Spencer v Commonwealth of Australia [2007] FCA 1787

FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2007] FCA 1787

PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA ACD 24 OF 2007

EMMETT J

1 NOVEMBER 2007

SYDNEY (HEARD VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 24 OF 2007

BETWEEN: PETER JAMES SPENCER

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: EMMETT J DATE OF ORDER: 1 NOVEMBER 2007

WHERE MADE: SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1. The statement of claim filed on 18 October 2007 be struck out. 2. The applicant have leave to file an amended application and a further amended statement of claim no later than 3 December 2007. 3. The applicant pay the respondent's costs of today and the costs thrown away by the amendments. 4. The matter be stood over for directions by videolink between Sydney and Canberra on 20 December 2007.

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 ACD 24 OF 2007

BETWEEN: PETER JAMES SPENCER

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: EMMETT J

DATE: 1 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 31 August 2007 I ordered that the applicant's statement of claim filed on 17 July 2007 (the Original Statement of Claim) be struck out. However, I granted the applicant leave to file and serve an amended statement of claim addressing two questions that I referred to in my reasons for making the orders of 31 August 2007. On 18 October 2007 a statement of claim in a different form, although it was not called an amended statement of claim, was filed (the Second Statement of Claim). The Second Statement of Claim has more deficiencies than the Original Statement of Claim. I am informed by counsel for the applicant that the Second Statement of Claim was drafted by the applicant himself, who does not have legal qualifications. 2 Substantial parts of the Second Statement of Claim consist of commentary and submissions that ought not to be part of a pleading. I refer in particular to paragraphs 1 to 7, 10 to 13, 15, 19, 23, 25 and 29. Some of those paragraphs might be capable of being turned into propositions of law. However, as they stand, they appear to be no more than commentary. 3 In addition, some of the paragraphs of the Original Statement of Claim that made clear and intelligible assertions have been altered in a way that detracts from their clarity. For example, paragraph 1 of the Original Statement of Claim asserted that "the applicant holds and at all material times held freehold title to land known as 'Saarahnlee' in Shannon's Flat in the State of New South Wales". However, paragraph 8 of the Second Statement of Claim is as follows: "The applicant holds, and at all material times has held the conveyed freehold entitlements, Crown registered and Crown-sealed under Torrens; and recorded as the Constitution demands under s 51 in the Local Government Registry of Approvals [s 113 Local Government Act] as the full volume of land is known, described and identified as Saarahnlee at Shannons Flat in the State of New South Wales." With the greatest respect to the author of that clause, it is gobbledygook. 4 The two matters that I indicated on 31 August 2007 should be addressed were: (a) How is it that restrictions on the user of "Saarahnlee" constitutes acquisition of the freehold asserted. (b) How is it that the Native Vegetation Act 2003 (NSW) constituted, or gave effect to, an acquisition of property by the Commonwealth. The Second Statement of Claim does not adequately address either of those questions. There has been no change in the approach adopted to those questions. 5 In the Second Statement of Claim, rather than alleging an acquisition of the freehold of "Saarahnlee" by reason of the imposition of restrictions on its use, the allegation now appears to be that the Commonwealth has acquired property of the applicant that is variously described as "carbon sequestrations takings" (paragraph 27), "substantial commercial carbon sequestration crop" (paragraph 32), "carbon crop produced from the conveyed attributes of the Land" (paragraph 34) and "CARBON developed beneficial use of the Land" (Prayer A). The pleading must identify precisely what property of the applicant is alleged has been acquired by the Commonwealth. 6 The second question concerns the mechanism whereby it is alleged that the Commonwealth acquired property of the applicant. The only Commonwealth legislation referred to in the Second Statement of Claim are the provisions of the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth). Reference is also made in paragraph 16(c) of the Second Statement of Claim to an "Intergovernmental Agreement on the Environment". Paragraph 22 of the Second Statement of Claim also refers to agreements between the Commonwealth and the State as follows: "Provision for use of Commonwealth funds for purposes including reversing the long-term decline in the argument and counter-argument as to the extent and quality of Australia's native vegetation." Paragraph 8 of the Original Statement of Claim made a more intelligible assertion that the agreements were entered into "for purposes including: reversing the long-term decline in the extent and quality of Australia's native vegetation". 7 What is not apparent from the Second Statement of Claim is the mechanism whereby the Commonwealth, by some legislation that is authorised only by s 51(xxxi) of the Constitution, effects an acquisition of property. The relief that is claimed is a declaration that the Commonwealth has invalidly acquired certain property of the applicant. The Second Statement of Claim also claims an order that the Commonwealth take immediate steps to comply with the restriction on its legislative power imposed by s 51(xxxi). It is difficult to know what that means. 8 The application filed on 12 June 2007, which has not been amended, seeks an order restraining the Commonwealth from pledging carbon assets owned by the applicant and an order requiring the Commonwealth to make an advance payment against its liability to the applicant for carbon acquired by New South Wales as the agent of the Commonwealth. Both orders are misconceived. 9 There is also a claim for an injunction prohibiting the Commonwealth from pledging or trading emission or carbon credits. No such order could be made. Either there has been an acquisition by the Commonwealth or there has not. If an acquisition purportedly occurred, through legislation that was not authorised by the Constitution, then the Court could determine that the legislation is invalid. In that case, the Court would be able to make a declaration to that effect and declare that there has been no acquisition. However, that is not what the applicant claims. 10 The proceeding as it presently stands is doomed to failure. However, as I indicated on 31 August 2007, it is possible that the applicant may be able to formulate a claim that is at least arguable such that it should go to trial. It may be that a legal question would be thrown up by a properly pleaded statement of claim that could be the subject of preliminary determination on a basis that could ultimately be taken on appeal, if either party wished to do so. 11 The Second Statement of Claim, of 18 October 2007, should be struck out. However, I am prepared to give the applicant leave to file an amended application and a further amended statement of claim. 12 The hearing today has achieved nothing. The applicant should pay the Commonwealth's costs of today and the costs thrown away by any further amended statement of claim or amended application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.