FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 2) [2008] FCA 1378 

PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA

ACD 24 OF 2007

EMMETT J

28 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s motion for interlocutory relief be dismissed.

2.                  The proceeding be dismissed.

3.                  The applicant pay 80% of the respondent’s costs of the proceeding, including the costs of the respondent’s motion for summary dismissal and the applicant’s motion for interlocutory relief.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 26 August I published my reasons for the conclusions that I have reached in relation to two applications before the Court.  The two applications were, first, by the Commonwealth for summary dismissal of the proceeding and, secondly, by Mr Spencer for interlocutory relief.  As I indicated in my reasons, it follows from my conclusions that the application for interlocutory relief should be dismissed and that the proceeding should be dismissed.

2                     I stood the matter over to today for the purpose of making orders.  When the matter was called on, counsel for Mr Spencer foreshadowed an oral application for leave to appeal.  I indicated to the parties that I had no view about the matter and invited the Commonwealth to indicate whether it opposed the grant of leave.  Counsel for the Commonwealth informed the Court that leave would be opposed and drew attention to the fact that, at this stage, no grounds of appeal have been provided. 

3                     I also pointed out that, on the present state of the law, if a leave application is refused by a single judge exercising appellate jurisdiction, there is no right of appeal from that rejection.  I also indicated that there may be some doubt as to whether leave is required, on the basis that the order dismissing the proceeding may constitute a final order.  In the light of the discussion that took place, counsel for Mr Spencer indicated that he did not wish to proceed with the leave application, making it clear, however, that Mr Spencer proposed to seek the leave of the Court to appeal from any orders that I make as foreshadowed.

4                     The Commonwealth has asked for its costs of the interlocutory application and of the proceeding generally.  Counsel for Mr Spencer suggested that, since Mr Spencer had been successful on some issues, the Commonwealth should not have all of its costs.  Mr Spencer also drew attention to his earlier submission that an element of public interest was involved in the issues raised by the proceeding.  The Commonwealth, for its part, tendered a letter of 13 June 2008 written by the Australian Government Solicitor to Mr Spencer’s solicitors, indicating that the Commonwealth would agree to Mr Spencer’s discontinuing the proceeding on the basis that each party bears its own costs.  While the letter foreshadowed a claim for indemnity costs, counsel for the Commonwealth indicated that the Commonwealth does not seek any special order as to costs but simply seeks costs orders on the ordinary basis.  The letter also pointed out that, at an earlier stage in the proceeding, the possibility of dealing with the issues raised by the Commonwealth’s summary dismissal application on a final basis was considered.  That course was opposed by Mr Spencer.

5                     Mr Spencer has had some measure of success in relation to two questions.  The first, which involved a considerable amount of evidence adduced by Mr Spencer, concerned the question of whether or not there was a serious question to be tried as to whether there was an acquisition of any property of Mr Spencer’s.  I concluded that there was a serious question to be tried as to that question, but, of course, that finding did not determine the matter one way or the other.  The other issue in respect of which the Commonwealth’s submission was not accepted concerned the question of res judicata or issue estoppel.  That involved no real time. 

6                     I do not consider that the Commonwealth, in resisting the contention that there was a serious question to be tried as to whether there was an acquisition of property, was unreasonable. Mr Spencer’s application for interlocutory relief ultimately failed on the basis that he did not satisfy me that, on the balance of convenience, any interlocutory relief should be granted.  Had the matter proceeded simply on the basis of the Commonwealth’s summary dismissal application, it would be arguable that none of the evidence was required, although Mr Spencer contends that even on the summary dismissal application, it was necessary to demonstrate the basis upon which there has been an acquisition of property.  Nevertheless, one of the grounds on which the Commonwealth sought summary dismissal was that Mr Spencer had no reasonable prospect of establishing that there has been an acquisition of his property.  That issue does involve some element of public interest, although Mr Spencer’s claim is concerned only with his private rights and interests.

7                     In all of the circumstances I consider that the appropriate order is that Mr Spencer pay 80% of the Commonwealth’s costs of the proceeding, including the costs of the application for interlocutory relief.

Associate:

Dated:         3 September 2008