FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2014] FCA 1288

THE COURT RULES THAT:

1.    Paragraphs [8]-[19] of the affidavit of Dr Alan John Moran, sworn 28 January 2014, are inadmissible.

2.    The affidavits of Mr Peter James Spencer, sworn 2 October 2009 and 16 December 2013, are inadmissible.

3.    The affidavit of Ms Jeanne Elizabeth Hughes, sworn 24 January 2014, is inadmissible.

4.    The remainder of the respondents’ objections to evidence are not upheld.

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

REASONS FOR JUDGMENT

1        These reasons address the objections made by the Commonwealth and the State to evidence sought to be adduced by Mr Spencer. Written objections were filed by the State on Friday 21 November 2014 and by the Commonwealth in Court on Monday 24 November 2014. Junior counsel for the State and Commonwealth developed those objections by way of oral submissions on 26 November 2014. Mr Spencer also made oral submissions on the objections, in particular having been directed by the Court to respond to some specific questions about the relevance of several affidavits on which he sought to rely.

2        Senior counsel for the second respondent noted that as yet the objections cover only witness evidence and not documents sought to be tendered. The list of the documents which might be tendered, although it had advanced to the stage of inclusion in the Court Book, is, I am informed, not finalised. Senior counsel for the State informed the Court that discussions between the respondents and Mr Spencer were continuing to try and ascertain which documents may be disputed in terms of admissibility, and which might not.

3        Therefore, aside from the objections directed at a series of documents exhibited to Mr Spencer’s affidavit of 30 January 2014, these rulings deal only with the objections to the affidavit evidence.

4        These rulings are made shortly after the commencement of the proceeding. Mr Spencer had notified the Court and the respondents that he felt unprepared to start the case as scheduled at 10.15 am on 24 November 2014, and asked for further time. After some discussions between the parties, and then submissions to the Court, I modified the trial timetable so that the respondents would give their openings first, followed by Mr Spencer, and the respondents would then have an opportunity to complete anything they wished to say by way of opening after Mr Spencer’s opening.

5        There has been some uncertainty about which witnesses Mr Spencer was proposing to call and what evidence he proposed to adduce from them. At a pre-trial directions hearing on 12 November 2014, Mr Spencer had been asked about these issues, and gave some answers which led the respondents to adopt certain positions. During submissions on objections to evidence, it seemed Mr Spencer may have changed his position somewhat. Accordingly, he was asked again about witnesses, and the nature of his claims to which some of his expert evidence, and his own evidence, related. His responses were that he was no longer calling Mr Alastair McRobert and Mr Darel Hughes, but he was proposing to call all other witnesses. His statements about Mr David Sackett were equivocal, and I deal with those separately below.

6        As to the nature of his claims about the list of “projects” on his land, which he had either embarked upon or planned to embark upon, Mr Spencer clarified how he puts his claims about these matters. He made a distinction between the wind farm project, the firewood project and the carbon project and all the other projects listed in his own affidavit evidence. In relation to these three projects, he confirmed he is maintaining a claim against the respondents for damages in relation to the losses he has suffered from those projects not going ahead.

7        In relation to all the other projects, he made it clear to the Court and the respondents that the only purpose for adducing evidence about those other projects was to demonstrate that he had suffered a loss of opportunity. Those opportunities, he claims, should in some way be factored into the valuation of his property, as they form part of the “potential” his property had. These losses of opportunity, and their value in terms of their potential income streams off the property, are part of the reasons why, Mr Spencer submits, the high valuation of Mr Colin Davies should be preferred over the lower valuation of Mr Robert Connolly.

8        That list of projects said by Mr Spencer to constitute these lost opportunities is set out in his affidavit of 30 January 2014: trout at [38]-[48], sheep [49]-[78], water bottling [79]-[89], furniture timber [199]-[126], eucalyptus oil [129]-[135], a recreation park [136]-[152], ginseng [167]-[172], horses [173], cattle and goats [174]-[176], and finally at [20]-[37] where these introductory paragraphs also give some evidence about these projects. His case about these projects does not include a claim for a separate quantification of damages for loss of opportunity outside any amount he contends the presence of these opportunities should contribute to the valuation.

9        The respondents have an absolute position that there is no cause of action known to law which would entitle Mr Spencer to claim any damages as a consequence of the success of his constitutional arguments, if they were to succeed. They have, however, engaged with the damages issues by way of evidence. In my opinion, it is now clear enough how Mr Spencer seeks to use the two categories of evidence about the “projects” he wished to carry out on his land. In relation to those projects at [8], his contentions will need to be addressed by the valuation experts Mr Davies and Mr Connolly. Whether Mr Spencer or the valuation witnesses give evidence related to these projects, it will be admissible only for the limited purpose of addressing this contention by Mr Spencer that his loss of opportunity should somehow be factored in to the valuation of his property. None of that evidence is admissible to prove any separate economic loss by Mr Spencer in relation to the projects set out at [8] above.

GENERAL APPROACH

10        Mr Spencer is conducting this proceeding on his own behalf, having terminated the retainer of his legal representatives some eight weeks ago, and having declined a referral to pro bono counsel.

11        In my reasons for judgment refusing him an adjournment (see Spencer v Commonwealth [2014] FCA 1117) I outlined a number of accommodations which would be made for him in order that the trial could proceed at the time it was listed and in a manner which was fair, taking into account the need to be fair to the respondents as well, and the need to pursue the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth).

12        Since that judgment was delivered, a number of further accommodations have been made for him, generally with the cooperation of the respondents, including the matters to which I have referred above.

13        The respondent’s objections, if all upheld, would on my estimation remove most of Mr Spencer’s evidence. The general approach I have taken to the objections puts some considerable weight on the need for this matter, after seven years and the investing of considerable resources by all parties and the Court, to proceed as fairly and efficiently as possible, and without significant disruption, if that can reasonably be avoided. To disrupt the presentation of Mr Spencer’s case by removing the majority of his affidavit evidence, and that of his witnesses, would not serve the interests of the administration of justice generally, nor s 37M of the Federal Court Act in particular. It may prompt attempts by Mr Spencer to call new evidence, which, given his lack of legal experience, may not be any more compliant with the rules of evidence but will certainly delay the trial and increase the costs and resources expended by all involved, including the Court. It is apparent from various submissions made by Mr Spencer that he did not make the forensic judgments about the contents of the affidavit material. Indeed it appears he may not have been familiar at all with large parts of that evidence (other than his own) until he was required to deal with the objections.

14        The infirmities said to exist in Mr Spencer’s evidence can in my opinion be dealt with as effectively through submissions as to weight and relevance. Indeed, that is a course likely to advance the interests of the administration of justice in the sense of providing a more intelligible route for Mr Spencer to understand and deal with what the respondents submit are the difficulties he has in proving his case. Adopting this approach in my opinion contributes to a fairer trial for Mr Spencer than refusing to allow him to adduce most of his evidence at all.

15        Ultimately, the Court will only act on evidence which is of sufficient probative value to the issues the Court must determine.

16        A large proportion of the objections from the State and the Commonwealth fall into two categories: relevance, and objections to statements of opinion contrary to s 76 of the Evidence Act 1995 (Cth).

17        There are also a number of objections based on the impugned statements being in the nature of an assertion or conclusion, or “not the best evidence”.

18        Finally, in particular from the Commonwealth, there are objections to some of the applicant’s proposed expert witnesses expressing opinions either not based on any specialised knowledge, or opinions based on “second-hand views” and “speculation”.

19        I deal with some of these objections at a general level, and then individually in relation to each witness.

20        In the approach I have taken, the fact that Mr Spencer is self-represented assumes some importance. Junior counsel for the State submitted that the rules of evidence are not applied in a weaker fashion simply because a party is self-represented. In my opinion, the rules of evidence, like all other processes of the Court designed to ensure a fair trial, must be applied in a manner which is conducive to the outcome of securing a fair trial. That is, after all, the point of the rules of evidence: see the discussion of these issues in Australian Law Reform Commission, Interim Report No 26: Evidence, Australian Government Publishing Service, Vol 1, (1985), pp 28-32. Where a party, in particular an applicant, is self-represented, the Court has a more active role in ensuring the fairness of the trial — not only to the self-represented party, but also to the represented parties. The manner in which a trial must be conducted is quite different.

21        In Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], Beazley, Giles and Whealy JJA said:

Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

“A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

However, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406 ; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914.

The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

“But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant.”

Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

“A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.”

The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

22        In SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; [2013] FCAFC 146 at [55] Allsop CJ said:

The appellant is entitled, and was entitled, to a hearing reflecting the indicia of the exercise of the judicial power of the Commonwealth. He may well have lost his case, but he is entitled to lose his case after a hearing which has afforded him procedural fairness as an incident of the exercise of the judicial power of the Commonwealth.

23        A fundamental aspect of procedural fairness, and of the exercise of judicial power in accordance with procedural fairness, is that a person knows the case which is being put against him or her and has an opportunity to deal with it: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638; [2013] HCA 7 at [1] per French CJ, at [184]-[185] per Gageler J.

24        In a proceeding which is factually and legally complex, and which includes expert evidence — at least, on the applicant’s arguments, as a necessary component of his claim — there is a high hurdle to be overcome for the court to ensure that a self-represented party reasonably understands the nature of the arguments put against him, at both a factual and legal level. At the legal level, the hurdle may be more difficult to do anything about. At a factual level, more can be done by the court to ensure procedural fairness. Where the evidence is not patently inadmissible, by the court allowing the alleged infirmities of the self-represented party’s evidence to be exposed and explored through cross-examination and submission, rather than simply excluding that evidence, procedural fairness will be better afforded to that self-represented party. The difference is, by the end of a trial and in submissions, the self-represented party has been given the fullest opportunity to understand how the other parties put their case against him, especially in relation to the alleged weaknesses and deficiencies in his evidence, because he has seen his witnesses cross-examined and he has heard submissions about the difficulties said to exist with that evidence. Neither would occur if the evidence was simply excluded at the start.

25        For those reasons, where there are objections which in my opinion have not been capable of being the subject of legal argument from a proper contradictor, and in circumstances where the framing of Mr Spencer’s case is being done by him without the benefit of legal representation, unless it is very clear that the evidence is inadmissible, then the fairness of the trial is enhanced, and procedural fairness is better afforded to Mr Spencer, by having the alleged infirmities and deficiencies in the evidence adduced by Mr Spencer exposed through cross-examination and submission. Mr Spencer then knows, in a more informed way, the case which is being put against him on the facts.

26        I have upheld the objection where I consider it is clearly correct in the sense that there could be no countervailing legal arguments of any merit put (including on relevance), and there is no need to turn attention to exceptions to the hearsay rule or other evidentiary propositions or legal argument which might have been employed by Mr Spencer had he been legally represented.

THE RELEVANCE OBJECTIONS

27        Subject to any specific rulings I make in relation to any particular witness, I do not propose to allow the objections on the basis of relevance, especially in relation to Mr Spencer’s evidence. First, although the respondents’ primary position is that the applicant is not entitled to any compensation because there is no private right of action in relation to a contravention of s 51(xxxi) of the Constitution, there is a great deal of evidence in this case which goes to the nature and extent of the applicant’s loss flowing from his inability to clear his land in the way he sought to, including evidence from the respondents. At this early stage I do not consider it is in the interests of the administration of justice to shut the applicant out on the grounds of relevance from attempting to prove what he asserts is his loss by evidence he contends can persuade the Court about that issue. It would be premature to determine the respondents’ argument about there being no private cause of action for damages available to Mr Spencer as part of determining an evidentiary objection and I do not intend to do so.

28        Second, the spectre of the alleged “informal agreement” between the State and the Commonwealth hangs over this proceeding. The respondents both deny there ever was any such agreement. The applicant remains firmly of the view that there was, and that there was pressure imposed by the Commonwealth on New South Wales to enact a restrictive vegetation clearance regime in order to secure promised Commonwealth funding. On his case theory these measures were taken to induce the State to enact a vegetation clearance regime which could substantially contribute to the Commonwealth meeting its Kyoto protocol targets. It is inherent in the nature of the applicant’s allegations that there is unlikely to be direct evidence of any such agreement or arrangements. It is unlikely witnesses with direct knowledge are going to come forward voluntarily and admit such an arrangement. To say that is not to form any view whatsoever about the likelihood or possibility such an agreement was in fact made, or any pressure was in fact applied by the Commonwealth in the way suggested by Mr Spencer. It is simply to recognise the nature of the forensic task facing Mr Spencer, which will be a case reliant on circumstantial evidence. Added to that is the fact that the forensic task must be performed by an unrepresented and non-legally qualified person. The nature of this allegation about informal agreements and pressure against the State expands the category of evidence which may be relevant. Unless clearly satisfied evidence is not relevant, I do not propose to exclude it.

29        The respondents have both stated in their opening submissions that there are aspects of Mr Spencer’s case which remain undeveloped, or imprecise. I agree with that assessment. Given that he is unrepresented, that situation is not likely to change until final submissions, where he will be required to draw the threads together to put his case on the facts and the law. In a case of this size and complexity, in my opinion it is unrealistic to expect an unrepresented litigant to do much more than this. That reality means that upholding relevance objections too readily at the start of the case may risk depriving Mr Spencer of evidence which, ultimately, may turn out to be relevant.

THE “ASSERTION”, “CONCLUSION” OR “NOT THE BEST EVIDENCE” OBJECTIONS

30        Many of these objections relate to Mr Spencer’s evidence. Consistently with the approach I have explained in these reasons, I consider these matters are best dealt with in terms of weight where Mr Spencer’s evidence in chief is concerned. If his affidavit contains commentary on documents which are tendered in evidence, then this will be treated as a submission. If there could have been better, more direct evidence given than that proffered, this may affect the weight the Court may ultimately place on such evidence, or may be a reason to reject that evidence. Similarly, where there is allegedly conclusionary evidence (for example, Mr Spencer’s evidence in his 6 June 2014 affidavit at [28] that “[o]ver $500,000 was spent on this project”), the risk Mr Spencer takes with evidence at such a level of generality is that it will not be persuasive.

THE OPINION STATEMENTS

31        These objections fall into two categories. There are objections to much of Mr Spencer’s own evidence. As the respondents have correctly accepted, it may be more appropriate to treat that evidence as more in the nature of a submission by Mr Spencer. Further, in terms of what evidence I might be satisfied Mr Spencer is capable of giving by way of opinion, on the basis of his experience (see s 79 and Honeysett v The Queen (2014) 311 ALR 320; [2014] HCA 29 at [20]-[25]), or because his own state of mind or perception is relevant (see s 78) are not matters I am prepared to entirely discount at this stage. Again, the absence of a proper contradictor to these objections in terms of legal argument means I should take a cautious approach. If, as the evidence progresses, for example in cross-examination, or re-examination, it becomes clear that Mr Spencer is straying too far into the territory prohibited by s 76, then rulings can be made at that time.

32        The second category of objection relates to witnesses other than Mr Spencer. Where the evidence appears to be in the nature of supportive views that Mr Spencer is seeking to adduce to bolster his own contentions, I have upheld the objection where it is clear there could not be any legal relevance in a witness expressing those views — for example, Ms Jeanne Hughes. In contrast, I am less certain at the moment about evidence from witnesses such as Mr John Williams.

33        Also in this second category are objections to certain opinion evidence because it fails to set out the necessary facts or assumptions upon which it is based, or fails to set out sufficient reasoning. These objections invoke s 135 of the Evidence Act.

34        I do not consider evidence of this nature should be excluded pursuant to s 135. The evidence will not take an undue amount of time, and in any event this trial is proceeding reasonably in accordance with its timetable, which has room for slippage. There is no basis to find evidence such as that given by Dr David Evans (or any other witness where a similar objection is taken) will mislead or confuse the Court. If the evidence is weak because its underlying factual assumptions are not made out, or articulated, then this is a matter for submission or for cross-examination, and in that way Mr Spencer will be best able to appreciate the case put against him. There is no unfair prejudice to the respondents in the evidence which would justify its exclusion pursuant to s 135.

35        Finally, if it were necessary I would have been prepared to make my rulings in the same terms by application of s 190 of the Evidence Act. Given the particular circumstances of this case, in my opinion there was real and not fanciful risk that if large portions of Mr Spencer’s expert and lay evidence, including most of his own evidence, were ruled inadmissible by the application of the hearsay rule, the opinion rule and what is sometimes called the “best evidence” rule, Mr Spencer could feel compelled to seek leave to appeal those rulings on an interlocutory basis, to try and regain the bulk of his evidence. The trial timetable would be severely disrupted, at significant cost. Alternatively, there was a real and not fanciful risk that Mr Spencer would seek to replace the evidence ruled inadmissible with new evidence. First, any such new evidence would be vulnerable to the same evidentiary objections as the current evidence because, as a non-lawyer, Mr Spencer is unlikely to be able to prepare any new evidence with the necessary attention to legal detail to avoid evidentiary objections. Even on the assumption an application to adduce further evidence was ultimately unsuccessful, the trial would be delayed significantly, and the parties’ and the Court’s resources currently marshalled to move through this proceeding efficiently in the next two weeks wasted. There is also the potential inconvenience to witnesses, including expert witnesses, of disruption to the trial timetable. Those matters involve unnecessary expense and delay within the meaning of s 190(3)(b) of the Evidence Act. Those delays would be “unnecessary” because, as I have set out in this judgment, all of the complaints about Mr Spencer’s evidence which I have not upheld could have been dealt with through cross-examination and submission, and addressed by an assessment of the probative value of the evidence. As I have emphasised, if at the end of the trial certain evidence is demonstrated to have had little probative value for one or more reasons, then the Court will not rely on that evidence.

RULINGS ON SPECIFIC OBJECTIONS

36        These rulings do not deal with the objections to Dr Evans’ evidence, on which I gave an oral ruling on 26 November 2014. However, as I said in that ruling, the general observations I have made above provide a foundation for the approach I took to the respondents’ objections, to parts of Dr Evans’ second affidavit and report.

Mr Spencer’s affidavits

2 October 2009 and 16 December 2013, objections by Commonwealth and State

37        I accept the respondents’ submissions that Mr Spencer needs leave to rely on these affidavits, as they were not identified in accordance with the orders of Gleeson J of 22 May 2014.

38        These two affidavits were self-evidently prepared for distinct purposes other than tender at trial. The first was prepared as part of Mr Spencer’s special leave application to the High Court, the second as part of an ongoing discovery dispute with the respondents. The respondents contend all documents annexed to these affidavits are now in the Court Book and therefore do not need to be separately adduced. They also assert that the content of the two affidavits has been overtaken by Mr Spencer’s later affidavits.

39        Mr Spencer made a frank contention that he was not in a position to make any detailed submissions about the content of those affidavits, but rather relies on the fact that his previous legal representatives had decided that the affidavits should be relied upon, and he felt it wise therefore to pursue that course. I accept the respondents’ submissions about these affidavits. Leave should not be granted to rely on them. I will, however, reserve to Mr Spencer leave to apply to read specified paragraphs of these affidavits before he closes his case if there are specific factual issues which he considers at that stage have been omitted from the evidence. Any such application will be considered on its merits in the context of the progress of the trial to that point.

30 January 2014, objections by Commonwealth and State

40        I have dealt with the relevance and opinion objections above. The reference to the “best evidence” rule in Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498; [2007] HCA 15 at [4] per Gummow, Callinan and Crennan JJ is qualified by recognition of the “exigencies of litigation”. There may be many reasons the “best” evidence is not available. In the circumstances of this proceeding, to which I have referred, I do not see that as a sufficiently clear basis to exclude any of Mr Spencer’s evidence.

41        In relation to the objections taken to the documents exhibited to Mr Spencer’s 30 January 2014 affidavit, none of those objections should be upheld given the general approach I have taken as set out above. Insofar as the respondents rely on s 135 in relation to some of these documents, because it is submitted the document is incomplete, this can be dealt with in cross-examination and submissions and then there will be nothing misleading or confusing about the evidence.

42        As to exhibits 8, 11 and 12, about which particular submissions were made, again there was no contradictor to the legal arguments who could develop how the business records exception might apply to these records, nor how the competing statements in the authorities (whether only Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 and Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569; [2003] FCA 933 or others) might be resolved. It is not appropriate for the Court itself to engage in this level of detail with evidentiary exceptions and competing authorities in the context of an argument which may (or may not) assist a self-represented litigant. The objection is not in those circumstances sufficiently clearly established to be allowed, taking into account the need for procedural fairness to Mr Spencer, and my findings that the probative value of the evidence can be tested in other ways.

43        I do not propose to allow any of the objections to Mr Spencer’s evidence in this affidavit. He can be cross-examined as the respondents see fit, there is plenty of time in the trial allowed for this. Submissions can be made as to weight and relevance. Much of the affidavit may be best seen as submissions by Mr Spencer, and if that is the appropriate way for them to be treated, the respondents are not disadvantaged by that course being taken.

44        The objections as to [183]-[185] and [198]-[199], which are of a different character, are not upheld. The evidence in those paragraphs goes some way to explaining why, at least in Mr Spencer’s mind, he chose not to accept the exit package. That may have a bearing on any claims of loss he makes. Junior counsel submitted that the State does not object to admission of the evidence on this basis. This evidence is not admitted for the purpose of proving any misleading and deceptive conduct, which might conflict with or contradict the approach taken by Rothman J in Spencer v Minister for Climate Change, Environment and Water [2008] NSWSC 1059. Rather, Mr Spencer is explaining in this evidence why he did not accept the valuation, and the changes which were, on his evidence, wrought to the manner in which the value of his farm was to be ascertained. He should be permitted to give that evidence.

6 June 2014, objections by Commonwealth and State

45        The objections to this affidavit are not upheld, for the reasons given above, and the reasons given in relation to Mr Spencer’s 30 January 2014 affidavit.

Dr Alan Moran, 8 May 2008, objections by Commonwealth, adopted by State

46        Dr Moran has, by his curriculum vitae, published a number of articles concerning various forms of government regulation, including energy regulation. Dr Moran appears now to be a general commentator on a wide range of regulation-related issues. His curriculum vitae indicates he has occupied positions which may qualify him to express the opinions he does. His curriculum vitae states: “Until 1990, he was a senior official in the Productivity Commission and Director of the Commonwealth’s Office of Regulation Review. Subsequently, he played a leading role in the development of energy policy and competition policy review as the Deputy Secretary (Energy) in the Victorian Government”.

47        The Commonwealth submits the Court can gain assistance on the issues Dr Moran deals with in his first affidavit from better qualified experts called by the Commonwealth. That may be so, but I am not persuaded Dr Moran is insufficiently qualified to express the opinions he does.

48        Taking into account the general approach I have expressed above, I propose to allow this evidence. Some sources for some of Dr Moran’s opinions are identified — whether they are sufficient and persuasive can be explored in cross-examination if the respondents choose to do so. There will clearly be questions about the weight which can be afforded to what Dr Moran says, given the matters the respondents have identified. In the particular circumstances of this case I do not propose to shut Mr Spencer out from adducing the opinions expressed by Dr Moran in this first affidavit, which Mr Spencer submits are relevant and important for his case. At this early stage, when I am unaware of the nature of the documentary evidence, or of how Mr Spencer will draw together the matters he wishes to emphasise, I am not sufficiently persuaded about the strength of the objections, and the absence of countervailing legal arguments, to uphold the objections. I doubt much time will be occupied by Dr Moran’s evidence and the trial can proceed as efficiently as it needs to if he is called.

Mr Brian Plummer, 22 January 2013, objections by Commonwealth and State

49        Mr Plummer’s evidence appears to go to supporting Mr Spencer’s contentions about the effect on farmers of the NSW vegetation clearance regimes, as well as to the fact that at the time farmers were not aware of what Mr Plummer calls “the Federal Government’s involvement”. The evidence Mr Plummer seeks to give about a letter from Senator Robert Hill to the then Premier of New South Wales is sufficiently relevant to Mr Spencer’s claims about the coercive role of the federal government, outside what is in the intergovernmental agreements. Its hearsay character and the weight it should be given can be the subject of submissions. The absence of the letter to which Mr Plummer refers means this may be the only evidence which can be given on this subject. I was informed that during the discovery process the State deposed on affidavit to this letter not being in its possession, custody or control.

50        It is not inconceivable in my opinion that Mr Spencer can link pressure he alleges was being imposed on the States in 2000 with his allegations that there was some kind of informal agreement imposing requirements on New South Wales to enact vegetation clearance laws to assist the Commonwealth in meeting its Kyoto protocol targets. Where that might take the whole of his case cannot be known, but the asserted date of this letter does not make it irrelevant in my opinion. I also do not rule out the possibility that this kind of evidence might ultimately be properly characterised as an admission. There being no real contradictor by way of legal argument to the respondents’ objections, no argument has been put about the operation of exceptions to the hearsay rule. That leaves the Court in a difficult position: the Court cannot itself adopt the position of a contradictor to work through the hearsay exceptions and see which might apply in some kind of systematic and thorough way. At present, and in the absence of any such argument, I am not sufficiently persuaded the evidence is wholly inadmissible hearsay. Its probative weaknesses, to which the respondents point, can be exposed in cross-examination and can be the subject of submissions.

Dr Alan Moran, 28 January 2014, objections by Commonwealth, adopted by State

51        I uphold the objections to this evidence, which is argumentative as to matters of law, expresses opinions about matters of social philosophy and the role of government which are not relevant to the issues in this proceeding, and otherwise attempts to give a narrative of some of the facts in this case which must be proved by direct evidence, not by Dr Moran’s account of it. Dr Moran also purports to express opinions about legal issues and that evidence is also inadmissible.

Mr David Sackett, 30 January 2014, objections by State, adopted by Commonwealth

52        Between 2000 and 2003, Mr Sackett prepared three reports for Mr Spencer about the potential for a fine merino wool production on his property. The only purpose of his evidence is to adduce the reports he prepared at those times for Mr Spencer. There seems no dispute that Mr Sackett is qualified to express the opinions he does in these reports. While it is true they were obviously not prepared for this proceeding, in the circumstances of this case any non-compliance with the rules and the expert evidence practice note is not a sufficient reason to exclude the evidence. At the 12 November 2014 directions hearing Mr Spencer informed the Court and the respondents that he was not pursuing the fine merino issue. That statement has been explained by Mr Spencer in submissions on 26 November 2014. However, it appears the State continues to intend to call its own expert witness on merino sheep, Mr Schuster. Yet Mr Spencer will not be in a position to make the kind of detailed legal objections on relevance and other matters against Mr Schuster’s evidence that the respondents have made against Mr Sackett. This is another example of the way in which the application of the rules of evidence in a trial can have a disproportionate effect against a self-represented litigant and may risk procedural unfairness.

53        The Court itself may need to form a view about the relevance of Mr Schuster’s evidence if Mr Sackett is not called.

54        The relevance of any expert evidence about the merino project may be clarified after Mr Spencer’s evidence is concluded. Accordingly, I propose to defer the issue of the admissibility of both the evidence of Mr Sackett and of Mr Schuster until after the conclusion of Mr Spencer’s evidence. The parties can then address the Court again on whether they each press the evidence of their respective experts about the proposal to develop a fine merino breeding herd on Mr Spencer’s property, and why. I will then make separate rulings on this issue.

Mr Colin Davies, 30 January 2014, objections by State, adopted by Commonwealth

55        Mr Davies has given a valuation of Mr Spencer’s property as at March 2008. Whether the respondents are correct that the value at that date is not relevant is not a matter which in the circumstances of this case should affect the admissibility of the valuation. It is better dealt with in submissions.

56        As to the second objection, concerning p 5 of the report, these paragraphs in my opinion should be treated as an assumption: see s 136 of the Evidence Act. The same approach should be taken to the part at section 9.2 of the report. The respondents’ other objections to material on p 5 should not be upheld: they can be the subject of cross-examination if the respondents choose. In my opinion that approach can and should also be taken in relation to the objections to the sections on pp 25 and 26.

Mr John Williams, 31 January 2014, objections by Commonwealth and State

57        Despite the Commonwealth’s submissions about the lack of Mr Williams’ qualification to give the evidence he does, in my opinion Mr Williams is sufficiently qualified, in his several capacities, to give the evidence he does. Until his retirement, Mr Williams was Commissioner of the New South Wales Natural Resources Commission for nearly six years. Previously, Mr Williams was Chief Scientist for the New South Wales Department of Natural Resources and has held the position of Chief of Land and Water at CSIRO. Mr Williams has had a number of academic appointments, including his current role as Adjunct Professor in Public Policy and Environmental Management at the Australian National University.

58        I propose to allow Mr Williams’ evidence, limited (under s 136) to its use as evidence of historical facts: namely, his interactions and correspondence with Mr Spencer, his views at the time of what Mr Spencer was trying to achieve, his participation in a submission of the Wentworth Group about native vegetation clearing and the proof of that submission through him.

59        The Wentworth group submission is, of course, tendered only as proof that a submission in those terms was made and represented the views at the time of those who subscribed to it. Whether ultimately those matters are of much relevance can await submissions. Much of Mr Spencer’s evidence will deal with his own narrative of what he wished to do with his property and, at this stage, I do not propose to shut him out of adducing evidence from Mr Williams to establish that he had some support for his plans from people whose qualifications and expertise could be said to lend weight to the seriousness of Mr Spencer’s proposals. Again, how much this adds to proof of the matters in issue in this case at the end of the day will be a matter for submission.

Ms Jeanne Hughes, 24 January 2014, objections by Commonwealth, State assumes not relied on

60        Mrs Hughes is a person who owned a farm also affected by the native vegetation clearance laws. Some clearing undertaken on her farm became the subject of some action under the relevant regime, a course to which she strongly objected. Although her evidence provides a concrete example of another primary producer who claims she was significantly affected by the native vegetation clearance regime and forced to sell her property as a consequence, the respondents are correct that Mrs Hughes’ predicament is not legally relevant to whether Mr Spencer can make out his claims about acquisition of property. It is inherent in the approach taken by the respondents in this case that they accept the native vegetation clearance regimes applied across the State, to many farmers, against strong opposition from those farmers about the effects this would have on their livelihood. That fact does not need to be proved by evidence. The objections are upheld.

Mr Steen Stavnsbo, 11 June 2014, objections by Commonwealth, adopted by State

61        Mr Stavnsbo’s evidence concerns a feasibility study he prepared for Mr Spencer about a proposal for a wind farm on Mr Spencer’s land. His evidence concerns that report and his opinions about the income Mr Spencer might have derived from a wind farm, had he been able to clear sufficient land to build it. The only challenge to this evidence is on the ground of relevance. Mr Spencer maintains the wind farm project did not go ahead only because he could not clear his land. The respondents contend Mr Spencer has no private cause of action for compensation or damages known to law even if he succeeds on his s 51(xxxi) arguments. That is a matter for final determination. Prior to that, Mr Spencer should be entitled to lead evidence of the loss he claims to have suffered, where the alleged infirmities of the evidence in other respects can be dealt with by cross-examination and submission.

CONCLUSION

62        Paragraphs [8]-[19] of the affidavit of Dr Alan John Moran, sworn 28 January 2014, the affidavits of Mr Peter James Spencer, sworn 2 October 2009 and 16 December 2013, and the affidavit of Ms Jeanne Elizabeth Hughes, sworn 24 January 2014, are inadmissible. Subject to what I have said regarding Mr Sackett and Mr Schuster above, the remainder of the respondents’ objections are not upheld.

Associate:

Dated:    27 November 2014