Spencer v Commonwealth of Australia

[2010] HCATrans 34

[2010] HCATrans 034

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2009

B e t w e e n -

PETER JAMES SPENCER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 FEBRUARY 2010, AT 9.52 PM

Copyright in the High Court of Australia

MR P.E. KING:   If the Court pleases, I appear for the applicant.  (instructed by McKells)

MR A. MARKUS:   If your Honour please, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Markus.

MR KING:   Can I hand to your Honour the original of the affidavit of service of the summons, a copy of the outline of oral submissions and a copy of the transcript in Thomas which is referred to.

HIS HONOUR:   The affidavit of service of Peter Brian McKell sworn 23 February 2010 may be filed in Court.  Why do I need the transcript in Thomas v The Queen?

MR KING:   Only on the second point, your Honour, in relation to the position of the joinder of the State.  I will deal with that secondly.

HIS HONOUR:   Wait a minute, we are not here to have a mini special leave hearing you know.

MR KING:   Of course.

HIS HONOUR:   What is the date of your summons?

MR KING:   It was filed ‑ ‑ ‑

HIS HONOUR:   26 October, was it?

MR KING:   Yes, your Honour, last year.  It was not given a return date because of the situation with Arnold and ICM, your Honour.

HIS HONOUR:   Yes, I have it, thank you. 

MR KING:   The special leave was filed in ‑ ‑ ‑

HIS HONOUR:   Yes, it is set down for hearing in two weeks time.

MR KING:   Yes, your Honour.  Your Honour, dealing with the question of evidence first, it is our respectful submission that the evidence that is referred to in the affidavit and which is summarised in the document ‑ ‑ ‑

HIS HONOUR:   Well, this is opposed by Mr Markus, is it not, reception of this affidavit?

MR MARKUS:   That is correct, your Honour.

HIS HONOUR:   On what grounds?

MR MARKUS:   Your Honour, we say that there is only a very limited basis upon which evidence can be admitted in special leave applications and at least until the summary of the oral submissions have been handed up to your Honour, there has been no proper basis identified for the filing of this evidence.  I also note, your Honour, that at least in relation to some of the exhibits that are included in the proposed evidence, there may be a question whether there is a breach of the Parliamentary Privileges Act, section 16.

HIS HONOUR:   I will ask Mr King this; what was the nature of the proceeding in the Federal Court?  How did it start off?

MR KING:   It was a proceeding ‑ ‑ ‑

HIS HONOUR:   Was there a statement of claim ever filed?

MR KING:   There was, your Honour, yes.  There was some debate between the respondent and the applicant before Justice Emmett.  The initial statement of claim was struck out.  Finally in December 2007 his Honour held that the case raised an arguable question for the court to consider.  The Commonwealth – because the Commonwealth had brought a strike‑out application – brought a section 31A application and it was on that basis ‑ ‑ ‑

HIS HONOUR:   Section 31A of what?

MR KING:   The Federal Court of Australia Act – that notwithstanding that there was an arguable case the court should still nonetheless strike the matter out and ultimately his Honour did that on the basis that although there was an acquisition, it was arguable that there was an acquisition, that the Commonwealth had received a benefit as a consequence.  Nonetheless, his Honour held that in the particular circumstances it was not sufficiently arguable that there was a law “with respect to” that ‑ ‑ ‑

HIS HONOUR:   A law of the Commonwealth?

MR KING:   With that acquisition, that is right.  Now, that was notwithstanding, his Honour acknowledged, that there were a suite of measures or laws emanating from the Commonwealth authorising intergovernmental agreements and funding ‑ ‑ ‑

HIS HONOUR:   Now, were those intergovernmental agreements in evidence?

MR KING:   I doubt it on the special leave application, your Honour, but they were put in evidence – we submitted four such agreements relating to what was then called the Natural Heritage Trust program of the then Howard government.  Since then, the Rudd government has introduced what is called “Caring for Country” which is the same funding program ‑ ‑ ‑

HIS HONOUR:   That is irrelevant to your client’s situation.  He has been resumed.

MR KING:   That is right, but that is the program.

HIS HONOUR:   Under the Howard government, the previous government’s ‑ ‑ ‑

MR KING:   That is the effect of it, yes.  That is right. 

HIS HONOUR:   You will be familiar, from Arnold’s Case, was there material linking the Commonwealth initiative to State action, New South Wales action?

MR KING:   There was.  There was an express concession that but for the laws which the State had passed, the Commonwealth would have incurred significant expense of a financial kind.  In other words, there was an admission of a saving of expense.  Also, we have pleaded that the Commonwealth has received the benefit of property, namely, the carbon sequestration rights as defined in section 87A of the Conveyancing Act.  That does not seem to be seriously argued.  To the contrary, his Honour Justice Emmett dealt with that as well.

So what we say, your Honour, is this case is unusual and is distinguishable from ICM and Arnold in that here the Commonwealth received a benefit both of a saving of expense, and the evidence in the affidavit addresses that question of the nature of that saving – and we will put together a compilation bundle for the convenience of the special leave Judges if your Honour is disposed to grant the application – but also the receipt of a benefit having an identifiable or a measurable quantum.  The evidence addresses that as well.

That benefit, so far as the Commonwealth is concerned, is the carbon sequestration right noted in the national greenhouse accounts which are then used in the Commonwealth’s remission to the Secretariat of the UNFCCC in Bonn to meet its national commitments.  Now, that is an international obligation but it has domestic implications and it is ‑ ‑ ‑

HIS HONOUR:   These matters were not really passed on in the Federal Court, were they?  In a way, Pye v Renshaw was treated as a knockout blow, was it not?

MR KING:   Pye v Renshaw I think, with respect, in the Federal Full Court it was treated as a knockout blow but before Justice Emmett his Honour took a different view.  His Honour thought that, with respect, and we would adopt what his Honour has to say about this, that Magennis still had teeth and your Honours ‑ ‑ ‑

HIS HONOUR:   It now clearly does.

MR KING:   Now your Honours have held that it clearly does.

HIS HONOUR:   Yes.

MR KING:   So we will certainly be relying upon ICM and what your Honours had to say in that case.  This evidence, your Honour, which is objected to solely on the ground of relevance in relation to special leave, we respectfully submit, addresses issues of public importance and also the basis upon which the matter has general or specific relevance to the administration of justice.  I am now using the terminology in section 35A of the Judiciary Act. 

That is our position, your Honour.  We are not arguing that this material will necessarily or, indeed, at all be received on the final appeal if special leave is granted but on the questions of public importance and the issues of administration of justice, we respectfully submit that they have relevance.  We can put together, as I have said, a convenient compilation bundle and ‑ ‑ ‑

HIS HONOUR:   I think it may come to this – and I will see what Mr Markus says – your complaint at the end of the day really is that you should not have been summarily dismissed.

MR KING:   That is right.

HIS HONOUR:   There has not yet been a trial of these issues ‑ ‑ ‑

MR KING:   Nor discovery, nor even returns on subpoena.  The Commonwealth vigorously fought all production of documents, your Honour.

HIS HONOUR:   Now, it may be that the case law as it now stands with the invigoration of Magennis’ Case, if I can put it that way, which was not so at the time of the Federal Court treatment of the case, this case, may require you being given the chance to replead, I suppose.

MR KING:   Yes.

HIS HONOUR:   To that end, it is up to you really.  It would be helpful if we had on the special leave application any draft amended pleading or further pleading which you would now wish to pursue if you were successful in this Court, in other words, any fresh or amended pleading which would be the basis for a trial which you say you have not had in the Federal Court in the light of all that has gone on in the last year in this area.

MR KING:   Thank you, your Honour, and in anticipation of that observation from your Honour we have prepared such a document and I am happy to provide it to my friend reasonably soon.

HIS HONOUR:   All right.  I may be wrong about this, but looking at it from a distance at the moment, that would seem to involve some joinder of New South Wales, I think, because it was their legislation in the end ‑ ‑ ‑

MR KING:   We think so.

HIS HONOUR:   - - - was it not, which triggered the activities that your client complains of?

MR KING:   That is correct, but, your Honour, the interesting thing about the judgment in ICM – and I am now talking about the judgment of Justices Hayne, Bell and Crennan – is that their Honours do not speak specifically about who receives the benefit.  They talk about ‑ ‑ ‑

HIS HONOUR:   I understand what you are saying about benefit, yes.

MR KING:   Yes.  But I do acknowledge what your Honour says and we would wish to take up that opportunity.

HIS HONOUR:   It would be necessary to track the interlocking nature of the arrangements between the Commonwealth and that States, that is what I am trying to say to you.

MR KING:   That is so.

HIS HONOUR:   You say, as a result of these arrangements which you say do interlock in the constitutional sense, there was an acquisition of a benefit by the Commonwealth enabling it to discharge national obligations, amongst other things.

MR KING:   Yes, and that raises a second issue, a different cause of action which Justice Crennan – I think it was Justice Crennan – on the special leave application in March observed.  She said that there may well be an issue about unjust enrichment.

HIS HONOUR:   Yes.

MR KING:   Rothmans’ Case and things like that, your Honour.  Your Honour’s observations in that case was very pertinent.

HIS HONOUR:   But that would be down the track I think.

MR KING:   Down the track.

HIS HONOUR:   All right.  I have looked at this affidavit.  I really do not think it is admissible, Mr King, and nor do I think it would be appropriate at this stage to draw in New South Wales.  I would not make either order 1 or 2 on the summons, but under order 3 I would direct that any proposed further or amended statement of claim that would be relied upon in the Federal Court if further leave were to be given there should be filed and served – how soon can you do that?  By the end of this week?

MR KING:   We can do that by the end of the week.

HIS HONOUR:   On or before – that would be Friday the 26th.

MR KING:   If the Court pleases.

HIS HONOUR:   Now, in a way, the more sinewy the pleading is the better, at a special leave level.

MR KING:   I understand, your Honour.  I know it is not writing a novel, but some people think it is, but some people think it is a lyric or an ode.  I appreciate what your Honour said.  The document that has been prepared in draft is significantly shorter than the existing document.

HIS HONOUR:   Yes, and would seek to join the State.

MR KING:   Yes, has done that.

HIS HONOUR:   The costs of the summons today will be costs in the special leave application.

MR KING:   Having regard to an observation of Justice Hayne in the Thomas’ Case that I have mentioned, your Honour, was only an

observation, nothing more.  Would your Honour want us to serve a copy of the draft pleading upon the State or would that be a matter in due course?

HIS HONOUR:   What did his Honour say?

MR KING:   I am just looking at page 19.  At 19 his Honour made the orders of adding the Director-General, but at page 11 at about line 48 his Honour asked:

Would you wish to be heard, Mr Kennan, against my directing, regardless of whether the Director-General is treated as a party or not, service of papers on the Director-General and granting leave to the Director-General to file written submissions –

I am not suggesting that that is what your Honour should do, but I simply draw it to your Honour’s attention.

HIS HONOUR:   Yes.  I think at this stage you need not go to that expense.

MR KING:   Yes, thank you, your Honour.  Your Honour, just one other administrative matter.  This is purely a personal problem.  I would ask respectfully if it could be noted that on the return date, the 23rd, that the matter be listed either first or last.  I have a ‑ ‑ ‑

HIS HONOUR:   Yes.  We were proposing to list it first.

MR KING:   Thank you, your Honour. 

HIS HONOUR:   All right.  Who will be appearing for your side, Mr Markus?

MR MARKUS:   Mr Robertson with Mr Lenehan.

HIS HONOUR:   Right, okay.  Is there anything else?

MR KING:   No, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 10.09 AM THE MATTER WAS ADJOURNED