Spencer v Commonwealth (No 3)

Case [2012] FCA 637

FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 3) [2012] FCA 637

Citation: Spencer v Commonwealth of Australia (No 3) [2012] FCA 637
Parties: PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA and STATE OF NEW SOUTH WALES
File number: ACD 24 of 2007
Judge: EMMETT J
Date of judgment: 7 June 2012
Legislation: Archives Act 1983 (Cth) s 3
Constitution s 51(xxxi)
Federal Court of Australia Act 1976 (Cth) s 31A
Native Vegetation Act 2003 (NSW)
Native Vegetation Conservation Act 1997 (NSW)
Cases cited: Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615-616
ICM Agriculture Pty Ltd v The Commonwealth (2010) 240 CLR 140
Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650
Sankey v Whitlam (1978) 142 CLR 1
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196
Date of hearing: 20 April and 7 June 2012
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 46
Counsel for the applicant: PE King, DH Godwin
Solicitor for the applicant: McKells
Counsel for the first respondent: TM Howe QC, AP Berger
Solicitor for the first respondent: Australian Government Solicitor
Counsel for the second respondent: A Rao
Solicitor for the second respondent: Crown Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

ACD 24 of 2007
BETWEEN:

PETER JAMES SPENCER
Applicant
AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

7 JUNE 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The first respondent’s claim for public interest immunity in relation to the documents (or parts of documents) specified in the affidavits of:

1.1Philippa Spence, affirmed on 29 February 2012; and

1.2Philippa Spence, affirmed on 16 March 2012;

be upheld in full.

2.The first respondent’s costs in relation to the question of public interest immunity be the first respondent’s costs in the proceeding.

3.The proceeding be listed for further directions at 9.30am on Friday, 3 August 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

ACD 24 of 2007
BETWEEN:

PETER JAMES SPENCER
Applicant

AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF NEW SOUTH WALES
Second Respondent

JUDGE:

EMMETT J

DATE:

7 JUNE 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This proceeding was commenced on 12 June 2007. On 28 August 2008, on the motion of the first respondent, the Commonwealth of Australia, I ordered that the proceeding be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) on the basis that the applicant, Mr Spencer, had no reasonable prospect of successfully prosecuting the proceeding.  An appeal by leave to the Full Court was dismissed.

  2. Following the decision of the Full Court, the High Court delivered its reasons in ICM Agriculture Pty Ltd v The Commonwealth (2010) 240…

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AGLC
Spencer v Commonwealth (No 3) [2012] FCA 637
Case
[2012] FCA 637
Decision Date

CaseChat Overview and Summary

In Spencer v Commonwealth (No 3), the plaintiff sought documents from the first respondent, which the Commonwealth argued should be withheld under the public interest immunity doctrine. The matter was brought before the Federal Court of Australia. The plaintiff contested the withholding of the documents, arguing that the public interest in disclosure outweighed the public interest in non-disclosure.

The primary legal issue before the court was whether the documents or parts of documents specified in the affidavits of Philippa Spence, affirmed on 29 February and 16 March 2012, should be subject to public interest immunity. The court had to consider the principles and criteria for determining when information could be withheld under public interest immunity and whether the public interest in disclosure of these particular documents outweighed the interest in their non-disclosure.

The court found that the public interest in non-disclosure of the specified documents was compelling, particularly considering the potential impact on national security and international relations. The court concluded that the documents contained sensitive information that, if disclosed, could cause significant harm to the public interest. As such, the court upheld the claim for public interest immunity in relation to the specified documents. The court also ordered that the first respondent’s costs in relation to the question of public interest immunity be borne by the first respondent and set further directions for the proceeding to be listed on 3 August 2012.

Orders

Orders of the court

1. The first respondent’s claim for public interest immunity in relation to the documents (or parts of documents) specified in the affidavits of:

1.1 Philippa Spence, affirmed on 29 February 2012; and

1.2 Philippa Spence, affirmed on 16 March 2012;

be upheld in full.

2. The first respondent’s costs in relation to the question of public interest immunity be the first respondent’s costs in the proceeding.

3. The proceeding be listed for further directions at 9.30am on Friday, 3 August 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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