Spencer v Commonwealth (No 2)

[2008] FCA 1378

FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 2) [2008] FCA 1378

PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA

ACD24 OF 2007

EMMETT J
28 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD24 OF 2007

BETWEEN:	PETER JAMES SPENCER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	28 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s motion for interlocutory relief be dismissed.

2.The proceeding be dismissed.

3.The applicant pay 80% of the respondent’s costs of the proceeding, including the costs of the respondent’s motion for summary dismissal and the applicant’s motion for interlocutory relief.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD24 OF 2007

BETWEEN:	PETER JAMES SPENCER Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	EMMETT J
DATE:	28 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 26 August I published my reasons for the conclusions that I have reached in relation to two applications before the Court.  The two applications were, first, by the Commonwealth for summary dismissal of the proceeding and, secondly, by Mr Spencer for interlocutory relief.  As I indicated in my reasons, it follows from my conclusions that the application for interlocutory relief should be dismissed and that the proceeding should be dismissed.

2. I stood the matter over to today for the purpose of making orders.  When the matter was called on, counsel for Mr Spencer foreshadowed an oral application for leave to appeal.  I indicated to the parties that I had no view about the matter and invited the Commonwealth to indicate whether it opposed the grant of leave.  Counsel for the Commonwealth informed the Court that leave would be opposed and drew attention to the fact that, at this stage, no grounds of appeal have been provided. 

3. I also pointed out that, on the present state of the law, if a leave application is refused by a single judge exercising appellate jurisdiction, there is no right of appeal from that rejection.  I also indicated that there may be some doubt as to whether leave is required, on the basis that the order dismissing the proceeding may constitute a final order.  In the light of the discussion that took place, counsel for Mr Spencer indicated that he did not wish to proceed with the leave application, making it clear, however, that Mr Spencer proposed to seek the leave of the Court to appeal from any orders that I make as foreshadowed.

4. The Commonwealth has asked for its costs of the interlocutory application and of the proceeding generally.  Counsel for Mr Spencer suggested that, since Mr Spencer had been successful on some issues, the Commonwealth should not have all of its costs.  Mr Spencer also drew attention to his earlier submission that an element of public interest was involved in the issues raised by the proceeding.  The Commonwealth, for…