Spencer v Commonwealth of Australia [2018] FCAFC 17

FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2018] FCAFC 17 Appeal from: Spencer v Commonwealth of Australia [2015] FCA 754; 240 FCR 282

File number: NSD 961 of 2015

Judges: GRIFFITHS, RANGIAH AND PERRY JJ

Date of judgment: 15 February 2018

Catchwords: CONSTITUTIONAL LAW – appeal from a single judge of the Federal Court of Australia – whether the primary judge erred in holding that State laws restricting native vegetation clearance did not effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution – whether the primary judge erred in holding that the appellant's property had not been acquired by joint action of the Commonwealth and NSW State governments – whether the Commonwealth was unjustly enriched by any acquisition of the appellant's property – whether the State of NSW had trespassed on the appellant's property and was liable to him in an action on the case PRACTICE AND PROCEDURE – application to adduce further evidence under s 27 of the Federal Court of Australia Act 1976 (Cth) in circumstances where the evidence was not adduced below – whether the respondents would suffer prejudice if the new material was admitted into evidence Held: appeal dismissed – application to adduce further evidence dismissed

Legislation: Constitution ss 51(xxxi), 96 Federal Court of Australia Act 1976 (Cth) s 27 National Parks and Wildlife Conservation Act 1975 (Cth) s 16 National Water Commission Act 2004 (Cth) Natural Heritage Trust of Australia Act 1997 (Cth), s 19 Natural Resources Management (Financial Assistance) Act 1992 (Cth), ss 5, 7, 8, 9 State Grants (War Service Land Settlement) Act 1952 (Cth) War Service Land Settlement Agreements Act 1945 (Cth) World Heritage Properties Conservation Act 1983 (Cth) s 9 Conveyancing Act 1919 (NSW) ss 87A, 88AB Crown Lands (Continued Tenures) Act 1989 (NSW) s 6 Endangered Fauna (Interim Protection) Act 1991 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Forestry Act 1916 (NSW) Forestry, Soil Conservation and Other Acts (Amendment) Act 1972 (NSW) National Parks and Wildlife Act 1974 (NSW) Native Vegetation Act 2003 (NSW) ss 12, 13, 27, 31, 35, 36, 38 Native Vegetation Regulation 2005 (NSW) Native Vegetation Conservation Act 1997 (NSW) Soil Conservation Act 1938 (NSW) Threatened Species Conservation Act 1995 (NSW) Convention of Biological Diversity. Opened for signature 4 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) Kyoto Protocol to the United Nations Framework Convention on Climate Change. Opened for signature 16 March 1998. 2303 UNTS 162 arts 3.3, 3.7, 5, 7. (entered into force 16 February 2005) United Nations Framework Convention on Climate Change. Opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994)