Spencer v Commonwealth
[2015] FCA 754
•24 July 2015
FEDERAL COURT OF AUSTRALIA
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
Legislation: Constitution cl 5; ss 51(xxxi), 61, 96, 106, 116
Evidence Act 1995 (Cth) ss 76, 136
Federal Court of Australia Act 1976 (Cth) s 31A
Natural Heritage Trust of Australia Act1997 (Cth) ss 3, 8, 10, 15, 16, 17, 19, 30, 31, 40Natural Resources Management (Financial Assistance) Act1992 (Cth) ss 3, 4, 5, 7, 8, 9
Federal Court Rules 2011 (Cth) r 4.05
Carbon Rights Legislation Amendment Act 1998 (NSW)
Clean Air Act 1961 (NSW)
Clean Waters Act 1970 (NSW)
Conveyancing Act 1919 (NSW) ss 87A, 88AB, 88EA, Pt 6 Div 4
Crown Lands (Continued Tenures) Act 1989 (NSW) ss 3, 6; Sch 2 cll 6(2)(b), 6(3); Sch 6 cll 2(2)(b), 2(3)(a)Crown Lands Legislation Amendment (Carbon Sequestration) Act 2006 (NSW)
Endangered Fauna (Interim Protection) Act 1991 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) Pt 3 Div 2, Pt 3A
Forestry Act 1916 (NSW) s 27(1)
Forestry, Soil Conservation and Other Acts (Amendment) Act1972 (NSW)
National Parks and Wildlife Act 1974 (NSW) ss 118A, 118B, 118C, 118D
Native Vegetation Act2003 (NSW) ss 3, 12, 19, 20, 22, 23, 29, 32(b), Pt 4
Native Vegetation Conservation Act1997 (NSW) ss 3, 5, 6, 7, 9, 10, 11, 12, 14, 18, 21, 24, Pts 2, 3, 4, 5, Pt 7 Div 1
Soil Conservation Act 1938 (NSW) Preamble, ss 3, 21A, 21B, 21C, 21D, 22A, 22B, 22C
Threatened Species Conservation Act 1995 (NSW)
Native Vegetation Regulation 2005 (NSW)
State Environmental Planning Policy 46 – Protection and Management of Native Vegetation (10 August 1995) cll 2, 3, 5, 6(1), 7, 11; Schs 1, 3
State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation (Amendment No 1) (22 December 1995) cl 7Kyoto Protocol to the United Nations Framework Convention on Climate Change (11 December 1997). Opened for signature 16 March 1998. 2303 UNTS 162 arts 3, 5, 7, 8, 25(3), Annex B. (Entered into force 16 February 2005).
United Nations Framework Convention on Climate Change (9 May 1992). Opened for signature 4 June 1992. 1771 UNTS 107 arts 2, 4(1)(a), 12, 17, 23. (Entered into force 21 March 1994).
Kyoto Protocol Conference of the Parties, Decision 16/CMP.1, “Land Use, Land-Use Change and Forestry” (UN Doc FCC/KP/CMP/2005/8/Add.3, 30 March 2006).Constitution of the United States of America Fifth Amendment
Cases cited: Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; 202 CLR 133
Alcock v Commonwealth [2013] FCAFC 36; 210 FCR 454
Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; 240 CLR 242
Attorney-General (Cth) v Schmidt [1961] HCA 21; 105 CLR 361
Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651
Attorney-General (Vic) (Ex rel Black) v Commonwealth [1981] HCA 2; 146 CLR 559 (D.O.G.S. Case)
Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; 177 CLR 106
Australian Softwood Forests Pty Ltd v Attorney-General (NSW), Ex rel Corporate Affairs Commission [1981] HCA 49; 148 CLR 121
Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; 176 CLR 480
Bank of NSW v Commonwealth [1948] HCA 7; 76 CLR 1
Barber v Valuer-General (1969) 17 LGRA 409
Beaudesert Shire Council v Smith [1966] HCA 49; 120 CLR 145
Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600
British American Tobacco v Commonwealth [2003] HCA 47; 217 CLR 30
Clunies-Ross v Commonwealth [1984] HCA 65; 155 CLR 193
Collins v Livingstone Shire Council [1972] HCA 35; 127 CLR 477
Commonwealth v Oldfield [1976] HCA 17; 133 CLR 612
Commonwealth v Tasmania [1983] HCA 21; 158 CLR 1 (Tasmanian Dam Case)
Commonwealth v WMC Resources Ltd [1998] HCA 8; 194 CLR 1
Deputy Federal Commissioner of Taxation (NSW) v WR Moran Pty Ltd [1939] HCA 27; 61 CLR 735
Esposito v Commonwealth [2014] FCA 1440Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297
Gilbert v Western Australia [1962] HCA 7; 107 CLR 494
Health Insurance Commission v Peverill [1994] HCA 8; 179 CLR 226
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; 240 CLR 140
James v Commonwealth [1928] HCA 45; 41 CLR 442
James v Commonwealth [1936] AC 578; 55 CLR 1
James v Commonwealth [1939] HCA 9; 62 CLR 339
James v South Australia [1927] HCA 32; 40 CLR 1
JT International SA v Commonwealth [2012] HCA 43; 250 CLR 1 (Plain Packaging Case)
Kiddle v Deputy Federal Commissionerof Land Tax [1920] HCA 17; 27 CLR 316
Krugerv Commonwealth [1997] HCA 27; 190 CLR 1
Kuczborski v Queensland [2014] HCA 46; 314 ALR 528
Lee v Commonwealth [2014] FCAFC 174; 315 ALR 427
Lingle v Chevron USA Inc 544 US 528 (2005)
Minister of State for the Army v Dalziel [1944] HCA 4; 68 CLR 261
Mutual Pools & Staff Pty Ltd v Commonwealth [1994] HCA 9; 179 CLR 155
New South Wales v Commonwealth [2006] HCA 52; 229 CLR 1 (Work Choices Case)
Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; 190 CLR 513
Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; 181 CLR 134
Noone v Operation Smile (Australia) Inc [2012] VSCA 91; 38 VR 569
Northern Territory v Mengel [1995] HCA 65; 185 CLR 307
Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation [1970] HCA 36; 121 CLR 154
Pape v Federal Commissioner of Taxation [2009] HCA 23; 238 CLR 1
PJ Magennis Pty Ltd v Commonwealth [1949] HCA 66; 80 CLR 382
Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
Pye v Renshaw [1951] HCA 8; 84 CLR 58
R v Hughes [2000] HCA 22; 202 CLR 535
R v Ludeke; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1985] HCA 84; 159 CLR 636
Scriven v Sargent [2014] QCA 133; 309 ALR 191
Sharman v Evans [1977] HCA 8; 138 CLR 563
Smith v ANL Ltd [2000] HCA 58; 204 CLR 493
South Australia v Commonwealth [1942] HCA 14; 65 CLR 373 (First Uniform Tax Case)
Spencer v Australian Capital Territory [2007] NSWSC 303
Spencer v Commonwealth (1907) 5 CLR 418
Spencer v Commonwealth (No 2) [2008] FCA 1378
Spencer v Commonwealth(No 3) [2012] FCA 637
Spencer v Commonwealth (No 4) [2012] FCA 1142
Spencer v Commonwealth [2008] FCA 1256
Spencer v Commonwealth [2009] FCAFC 38; 174 FCR 398
Spencer v Commonwealth [2009] HCATrans 126
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118
Spencer v Commonwealth [2010] HCATrans 55
Spencer v Commonwealth [2012] FCAFC 169; 206 FCR 309
Spencer v Commonwealth [2014] FCA 1117
Spencer v Commonwealth [2014] FCA 1234
Spencer v Commonwealth [2014] FCA 1288
Spencer v NSW Minister for Climate Change, Environment and Water [2008] NSWSC 1059
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Telstra Corporation Ltd v Commonwealth [2008] HCA 7; 234 CLR 210
Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101
Trade Practices Commission (Cth) v Tooth & Co Ltd [1979] HCA 47; 142 CLR 397
Tunnock v Victoria [1951] HCA 55; 84 CLR 42
Victoria v Commonwealth [1926] HCA 48; 38 CLR 399 (Roads Case)
Victoria v Commonwealth [1957] HCA 54; 99 CLR 575 (Second Uniform Tax Case)
Waterhouse v Minister for the Arts and Territories [1993] FCA 548; 43 FCR 175
Williams v Commonwealth (No 1) [2012] HCA 23; 248 CLR 156
Wurridjalv Commonwealth [2009] HCA 2; 237 CLR 309Saunders C, “Towards a Theory for Section 96: Part I” (1987) 16 MULR 1-31
Saunders C, “Intergovernmental Agreements and the Executive Power” (2005) 16 PLR 294-313Dates of hearing: 24-28 November, 1-4, 9 and 11 December 2014 Date of last submissions 20 February 2015 Place: Sydney (delivered by video-link from Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 802 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr R Lancaster SC with Mr C Lenehan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr J Kirk SC with Ms A Rao Solicitor for the Second Respondent: Crown Solicitor (NSW)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
ACD 24 of 2007
BETWEEN: PETER JAMES SPENCER
ApplicantAND: COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
24 JULY 2015
WHERE MADE:
SYDNEY (DELIVERED BY VIDEO-LINK FROM MELBOURNE)
THE COURT ORDERS THAT:
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).
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
ACD 24 of 2007
BETWEEN: PETER JAMES SPENCER
ApplicantAND: COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
JUDGE:
MORTIMER J
DATE:
24 JULY 2015
PLACE:
SYDNEY (DELIVERED BY VIDEO-LINK FROM MELBOURNE)
REASONS FOR JUDGMENT
INTRODUCTION AND SUMMARY
Mr Peter Spencer commenced this proceeding on 12 June 2007. When commenced, the Commonwealth was the only respondent. The State of New South Wales was joined as a respondent on 12 November 2010. The application and statement of claim sought various forms of declaratory relief and damages arising out of what was alleged to be the acquisition of property held by Mr Spencer. The acquisition was alleged to have occurred as a result of the State enacting vegetation clearance laws pursuant to agreements between the State and the Commonwealth to do so, in order that the Commonwealth could meet its targets under the Kyoto Protocol to the United Nations Framework Convention on Climate Change of 11 December 1997 and the State could secure Commonwealth funding for various policy initiatives on environmental reforms, especially in relation to restricting native vegetation clearance. The procedural history of the matter is considerable, but ultimately the trial was conducted effectively and efficiently by all concerned.
For the reasons set out below, there will be orders dismissing the application.
In summary, I have concluded that the two impugned federal laws should not be characterised as laws with respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving four intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention of s 51(xxxi).
In the July 2007 decision of the NSW Rural Assistance Authority that Mr Spencer’s farm was not commercially viable because of the impact of the State’s native vegetation laws there was what can be characterised as a “sterilisation” or a “taking”, but it was by the State, and there was no acquisition by the State nor by any other person of an interest or benefit of a proprietary nature in the bundle of rights Mr Spencer held in his farm. If, contrary to my findings there had been an acquisition of his bundle of rights in Saarahnlee, Mr Spencer was offered just terms in November 2007 by the State’s offer to pay the then properly assessed market value for Saarahnlee.
I have found Mr Spencer has not proven the existence of any “informal arrangement” between the Commonwealth and New South Wales. Nor does he have any private right of action in respect of the respondents’ conduct even if contrary to my findings that conduct was unlawful or the legislative or executive acts invalid. Nor has he proven any economic or non-economic losses flowing from the alleged unlawful conduct of the respondents.
STRUCTURE OF THESE REASONS
I begin these reasons with a short description of Mr Spencer’s claims and the course of this proceeding. I then set out the witnesses called and the evidence adduced at trial. Next I turn to factual findings about Mr Spencer’s land, the regulatory history of land clearing in New South Wales, the Kyoto Protocol and the intergovernmental agreements between the Commonwealth and New South Wales which are impugned by Mr Spencer in this proceeding, including Mr Spencer’s claims involving an informal arrangement outside the four written agreements. I then turn to an application of the law Mr Spencer seeks to invoke in support of his claims, dealing with the claim under s 51(xxxi) of the Constitution, which is his principal claim, and his private law action which he describes as an “action on the case”. Finally, I make some findings about Mr Spencer’s damages claims.
There are a number of matters raised by the parties in evidence and submissions but which in my opinion do not need to be determined. I address those at [126] to [135] below.
A DESCRIPTION OF MR SPENCER’S CASE AND THE COURSE OF THIS PROCEEDING
Mr Spencer’s claims
At the beginning of his final written submissions, Mr Spencer reproduced the 1979 advertisement for the property which he purchased and called “Saarahnlee”, and which is the centrepiece of his claims in this proceeding.
COOMA 5414 ac freehold alpine property of breathtaking natural beauty. Three 5,000 ft peaks. Permanent trout creeks, teaming with native wildlife. Dozens of delightful cabins or homestead sites magnificent mountain retreat for professional or business person great potential for tourist development also considerable agricultural potential as about 3000ac easily improved. Present improvements include habitable homestead in lovely setting, small shearer’s quarters, various outbuildings substantial eucalyptus oil distillery, electricity and phone connected.
I note here that the word “Saarahnlee” is variously spelt in the evidence. Mr Spencer’s evidence is that the word is a combination of the names of his children. I have adopted the spelling “Saarahnlee” as it appears to me to be the one generally put forward by Mr Spencer.
Mr Spencer has lost most of Saarahnlee. I say “most” because the evidence is unclear whether he retains a proprietary interest in Lot 50, a matter to which I return in other parts of these reasons. There is no doubt whatsoever that loss has been of immensely significant proportions to him, in all senses of the word “loss”, not simply in a financial way. His evidence and submissions in this proceeding make that point clear. His damages claims in this proceeding are built around not only the loss of the property itself, but the loss of the several projects he had planned to undertake on that property, and the very personal losses he submits have flowed from the claimed unlawful acquisitions.
Somewhat ironically, given the twists and turns this proceeding has taken over the last eight years, the core aspects of Mr Spencer’s claims can be summarised relatively shortly. Mr Spencer claims that, as a result of formal agreements (or an informal arrangement) between the Commonwealth and the State, which were made consequent upon first the enactment of federal legislation concerning natural resources management and second Australia’s commitments under the Kyoto Protocol, the State enacted legislation and made regulations prohibiting the clearance of native vegetation without the State’s consent. Mr Spencer alleges that Commonwealth funding under the intergovernmental agreements was used as leverage by the Commonwealth to ensure the State enacted a sufficiently tight scheme of vegetation clearance regulation. His claim centres on the way these vegetation clearance prohibitions affected the use to which he could put his property, Saarahnlee. He claims the prohibitions, including a refusal of permission to clear a large amount of vegetation on his property in 2007, resulted in his property being assessed by the State’s Rural Assistance Authority as commercially unviable. He claims this assessment, together with the fact that he was unable to pursue a number of projects on the property which would have necessitated land clearing, ultimately or eventually led to the property being sold by the mortgagees. In simple terms, he claims that but for the existence and effect of the NSW vegetation clearance laws, he would still be on his property Saarahnlee and would be well advanced on a number of different and financially productive projects (either alone or in conjunction with other investors) such as wind farming, fine merino production and trout farming. Instead, he claims he is without a home at all, and financially ruined.
Taking into account both the length of time over which this proceeding has developed, and the fact that Mr Spencer ultimately represented himself, in the context of this proceeding any exposition of Mr Spencer’s claims in more detail must rely on at least three sources.
The first source is his case as pleaded, which is set out in the Further Amended Statement of Claim (FASOC) filed on 14 February 2011. That document came about by the orders of Justice Emmett on 11 February 2011, and was drafted with the benefit of the High Court’s reasons for judgment in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118.
In the FASOC he seeks the following declaratory relief against the Commonwealth:
(1)A declaration that the Natural Resources Management (Financial Assistance) Act1992 (Cth) and the Natural Heritage Trust of Australia Act1997 (Cth) are invalid, or invalid insofar as they “authorised the making of unconstitutional agreements whose effect or purpose was the acquisition of land including the Applicant’s land otherwise than on just terms”;
(2)A declaration that the intergovernmental agreements are themselves “invalid and/or void”. That claim appears to be put on a similar basis (see paras [34] and [44] of the FASOC, read with the second prayer for relief).
Mr Spencer seeks against the State declarations that the Native Vegetation Conservation Act1997 (NSW) and the Native Vegetation Act2003 (NSW) are invalid.
The basis for declaratory relief against both respondents is first that the identified Commonwealth legislation is not authorised by s 51(xxxi) and is invalid. Second, that the identified NSW legislation is also invalid by reason of non-compliance with s 51(xxxi). Third, that the intergovernmental agreements could not be authorised by a valid law of the Commonwealth because the State agreed to “make and adopt measures with respect to the acquisition of property of … the Applicant otherwise than on just terms in consideration of the payment of moneys” by the Commonwealth (para [34] of the FASOC read with the first prayer for relief).
Damages or compensation are claimed against both respondents. The first basis is that the “acquisition” of Saarahnlee contrary to s 51(xxxi) has resulted in the Commonwealth being unjustly enriched (para [55] of the FASOC), and the applicant seeks either an account of profits or compensation, the basis for which is not further explained.
Further, there are pleadings against both the Commonwealth (paras [56A] to [56D]) and the State (paras [66] and [67], by reference to the former paragraphs) headed “action on the case”. In these paragraphs it is alleged that the arrangements between the Commonwealth and the State, and the payment of monies from the Commonwealth’s Natural Heritage Trust to the State were to induce the State to enact its native vegetation clearance legislation. It is then alleged that these “State measures” were directed at the applicant and caused him loss and damage, which is particularised only in the following way:
a.The commercial viability of the Applicant's property Saahranlee has been destroyed or prevented by the combined actions of the First and Second Respondents and each of them;
b.The reasonable user of the property between about 1997 to date has been prevented by the actions of the First and Second Respondents;
c.The Applicant's ecosystem services enterprises on the land adopted as an alternative to farming and grazing have also been destroyed or prevented on the property;
d.Carbon sequestration and carbon abatement rights have been taken or acquired;
e.Improvements to the property specified in paragraph 5 herein have been taken or acquired;
f.Crown lease rights have been prevented or acquired as specified in paragraph 5 (c) herein.
The second source is a document Mr Spencer’s legal representatives provided in May 2014. In late April 2014, there appears to have been a request from the Court for an agreed summary of the matter and its current status. The need for such a document is apparent when one has regard to the complicated procedural history of this matter, as I set out below. In addition to a summary agreed by the parties, a document entitled “Profile of Applicant’s Case” appears also to have been produced in response to the Court’s request. In that document, the allegation is made that there was a “scheme” or “joint venture” between the Commonwealth and the State to use state laws as “the instrument of acquisition for a Commonwealth ‘purpose’ … namely the satisfaction of its obligations under the UNFCCC … and Kyoto Protocol”. The document alleges the Commonwealth received benefits including the “substantial carbon sequestered on the land”, accounted for in the national carbon accounts and fixed at “at least $25 million”. This is also characterised in the document as an unjust enrichment of the Commonwealth.
In this document, there is no reference to the “action on the case” allegations.
The third source is the final submissions produced by Mr Spencer himself after the close of evidence, and after oral submissions. These submissions run to 92 pages. Given Mr Spencer represented himself at trial, and was refused an adjournment he sought so as to try and obtain different legal representation (a matter I deal with below), it is appropriate in my opinion that the Court use his final submissions as another source of understanding how he puts his claim. There is no prejudice to the respondents in doing so: both respondents have had ample opportunity to respond to the matters Mr Spencer has raised, and they have done so comprehensively.
Although these written submissions range widely over a number of issues and sources, not all of which can be said to be relevant to the legal and factual issues in this proceeding, my understanding of the steps in Mr Spencer’s claim in relation to s 51(xxxi) which can be discerned from these written submissions is as follows:
(1)First, Mr Spencer claims he has three kinds of property rights: fee simple in his property Saarahnlee; a “subset of fee simple”, profit à prendre in relation to carbon stored in trees on his property; and finally perpetual Crown leasehold in the parts of his property which were not held in fee simple, that kind of leasehold being, he submits, “most like fee simple of all other property known to law”.
(2)Second, he submits the respondents “entered into arrangements and contrivances to get around s.51(xxxi)” of the Constitution. He submits the Commonwealth cannot pay the State to make an unjust acquisition of property, without paying compensation, and with the parties “sharing the benefits of the property thus unjustly acquired”.
(3)His property (in the three senses he has used the term) has been acquired for the purposes of s 51(xxxi) because the rights he could exercise over that property and which are bound up with ownership were “effectively sterilised” by the NSW vegetation clearance laws. The Commonwealth obtained a benefit from this sterilisation: namely a costs saving from the avoidance of the need to take other measures to reduce emissions in order to meet the Kyoto Protocol targets.
(4)The “effective sterilisation” occurred through the legislative scheme in the NSW Native Vegetation Act 2003 and the Native Vegetation Regulation 2005 (NSW) made under that Act: an absolute prohibition on clearing without approval, the Minister being the consent authority, and consent depending on the application of a complex environmental assessment methodology – “the myriad onerous, minute and detailed standards” there set out. The Act also reverses the onus of proof in relation to an allegation of clearing without approval, “permits intrusive search without warrant” and “abolishes the privilege against self-incrimination”, all of which combines, Mr Spencer submits, to force farmers such as himself
to bear the costs, by holding our most significant capital goods – our production goods – in a kind of compulsory supposed pre-1788 botanical museum. The Native Vegetation Act stands for the unequal, capricious, discriminatory, disproportionate, unjustified oppression of a minority; and as since ancient times, we come to the Court for justice.
(5)This, he submits, is an acquisition and not an extinguishment of rights because the State
has appropriated to itself the full measure of the use-rights in question, to grant or withhold permission to exercise them, from nought to a hundred percent, in the second respondent’s own discretion, for a purpose determined unilaterally by their own conception of their own management of my property for their own preferred development as defined by them, to effect any result from preservation on the one hand to total extirpation of native vegetation in favour of agriculture on the other, and everything in between, and to arbitrarily benefit whatever political favourites they choose to benefit, and impose the costs by unequally discriminating against any minority target group they choose, which was farmers; subject only to the Environmental Outcomes Assessment Methodology …. So unless the respondents are going to argue that the Environmental Outcomes Assessment Methodology ranks higher than the Constitution, therefore the use-rights have been acquired, not extinguished.
…
… the government has not effected a termination, extinguishment or modification of use-rights; but has by compulsion acquired the use-rights to the land, regards itself as the best and rightful manager, consider that they are deciding the best use and mix of relevant productive factors, consider that they are deciding the best balance of present versus future interests in the resources in question literally into the indefinite future, and regard themselves as running production of what they think best on the land. That’s why it’s called natural resource management for ecologically sustainable development.
…
… they [i.e., the respondents] are using my land to grow native vegetation.
(Emphasis in original.)
(6)Although he submits it is not necessary to prove the Commonwealth obtained a benefit from the acquisition if the State obtained a benefit (as he contends), Mr Spencer contends that nevertheless the Commonwealth did obtain two kinds of benefits. First, a financial advantage in the costs savings from other measures to reduce emissions to meet Kyoto Protocol targets. Second, the “proprietary advantage” of carbon sequestered in native vegetation on Mr Spencer’s land as a result of banning land clearing.
(7)He then submits it is common ground that just terms, or compensation, have not been paid, and declaratory relief should be given in relation to the invalidity of both the Commonwealth and NSW legislation set out at [14] and [15] above.
In addition to declaratory relief in relation to the state and federal legislation, Mr Spencer contends he is entitled to damages in tort. A carefully stepped through sequence of propositions about how the respondents’ liability to pay damages arises has never been given. The pleadings are wholly inadequate on this matter. The profile of case contains little more than assertion. Understandably, this was a difficult exercise for Mr Spencer, as a lay person, to tackle in his final submissions.
Mr Spencer described this cause of action as an “action on the case”. I will say more about that description later in these reasons. Mr Spencer invoked the decisions in James v Commonwealth [1939] HCA 9; 62 CLR 339, Beaudesert Shire Council v Smith [1966] HCA 49; 120 CLR 145 and Northern Territory v Mengel [1995] HCA 65; 185 CLR 307. He submitted that Mengel is not authority that action on the case has ceased to exist or been assimilated to negligence, and continued:
James, Beaudesert and Mengel have in common that they would all recognise an action on the case for damages for economic loss where the defendant was motivated by an intention to cause harm to the plaintiff by an act which was unlawful in the sense of positively forbidden by law; assuming the other elements of action on the case were made out.
As I understand it, Mr Spencer’s claim is that, if he is correct that the respondents (or either of them) effected – through the intergovernmental agreements and the identified federal and state legislation – an acquisition of his property contrary to s 51(xxxi) of the Constitution, he has a cause of action of the kind set out in Mengel, which he has described as an “action on the case”. He claims:
In this case, there was definitely an intention to inflict the harm in question, namely, to deprive me of my use-rights causing economic loss. The purpose of the whole exercise was to prevent farmers and landholders from exercising their lawful rights; to punish them if they did; and without paying compensation for the adverse effect; so the respondents could use those lands for their own ends. This is proved by Section 3 of the Native Vegetation Act; and by the definition of ‘ecologically sustainable development’.
Section 3 (b) says the Object is to “prevent broadscale clearing”, which as we have seen, is defined to include even a single blade of grass. The same clause goes on to say “unless it maintains or improves environmental outcomes”, which as we have seen, was based on a methodology which impermissibly failed to take into account human values, was grossly irrational in the Wednesbury sense, and thus reckless in tort as to the damage done to property rights by the application of this standard.
And the definition of ecologically sustainable development shows that the respondents thought, that what they were doing, was “integrating” economic and environmental considerations. In other words, they thought that the environmental benefit they were obtaining, had to be at the cost of the economic loss they were imposing; because, to their minds, they thought that the environmental benefits outweighed, i.e. justified the economic losses. So they intended the losses that they imposed.
There is also a brief reference to a cause of action in negligence – namely that the respondents had a duty of care not to enter into arrangements to effect an unjust acquisition of property. There has been to date no real mention of such a cause of action and it is not a matter which can be raised in final submissions.
As to the measure of damages claimed, that is put in several ways. First, against the State, Mr Spencer claims the difference between the value of Saarahnlee with and without the controls under the NSW native vegetation legislation. In his final submissions he does not appear to put a precise figure on this claim.
Second, against the Commonwealth, Mr Spencer claims that “the measure of damages be the Commonwealth’s own account of the proportion that my land area contribution bore to the whole, in the maximum value or expected value that the Commonwealth attached to carbon in its own carbon accounts”. In his written submissions he quantifies this in the following way:
As per tonnage witness’s agreed carbon retention on Saarahnlee being 3MM Tonnes, price being $24.00 per tonne as per the Carbon Tax legislated price for Kyoto period 1990 Jan to Dec 2012 = $72 million at this rate the lock is as stated in agreement/treaty – perpetual.
Having made those two claims, in another part of his written submissions he then also makes a damages claim only against the State for “Related Costs from loss of farm”: this relates to the cost of a new northern boundary fence along the boundary of Saarahnlee with the Namadgi National Park and Mr Spencer claims $250,000.
He then makes a damages claim only against the Commonwealth for “property restitution”: Mr Spencer alleges Saarahnlee is “still on the market” and could be repurchased for approximately $2.5 million.
He then makes a series of claims as against both respondents:
(1)Loss of wind farm potential: “As per Steen Stavnsbo’s estimate. $ 700,000.pa for 20 years aggregate $14,000,000, plus any refit and another period of 20 years”;
(2)Loss of opportunity, in terms of the potential of all the projects Mr Spencer planned for his land, taking into account its “value to me” and its “inability to be replaced other than by way of restitution”. Mr Spencer does not identify a fixed sum for this, but this appears to encompass the basis of the valuation of Saarahnlee given by Mr Davies, which was just over $9 million;
(3)Loss due to personal distress, family dislocation and removal from the farm, disappointment and pain. No figure is placed on this, and later in his final submissions Mr Spencer appears to submit the figure for this claim should be “as the court determines”;
(4)Storage of furniture, plant and equipment from the farm: $40,000 per year from March 2010;
(5)“Destruction of personnel [sic] belongings, furniture, plant and equipment on and following eviction until current”: $100,000;
(6)“Farm and asset and infrastructure maintenance left for 8 years”: $150,000;
(7)“Legal fees research and costs for lawyers over and above allocation of costs by the court for the 8 years of proceedings. … damages as the court determines”.
Some of these claims are clearly in the alternative to others. The largest is obviously the carbon sequestration claim for $72 million against the Commonwealth. The wind farm losses in excess of $14 million appear to be the next largest, and they are made against both respondents. The loss of Saarahnlee itself on one measure (“value to me”) would be placed at more than $9 million and on another (the buyback proposal) at more than $2.5 million. I deal with Mr Spencer’s damages claims at [652] to [795] below.
I note, as the respondents also note in their final submissions, that this inventory of losses excludes any specific claims for losses over some of the projects which Mr Spencer claimed he was conducting, and or alternatively, proposed to conduct on Saarahnlee – such as the fine merino wool project. To some extent, they are subsumed in his claim as now expressed that he has lost Saarahnlee, and what he has lost is its value to him. Nevertheless, it is a distinct shift in the nature of his claim, as foreshadowed by the evidence filed on his behalf, that there are no longer particular claims for losses which were alleged to have flowed from the non-continuation of particular projects on Saarahnlee.
Although variously expressed in all three sources, in my opinion it is fair to say that the principal allegation made by Mr Spencer has remained constant throughout these three iterations of his case against the respondents. It appears to consist of the following steps (variously expressed in different documents, and sometimes within the one document):
(1)Mr Spencer, as the owner of Saarahnlee, held a “bundle of rights” over that property including fee simple in part of it, Crown leasehold in other parts, rights to use and develop the property as he saw fit, and rights in the carbon sequestered in vegetation on Saarahnlee.
(2)In three stages, or by three courses of conduct, both the Commonwealth and the State effected an acquisition of Mr Spencer’s property, contrary to the guarantee in s 51(xxxi) of the Constitution.
(3)Those three stages were:
(a)The Commonwealth enacted the Natural Resources Management (Financial Assistance) Act and the Natural Heritage Trust Act;
(b)Relying on the Commonwealth legislation and s 96 of the Constitution to provide funds to the State, the Commonwealth concluded with the State the “1997 Agreement” to deliver the Natural Heritage Trust (FASOC [14]), the “2000 Salinity Agreement” (FASOC [24]), the “2002 Salinity Agreement” (FASOC [26]) and the 2003 “Trust Agreement” to deliver the Natural Heritage Trust (FASOC [28]). In these reasons I will refer to the Natural Heritage Trust agreements as the “1997 NHT Agreement” and the “2003 NHT Agreement”;
(c)The State, in response to (and induced by) the provision of funds from the Commonwealth, and the imposition of pressure by the Commonwealth, enacted the Native Vegetation Conservation Act 1997 and the Native Vegetation Act 2003, preventing Mr Spencer from clearing any native vegetation on his property without the State’s approval. I interpolate here that the allegations about the “pressure” applied by the Commonwealth to the State may be the highest that, ultimately, the existence of any “informal agreement or arrangement” was put.
(4)There was, in this course of conduct, an “acquisition” of a benefit or advantage of a proprietary character by the Commonwealth, in that it acquired either a financial advantage (not having to fund other ways to meet its Kyoto Protocol targets), or it obtained the benefit of the carbon stored in the native vegetation on Mr Spencer’s land and what would otherwise have been Mr Spencer’s proprietary rights to use or sequester that carbon.
(5)The State also acquired, in this course of conduct, a benefit or advantage of a proprietary character (see FASOC [36A]-[36B] and [63]), which was effectively to control what occurred on, or what was done with, Mr Spencer’s land.
(6)Those courses of conduct, as well as resulting in the invalidity of the federal and state legislation, and the intergovernmental agreements, caused Mr Spencer loss and damage in a way which creates in either or both of the respondents a legal obligation to pay him compensation.
Prior to embarking on an examination of these claims, it is necessary to turn to the procedural history of the case. From there, it is necessary to set out the factual background, and to make the necessary findings of fact on the evidence, to which the legal principles arising in those steps in Mr Spencer’s claims can be applied.
PROCEDURAL HISTORY
For reasons which I explain below, Mr Spencer ultimately represented himself at the final hearing of this matter, having had legal representation for all of the seven and a half years his proceeding had been in this Court. In various submissions, both written and oral, he gave some explanations about why he had terminated the retainer of his lawyers, and no more need be said about those explanations. It is important however to note that, as part of those explanations and at various other points during the final hearing and the interlocutory application for an adjournment, Mr Spencer did emphasise that the way he wished to present his case, including the evidence on which he wished to rely, differed from the way his lawyers had conducted the case on his behalf to the point at which he terminated their retainer. The change in direction affected the nature and scope of the evidence upon which Mr Spencer ultimately relied, and is reflected in these reasons.
In my interlocutory ruling on an adjournment application made by Mr Spencer in October 2014, I described some of the history of this proceeding: see Spencer v Commonwealth [2014] FCA 1117.
It is appropriate to repeat, and add to, that history, given these are my reasons for final judgment in the proceeding.
This proceeding has a long history. It was first issued on 12 June 2007. On 26 July 2007 the first respondent (then the only respondent), the Commonwealth, filed a notice of motion seeking summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), which was heard by Emmett J in May and June 2008. On 26 August 2008, his Honour gave reasons why both Mr Spencer’s interlocutory application for interim relief and the proceeding should be dismissed: see Spencer v Commonwealth [2008] FCA 1256. Orders were made on 28 August 2008 dismissing the proceeding: Spencer v Commonwealth (No 2) [2008] FCA 1378.
Mr Spencer was granted leave to appeal the decision of Emmett J on 9 October 2008. The appeal was heard by a Full Court in February 2009 and, on 24 March 2009, the Full Court dismissed Mr Spencer’s appeal: Spencer v Commonwealth [2009] FCAFC 38; 174 FCR 398. Mr Spencer sought special leave to appeal to the High Court. His application was adjourned pending delivery of the High Court’s judgment in Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; 240 CLR 242: see Spencer v Commonwealth [2009] HCATrans 126. Arnold was handed down on 10 February 2010. The Court in Arnold applied its decision in ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; 240 CLR 140, judgment in ICM having been handed down on 9 December 2009. The Court’s decision in ICM was to be important in the determination of Mr Spencer’s claims in the High Court.
On 12 March 2010 Mr Spencer’s application for special leave was referred to an enlarged full court for argument as on appeal: Spencer v Commonwealth [2010] HCATrans 55. On 1 September 2010 the High Court granted special leave to appeal, allowed Mr Spencer’s appeal, set aside the orders of the Full Court and Emmett J and dismissed the Commonwealth’s application for summary dismissal: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118.
Following the High Court decision, the proceeding returned to the docket of Emmett J. On 12 November 2010 the State of New South Wales was added as a respondent to this proceeding.
Since its remitter, there have been a number of interlocutory disputes about discovery, including claims by the Commonwealth of public interest immunity: see, e.g., Spencer v Commonwealth(No 3) [2012] FCA 637; Spencer v Commonwealth (No 4) [2012] FCA 1142; Spencer v Commonwealth [2012] FCAFC 169; 206 FCR 309.
The proceeding was re-docketed to Cowdroy J in February 2013. Following the retirement of Cowdroy J, the proceeding was transferred to the docket of Gleeson J on 17 April 2014.
On 22 May 2014 her Honour made orders for preparation for trial including filing of evidence and submissions, and, without any objection from the parties, provisionally listed the matter for hearing commencing on 24 November 2014 with an estimate of three weeks. It was as part of this process that the parties prepared the documents to which I have referred in [19] above. Further directions hearings were held before Gleeson J in June and August 2014, where orders were made relating to the filing of a draft court book index.
The proceeding was docketed to me on 4 September 2014 and, on 11 September 2014, a directions hearing was held where orders were made varying some of the timetable for preparation for trial. The parties made conscientious efforts to comply with the trial preparation timetable.
On 2 October 2014, the applicant’s then legal representative filed and served a notice of intention of ceasing to act pursuant to r 4.05(1)(a) of the Federal Court Rules 2011 (Cth). Although no notice of ceasing to act under r 4.05(1)(b) of the Rules has ever been filed, the Court and the parties then proceeded on the basis that Mr Spencer was thereafter representing himself.
By an application dated 10 October 2014, Mr Spencer applied for orders vacating the trial which was listed to commence on 24 November 2014, with an estimate of three weeks. He sought an order that the matter be relisted for a convenient date in 2015, and that the timetable for trial preparation be varied to take account of the new trial date. The principal basis for the adjournment application was his termination of the retainer of his legal representatives.
I refused the adjournment application for the reasons set out in my 17 October 2014 reasons for judgment: Spencer v Commonwealth [2014] FCA 1117. Thereafter, substantial accommodations were made for Mr Spencer in order to ensure the trial could begin and proceed as scheduled. In my orders of 17 October 2014, I granted Mr Spencer leave to have a person sitting at the bar table with him to assist him during any pre-trial hearings and during the trial. Further, I relieved Mr Spencer from preparing the court book and ordered the Commonwealth to prepare, file and serve the court book including the agreed tender bundle in electronic form, as well as serving a hard copy on Mr Spencer. The Commonwealth then engaged in the considerable ongoing task of updating the court book and the electronic index as evidence rulings were made and the parties made elections about the tender or non-tender of various evidence. I also directed that Mr Spencer be provided on a USB an electronic copy of the transcript of the trial which was to be updated on a daily basis and provided to Mr Spencer at 9.00 am the morning before the hearing resumed each day.
The matter proceeded to trial on 24 November and was completed within the estimated time. It was conducted cooperatively and efficiently and all parties, their counsel and instructing solicitors, and Mr Spencer’s assisting “team”, have the Court’s gratitude for the way the matter was conducted. In his final submissions, Mr Spencer alleged that the Commonwealth, in particular, has neglected or failed to meet its model litigant obligations. Certainly in relation to the part of the trial in which I have been involved, there is no foundation whatsoever for that kind of allegation against either respondent. Quite the contrary.
Some observations about the way the trial proceeded
At various points during the trial, Mr Spencer made statements about his lack of preparation, and his inability to cope. It is appropriate that I express my general view about those statements, so that where it might seem that Mr Spencer was pressed into continuing when he was saying he could not, my reasons for the way the trial was conducted are transparent. I give one example, which occurred during the valuation evidence:
MR SPENCER: Okay. Just another comment I wish to make if I may. If I’m going to be held accountable for every document in the evidence book, when I’ve only had three weeks to get prepared for this case, when I’ve already applied to this case an interlocutory hearing to be taken off for four months to get ready, it’s not an equitable situation at all. I have not read every document. I’ve made that quite clear. I physically, humanly can’t do it. Thank you.
It is not the case that Mr Spencer had only three weeks to prepare for this case. The great bulk of the preparation had been done on his behalf while he was legally represented.
The evidence demonstrates Mr Spencer had been intimately involved in all aspects of this case for the whole of the seven years. He brought other litigation dealing with the same broad subject matter. His opening of several hours was presented in a way which showed tremendous familiarity with the material he considered important, as did his oral evidence.
What was apparent is that Mr Spencer had very firm views about how he wanted his case presented, and how he did not. Whether this was a cause for the termination of the retainer of his lawyers is not a matter on which I should speculate. At many times during the trial he would dismiss the relevance of significant parts of the respondents’ evidence, including the documentary evidence. His concept of the case was in that sense very different to that of the respondents. This had nothing to do with preparation, but with perspective.
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 EVIDENCE
Admissibility 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.
As I noted at [16]-[18] of my judgment, a large proportion of the objections fell broadly into two categories: relevance, and objections to statements of opinion contrary to s 76 of the Evidence Act 1995 (Cth). Other objections were based on the impugned statements being in the nature of an assertion or conclusion, or “not the best evidence”, and the Commonwealth in particular raised other objections to some of Mr Spencer’s proposed expert witnesses expressing opinions either not based on any specialised knowledge or based on “second-hand views” and “speculation”.
For the reasons set out in that judgment, I ruled that two affidavits sworn by Mr Spencer other than for the purposes of tender at trial were inadmissible including because they had been superseded by Mr Spencer’s later affidavits. I also ruled to be inadmissible an affidavit sworn by Ms Jeanne Hughes, a farmer whose property had also been affected by the native vegetation clearance laws, on the basis that her predicament was not relevant to whether Mr Spencer could make out his claims; and certain paragraphs from an affidavit sworn by Dr Alan Moran, on the basis that the contents of those paragraphs were argumentative as to matters of law, expressed opinions about matters not relevant to the issues in this proceeding, and attempted to give a narrative of certain facts required to be proved by direct evidence. The remainder of the respondents’ objections were not upheld.
Subpoenas
At the time that I refused Mr Spencer’s adjournment application on 17 October 2014, I also made an order, after Mr Spencer foreshadowed an intention to subpoena people to give evidence outside the individuals for whom affidavits had been provided, that:
Any requests for leave to issue subpoenas for witnesses at trial are to be filed by 10 November 2014.
In substantial compliance with that request, on 11 November 2014 Mr Spencer filed and served by email requests to issue 28 subpoenas for persons to attend trial and give oral evidence, together with a volume of accompanying material seeking to identify the basis on which the witnesses were able to give evidence relevant to the issues in the trial.
The persons identified in the applications included two former Prime Ministers of Australia, a former Premier of New South Wales, a former Premier of Queensland, three current federal Members of Parliament, a current state Minister, two current state Members of Parliament, a number of former state and federal Members of Parliament, and a range of other individuals, some of whom held public office and some of whom were from private organisations. All were identified by Mr Spencer as having made comments, or voiced opinions about, the issues of climate change and carbon sequestration, Australia’s targets under the Kyoto Protocol, the merits of policies restricting vegetation clearing on private land as a mechanism to reduce carbon emissions and the merits of compensation for landholders affected by such policies.
Given the time remaining before the trial was to commence on 24 November 2014, the parties appeared before me on 12 November 2014. Mr Spencer was then given an opportunity from Thursday 13 November to Monday 17 November 2014 to respond in writing to the respondents’ submissions on his applications. As I noted in my judgment on the subpoena applications, Mr Spencer is to be commended for his efforts to meet the timetable imposed by the Court, bearing in mind the other deadlines he had to meet during that time: Spencer v Commonwealth [2014] FCA 1234, at [6].
On 18 November 2014, I granted leave to Mr Spencer to issue subpoenas to three witnesses: Mr Charles Armstrong, Dr David Kemp and Mr Malcolm Peters, and the evidence those witnesses ultimately gave at trial is described below. The reasons for granting leave to issue those subpoenas, and refusing leave to issue the other 25 subpoenas sought by Mr Spencer, are set out in Spencer v Commonwealth [2014] FCA 1234. At the time that I granted leave, I also directed Mr Spencer
to consult with a Registrar of this Court in relation to the proper form of the subpoenas, the requirements for service and the requirements for matters such as conduct money.
Among the witnesses to whom I refused leave to issue a subpoena was one Mr Bernard Sullivan. However, in refusing leave, I foreshadowed generally that Mr Spencer was not precluded from making, during the trial, a further application in relation to the witnesses I had refused: Spencer v Commonwealth [2014] FCA 1234, at [55]. On the fourth day of trial, 27 November 2014, Mr Spencer made by way of email to my chambers a further application for a subpoena to be issued to Mr Sullivan, a valuation expert, on the basis that there were a number of questions required to be asked of him as to the method and procedure used to prepare his valuation of Saarahnlee. As I set out further below, Mr Sullivan had been retained by the Nature Conservation Trust on behalf of the State to conduct a valuation of Saarahnlee in 2007. Mr Sullivan’s report was, however, not filed independently in this proceeding. At the time that he sought leave to issue the subpoena, Mr Spencer understood that Mr Connolly, who was called as an expert witness on valuation for the State, had prepared his valuation and report by reference to Mr Sullivan’s valuation. On 27 November 2014, I granted Mr Spencer leave for the issuing of a subpoena to Mr Sullivan to attend trial and give oral evidence, and I made orders on 28 November abridging the time for that subpoena to be served. At the time I granted leave, I inquired whether and Mr Spencer accepted that it may be appropriate for there to be an order that Mr Sullivan be remunerated in accordance with his usual professional rates.
The trial commenced with openings by the respondents, as a further accommodation to Mr Spencer. He was then given some additional time to prepare his own opening, which he delivered ably. The parties cooperated in the order and scheduling of the witnesses, which proceeded efficiently. At the conclusion of the evidence and after a short adjournment, the respondents again were asked to commence final oral submissions so as to assist Mr Spencer with a framework for his own submissions. The respondents also handed up final written closing submissions. Mr Spencer was then given a further one-day break to prepare for oral submissions, which he then delivered on 11 December 2014. Directions were given for Mr Spencer to file his final written submissions by 2 February 2015, a period he agreed was sufficient. The respondents were given a further two weeks or so to file submissions in reply. In early February 2015 Mr Spencer requested and was granted a short extension of time for filing his final written submissions.
As part of his submissions, Mr Spencer also relied on the following documents which had been filed on his behalf at various stages of this proceeding:
·written submissions prepared by his former counsel and filed on 1 June 2010 on Mr Spencer’s behalf in support of the High Court special leave application;
·written submissions in support of Mr Spencer filed on 7 June 2010 by the NSW Farmers’ Association seeking leave to intervene in the High Court special leave application;
·an outline of submissions in this proceeding dated 16 May 2013 prepared by Mr Spencer’s former counsel; and
·the “Profile of Case” document provided to the Court in May 2014 by Mr Spencer’s former counsel, to which I have referred earlier in these reasons.
Lay Witnesses
Peter Spencer
Mr Spencer faced the difficult task of both being the principal witness and conducting his own case, as well as attempting to make decisions about what material to present, and what could be left out. He performed these tasks with diligence, and it was evident throughout the conduct of the trial that he made forensic decisions with a good understanding of what parts of his case he wished to emphasise.
As a witness, it is fair to say that Mr Spencer was sometimes given to exaggeration and hyperbole, and I found he could at times seem unconcerned with whether he was recalling events entirely accurately. The fact that the events which are the subject matter of this proceeding have occupied his life for more than ten years make that entirely understandable at one level – both as to the emotional weight they have for Mr Spencer, and the number of facts and events he must try to keep in his recall. These features of his evidence do mean however that for the purposes of fact-finding, there are occasions (few in number) where I found his evidence not entirely reliable. For example, in relation to the events of the clearing proposal for Saarahnlee in 2007, I have found the evidence of the State’s witnesses, together with the documents, the most reliable source of an account of what occurred.
Mr Spencer was given to sweeping and generalised statements from time to time, and there were some inconsistencies in his evidence especially on the damages aspect, because of this. Had I needed to reach the point of quantifying any losses, it would not have been possible to do that reliably on his evidence as it stood.
Overall however, I find Mr Spencer did his best in a difficult situation, both as a witness and as an advocate.
Brian Plummer (applicant)
Mr Plummer was called by Mr Spencer and gave evidence regarding what he described as “the problems faced by farmers” as a result of the passage of the Native Vegetation Conservation Act 1997 and the way the scheme set out in that legislation was subsequently managed by the State. Critically, Mr Plummer’s evidence was relied upon in respect of a letter said to have been sent by the Commonwealth Minister for Environment and Heritage Senator Robert Hill to NSW Premier Bob Carr, which I deal with later in these reasons as it was one of the planks relied on by Mr Spencer to prove the “informal arrangement”.
Mr Plummer is a farmer in Tottenham, New South Wales, a member of the Fiveways Landcare Group and former Secretary of the Tottenham branch of the NSW Farmers’ Association. In his evidence, Mr Plummer addressed the concern local farmers in the community had with the introduction of the Native Vegetation Conservation Act 1997. Mr Plummer informed the Court that the Fiveways Landcare Group commenced a project in order to educate politicians and bureaucrats on the group’s concerns and the difficulties they faced as a result of the Native Vegetation Conservation Act 1997. As part of the project, the Fiveways Landcare Group arranged for Premier Bob Carr to attend the Fiveways area.
It was Mr Plummer’s evidence that on 24 March 2000, the then Director-General and Assistant Director-General of the Cabinet Office, Roger Wilkins and Chris Guest attended a meeting of the Fiveways Landcare Group to prepare for Premier Carr’s visit. Mr John Cobb, President of the NSW Farmers’ Association, also attended that meeting. Mr Plummer contends that during that meeting, Mr Cobb provided him with a copy of a letter addressed from Senator Hill to Premier Carr, which letter Mr Plummer deposed in general terms “stated that if the NSW Government did not halt land clearing within NSW then the Federal Government would withhold NSW’s share of the Natural Heritage Trust Funding, which at the time was the entire Bushcare Program.” At trial, Mr Plummer gave evidence that reading the contents of the letter “was like a big wakeup call … There’s further pressures here than just the State Government. It’s coming from a federal directive.” Mr Plummer gave evidence that upon realising the Federal Government’s role, the Fiveways Landcare Group initiated a meeting with their Federal Member for Parkes, Tony Lawler and he exhibited to his affidavit a letter addressed to him from Mr Lawler dated 21 June 2000 referring to their discussion. Mr Plummer’s evidence was that he no longer has that letter in his custody or possession and that he could not be certain whether or not it had been destroyed by him.
For reasons I set out below, I found Mr Plummer to be a reliable witness, the respondents’ submissions notwithstanding.
John Williams (applicant)
Dr Williams is an Adjunct Professor in Public Policy and Natural Resources Management and had been a founding member of the Wentworth Group of Concerned Scientists. Previously, he had been the Chief Scientist of the NSW Department of Natural Resources following his retirement from the CSIRO as Chief of Land and Water in 2004. He was not required for cross-examination. Initially he was put forward by Mr Spencer as an expert witness but in my admissibility ruling I limited the use of his evidence under s 136 of the Evidence Act to evidence of historical facts: Spencer v Commonwealth [2014] FCA 1288, at [58].
In his affidavit, Dr Williams deposed that he and other scientists had advocated to the State and Commonwealth Governments a proposal to use native vegetation to store carbon to mitigate climate change, namely “a proposal to lock up carbon by native vegetation and other forestation projects”. He further deposed that he became aware of implementation concerns amongst farmers about loss of use of land for agricultural purposes. He deposed that, as a result, he recommended to the NSW Government with the endorsement of the Wentworth Group that in such cases the land should be purchased by the State. He deposed “I am aware that the administrative procedures and processes involved appeared to be delayed, very cumbersome and largely ineffectual when set against the purposes proposed by the Wentworth Group.”
Copies of an extract from the 2003 Wentworth Group report to the NSW Premier and of a submission dated March 2010 from the Wentworth Group to the Senate inquiry into native vegetation laws were among the documents exhibited to his affidavit. The 2003 Wentworth Group report was elsewhere in evidence before me. As I explain elsewhere in these reasons, it is the case that the Wentworth Group advised the establishment of the Native Vegetation Reform Implementation Group (known also as the Sinclair Group), and the NSW Government ultimately relied on the Sinclair Group’s recommendation about compensation to establish the exit assistance scheme process. Whatever the inadequacies of the amount of funds set aside for that (one of Mr Spencer’s criticisms) or the cumbersome nature of the process (one of Dr Williams’ criticisms), the relevant fact for the purposes of this proceeding is that Mr Spencer was able to access the exit assistance scheme and was offered what he concedes was market value for Saarahnlee, which he elected not to take.
Shayleen Thompson (applicant)
An affidavit affirmed by Ms Thompson was filed on behalf of the Commonwealth. However, by the time of trial, it was Mr Spencer who sought to rely on Ms Thompson’s evidence. At the time of affirming her affidavit on 15 May 2008, Ms Thompson was the First Assistant Secretary, Strategies and Coordination Division, in the Commonwealth Department of Climate Change. She gave evidence regarding the Kyoto Protocol and Australia’s commitments under it, including evidence about greenhouse gas emissions, measures to reduce or mitigate emissions in Australia and Australia’s reporting obligations under the Protocol. Ms Thompson also gave evidence about emissions trading and the Federal Government’s position on emissions trading, at least at the time of affirming her affidavit in 2008. Her evidence was not controversial, and she was not required for cross-examination.
David Thompson (State)
Mr Thompson was called to give evidence on behalf of the State. At the time of the relevant events in 1998, Mr Thompson was employed by the Soil Conservation Service, a division of the NSW Department of Primary Industries, as the District Soil Conservationist at Cooma. Mr Thompson has been employed with the Soil Conservation Service since April 1988. Mr Thompson’s evidence provided an overview of protected land under the Soil Conservation Act 1938 (NSW), the process for obtaining clearing applications and how he and his colleagues assessed clearing applications pursuant to the Soil Conservation Act 1938. In particular, Mr Thompson gave evidence that he had inspected Saarahnlee on 1 July 1998 in connection with a possible clearing application. Mr Thompson deposed that this was a “pre-application” inspection which allowed Mr Spencer to show his property and to point out the area he wanted to clear, and exhibited to his affidavit notes and various documents relating to that visit. Mr Thompson’s evidence in relation to his inspection of Saarahnlee was not raised in cross-examination by Mr Spencer.
Raymond Willis (State)
Mr Willis also inspected Saarahnlee in connection with a proposal for land clearing, albeit much later on 19 February 2007, and was called to give evidence by the State. Mr Willis was employed between 2004 and 2010 at the Murrumbidgee Catchment Management Authority as Catchment Coordinator (Property Vegetation Planning) and deposed that he was the team leader involved in assessing land clearing applications. Mr Willis gave evidence that catchment management authorities were set up by the State Government in 2004 in connection with the implementation of the Native Vegetation Act 2003 including to assess applications to clear vegetation. Specifically, he deposed that the role of the Murrumbidgee Catchment Management Authority under the Farmers Exit Assistance Program was to process property vegetation plans made by landholders and to provide information to landholders about the program. In respect of the methodology and system used to assess land clearing applications, Mr Willis deposed that there was a general requirement that a clearing proposal have an overall result of maintaining or improving environmental outcomes.
Mr Willis gave evidence that he spoke with Mr Spencer on several occasions in 2006 and 2007 in relation to the Farmers Exit Assistance Program. Mr Willis gave evidence that he attended Saarahnlee for a site visit on 19 February 2007. He deposed that:
Prior to the inspection, Mr Spencer had not identified the part of his property that he wanted to clear. On 19 February 2007, at the start of the inspection, I said to Mr Spencer words to the effect of "What area do you want to clear Peter?" He threw his arms up in the air and said "Well I don't know I just want to access the Farmer's Exit Assistance Program." I said "You can't do that. In order to do that, you need a red light to clear. What part of the property do you want to clear? It's not our property. We can't tell you what you want to clear." Adam, Julie and I showed him maps of his property. I said "Peter, we need a line on a map. Where would you like to clear?"
Mr Willis deposed that after driving around the property with Mr Spencer, a colleague of Mr Willis drew a line and hatching on a map marking out a proposed area for clearing. He deposed that looking at that map, “I said to Mr Spencer words to the effect of ‘Leave it at that?’ Mr Spencer said ‘Yes’.” A copy of that map with the hatchings was in evidence before me. In documents annexed to Mr Willis’ affidavit were various references to the proposal as being a proposal to clear 1,402 hectares.
Mr Willis gave some further evidence about how Mr Spencer’s proposed land clearing was assessed and stated “it is my understanding that Mr Spencer’s application to clear received a red light since he proposed to clear a large area of land and the area he wanted to clear contained vegetation that was significant on the local, regional and landscape scale.” He further deposed that the proposal “red lighted at the biometric assessment stage and the threatened species stage. Carbon emissions or greenhouse issues did not factor into those assessments, nor did it factor into the assessment process generally.” Mr Willis described and annexed various documents relating to the site visit and assessment, and a letter he prepared to Mr Spencer dated 6 March 2007 which advised Mr Spencer the proposal could not be approved, and provided further information about the Farmers Exit Assistance Program. That letter is described further below, in my findings of fact about the inquiries and assessments about vegetation clearance that took place.
In cross-examination, Mr Spencer asked Mr Willis some general questions regarding his impressions of Saarahnlee. After prompting from the Court, Mr Spencer also cross-examined Mr Willis about how the calculation of the size of area proposed to be cleared was performed. Mr Willis gave evidence that was “not up to us to decide, that was up to the land holder to agree to, and you had agreed to that on the day.” Based on that indication from Mr Spencer, he deposed, a figure was calculated using various mapping techniques.
I found Mr Willis to be a reliable witness.
John Dyson (State)
Mr Dyson was called to give evidence by the State. Mr Dyson, from approximately 1998 to 2001, was the Resource Planning Manager at the NSW Department of Land and Water Conservation, where his role included administering and assessing land clearing applications. Mr Dyson also attended a pre-application site inspection of Saarahnlee, on 10 September 1998. He described the purpose of that visit as being for Mr Spencer to provide information about proposed land clearing and discuss his proposal to clear vegetation to undertake a number of agricultural projects.
His evidence was one of the pieces of evidence upon which the State relied to establish that Mr Spencer had been told on several occasions that he should lodge applications to clear smaller parcels of land, which might have better prospects of success. I do not consider this evidence to be relevant to any findings I need to make in this proceeding.
Subpoenaed Witnesses
Charles Armstrong
Mr Armstrong was subpoenaed by Mr Spencer to give evidence about the views of the NSW Farmers’ Association. Mr Armstrong is a farmer with a longstanding history of some 25 to 30 years’ involvement in the NSW Farmers’ Association, including holding at various times the offices of president, vice president and treasurer of the association. Mr Armstrong’s opinion evidence went to the impact that both the Native Vegetation Conservation Act 1997 following the State Environmental Planning Policy 46 and the Native Vegetation Act 2003 had on farmers in New South Wales, from the viewpoint of the NSW Farmers’ Association. It was Mr Armstrong’s evidence that the operation of farms, the value of farms and also the investment return on farms were impacted by the operation of both the 1997 and 2003 Acts. In particular, Mr Armstrong deposed to the views of the NSW Farmers’ Association regarding a report by the Commonwealth Department of Agriculture’s Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES):
a body of that stature in Canberra was able to put together the sorts of things that we were really – we, as farmers, were really concerned about, and my recollection of – of that, again, as a – really an ultimately summary that there was something like $1 billion of both lost production and lost opportunity was the – the two real factors that ABARES looked at and established as a result of the native vegetation. So in effect it was costing primary industry or costing farmers, or turn it round the other way, that farmers were in fact contributing to the whole issue of – of carbon up to an extent of about a billion dollars – that was ABARES’ figure – and we were footing the bill.
Mr Armstrong gave evidence that from the viewpoint of farmers, the “only reason” Australia was able to meet its targets under the Kyoto Protocol was because of the requirement to end broadscale clearing, and the carbon offsets that would thereby be generated. In this sense he corroborated Mr Spencer’s theories underlying this proceeding. I allowed Mr Armstrong to give this evidence on the basis that his position with the NSW Farmers’ Association enabled him to give an account of the perspectives of that organisation at the relevant times, but his evidence has not been relevant to any of the factual findings I have made.
Malcolm Peters
Mr Peters was also subpoenaed by Mr Spencer to give evidence in the proceeding as to the views of the NSW Farmers’ Association. Mr Peters stated his occupation to be a cattle farmer, and he held positions on a number of representative farming bodies. Mr Peters was the president of the NSW Farmers’ Association from 2002 to 2005 and also held the position of Director of the National Farmers’ Federation during that time.
In his evidence, Mr Peters described how the NSW Farmers’ Association lobbied the Commonwealth Government on the impact of native vegetation laws on farmers. In evidence before me was correspondence sent by Mr Peters in March 2002 in his capacity as president to the Prime Minister, Deputy Prime Minister and various ministers as part of those lobbying efforts.
Mr Peters deposed that in a subsequent meeting, in response to that letter, he was advised by the then Deputy Prime Minister, John Anderson, that the introduction of the Native Vegetation Conservation Act 1997 was a unilateral decision of the NSW Government. Mr Peters stated that the NSW Farmers’ Association did not accept that. In the Association’s view, the Federal Government had influenced the NSW Government to introduce the legislation and the later reforms. Mr Peters gave some evidence about the Native Vegetation Reform Implementation Group, which was made up of delegates from both the agriculture industry (including the NSW Farmers’ Association) and environment organisations and in 2003 provided input to the NSW Government on the proposed reforms to the native vegetation legislation. He gave evidence that the Native Vegetation Act 2003 as ultimately enacted did not reflect the recommendations in reports produced by the Sinclair Group, nor by the Wentworth Group. In cross-examination, Mr Peters conceded that some recommendations by the farmers’ representatives as reflected in the Sinclair Group report were successfully reflected in amendments to the legislation, although “[w]e won on a bit and the environmental groups won most of it”. Mr Peters gave evidence that the NSW Farmers’ Association was disappointed by the outcome and that in its view only a token amount of money was made available to compensate farmers affected by the legislation.
Like Mr Armstrong’s evidence, Mr Peters’ evidence – while corroborative of the position Mr Spencer sought to put – did not assist me in making any of the factual findings I needed to make, although the evidence of both Mr Armstrong and Mr Peters provided some context for farmers’ perspectives at the time of these reforms, balancing the perspectives of government which were apparent from the documentary evidence.
Dr David Kemp
I have concluded at [779] below that in relation to the three projects where Mr Spencer did attempt to prove economic loss flowing from the respondents’ alleged contraventions of s 51(xxxi), Mr Spencer has not made out a case for economic loss on any of them, assuming such a private right to damages was available, which I have concluded it is not.
The carbon project
Mr Spencer described the use to which he claimed he could have put his land, in terms of its carbon storage potential, in the following way in his affidavit evidence:
The property is well wooded and a terrestrial ecosystem or carbon sinks with significant amounts of vegetation and soils that are available for immediate carbon sequestration.
It has extensive forests of native hardwoods and open pasture and thickening is ongoing post 1919 clearing was a condition of acquisition and subsequent title transfer.
Extensive grasslands both of improved and native grasses are on the property arising before and after 1990 of which native vegetation comprises more 50% or more of the herbaceous vegetation.
The vegetation on the property retained significant amounts of carbon and were possible to be retained under voluntary covenants [assuming an absence of enforced retention by native vegetation laws].
….
My best estimate based on my knowledge and experience of the carbon content of the vegetation on Saarahnlee averages 550 tonnes of carbon per hectare of vegetation [timbered] per year.
…
The price of carbon at present is A$24.15 per tonne. The average price for the period of lock-up of carbon from 1990 to 2090 – ie on a ‘perpetual’ basis - is estimated at A$23, as a conservative figure. Being denied the use of the land I was deprived of the opportunity to trade on the voluntary market albeit a limited market as a result of the native vegetation laws affecting the land. The First Respondent did obtain the benefit of the carbon rights on the land by accounting to the UNFCCC under the Kyoto Protocol at the end of 2012 and meeting its tonnage obligations of 8% above the 1990 levels using the carbon on the land.
In his second affidavit, he described the claim in this way, and placed an estimated value on the claim. It can be seen that in this evidence, Mr Spencer also makes it clear that he considers the carbon rights to be property for the purposes of s 51(xxxi) and I consider this issue earlier in my reasons at [521]-[538].
I consider that the gravamen of my case regards the matter of Carbon Credits as accrued under the Federal Government's Commitment to the “Australia Clause” negotiated by the Australian Government which is in effect between the years 1990 and 2020, a period of 30 years.
This commitment represents an asset of “Saarahnlee” – being that it has effect on the forests of “Saarahnlee” and further does not allow for the increasing dollar and timber growth value (appreciating the forest has its greatest carbon value between the age of 30 and 90 years) after that 30 years and the fact the harvesting of Carbon is ongoing – perpetually, past the date indefinitely so to speak and is additional to this estimate. Except for the intervention by Governments I would have had an asset to sell on the voluntary market, which represents a lost opportunity to me and a benefit to the Federal Government. I estimate the value and lost opportunity at $25-84 million, depending on the carbon price per tonne.
It does not appear from the evidence that Mr Spencer took any active steps to crystallise this asset. As I understood his oral evidence he accepted in cross-examination that was because there were no schemes established in Australia by which landowners could trade on the carbon market, but he nevertheless had this in mind as something he would do in the future.
The Commonwealth submits that during his cross-examination Mr Spencer “in substance abandoned this claim” and that his evidence in cross-examination “reflected poorly” on him. Indeed it was put to Mr Spencer that his affidavit was misleading, which he denied.
I do not consider Mr Spencer abandoned this claim, although his concessions in cross-examination do mean there is no basis in fact at all for the claim, and it is entirely speculative. However, so far as Mr Spencer was concerned in his evidence, he still saw this as a claim he wished to make.
I set out the relevant parts of his answers in cross-examination, which in my opinion make this clear:
The market to trade carbon was established globally, but not in Australia. But numerous governments were going to open it up at any time. New South Wales has started, and other states and the Commonwealth made numerous public statements about papers they had written and dates they were going to start. So all of us were believing we would participate.
…
Well, the farmers did not know if they could or could not, because the debate with the Farmers Association – Parliament House – was still going on, as to whether we would be able to hold the ownership or not. So we kept on allowing for it, because it was our trees. But they couldn’t work out if it would be our right to trade it. Even when the carbon market came out, we were still on the list as – would be able to do it. But then at the last minute they changed their mind. So I put it in because it is our right, and the market is there, yes and no. But at the last minute they’ve changed it. So I’m happy to pull it out. I’m happy to leave it. But it still was something which, for the last 15 years, has been a very big part of farmers’ lives, to be able to trade their vegetation for carbon. It’s just that it hasn’t come about.
[On being asked how he could maintain any claim for lost opportunity to
trade something that he had accepted he didn’t have]---That’s – that’s true; I don’t have it. But if I got it back, I would want to trade it, and I still believe I have a right to it. It’s my carbon.I accept the respondents’ submission, which flows inevitably from Mr Spencer’s concession, and from the evidence of Ms Thompson, on whose affidavit affirmed on 15 May 2008 Mr Spencer relied, that at all material times there was no mechanism by which Mr Spencer had or could sell a carbon right.
Ms Thompson’s evidence was:
The Commonwealth is also yet to take decisions on whether forest related offsets would be allowed in the ETS. If offsets were allowed, in principle, land holders could receive credit for establishment of new forests or from maintaining or enhancing existing forests on their land. However rules for offsets are complex and whether or not existing forests on private land would be eligible to generate offsets for the ETS is also subject to future Commonwealth decision making.
There is a small but currently growing market for voluntary credits both internationally and within Australia. Some voluntary schemes within Australia allow trading of carbon offsets from previously established forest sinks on private land. Nothing done by the Commonwealth impacts upon the applicant's capacity to participate in these voluntary schemes.
As I have found in more detail in the s 51(xxxi) section of these reasons, the scheme enacted by the State under the NSW Conveyancing Act could not apply to most of Mr Spencer’s forested lands, which were on Lots 47, 48 and 50, until 2006 (if indeed it is correct to say it applied to all three lots, a matter on which I make an assumption in Mr Spencer’s favour but no finding). More critically, the “carbon rights” to which the Conveyancing Act provisions could give effect only arose on their creation and registration on the title of a particular property – a process which was never undertaken by Mr Spencer. In that sense, this claim remains speculative, and cannot be sustained.
Finally, as the Commonwealth submitted this claim is somewhat counterintuitive in relation to Mr Spencer’s attack on the native vegetation clearance regimes, as it presupposes there is no clearing undertaken, but rather that the vegetation is entirely preserved. In that sense, any loss would be caused only by Mr Spencer’s own decision to clear his land.
The wind farm
This was probably the project that, in terms of Mr Spencer’s evidence, was the most advanced and was on his case the most affected by the native vegetation laws, in particular the 2003 Native Vegetation Act. He gave evidence that he conceived of the project after a visit to Denmark, his wife’s home country, and that he pursued the project through “extensive negotiations with a consortium lead [sic] by The ANZ Bank through ANZ Infrastructure Services providing the finance and EHN, the Spanish Wind Park Developer (now, Acciona, the world’s largest wind farm operator)”.
His evidence revealed that there were in fact two separate attempts at establishing this project – one between 2003 and 2006, and another in 2009. The evidence about those attempts should be considered separately.
It appears from the evidence that Mr Spencer had a site survey performed in 2003 by NEG Micon Australia. NEG Micon Australia reported in November 2003 that the site had good potential.
The report indicated there were no “obstacles” on the site, and concluded that “[t]he ridgeline that is proposed for the wind farm has a good location with room for a row of wind turbines along this main ridge”. Further studies on issues such as wind direction and wind speed were recommended.
I infer that as a consequence of this reasonably positive report, some draft heads of agreement were proposed between Mr Spencer, ANZ Infrastructure Services Ltd and EHN (Oceania) Pty Ltd. There was some cross-examination of Mr Spencer by the Commonwealth on these documents. Mr Spencer eventually accepted that the only documents he had adduced were (despite his description in his affidavit) draft heads of agreement, not final and signed versions, although he maintained as part of his oral evidence that there were final heads of agreement signed. He accepted in cross-examination however that no development agreement (the next step) was concluded.
Some further progress was made by a development consent being sought from Cooma-Monaro Shire Council by EHN (Oceania) Pty Ltd over part of Lot 48 to facilitate the erection of a wind monitoring tower. This development consent was granted on 24 November 2004.
A further step, on the evidence, occurred with the production of a “Feasibility Study” in March 2006. Mr Spencer adduced a copy of this study in his evidence. Again, the study was based on the turbines being situated on the main ridgeline in part because this ridgeline had a configuration which would permit construction works and access.
This study was not optimistic. The overall recommendation was that the project “not proceed to the next stage”.
Even using a turbine type with the greatest value to the project, the study concluded that “the equity investment returns do not meet the required cost of capital”. The study noted that the financial analysis showed that an overall energy price of $97 per MWh would be required to achieve agreed equity rates of return, and stated that “[r]egrettably, prices at these levels have never been achieved in NSW and the current renewable environment does not suggest pricing at these levels in the foreseeable future”.
In its conclusion, the feasibility study noted a number of factors which contributed to its overall recommendation. One was, as I have noted, the failure of the project to meet equity investment hurdle rates. Others were: the site not having sufficiently high average annual wind speeds at the selected hub height in comparison with other known viable wind farm developments in New South Wales; the high wind turbulence characteristics of the site which approach or were outside upper limits and the adverse effects this had on a range of necessary preconditions to the project continuing such as insurance, debt financing and lifetime operational performance.
The Commonwealth submits that these reasons for the study’s conclusion on viability have nothing to do with the presence or condition of vegetation upon the land, or suggested restrictions on clearing that vegetation. I accept that submission. Indeed, Mr Spencer admitted as much in cross-examination.
In his affidavit, Mr Spencer asserted that “[t]his concept was scuttled in May 2004 when the Howard Government cancelled the MRTs on renewable energy and stepped away from support for renewable energy”. I do not accept Mr Spencer’s evidence that this was the reason the wind farm project proceeded no further in 2006.
Mr Spencer gave evidence however that he was approached by another developer (CBD Energy Pty Ltd) in 2009. He exhibited to his affidavit what he described as a “Wind Farm Development Agreement with CBD Energy Limited”. Like his description of the 2004 heads of agreement document, this description was somewhat overstated. The document exhibited appears to be a template of an agreement. The document does not identify the parties or the land to which the agreement purports to relate, and the agreement is neither signed nor dated.
Mr Spencer admitted in cross-examination that he did not sign any final version of this agreement.
Nevertheless, it appears from other evidence given by Mr Spencer in cross-examination that GE Energy did commission what was described as a “Fatal Flaw Analysis” of the wind farm project. Mr Spencer was at pains in his evidence to make it clear this study was commissioned by GE Energy, and not by him.
This Fatal Flaw Analysis was prepared by consultants Parsons Brinckerhoff Australia and dated 31 August 2009. Importantly for the issues in this proceeding, this analysis records the consultants’ opinion as being that they “did not find any environmental issues associated with developing the wind farm at the site which could be considered fatal flaws”.
Mr Spencer accepted in cross-examination that, as the analysis states, this conclusion was based on an assumption that the project could proceed by avoiding impacts on areas of environmental significance (that is, with very limited clearing of native vegetation), and he also agreed that he did not test this assumption by any application for development consent for a wind farm.
The Commonwealth also submitted, and put to Mr Spencer in cross-examination, two relevant aspects of this analysis which were said to undermine Mr Spencer’s position that the native vegetation clearance regimes had any impact on the wind farm project not going ahead. The first was that the Native Vegetation Act 2003 was said by Parsons Brinckerhoff Australia to be inapplicable as a development application could be made under Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) and any vegetation clearance issues dealt with as part of this development application process through direct Ministerial approval. Although that process no longer exists, it was, I find, operational in 2009.
The second aspect was that the Parsons Brinckerhoff Australia analysis stated that clearing all vegetation for 1 km around each turbine location was a “worst case scenario” and would result in the clearing of more than 1,900 hectares of native vegetation and could involve significant environmental impacts. Parsons Brinckerhoff Australia described this as a “fatal flaw” in the proposal if this had to occur. However there were more “pragmatic” alternatives, involving clearing of much smaller amounts of vegetation that were unlikely to be issues of significance. The report also noted in its conclusions that the nature and extent of existing access tracks on the property reduced the amount of vegetation required to be cleared for access, which in other developments could be a significant issue.
Finally, the Parsons Brinckerhoff Australia analysis noted that there were commercial issues arising from competition for electricity generation in the Cooma-Canberra area that were outside the scope of its analysis but would need to be considered. In cross-examination Mr Spencer expressed a different view about the import of this qualification in the report but conceded it had nothing to do with native vegetation issues. Mr Spencer also denied in cross-examination that the main reasons the wind farm project did not proceed in 2009 were commercial rather than environmental. He referred to Mr Stavnsbo’s evidence in this regard, to which I will shortly turn.
In cross-examination Mr Spencer maintained his view that it was the native vegetation clearance restrictions which stopped the wind farm project “in its tracks” as he put it in his affidavit. He repeatedly denied the projects were not commercially viable and that was the reason he had not proceeded with them. He said:
The stopping in its tracks was a combined issue of not just the Native Vegetation Act, but the fact that everything on the farm came to a stop. Nothing was going ahead, because the Native Vegetation Act had created a situation where everything was up in the air. And the Native Vegetation Act – sorry, the Native Vegetation Act and the – well, the two projects – the wind farm was two different projects. One started up. It stopped.
The next one started up. And the Native Vegetation Act just compounded it all and put it into a position where, because of it, nothing could be seen clearly. Nothing could be determined accurately. So it stopped in its tracks. People that had gone so far with it lost money. And can I just say one more thing. The wind farms were never being developed by wind farm developers. They were selling them on to other people, retirement investors. And if they couldn’t do that, with the EMRA scheme being suspended and opened again, it meant that the funding the government was provided was either on or off. So these complexities made it more difficult, and the Native Vegetation Act was just the cream on the cake.
I turn to Mr Stavnsbo’s evidence. Mr Spencer had stated in cross-examination that Mr Stavnsbo’s report addressed the commercial viability issues of the wind farm project, and answered the Commonwealth’s allegation that the project was not commercially viable.
As I have noted above, after some to-ing and fro-ing, Mr Stavnsbo’s evidence, and his report, was admitted into evidence without Mr Stavnsbo being subject to cross-examination. That does not mean it should be read uncritically, and accepted without reservation: it simply means what Mr Stavnsbo says had not been actively contradicted by the respondents.
I make that point because I have found the evidence from Mr Spencer about why the wind farm project did not proceed to be at such a level of generality as to be difficult to rely upon. On the one hand, there are quite clear statements in the documentary evidence to which I have referred which appear to suggest that restrictions on the clearance of native vegetation were assessed as having no necessary adverse effect on the wind farm proposals, either in 2003-2006 or in 2009. On the other hand, Mr Spencer is adamant the native vegetation clearance restrictions stopped the project in its tracks and he continued to adhere to this under cross-examination in a way which appeared quite deliberate.
Mr Stavnsbo’s evidence could have provided some objective support one way or the other. However I accept the Commonwealth’s submissions that it does not really address commercial viability as such and does not provide the support for Mr Spencer’s contentions that Mr Spencer asserted it did.
Mr Stavnsbo visited Saarahnlee several times between 2003 and 2008. He deposed to seeing the 2003 NEG Micon feasibility study. He describes the two principal mechanisms by which a landowner might be remunerated for having wind turbines on his or her land – a land rental payment by reference to a flat fee per wind turbine installed, or a percentage of wind farm revenues (in Australia between 2005 and 2008 he deposed the figure was commonly between 2% and 5% of gross revenues). He calculated that on the evidence provided to him (which the respondents did not seek to impugn) there would have been a return to Mr Spencer of approximately $700,000 per annum in gross revenues. He deposed to the life of a wind farm usually being in the range of 20 to 25 years, at least in Europe and the United States.
It appears to me, and I am prepared to infer, that Mr Spencer’s firm assertion that Mr Stavnsbo’s evidence did go to the commercial viability of the wind farm project was based on the fact that Mr Stavnsbo deposed to very large sums of money being received by Mr Spencer on the assumptions Mr Stavnsbo had been presented with. What was missing of course from his report (although present in the 2003 study) were the costs and outgoings and how those would be met, together with how it was said that an investor would be sufficiently confident in the profit margin on the project to go ahead with it.
Mr Stavnsbo does not address any of these issues. I accept the Commonwealth’s submissions that his evidence does not address whether a wind farm would have been viable, the likelihood that it would have been successfully established, or the relevance, if any, of the native vegetation legislation to its viability.
I also accept the Commonwealth’s submissions that other aspects of Mr Spencer’s evidence are consistent with the uncertainty which sits behind both the 2003 and 2009 reports. Mr Spencer gave evidence (some of which I have extracted above) about the problems created by changing government policy in the renewable energy sector and the hesitant attitude of investors in respect of such projects. As the Commonwealth correctly submitted none of these uncertainties could be said to be related to native vegetation clearance regimes, at least, not on the evidence before the Court.
In conclusion, I am not satisfied on the balance of probabilities on the evidence before me that the “vegetation issue” (as Mr Spencer describes it at points in his evidence) was the cause of the wind farm project on Saarahnlee not proceeding, either in 2003-2006, in 2009, or at all.
The firewood project
The principal hurdle facing Mr Spencer in this specific claim is his failure to take the necessary steps to ascertain what if any trees he would be permitted to harvest for firewood on his property. He did not make an application to clear native vegetation for such a purpose. Rather he went along with a proposal formulated as part of the farmers’ exit assistance scheme assessment process to clear a large area and see whether his contention that his farm was not viable would be accepted, and if so, what he would be offered for it. The absence of an application for the purpose of harvesting firewood (and of any refusal of permission to clear for this purpose) deprives this claim of any factual foundation.
Mr Spencer outlined the firewood project in the following way in his affidavit:
The firewood harvesting project was ongoing and possible right across the entire property and was estimated by me between 200 and 500 tonnes per acre. The going wholesale rate in royalties on this item is between $10 and $20 per ton. My best estimate is that between 7,000,000 and 10,000,000 tonnes of firewood on the property is now locked up as the Native Vegetation legislation makes commercial fire wood harvesting illegal. Thousands of tonnes were harvested and sold at the then market price. This price was obtainable from the wood yards from time to time.
The timbers on the property in British Thermal Units (BTUs) order of listing are- E. Pauciflora, E. Dives, E Stellulata, E. Melliodora, E. Rubida. The tonne price is higher per BTU grading, but would average at Whole Sale $120.00.
His contention was put more forcefully in his 6 June affidavit:
The Native Vegetation Act sterilized the firewood – expropriated. The asset of firewood is the property owner's largest renewable resource. Even if the firewood is all harvested the economics are worthy considering a plantation subdivision to always have the product available for a ready cash flow that adds to the diverse economics of the property and hence spreading the economic base.
The Commonwealth’s contention that this claim is unsupported by any evidence to prove the assertions made by Mr Spencer is correct. The figures he refers to are no more than his own estimates, and even those estimates are given without reference to any source material: that is an insufficient probative basis for a claim of this kind. The level of speculation in which he engaged, and the breadth of his own estimates can be seen in the following exchange with senior counsel for the Commonwealth during his cross-examination:
The estimate that you’ve put in your affidavit, as what you call your best estimate of between seven million and 10 million tonnes, is assumed or estimated by you to apply over what period of time?---What we did was, we estimate that it was about 1000 tonnes an acre, and that would – that would be the – you would just be on a permanent cycle. You would keep – as firewood became more rare, we would be shipping it to Canberra, putting it in a wood yard and a wood lot and just selling it as much as we could. That’s just an estimate to tell you how much was there.
Well, I thought you said in your affidavit you estimated it at between 200 and 500 tonnes an acre?---That – well, yes, that might be right. I’m saying – when I say 1000 tonnes an acre, I’m guessing. I haven’t looked at that. I’m not reading it. I’m just thinking on my head.
By his own admission, Mr Spencer was guessing at his losses, and guessing at many levels. A damages claim is unsustainable on that kind of basis.
His evidence in cross-examination appeared to reveal a much more modest kind of approach in any event:
harvesting of firewood would have continued on in the same way it always has done, because when you wanted to do it, you would sell it. When things got bad and poor you could sell some firewood. And that’s – you would clear some of the regrowth, stack the timber up and sell it.
In conclusion, Mr Spencer has not proven on the balance of probabilities that he suffered economic loss in relation to any of these three projects, nor has he proven that any economic loss he suffered was caused by the respondents’ conduct (being the scheme said to comprise the two federal laws, the intergovernmental agreements, and the state legislation), assuming against my own findings that such conduct was unlawful and gave rise to a private law action in tort.
The miscellaneous claims for damages
I consider in this section such matters as the boundary fence around Saarahnlee adjoining the Namadgi National Park, and Mr Spencer’s claim for destruction of personal property he had at Saarahnlee, and storage fees for belongings, plant and equipment moved off Saarahnlee when he was evicted.
Mr Spencer has also included, in a long list of items he describes under his damages submissions, claims such as one for the cost of putting up a new boundary fence around Saarahnlee, where it borders on the Namadgi National Park. He describes litigation about the absence of an appropriate boundary fence which occurred in the NSW Supreme Court (and appears to be reported as Spencer v Australian Capital Territory [2007] NSWSC 303). Mr Spencer asserts as part of his submissions, although there does not seem to have been any evidence about this, that such a fence would cost $250,000. He states the “actual quote could be obtained at short notice”. It is not, therefore, a past economic loss at all. I fail to see its connection to Mr Spencer’s claims about native vegetation clearance. There are times at which Mr Spencer’s submissions read as a catalogue of anything and everything which has gone wrong for him on or connected with Saarahnlee, all of which he seeks to sheet home to the respondents, with ever increasing, very significant yet broadbrush monetary demands attached to them.
There is simply no evidence capable of connecting this fence with the restrictions on the clearing of native vegetation. I do not consider it further.
As to the personal property claims and storage fees, in my opinion it is apparent from Mr Spencer’s own evidence that these losses were occasioned by his eviction from Saarahnlee after the mortgagee sale.
In his evidence, Mr Spencer made a claim that, but for the s 31A application by the Commonwealth and the appeals which flowed from it, this proceeding would have been concluded before the end of 2007, and therefore before Mr Spencer was evicted from Saarahnlee after a mortgagee sale. He says, it seems, that the Commonwealth’s conduct in that way increased his damages because, if there had been no s 31A application, the timing of the trial in this matter would have been such that Mr Spencer would have been the owner of Saarahnlee at the time of trial.
I do not accept the decision of the Commonwealth to pursue an application under s 31A of the Federal Court Act and the resulting appeals have any bearing on the nature or extent of damages which might, if I had reached a different conclusion, have been available to Mr Spencer.
If there is one proposition that can be stated with confidence about this proceeding, it is that it is not possible, even with the benefit of hindsight, confidently to reconstruct the course this proceeding would have taken without an application under s 31A of the Federal Court Act. There have been prolonged contests over discovery, amongst other matters: on the current evidence I do not accept that it could be said with any level of certainty (and certainly not on the balance of probabilities) that this matter would have gone to trial and judgment while Mr Spencer remained the owner of Saarahnlee, even if one assumes for the purposes of this exercise that all other events otherwise occurred at the time they in fact did occur. History cannot be rewritten to that extent.
There is a wholly insufficient basis in the evidence to attribute causes for the mortgagee sale of Saarahnlee. Obviously there was a fundamental solvency issue for Mr Spencer in 2010. As to what caused that lack of solvency, one might only speculate. The most cursory of examination of Mr Spencer’s evidence and submissions in this proceeding demonstrates that Mr Spencer had, at any one time, a tremendous number of projects and activities underway whether here in Australia or (for example) overseas in places such as Papua New Guinea, and had a large family dispersed around the world. As the State submitted, there was evidence from Mr Spencer himself that until an unrelated misfortune struck, he had substantial assets of around $6 million available to him offshore. Mr Spencer explained that he made and lost a fortune offshore. He had had around or at least $6 million in assets in Papua New Guinea, but his investments apparently fell upon hard times due first to the destruction by fire of a major property investment owned by him; then to protracted disputes with the insurance company and finally to the catastrophic drop in exchange rate between the Papua New Guinean kina and the Australian dollar that wiped out his remaining assets. His evidence also discloses considerable legal debts, in excess of $300,000 in 2007.
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.
When one reads through all Mr Spencer’s evidence and submissions about these projects, one cannot help but have the strong impression that Mr Spencer took decisions to abandon them that were motivated by a wide range of factors, as well as having so much money tied up in them that financially matters got out of hand quickly and disastrously. I note that nothing about Mr Spencer’s financial position was explored at trial aside from his assertions about the expenditure of very large sums of money indeed. There was little or no indication in the evidence about where the income was derived to fund all this expenditure. Mr Spencer did not volunteer anything like a comprehensive account of his financial situation that could have provided a more secure evidentiary base for the majority of his economic loss claims.
This evidence was all prepared while he was legally represented and no attempt was made to include anything like the kind of source material about income and expenditure which would have been necessary to substantiate these claims.
The excessiveness of many of his claims, and lack of judgement in how they were put, is an impediment to the persuasive task he has to identify how the State’s regulation of native vegetation clearance activities (and the Commonwealth’s alleged participation in or encouragement of that regulation) caused or contributed to identifiable, quantifiable economic losses incurred by Mr Spencer.
Non-economic losses
I recall first the assumption on which I approach this aspect of my findings: namely, that contrary to what I have decided, Mr Spencer has a claim recognised by the law in damages against the respondents in respect of their conduct in the scheme comprising the two federal laws, the intergovernmental agreements and the state legislation (as identified by Mr Spencer).
If that were the situation, I am satisfied on the balance of probabilities that Mr Spencer has suffered considerable stress and anxiety over the imposition of the native vegetation clearance regimes on Saarahnlee. That damage however is in the form of a personal injury. No submissions were made to the Court about how this kind of non-economic loss might be recoverable, even on the extended hypothesis that claims for economic loss were recoverable.
Re-opening
There were legitimate objections taken by the respondents to considerable parts of Mr Spencer’s final submissions on the basis that they constituted evidence which had not been adduced during the trial, especially as to the damages he alleged he had suffered.
Being self-represented, Mr Spencer did his best in a factually and legally complicated trial. It may be that he did not fully appreciate the need to adduce and prove by admissible evidence all facts he wished to rely on, particularly as to his damages claim. Had I reached different conclusions on the law, as to both s 51(xxxi) and the existence and success of a private cause of action in tort for Mr Spencer, I would have been inclined to afford the parties an opportunity to make submissions whether before the making of any orders in this matter, leave should be granted to Mr Spencer to re-open his case to present, in admissible form, at least the evidence he refers to in his final submissions. Given the conclusions I have in fact reached, this matter need not be determined.
CONCLUSION
There will be orders dismissing the application.
Despite the views which I have reached, I consider it is far from inevitable that it is appropriate there should be an order that costs follow the event, in the usual form.
In his 6 June 2014 affidavit in this proceeding, Mr Spencer stated:
The fact that the court case has taken such time I respectfully say affects all aspects of the damages – the property was in my name from 2007, when Court proceedings commenced, until early 2010. If the Respondents had not pursued Section 31A of the FCA Act, the matter could have been resolved within that 3 year period of time. The Applicant's material loss and personal/family suffering has been greatly magnified by the time taken and attitude of the Respondents in pursuing this matter.
As I have set out earlier in these reasons, I do not presently accept the decision of the Commonwealth to pursue an application under s 31A and the resulting appeals necessarily had a bearing on the nature or extent of losses suffered by Mr Spencer. However, Mr Spencer’s submission is illustrative of the differing contentions which might be made on whether a costs order should be made against Mr Spencer at all, if so what kind of costs order, or whether the Court should make a lump sum order.
After a proceeding of this length and complexity, the parties should be given a reasonable opportunity to consider their positions on the question of costs, and to file such evidence and submissions as they wish, including any proposals for lump sum costs orders.
803 I certify that the preceding eight hundred and two (802) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate:
Dated: 24 July 2015
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