FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2014] FCA 1234

THE COURT DIRECTS THAT:

1.    Leave be granted to the applicant to issue subpoenas to Mr Charles Armstrong, Dr David Kemp and Mr Mal Peters.

2.    The applicant is to consult with a Registrar of this Court in relation to the proper form of the subpoenas, the requirements for service and the requirements for matters such as conduct money.

3.    Leave to issue subpoenas to the remainder of persons listed at [36] of the Court’s reasons for judgment is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        On 17 October 2014, and after Mr Spencer informed the Court that he had terminated the retainer of his legal representatives and was representing himself, I made a number of orders and directions as to the preparation of this matter for trial on 24 November 2014. I also refused an application for an adjournment made by Mr Spencer: see Spencer v Commonwealth [2014] FCA 1117.

2        In refusing the adjournment, I made a number of accommodations for Mr Spencer, recognising the difficulties he would face in conducting this litigation on his own behalf, while balancing against those difficulties the imperative for a matter which has been in the court for seven years to be brought to final hearing, taking into account the objectives and principles in s 37M of the Federal Court of Australia Act 1976 (Cth).

3        After Mr Spencer had foreshadowed an intention to subpoena people to give evidence outside the individuals for whom affidavits had been provided, I made an order to the following effect:

Any requests for leave to issue subpoenas for witnesses at trial are to be filed by 10 November 2014.

4        In substantial compliance with that request, on 11 November 2014 Mr Spencer filed and served by email requests for the issuing of 28 subpoenas. Doing his best to comply with the need to identify the basis on which the witnesses were able to give evidence relevant to the issues in the trial, Mr Spencer filed and served a large volume of accompanying material, which he summarised in each of the “applications”. As the respondents also recognised, I acknowledge he was attempting in good faith to comply with the requirements I had imposed, as he understood them. Aspects of this judgment which make findings about forensic purpose, relevance and admissibility, should not be taken as criticism of those attempts, but rather a reflection of the Court’s view of the application of legal principles to the requests made by Mr Spencer.

THE APPLICATIONS

5        The applications are all for the persons identified to attend at the trial of this proceeding and give oral evidence. The persons identified include two former Prime Ministers of Australia, a former Premier of New South Wales, a former Premier of Queensland, three current federal Members of Parliament, a current state Minister, two current state Members of Parliament, a number of former state and federal Members of Parliament, and a range of other individuals, some of whom hold public office and some of whom are from private organisations. All are identified by Mr Spencer as having made comments, or voiced opinions about, the issues of climate change and carbon sequestration, Australia’s targets under the Kyoto Protocol, the merits of policies restricting vegetation clearing on private land as a mechanism to reduce carbon emissions and the merits of compensation for landholders affected by such policies.

6        Mr Spencer was given an opportunity to respond in writing to the respondents’ submissions on his applications. Since the time before the trial is short, he was given from Thursday 13 November to Monday 17 November 2014. He had a number of other deadlines to meet during this time and I accept his resources, and his capacity, have been fully stretched. Nevertheless, once again he did his best to meet the timetable imposed by the Court, and he is to be commended for that.

7        Mr Spencer’s submissions in response reflect the strong sense of injustice he brings to his claims in this proceeding, as well as the firmly held contention that there has been a general under-valuing of the damage done to the farming community across Australia by the pursuit of prohibitions on vegetation clearance. His submissions make it clear that he sees this proceeding, and the applications to subpoena witnesses, as a way to expose what he describes as “Kyotogate”.

8        This extract is from Mr Spencer’s introduction to his written submissions:

I make this clear as to my position. I am fully cognisant that the matter will be decided in chambers by her Honour and all parties will respond accordingly.

However the fact that the entire selection of witness’s and I reduced it from over100 was rejected and not only rejected but the material provided to substantiate their presence being needed was treated with utter contempt by the Respondents.

That fact is of real concern as it makes very clear that the accused 2 Governments of Australia are apparently providing instructions to this affect.

Subsequently with the words of the witness’s directed at the 2 Governments actions, words of the witnesses thrown back at the Applicant with such contempt for the principles of what is right and what is wrong that I ask what exactly is the Applicant’s position regarding his search for Justice in these proceedings.

Are the very words of our leaders uttered clearly and for all to hear, in regard to the most serious of matters referred in the FASOC are treated with utter contempt and I am of the opinion irrespective of the final decision of her Honour that I the Applicant have little hope of prevailing against such immoral denial so well resourced.

I take the Submissions made by the Respondents most seriously and will take all steps necessary to have my selected witness’s in Court and heard. Expediency is one thing, when it comes to Justice just plain indifference contemptible.

9        In substance I understand Mr Spencer’s contentions to be the following. He contends that principles of case management and “efficiency” should not trump the delivery of justice. He sees the respondents’ attitude to his application for subpoenas as their way of silencing him, and the points he seeks to make in this proceeding. He emphasises what he sees as the importance of this proceeding – “the outcome of this case will affect every landholder in Australia and hundreds of billions of dollars and you [that is, the respondents] are complaining about 27 witnesses”. He submits, in effect, that by concentrating on the offices held by the people he proposes to subpoena, and how much inconvenience might be caused by compelling such people to attend to give evidence, the respondents are setting up one rule for the leaders and another rule for those he describes as “the commoners”. He submits that the people he has identified are people who signed key documents in issue in this proceeding. The only proposed witness about whom he makes a particular submission is Mr Barnaby Joyce. Mr Spencer submits:

the Member of parliament Barnaby Joyce, that was being spoken to by the Finance Minster and who – he Barnaby Joyce, climbed the tower which I was sitting on my hunger strike - and he spoke at length to me and to all the people there and at each of the rallies in Canberra at Parliament house……yet it is not relevant.

10        Mr Spencer acknowledges the need for the Court to have rules about the way proceedings are conducted, but he submits that the respondents are using the rules, and the law, to “hinder the very process to the justice system that the State provides”.

APPLICABLE PRINCIPLES

11        The Federal Court Rules 2011 (Cth) contemplate that the question of leave to issue a subpoena will usually be considered ex parte and in chambers: see r 24.01. Given the unusual circumstances of this case, the tight timeframes and an apprehension (which appears to have been well founded) that Mr Spencer may seek to issue a large number of subpoenas to a wide range of people, I determined it was appropriate to allow the respondents to be heard on the applications. Both respondents provided full and helpful submissions. As I have noted, Mr Spencer was given an opportunity to respond in writing to those submissions, which he did.

12        The respondents’ submissions on applicable principles were consistent, and each of the Commonwealth and the State then undertook a more detailed examination of half each of the proposed subpoenas, applying the principles and making more detailed submissions on their respective half.

13        As a starting point, I accept with respect the position adopted by Bromberg J in Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] that it is generally appropriate where there is a real question as to leave to issue a subpoena for the decision as to leave to adopt the approach which would be taken on an application to set aside a subpoena. In most circumstances, the lawful basis for a subpoena, whether as a proposed exercise of coercive power to give evidence, or as an actual exercise of coercive power to give evidence, should be approached in the same way.

14        This was the approach taken by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], in relation to leave to issue a subpoena as to documents. There may be some distinctions in relation to witnesses in terms of discretionary considerations but in principle the approach is the same. With respect, I consider the matters outlined by his Honour at [35] represent the key considerations.

15        The Full Court in Wong v Sklavos [2014] FCAFC 120 at [12] per Jacobson, White and Gleeson JJ also summarised the applicable principles. The Court said:

Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].

16        In relation to an application to issue a subpoena, other authorities in this Court describe the existence of a legitimate forensic purpose as involving a determination that the proposed evidence has “apparent relevance”: see Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [16], referring to the decision of Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 102-103. Authorities have expressed the same principle by asking whether evidence will “throw light on an issue” or it is “on the cards” that relevant evidence will be adduced.

17        All these statements of principle, and collected expressions, seek to draw a line for the issuing of a subpoena which is less stringent than the test of relevance in the admissibility of evidence, but is at a level of rationality justifying the use of coercive powers against a person or entity. It is not, of course, a line which can be drawn with precision: rather, it calls for an exercise of judgment by the Court.

18        The respondents correctly submit that if a legitimate forensic purpose is identified, there remain other considerations. In John Holland 195 FCR 43; [2011] FCA 622 at [26], Bromberg J said the Court is required to weigh up the likely importance of any forensic purpose found against the extent of burden or prejudice likely to be created by the issuing of a subpoena. That is certainly, with respect, an important consideration in a case such as John Holland which concerned a subpoena to counsel for a party to give evidence, the result of which would have been that in the middle of a trial the party would have had to find and brief new counsel. It is also the case where a large number of documents may be subject to a proposed subpoena, as it was in McIlwain.

19        In the present case there is no particular burden to prospective witnesses apparent from the issuing of the subpoenas to give oral evidence. The trial is being conducted in Sydney, and most of the witnesses have connections with Sydney or Canberra. Their evidence is not likely to be of long duration. The respondents’ written submissions appeared at times to suggest that the prominence of particular individuals named in the subpoenas somehow tended against the subpoenas being issued, an impression which I note Mr Spencer also received from his reading of those submissions. The prominence and importance of the offices held or formerly held, by some of the individuals named in the subpoenas may contribute to an assessment whether those individuals can give relevant evidence in this proceeding in the sense of having any direct knowledge of the matters in issue. The importance of the offices those persons have held, and their prominence as individuals in the Australian community, does not, however, provide them with any special immunity from being called to give evidence in accordance with law. They are as subject to the law as any other person in this regard.

20        There are, however, case management considerations which are relevant to the exercise of the Court’s discretion. Principally they are the matters set out in s 37M of the Federal Court Act, including (as an element of the overarching purpose identified in s 37M(1)(b)) the need to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible” and the objectives identified in s 37M(2)(b)-(e). The Court is required to take those matters into account in the exercise of its powers. Those matters go to the administration of justice as much as the broader sense of “justice” to which Mr Spencer refers in his submissions. The resources of Court are public resources and must be employed judiciously, for the benefit of all litigants in the court. As I found in my decision on Mr Spencer’s adjournment application (Spencer v Commonwealth [2014] FCA 1117), the particular history of this case means that there are more imperatives than usual to ensure the matter, while dealt with fairly, is brought to hearing and determination without further delay. Thus, if issuing the subpoenas would cause unreasonable delay to the trial, would put the trial at risk of not finishing in the scheduled time, or would impose unreasonable burden by way of preparation on the respondents, these matters may suggest the subpoenas should not be issued. As it turns out, for the reasons I set out below, considerations of delay have not featured in my decision.

21        I consider it also important to take into account that I did refuse Mr Spencer an adjournment after he terminated the retainer of his legal representatives. He is, I recognise, under considerable pressure in terms of his preparation for trial. He is not a lawyer and has taken over his own case at a late stage, albeit in large part because of his own decisions. While those circumstances would not justify issuing subpoenas otherwise than in accordance with legal principle, they do in my opinion mean that the respondents also must be prepared to shoulder some additional inconvenience and burdens in the running of this proceeding. Since my ruling on the adjournment application, the respondents have indeed been highly cooperative, taking on additional and costly aspects of trial preparation such as preparation of the Court Book. Some further inconvenience to the respondents in terms of preparing for some extra witnesses may be necessary to ensure the matter is heard and determined, while making some accommodations for Mr Spencer.

CONSIDERATION

The Nature of Mr Spencer’s claims

22        In order to assess whether the witnesses Mr Spencer seeks to subpoena may give evidence of any apparent relevance to the issues in the proceeding, it is necessary to consider the nature of Mr Spencer’s claims. They were articulated in the High Court (see Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28) in the following ways:

23        At [1], [6], [8] and [9] per French CJ and Gummow J:

On 12 June 2007, Peter Spencer, the owner of a farm at Shannons Flat in New South Wales, commenced proceedings against the Commonwealth in the Federal Court of Australia. Restrictions had been imposed on the clearing of vegetation on his farm by reason of the Native Vegetation Conservation Act 1997 (NSW) (the NVC Act 1997) and the Native Vegetation Act 2003 (NSW) (the NV Act 2003). He claimed that the restrictions constituted an acquisition of property from him other than on just terms and that the acquisition was made in furtherance of agreements between the State of New South Wales and the Commonwealth. He alleged that the Commonwealth laws which authorised those agreements, the Natural Resources Management (Financial Assistance) Act 1992 (Cth) (the Financial Assistance Act) and the Natural Heritage Trust of Australia Act 1997 (Cth) (the Natural Heritage Trust Act), were made for the purpose of acquiring property other than on just terms and were invalid by reason of s 51(xxxi) of the Constitution.

…

Mr Spencer’s case, as then pleaded, depended upon his contentions that the Natural Heritage Trust Act, the Financial Assistance Act and the intergovernmental agreements were invalid to the extent that they effected or authorised acquisitions of property from him other than on just terms within the meaning of s 51(xxxi) of the Constitution. The property so acquired was said to include carbon sequestration rights. A carbon sequestration right comprises a right to the “legal, commercial or other benefit … of carbon sequestration by any existing or future tree or forest on the land after 1990”. It is so defined by s 87A of the Conveyancing Act 1919 (NSW) and deemed by s 88AB of that Act to be a profit À prendre.

…

He pleaded the passage of the State Acts, that he had been prevented and restricted from clearing native vegetation on his land by reason of those Acts and the refusal of the State of New South Wales to grant permission for such clearing pursuant to particular provisions of those Acts. Those provisions were said to have effected an acquisition of his property.

…

Mr Spencer alleged that, by reason of the State Acts, his property had been rendered commercially unviable and that the State of New South Wales had offered to purchase the land at market value.

24        At [31], their Honours referred to the kind of evidence which Mr Spencer might need to obtain:

The question that arises is whether Mr Spencer’s pleading left open the possibility, requiring factual exploration and possible amendment, of an informal arrangement between the Commonwealth and the State of New South Wales conditioning the relevant Commonwealth funding upon acquisition by the State of Mr Spencer’s property rights on other than just terms. On the face of the pleading before Emmett J and the Full Court that possibility was open, even if not fully formulated or adequately particularised. Given the existence of the Commonwealth Acts and the relevant intergovernmental agreements, it is likely that there are negotiations and communications between the Commonwealth and the State of New South Wales, records of which might flesh out or cast light upon the practical operation of the Commonwealth and State funding arrangements. Documentary and electronic records of such negotiations and communications may be amenable to discovery and ancillary processes in the Federal Court which could be invoked by Mr Spencer.

25        Hayne, Crennan, Kiefel and Bell JJ described the applicant’s claims in the following way (at [43]):

The applicant claims that some or all of his interests in freehold and leasehold farming land were acquired, other than on just terms, when prohibitions or restrictions on his clearing native vegetation on the land were imposed under the Native Vegetation Conservation Act 1997 (NSW) and, later, the Native Vegetation Act 2003 (NSW). More particularly, he claims that the rights to the carbon sequestration and carbon abatement effects that are provided by the existing vegetation on the land have been acquired. He further claims that the acquisition has come about as a result, or through the implementation, of the two Commonwealth Acts whose validity he challenges, and what he has variously described as “a cooperative statutory and administrative framework, arrangement or partnership between the [Commonwealth] and the State of New South Wales in performance of the [Commonwealth's] commitments under [the] United Nations Framework Convention [on] Climate Change”, some express or implied agreement between the Commonwealth and the State, or a “joint venture” between the Commonwealth and the State.

26        In terms of the factual and evidentiary issues, and noting (at [48]) that resolution of the factual issues would depend on the evidence adduced, their Honours said (at [46]):

The Commonwealth does not admit that there is any scheme or device; it does not admit that there is any relevant arrangement or understanding beyond what appears in the relevant intergovernmental agreements and applicable legislation; it does not admit that there is any partnership or joint venture with the State. Two points follow. First, there is a factual question presented by the applicant’s allegations. Is there any arrangement or understanding beyond what appears in the relevant intergovernmental agreements and applicable legislation? Second, if there is, what is its constitutional relevance?

27        Since the High Court’s decision, the applicant’s pleading has been the subject of some substantive amendments. However, those amendments were directed, it seems to me, at attempting to align the pleading with the way the High Court described the possible issues in the case, and the alternative way the claim could be put following from the issues left open by the joint judgment of French CJ, Gummow and Crennan JJ in ICM Agriculture v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 at [37]-[38], and the “possibility of grants of financial assistance pursuant to s 96 of the Constitution supported by informal arrangements between governments setting out the conditions upon which such grants were made” (see Spencer 241 CLR 118; [2010] HCA 28 at [29] per French CJ and Gummow J).

28        At paragraph [34] of the Further Amended Statement of Claim dated 21 January 2011, having referred to the 1997 Intergovernmental Agreement, the 2000 Salinity Agreement, the 2002 Salinity Agreement and the Trust Agreement, the applicant pleads:

Each of the said agreements referred to in paragraphs 14, 24, 26 and 28 or one or more of them were unconstitutional agreements in that by the terms thereof the Second Respondent has expressly or impliedly agreed to make and adopt measures with respect to the acquisition of property of inter alia the Applicant otherwise than on just terms in consideration of the payment of moneys by the First Respondent to it.

29        He then pleads, in paragraph [34A], the existence of an informal arrangement in the following way:

Further or alternatively by an informal agreement between the First and Second Respondents made in or prior to November 1997 and extended or amended in or about 2003 the Respondents agreed to acquire property of the Applicant being the property specified herein other than on just terms. The arrangement was to the effect that in return for money the Second Respondent would make measures which would preclude or reduce the exposure of one or both of the Respondents to the requirements of the constitutional guarantee in Constitution section 51 (xxxi).

Particulars

a. The best particulars the Applicant can give before discovery and interrogatories is that at a series of meetings held in or prior to 1997 the first and second respondents agreed the terms of the informal arrangement between themselves;

b. The terms were that, interalia:

i. The first respondent would propose to the Kyoto conference of parties to the UNFCCC that the target of emission reduction by Australia by 2010 be 108% of the 1990 level;

ii. that the first respondent’s proposed reduction in emissions would be contingent on it being able to count as a credit any reduction in levels of emissions attributable to levels of land clearing being lower than in 1990;

iii. The second respondent would ensure that land clearing on private land in its territory was restricted to an extent which would enable the overwhelming component of the reduction in carbon emissions necessary to meet the target of 108% of 1990 emissions achieved by the prevention of land clearing;

iv. The second respondent would comply with National Monitoring conditions imposed by the UNFCCC Compliance Committee;

v. The first respondent would provide the second respondent with funds through the Natural Heritage Trust fund to enable it to prevent land clearing;

vi. The question of compensation for affected land holders in the territory of the second respondent was the concern of the second respondent and not the first respondent;

vii. In the event that the first respondent achieved the outcomes in (i) and (ii) hereof and the second respondent met the requirement in (iii) hereof, the second respondent would not be otherwise required by the first respondent to achieve reductions in carbon emissions to meet the first respondents commitment under the Kyoto protocol.

c. The informal arrangement includes or is evidenced by the following documents namely COAG ministerial committee minutes of the National Environment Protection Council from 1993 to 2005 and the special minutes of COAG in a series of meetings convened in November 1997 leading up to and during the Kyoto Protocol conference commencing in December 1997;

d. A letter between the Prime Minister or the Minister for the Environment of the First Respondent to the Premier of the Second Respondent dated in or about 2003 or informal discussions and understanding between the said persons to the same effect referring to the National Vegetation Initiative and extension of the land clearing controls in New South Wales.

30        He then pleads (at paragraph [35]) that an alternative characterisation of the agreement and informal arrangements was to constitute a “joint venture” between the Commonwealth and New South Wales for the acquisition of property other than on just terms.

31        At [36] (as amended) he pleads the New South Wales legislation he asserts was the product of these agreements and arrangements:

Pursuant to the said agreements and/or the informal arrangement and/or induced by the First Respondent, and/or in furtherance of the joint venture at the request of the First Respondent the Second Respondent made legislative and other measures (hereafter referred to as the “State measures”) which had the effect or consequence of acquiring the Plaintiff’s land without just terms.

Particulars of the Legislative measures

(a) The 1997 Vegetation Act sections 15, 21, 33 and 39

(b) The 2003 Vegetation Act sections 12, 14 and 27.

Particulars of the Inducement

The inducement alleged comprises money paid to the Second Respondent by the First Respondent in the sum of not less than $1,200,000,000 full particulars of which will be provided after discovery for the purpose of the making of laws by the Second Respondent which laws are referred to in (a) and (b).

(c) The commercial viability of the farming enterprise carried on by the Applicant at Saarahnlee was prohibited and lost as a consequence of the measures.

(d) The Applicant lost the benefit of improvements including pasture improvement, timber treatment, removal of wood, and millable timber.

(e) The measures denied the Applicant access to any voluntary market that related to the trading of carbon sequestration of abatement rights.

(f) The reasonable user of the land for agricultural purposes as contemplated by its zoning has been expropriated.

32        The benefit which the applicant alleges the Commonwealth secured was first a profit À prendre in the applicant’s land for carbon sequestration and abatement rights and, second, a significant financial benefit, being the savings of cost and expense of accounting for deforestation for land use and land use change under the Kyoto Protocol (see paragraph [37] of the Further Amended Statement of Claim). New South Wales is alleged to have received a benefit in the form of “the prohibition of the reasonable use of the land by the Applicant” (at paragraph [60]).

33        The applicant claims “equitable compensation” by one or both respondents, alternatively that one or both respondents account to him for the receipt of benefits by them. The compensation claim appears to be referable to loss and damage identified in other parts of the Further Amended Statement of Claim as:

The State measures were directed to the Applicant and caused him loss and damage.

Particulars of Loss and Damage

a.    The commercial viability of the Applicant’s property Saahranlee has been destroyed or prevented by the combined actions of the First and Second Respondents and each of them;

b.    The reasonable user of the property between about 1997 to date has been prevented by the actions of the First and Second Respondents;

c.    The Applicant’s ecosystem services enterprises on the land adopted as an alternative to farming and grazing have also been destroyed or prevented on the property;

d.    Carbon sequestration and carbon abatement rights have been taken or acquired;

e.    Improvements to the property specified in paragraph 5 herein have been taken or acquired;

f.    Crown lease rights have been prevented or acquired as specified in paragraph 5 (c) herein.

34        The respondents plead various answers to the applicant’s constitutional claims. At the level of material facts, they both make bare denials in relation to the allegations about the nature and existence of the informal arrangements or agreements.

35        Some assistance about the nature of the applicant’s case can also be gained from the “Profile Document” the applicant was ordered by Gleeson J to file as part of the case management of this proceeding. That document not only sets out the nature of Mr Spencer’s claims but also refers to key players in the narrative built around Mr Spencer’s claims, as well as key dates and events. That assists in understanding the factual issues Mr Spencer seeks to prove. Where relevant, I refer to the contents of the profile document below.

The subpoena applications

36        Mr Spencer has applied for leave to issue subpoenas to attend and give oral evidence to the following persons:

    Andrew Stoner (current State MP);

    The Honourable Barnaby Joyce (current Federal MP);

    Bob Carr (former New South Wales Premier and former Federal Minister);

    Brian Fisher (Executive Director of Australian Bureau of Agricultural and Resource Economics and Sciences);

    Charles Armstrong (Former President of the New South Wales Farmers Association);

    Dr David Kemp (former Federal Minister);

    Professor Graham Farquhar;

    Ian Macdonald (current Federal Minister or/also former State Minister for Natural Resources, Primary Industries and Mineral Resources);

    Ian Mott (President of the Landholders’ Institute);

    Ian Noble (Chief Scientific Advisor for ND-GAIN Washington DC);

    John Anderson (former Federal Minister);

    Justin Sherrard (Global Manager Research, Rabobank);

    Alan Tate (Cambair Pty Ltd);

    Kevin Humphries (current State Minister for Natural Resources, Lands and Water and Minister for Western NSW);

    Lindsay Tanner (former Federal MP);

    John Howard, (former Prime Minister);

    Mal Peters (former President of NSW Farmers Association);

    Michael Robinson (CEO Coop Research Centre for Greenhouse Accounting);

    Mike Keogh (Executive Director Australian Farmers Institute);

    Neil Inall (Chair, Native Vegetation Advisory Council);

    Paul Keating (former Prime Minister);

    Penny Wong (current Federal MP);

    Peter Beattie (former Premier of Qld);

    Phil Koperberg (Former NSW Minister);

    Dr Rhondda Dickson (Chief Executive, Murray Darling Basin Authority);

    Robert Hill (Former Senator);

    Tony Beck (Australian Emissions Trading Forum Coordinator);

    Tony Lawler (Former Federal Minister).

37        New South Wales submits that, upon examining the justifications articulated by Mr Spencer for his applications, and the documents to which he has referred, it is evident that Mr Spencer “appears to want these witnesses to give opinions, or personal beliefs, on questions of policy” and in some cases, “appears to want to adduce further expert evidence which is outside the pleaded case”.

38        In general terms, I accept this submission. Much of the material Mr Spencer has filed in support of calling these people contains statements of opinion by them about how Australia might (or might not) meet its targets under the Kyoto Protocol, about their personal views on vegetation clearance, or about their support for either increasing or decreasing the ability of governments to prevent vegetation clearance. Although those topics are core parts of the factual context for Mr Spencer’s claims, general opinions expressed publicly by politicians, policy makers, stakeholders or persons with interest or expertise on those issues are not relevant, in a legal sense, to the facts in issues in this proceeding. Mr Spencer’s submissions display an approach to the concept of relevance which is understandable in a lay person. That approach is not however the one required by the law. Evidence of fact or opinion is only relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: see s 56 of the Evidence Act. “Relevance” as a legal concept is thus much more precise, and narrower than the meaning of the word as generally understood.

39        Further, it is clear that some of these people may well be recognised experts in particular fields (for example, Mr Noble and Professor Farquhar), but there is nothing in the material provided by Mr Spencer to indicate that they could give opinion evidence relevant (in a legal sense) to any facts in issue, as opposed to opinion evidence about the competing policy issues associated with climate change and vegetation clearance. This trial is not about the desirability, or undesirability, of vegetation clearance as a means to reduce carbon emissions. Nor is it about the broad economic consequences for affected landholders of policies prohibiting or restricting vegetation clearance. Neither of those are matters for this Court. This Court is only concerned with what was done, or not done, in relation to Mr Spencer’s land and whether either of the respondents have any liability in law of the kind alleged by Mr Spencer for what was done, or not done, or whether any of the legislation which applied to Mr Spencer’s land was unconstitutional.

40        It does appear that some of the people listed by Mr Spencer may have made statements in documents on which he would wish to rely. Again, many of those statements appear to be in the nature of opinions, or statements of intent. If they are relevant, they may be inadmissible on the basis of hearsay. If that is the case, in a way the applicant’s contention that such witnesses should be called is stronger. No subpoena may be necessary if the respondents do not object to the admission of the documentary evidence. However, if objection is taken and the Court is satisfied the evidence is capable of being probative of the existence of facts in issues in the proceeding (taking a broad view of the ‘facts in issue’ given Mr Spencer is self-represented) , and especially facts in issue in the applicant’s case, then a subpoena may be necessary. However it is too early to make that assessment, and at the moment there is no basis to believe the respondents will take an unduly technical or narrow approach to the application of the hearsay rule in the present proceeding, rather than being content to make submissions as to the weight to be given to material or the limits of its probative value.

41        The principal area in which it may be appropriate to grant leave to Mr Spencer to issue subpoenas relates to his allegations about the existence of informal agreements or arrangements between the respondents to the effect that the Commonwealth would provide funds, through the Natural Heritage Trust, to enable New South Wales to prevent land clearing.

42        These allegations are, as I have observed above, the subject of bare denials by the respondents. Mr Spencer is thus put entirely to his proof on these matters. Whether he may be able to prove his allegations entirely through documents is a matter which cannot yet be determined, given the trial has not commenced, no court book has been filed and no documents have been admitted into evidence. The respondents have foreshadowed a considerable number of objections to evidence in Mr Spencer’s case, although the point has not been reached where the respondents have been called upon to set out in detail the nature of their objections.

43        If any of the people on Mr Spencer’s list are people who may be able to give relevant and admissible evidence (in the sense of direct knowledge) about the existence and nature of such arrangements as are alleged by Mr Spencer, then it is in the interests of the administration of justice that he is able to seek to have those people appear as witnesses in the trial.

44        Accepting that there are real limits to the Court’s current familiarity with the detail of the issues in this proceeding, doing the best I can, it appears that the following people may have knowledge about the existence (or non-existence) of such arrangements. The number of people in this category is small and can be accommodated within the current schedule for the trial. As the parties accepted at the directions hearing last week, the current two-week schedule proceeds at a comfortable and not tight pace. In my opinion, there are times available during those two sitting weeks for these witnesses. Further, this trial has always been set down for three weeks, and at the moment the third week is not expected to be occupied by evidence. Thus, a day or two occupied by the subpoena witnesses would simply mean the remainder of the evidence ran into the third week.

45        Those people are:

    Mr Charles Armstrong. Mr Armstrong is a former president of the New South Wales Farmers Association. I consider he may have participated in meetings or discussions with government which means he may be able to give relevant evidence about the introduction of the New South Wales native vegetation laws, and their relationship to the Commonwealth’s Kyoto targets. At the present stage I am not prepared to rule out the possibility his evidence may be legally relevant to the existence or non-existence of the alleged informal agreement.

    Dr David Kemp. Dr Kemp is mentioned many times in the profile document. His position as federal Environment Minister at times which are said by the applicant to be key to his narrative means I consider there is a reasonable prospect he may be able to give relevant evidence, especially about the existence or non-existence of the alleged informal arrangements.

    Mr Mal Peters. Mr Peters is also a former President of the New South Wales Farmers Association and in my opinion leave should be granted for the same reasons I have identified in relation to Mr Armstrong.

46        In relation to the remainder of the persons on Mr Spencer’s list, I am not presently persuaded on the material before me that they can give relevant and admissible evidence on any facts in issue. As the respondents have pointed out, there would also have been a range of legal issues arising in the issuing of subpoenas to current members of Parliament during Parliamentary sitting weeks. Those issues do not arise in relation to the three people I have identified.

47        Some of the other matters raised by the respondents are the absence of evidence about whether attempts have been made to contact the witnesses in relation to availability and willingness to give evidence, the absence of outlines of evidence, and prejudice to the respondents in the preparation of their case by the addition of further witnesses at a late stage.

48        I do not consider any of these matters sufficiently persuasive in relation to the three witnesses I have identified. There will be some prejudice to the respondents in having these three witnesses give evidence, where they are unaware of the content of that evidence. Such prejudice can be accommodated by giving the respondents time to seek instructions before cross-examination, and leave to adduce further responsive evidence themselves.

49        Further, I do not consider the subpoenas are a “fishing” or “trawling” exercise in the sense explained at McIlwain 221 ALR 785; [2005] FCA 123 at [35(e)]. Mr Spencer has done his best to nominate the reasons why he wishes the individuals to be called; he has attempted to identify the subject matter of their evidence. To some extent, in order to prove the existence of an informal agreement of the kind he alleges, it is likely he needs to ask questions of individuals who are not in his “camp”. It is likely such agreements may not be sufficiently identified in writing; that does not preclude their existence. Ultimately, Mr Spencer will have to discharge his burden of proof in the ordinary way about the matters he alleges; at the moment the Court’s interest is only in ensuring he has a fair opportunity to attempt to do so.

50        Since Mr Spencer is self-represented, I do not consider it fair or appropriate to hold him to a standard expected of legal representatives in what should have occurred before a subpoena is issued, by way of providing outlines of evidence and the like. The respondents are well resourced and very capably represented. They have been involved in this case for many years. With fair accommodation by the Court they can in my opinion cope with the addition of three witnesses giving oral evidence.

51        As I have found at [44] above, there will be no unmanageable or unreasonable interference with the progress of the trial as the current schedule has in my opinion enough room for the addition of oral evidence by a small number of witnesses.

52        On application by any of the persons to whom a subpoena is addressed, the Court may consider, in accordance with r 24.22 of the Federal Court Rules, an order that Mr Spencer pay the amount of any reasonable loss or expense incurred in complying with the subpoena. This need not be dealt with in advance of the issuing of the subpoenas.

53        I will also direct that a Registrar assist Mr Spencer in drawing the subpoenas in compliance with the Federal Court Rules, drawing his attention to other necessary requirements such as conduct money: see r 24.17.

54        In terms of the timing of the return dates for the subpoenas, and where they might best be accommodated in the trial timetable, taking into account the service periods set out in the Rules, I will in the first instance leave this as a matter to be discussed between the parties, with the assistance of a Registrar if need be. The trial timetable suggested by the respondents already has at least one of the respondents’ witnesses being interposed to suit their convenience, which is appropriate. It seems to me that within reasonable limits the same ought to be able to be achieved for the three witnesses to whom subpoenas will be directed.

55        The determination I have made concerning the issuing of only three of the subpoenas for which Mr Spencer has applied does not preclude him, during the trial, making a further application in relation to the witnesses on this list, or other witnesses. If, for example once particular documents are in evidence it becomes apparent there is a gap which could only be filled by oral evidence, then Mr Spencer is not precluded from making a specific application about a specific (new) witness. That is not by any means to encourage such applications by Mr Spencer. Any such application will place great pressure on all parties in terms of their conduct of the trial and their preparation. I make this point only to emphasise (in particular to Mr Spencer, although these observations apply equally to the respondents) that if I am sufficiently persuaded about the relevance and admissibility of particular evidence from a witness who is not currently scheduled to be called, a party will not be shut out from applying to have such a witness called. Whether the party’s application is successful will depend on how persuasive the submissions are about relevance, as well as other matters such as the stage the trial has reached, prejudice to other parties and the reasonableness in the context of the trial of calling any further witnesses.

56        Accordingly, leave will be granted to Mr Spencer to issue, with the assistance of a Registrar of the Court, three subpoenas to the persons I have identified in paragraph [45] above.

Associate:

Dated:    18 November 2014