mr Spencer is to file and serve any affidavit evidence and submissions on the question of the appropriate orders for costs in this proceeding, submissions to be limited to 20 pages.
4. On or before 2 October 2015 the respondents are to file and serve any submissions in reply on the question of the appropriate orders for costs in this proceeding, limited to five pages for each respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Even if Mr Spencer had been given his requested four months of additional time, I do not consider he would have spent any more time looking at evidence, whether in affidavits or in documents, that he did not consider important or relevant to how he saw the case. If he did not consider something relevant, he did not bother much to recall it or deal with it. That was his approach, and it was very evident during the trial itself. Rather, what is more likely to have occurred (and did indeed occur after judgment was reserved and Mr Spencer had a chance to put in additional documents) is that he continued to find documents supporting his view of the case, rather than attending to evidence (such as that of Mr Connolly) which was unhelpful and adverse to his claims. I make these observations not to criticise Mr Spencer at all, but rather to explain why at various points during the proceeding when he protested about his lack of time or resources, I made what I considered reasonable accommodation for him, but otherwise determined that giving Mr Spencer more time would be unlikely to resolve his difficulties.WITNESSES AND EVIDENCEAdmissibility rulings On the evening of Friday 21 November 2014, shortly before trial was due to commence on Monday 24 November 2014, the State filed written objections to the affidavit evidence filed by Mr Spencer. The Commonwealth also filed a list of objections in court on Monday 24 November 2014, and both respondents developed those objections by way of oral submissions on 26 November 2014. Bearing in mind that Mr Spencer was self-represented, I relieved Mr Spencer from the need to respond in writing to those objections, but directed instead that he respond orally to a series of questions provided to him by email from my chambers on Monday 24 November 2014. Mr Spencer did so in court on 26 November 2014. As I noted in my judgment on the respondents’ objections, the objections, if all upheld, would remove most of Mr Spencer’s evidence: Spencer v Commonwealth [2014] FCA 1288, at [13]. As I noted at [13]-[14]: The general approach I have taken to the objections puts some considerable weight on the need for this matter, after seven years and the investing of considerable resources by all parties and the Court, to proceed as fairly and efficiently as possible, and without significant disruption, if that can reasonably be avoided. To disrupt the presentation of Mr Spencer’s case by removing the majority of his affidavit evidence, and that of his witnesses, would not serve the interests of the administration of justice generally, nor s 37M of the Federal Court Act in particular. It may prompt attempts by Mr Spencer to call new evidence, which, given his lack of legal experience, may not be any more compliant with the rules of evidence but will certainly delay the trial and increase the costs and resources expended by all involved, including the Court. It is apparent from various submissions made by Mr Spencer that he did not make the forensic judgments about the contents of the affidavit material. Indeed it appears he may not have been familiar at all with large parts of that evidence (other than his own) until he was required to deal with the objections.The infirmities said to exist in Mr Spencer’s evidence can in my opinion be dealt with as effectively through submissions as to weight and relevance. Indeed, that is a course likely to advance the interests of the administration of justice in the sense of providing a more intelligible route for Mr Spencer to understand and deal with what the respondents submit are the difficulties he has in proving his case. Adopting this approach in my opinion contributes to a fairer trial for Mr Spencer than refusing to allow him to adduce most of his evidence at all.
Decision
Reasons for decision
There was no attempt in Mr Spencer’s affidavit evidence (bearing in mind it was prepared at a time he was legally represented) to demonstrate in any sufficient way the course of Mr Spencer’s finances and what led to the mortgagee sale of Saarahnlee.Conclusion on economic loss Contrary to my findings and the opinions I have expressed in these reasons, assuming Mr Spencer could have surmounted all the other considerable hurdles evident from these reasons about his claims against the respondents, and assuming he could have reached a point at which the law required an assessment whether he had suffered any economic and non-economic loss and if so what was recoverable, I am not satisfied on the balance of probabilities that Mr Spencer has established any of the past or future economic losses he claims. In summary he has not established that:(1)the market value of Saarahnlee was adversely affected by the native vegetation clearance regimes, nor has he satisfactorily quantified any such adverse effect;(2)the monetary value of Saarahnlee should be calculated in some alternative way to market value;(3)the firewood project and the carbon project, as advanced by Mr Spencer, were likely to proceed on Saarahnlee;(4)the wind farm project would have gone ahead in the form proposed, or indeed in any other form contemplated by the evidence;(5)either of the respondents’ conduct in the scheme comprising the two federal laws, the intergovernmental agreements and the state legislation (as identified by Mr Spencer) caused or contributed to any of the past alleged economic losses he suffered for the wind farm, the firewood project or the carbon project to the stage each of them had in fact reached;(6)either of the respondents’ conduct in the scheme comprising the two federal laws, the intergovernmental agreements and the state legislation (as identified by Mr Spencer) caused or contributed to any of the future alleged economic losses he claimed for the wind farm, the firewood project or the carbon project; (7)he suffered past or future economic loss for any of the wind farm, the firewood project or the carbon project which could be precisely quantified so as to become the subject of a court order against either or both of the respondents;(8)either of the respondents’ conduct in the scheme comprising the two federal laws, the intergovernmental agreements and the state legislation (as identified by Mr Spencer) caused or contributed to the demise, or the non-commencement, of any of the other projects for Saarahnlee about which he gave evidence (although he appeared to have abandoned this, out of an abundance of caution I nevertheless consider I should make a finding on this issue);(9)he suffered past or future economic loss for any of the other projects for Saarahnlee about which he gave evidence, which could be precisely quantified so as to become the subject of a court order against either or both of the respondents (although he appeared to have abandoned this, out of an abundance of caution I nevertheless consider I should make a finding on this issue);(10)any of the other miscellaneous claims (such as fencing along the boundary of Saarahnlee with the Namadgi National Park) have any connection with either of the respondents’ conduct in the scheme comprising the two federal laws, the intergovernmental agreements and the state legislation (as identified by Mr Spencer), let alone any causal connection.