Monday, January 11, 2010

The Peter Spencer Case.

We've been hearing an awful lot lately about Peter Spencer, the farmer who's gone on a hunger strike wanting compensation for restrictions placed on him, and other farmers, by both State and Federal laws. There's been an awful lot of noise but very little actual information, so with just a little digging at

I've found both the decision of the Federal Court:
Spencer v Commonwealth of Australia (2008) FCA 1256 (26 August 2008)

and the NSW Supreme Court:
Spencer v Australian Capital Territory and Ors (2007) NSWSC 303 (4 April 2007) (against the A.C.T., N.S.W. & Commonwealth Governments).

I'm no lawyer and it's fairly heavy reading and I've only skimmed over it though it is interesting reading, to me the Federal Court appeared more than fair and quite sympathetic to Spencer's plight allowing him to resubmit his statement of claim a number of times but ultimately finding:

211 One cannot but feel the utmost sympathy for Mr Spencer if it be the case that Saarahnlee has been effectively sterilised by the State Statutes, with the effect that he can no longer carry on at Saarahnlee the activities which he was able to carry on prior to the enactment of the State Statutes. The question before the Court, however, is whether he has demonstrated that there is a serious question to be tried as to whether he is entitled to the final relief that he claims against the Commonwealth. Putting it the other way, the question is whether he has any reasonable prospect of obtaining that relief against the Commonwealth. Each question depends upon establishing that the Financial Assistance Act, the Natural Heritage Act or one of the Inter-Governmental Agreements is invalid in so far as it effects or authorises an acquisition or expropriation of part of Mr Spencer’s property in relation to Saarahnlee.

212 I have concluded that neither the Financial Assistance Act nor the Natural Heritage Act is a law with respect to the acquisition of property. Further, neither of those laws effects or authorises any acquisition of property of Mr Spencer’s that has been identified by him in the statement of claim. Similarly, none of the Inter-Governmental Agreements effects or authorises any such acquisition. It follows, in my opinion, that there is no reasonable prospect that Mr Spencer can obtain the final relief claimed in the proceeding. It also follows that there is no serious question to be tried as to whether Mr Spencer is entitled to that relief.

213 Accordingly, Mr Spencer’s application for interlocutory relief must be dismissed. Further, the proceeding itself must be dismissed.

The Spencer v Australian Capital Territory is interesting in that it combines action against the ACT Government for allowing feral animals onto his property with action against the NSW & Commonwealth Governments regarding native vegetation laws and for compensation for the sequestering of 100 000 Tonnes of Carbon/ year on his property (I may have missed it but I saw no mention of how this figure was arrived at).

The judgement concluded:

42 My conclusions may be summarised as follows:

43 The claim against
the State cannot succeed. The State has power to legislate with respect to the
use of land held in fee simple.

44 The claim against the Commonwealth cannot succeed. The claiming of political credit for a result obtained at the expense of a citizen founds no cause of action known to law.

45 The claim against the Territory is defectively pleaded, but it is not unarguable.
While the pleading in that respect should be struck out, there should be leave to replead against the Territory, and the proceedings against the Territory should not be summarily dismissed. However, as I am not satisfied that if the case goes to trial the plaintiff will obtain judgment for substantial damages against the Territory, the conditions for an interim payment are not satisfied.

46 It follows that I will dismiss the proceedings as against the State and the Commonwealth. I will strike out the statement of claim, but with leave to replead a cause of action in nuisance against the Territory. I will dismiss Mr Spencer’s motion for an interim payment.

47 My orders are:

1. Order that as against the second defendant, the State of New South Wales, and the third defendant, the Commonwealth of Australia, the proceedings be dismissed with costs.

2. Order that the statement of claim be struck out, with leave to replead against the first defendant, the Australian Capital Territory, upon condition that the allegations in paragraphs 5 and 6 of the statement of claim, or allegations to substantially the same effect, not be repeated in any amended statement of claim.

3. Order that the plaintiff pay the costs of the second and third defendants of their motions filed respectively on 9 March and 28 February 2007.

4. No order as to the costs of the first defendant’s motion filed on 13 March 2007, to the intent that the plaintiff and the first defendant bear their own costs of that motion.

5. Order that the plaintiff Mr Spencer’s motion filed on 12 March 2007 be dismissed with costs.

48 Ms England suggested that if any part of the proceedings survived, Mr Spencer should be referred to the Pro Bono Scheme. I was myself inclined to share that view, in the hope that it might facilitate the production of an appropriate statement of claim. Mr Spencer, however, does not wish such a referral. That is a pity, since if he has a viable cause of action it is far more likely to be pleaded properly if he has the benefit of legal assistance. But I see little point in compelling him to seek it when he apparently does not want it. If he reconsiders, he can make his own application for a referral.

So the cases against the NSW & Commonwealth Governments were dismissed with costs, the case against the ACT was defectively pleaded however he was given leave to replead with the suggestion he seek Pro Bono legal assistance. There is far more interesting reading in this case but it would appear that between this and the Federal case there has been an improvement in his case pleading.

And there you go, info you're unlikely to find from the usual suspects.

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