Spencer v Commonwealth of Australia
[2010] HCA 28(Decision by: Heydon J)
Spencer
vCommonwealth of Australia
Judges:
French CJ
Gummow J
Hayne J
Heydon JCrennan J
Kiefel J
Bell J
Judgment date: 1 September 2010
Decision by:
Heydon J
61. On 28 August 2008, when Emmett J dismissed the applicant's proceedings, Pye v Renshaw [83] was thought to be an obstacle to their success. The same position applied on 24 March 2009, when the Full Court of the Federal Court of Australia dismissed an appeal against the orders of Emmett J. But on 9 December 2009, ICM Agriculture Pty Ltd v The Commonwealth [84] was decided. A majority of this Court concluded that, notwithstanding Pye v Renshaw , the legislative power of the Commonwealth conferred by s 96 and s 51(xxxvi) of the Constitution does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms [85] . Further, three members of the Court placed a question mark over the validity of legislation relating to an "informal arrangement" providing for Commonwealth funding to a State if it acquires property on unjust terms [86] . The applicant has pleaded facts which might attract a conclusion favourable to him if that question is answered against validity. Discovery of documents might assist him to establish those pleaded facts.
62. Emmett J acted pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Whatever the construction of that provision, it is clear that had the courts below been aware - which obviously they could not have been - of what was to be said in ICM Agriculture Pty Ltd v The Commonwealth , they would not have viewed an order under s 31A(2) dismissing proceedings as appropriate. That is a sufficient reason for making order 1, order 2 and order 3(a) and (b)(i) of the orders which the other members of the Court wish to make. Contrary to the opinion of other Justices, it is not necessary to consider the correct approach to s 31A. If it were, it would also be necessary to hear submissions from the parties on the subject. Apart from some remarks at the end of the applicant's oral reply on the subject of whether a s 31A order was interlocutory, and two tentative sentences about the width of the power conferred by s 31A, the parties have not advanced any submissions about it. It is therefore both unnecessary and undesirable to say anything on that subject.
63. I also favour order 3(b)(ii) of the orders favoured by other members of the Court for the following reasons. That is the order which would normally be made, unless there were some reason for an order less generous from the applicant's point of view. In this Court the applicant has consistently sought that order - in his draft Notice of Appeal, in his revised draft Notice of Appeal, in his written submissions, and in his oral reply. The respondent has consistently contended that the application for special leave should be refused with costs, or, if the special leave application were granted, that the appeal should be dismissed with costs. The respondent never addressed the question of what costs order in relation to the Notice of Motion of 26 July 2007 should be made in the event, which has now come to pass, that special leave is granted and the appeal allowed.
Hereafter referred to, collectively, as "the State Acts".
Hereafter referred to, collectively, as "the Commonwealth Acts".
Spencer v Commonwealth of Australia [2008] FCA 1256 at [212].
Spencer v Commonwealth (2009) 174 FCR 398 .
(2010) 240 CLR 242 ; [2010] HCA 3 . See [2009] HCATrans 126 at 748-749.
(2009) 240 CLR 140 ; [2009] HCA 51 .
Financial Assistance Act, s 3.
Financial Assistance Act, s 5(1).
Financial Assistance Act, s 7(b).
Financial Assistance Act, ss 8 and 9 .
Natural Heritage Trust Act, s 4.
Natural Heritage Trust Act, s 8(a).
Natural Heritage Trust Act, s 10(a).
Natural Heritage Trust Act, s 19(2).
NVC Act 1997, ss 18 and 21 .
See generally Butt, "Carbon sequestration rights - a new interest in land?", (1999) 73 Australian Law Journal 235; Hepburn, "Carbon Rights as New Property: The benefits of statutory verification", (2009) 31 Sydney Law Review 239.
[2008] FCA 1256 at [149].
[2008] FCA 1256 at [155].
[2008] FCA 1256 at [158].
See above at [5].
[2008] FCA 1256 at [172].
[2008] FCA 1256 at [178]-[180]. The Commonwealth also argued, in the alternative, that Mr Spencer's claims did not give rise to a "matter" within the meaning of Ch III of the Constitution.
[2008] FCA 1256 at [193].
[2008] FCA 1256 at [210].
(2009) 174 FCR 398 at 406 [15].
(1951) 84 CLR 58 ; [1951] HCA 8 .
(2008) 73 NSWLR 196 .
(2009) 174 FCR 398 at 408 [21].
See (1951) 84 CLR 58 at 83, where the Court rejected the argument that "the Commonwealth is not authorized by s 96 or any other provision of the Constitution to provide money for a State in order that the State may resume land otherwise than on just terms".
(1949) 80 CLR 382 ; [1949] HCA 66 .
Federal Court Act, s 31A(3).
Federal Court Act, s 31A(4).
Similarly worded provisions were introduced into the Judiciary Act 1903 (Cth) (s 25A) and the Federal Magistrates Act 1999 (Cth) (s 17A) by the same amending legislation.
Australia, House of Representatives, Parliamentary Debates (Hansard), 10 March 2005 at 3. As to the lack of utility of s 31A in migration cases see White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 311 [58] per Lindgren J.
Australia, House of Representatives, Parliamentary Debates (Hansard), 10 March 2005 at 3.
Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system, Report No 89, (2000) at 520 [7.212] and Recommendation 94.
Attorney-General's Department, Australian Law Reform Commission Report, Managing Justice: A review of the federal civil justice system, Government Response to Recommendations, (2003) at 45.
Attorney-General's Department, Federal Civil Justice System Strategy Paper, (2003) at 228.
Australia, House of Representatives, Parliamentary Debates (Hansard), 10 March 2005 at 3.
Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales, (1996) at 123 [32]-[33].
Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales, (1996) at 123 [34].
[2003] 2 AC 1 at 260 [94]-[95] and see also Swain v Hillman [2001] 1 All ER 91 at 92-93 per Lord Woolf MR.
[2003] 2 AC 1 at 260-261 [95].
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 312 [59] and cases there reviewed; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 per Williams JA.
(2007) 160 FCR 298 at 309 [47]. See also Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 .
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130 per Barwick CJ; [1964] HCA 69 .
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; [1949] HCA 1 .
(1983) 154 CLR 87 at 99; [1983] HCA 25 . See also Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ; [1993] HCA 57 .
(2006) 226 CLR 256 at 275 [46]; [2006] HCA 27 .
(2000) 201 CLR 552 at 575-576 [57]; [2000] HCA 41 .
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ.
In A v Essex County Council [2010] 3 WLR 509 , the criterion of "real prospect of success" was variously equated to whether the plaintiff "could succeed at a trial", whether there was a "triable issue" and whether there was the "least doubt": at 523 [44] per Lord Clarke of Stone-cum-Ebony JSC, 541 [119] per Baroness Hale of Richmond JSC, 544 [133] per Lord Brown of Eaton-under-Heywood JSC and 552 [163] per Lord Kerr of Tonaghmore JSC.
See above at [21].
(2009) 240 CLR 140 at 168 [37]-[38] per French CJ, Gummow and Crennan JJ.
(1962) 107 CLR 494 at 505 per Dixon CJ, Kitto and Windeyer JJ; [1962] HCA 7 .
(2009) 240 CLR 140 at 168 [38].
(2009) 240 CLR 140 at 170 [46].
Spencer v Commonwealth of Australia [2008] FCA 1256 .
Spencer v Commonwealth (2009) 174 FCR 398 .
[2008] FCA 1256 at [154]-[155].
(2009) 174 FCR 398 at 405 [14], 413 [30]-[31].
(2009) 240 CLR 140 ; [2009] HCA 51 .
Federal Court of Australia Act 1976 (Cth), s 31A(2)(b).
(2009) 240 CLR 140 at 168 [38] per French CJ, Gummow and Crennan JJ.
Cf ICM Agriculture Pty Ltd v The Commonwealth (2009) 140 CLR 140 at 169-170 [44] per French CJ, Gummow and Crennan JJ, 199 [139] per Hayne, Kiefel and Bell JJ.
(2009) 240 CLR 140 at 168 [38] per French CJ, Gummow and Crennan JJ.
Federal Court Act, s 31A(2)(b).
See, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 77 [9], 89 [46]; [2001] HCA 49 ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [11]-[15], 111-112 [249]; [2001] HCA 56 ; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 206 [30], 240-241 [167]-[168]; [2005] HCA 58 ; Weiss v The Queen (2005) 224 CLR 300 at 312-313 [31]; [2005] HCA 81 ; Stingel v Clark (2006) 226 CLR 442 at 458 [26]; [2006] HCA 37 ; AK v Western Australia (2008) 232 CLR 438 at 455 [52]-[53]; [2008] HCA 8 ; Gassy v The Queen (2008) 236 CLR 293 at 300 [16]; [2008] HCA 18 ; Cesan v The Queen (2008) 236 CLR 358 at 394 [126]; [2008] HCA 52 ; CTM v The Queen (2008) 236 CLR 440 at 446 [5]; [2008] HCA 25 .
(1949) 78 CLR 62 ; [1949] HCA 1 .
(1964) 112 CLR 125 ; [1964] HCA 69 .
(1949) 78 CLR 62 at 91.
(1949) 78 CLR 62 at 91.
(1949) 78 CLR 62 at 90.
(1964) 112 CLR 125 at 129.
High Court Rules 1952 (Cth), O 26, r 18(1).
High Court Rules 1952, O 26, r 18(2).
(1964) 112 CLR 125 at 129.
(1964) 112 CLR 125 at 130.
173 L Ed 2d 868 (2009).
550 US 544 (2007).
355 US 41 (1957).
Weiss (2005) 224 CLR 300 at 312-318 [31]-[47].
(1951) 84 CLR 58 ; [1951] HCA 8 .
(2009) 240 CLR 140 ; [2009] HCA 51 .
(2009) 240 CLR 140 at 165-170 [31]-[46] and 206 [174].
(2009) 240 CLR 140 at 168 [37]-[38].
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