Spencer v Australian Capital Territory & Ors

Supreme Court of NSW|2007-03-19|Before: Brereton J, Hunt J, Mr P

CITATION : Spencer v Australian Capital Territory & Ors [2007] NSWSC 303

DECISION : As against NSW and Commonwealth, proceedings summarily dismissed. As against ACT, summary dismissal refused; Statement of Claim struck out with leave to replead.

CATCHWORDS : PROCEDURE - Summary disposal - Pleading - striking-out - Interim payment - whether court can be satisfied that plaintiff will succeed - high degree of certainty required - NUISANCE - incursions of feral animals from defendant's land onto plaintiff's land - REAL PROPERTY - whether State can make laws restricting use of land held in fee simple.

Commonwealth Constitution s 51(xxxi) (CTH) Judiciary Act 1903, s 64 (NSW) Civil Procedure Act 2005, s 82 LEGISLATION CITED : (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Native Vegetation Act 2003 (NSW) Uniform Civil Procedure Rules 2005 rr 13.4, 14.28 (SA) Valuation of Land Act 1971

Attorney-General (NSW) v Quin (1990) 170 CLR 1 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27 Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Burns v Queensland [2006] QCA 235 Commonwealth v Tasmania (1983) 158 CLR 1 CSR Ltd v Valuer-General (1977) 17 SASR 446 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dore v Penny [2006] QSC 125 Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399 Fejo v Northern Territory (1998) 195 CLR 96 Gargan v Commonwealth Bank of Australia [2004] FCA 641 Gargan v Director of Public Prosecutions (2004) 144 A Crim R 296 Gargan v Magistrate Dillon [2005] NSWSC 1106 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Glasgow v Hall [2007] QCA 19 Ibralebbe v The Queen [1964] AC 900 Jago v District Court of New South Wales (1989) 168 CLR 23 Jerusalem-Jaffa District Governor v Suleiman Murra [1926] AC 321 CASES CITED : Little v State of Victoria [1999] VSCA 113 McKernan v Fraser (1931) 46 CLR 343 Mutual Life and Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628 Penthouse Publications Ltd v McWilliam (NSWCA, 14 March 1991, unreported, BC9102223) Perpetual Trustee Co Limited v Valuer-General (2006) 95 SASR 338 Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (Hunt J, 6 May 1980, unreported) Pye v Renshaw (1951) 84 CLR 58 Randwick Municipal Council v Rutledge (1959) 102 CLR 54 Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 Riel v The Queen (1885) 10 App Cas 675 Spellson v George (1992) 26 NSWLR 666 Stockwell v State of Victoria [2001] VSC 497 Tampion v Anderson [1973] VR 321 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Walton v Gardiner (1993) 177 CLR 378 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Wickstead v Browne (1992) 30 NSWLR 1 Willis v Earl Howe [1893] 2 Ch 545], Wilson v Raddatz [2006] QCA 392 Worthington & Co Ltd v Belton (1902) 18 TLR 438

Peter James Spencer (plaintiff) PARTIES : Australian Capital Territory (first defendant) State of New South Wales (second defendant) Commonwealth of Australia (third defendant)

Mr P Spencer (in person) COUNSEL : Ms England (first & second defendants) Mr Vorreiter (third defendant)

SOLICITORS : I V Knight Crown Solicitor (first & second defendants) Australian Government Solicitor (third defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6468/06 Spencer v Australian Capital Territory & Ors JUDGMENT 1 HIS HONOUR: The plaintiff Peter James Spencer is the proprietor of a rural property "Saarahnlee" near Shannon's Flat in southern New South Wales, abutting on the southern border of the Australian Capital Territory at a point at which within that territory is the Namadgi National Park. Mr Spencer complains that as a result of mismanagement of the park by the first defendant, the Australian Capital Territory, there have been incursions of wild animals from the park into Saarahnlee, which have driven stock from a substantial proportion of his property, resulting in stock losses and in extensive secondary regrowth of vegetation, and diminution in the value of the property. He further complains that by reason of the enactment of the (NSW) Native Vegetation Act 2003, the second defendant, the State of New South Wales, has prohibited him from clearing the secondary regrowth; and that the third defendant, the Commonwealth of Australia, has appropriated for its own benefit the carbon sink created by the preservation of native vegetation on Saarahnlee, by claiming in international forums that while it is not a signatory to the Kyoto Protocol, it is nonetheless meeting the targets that would apply were it a signatory through the preservation of vegetation as a result of the various vegetation protection Acts of the States. He claims damages (for diminution in value of his property and loss of profits) and restitution (for the appropriation of the carbon credits): he alleges that the improvements on Saaranhlee have been reduced in value by $1.2 million, and that he has suffered stock losses, and loss of profit from the production of superfine wool and from other enterprises conducted on the property. He contends that the carbon sink created by the enforced preservation of vegetation on Saarahnlee is approximately 100,000 tonnes per year and is to be valued (having regard to the current value of carbon credits in the international market) at $12-$13 per tonne per annum (rising to over $14 per tonne in 2008) for the period 1990 to 2020, producing a total value of roughly $37,500,000.

2 By Notice of Motion filed on 12 March 2007, Mr Spencer claims an interim payment of $5 million "towards the eventual liability of the Commonwealth to the plaintiff in quasi contract under the provisions of s 51(xxxi) [of the (Commonwealth)] Constitution for the acquisition on terms that are not just and in equity which is the property of the plaintiff of the Credit in International Relations of 100,000 tonnes of Carbon that are fixed into the Trees that have invaded my land by virtue of the Legislation that the Commonwealth requested the State of New South Wales to enact to enable this credit to be created". By motions filed respectively on 13 March, 9 March and 28 February 2007, the Territory, the State and the Commonwealth move for orders that the proceedings be summarily dismissed and/or the statement of claim struck out. The defendants' motions logically fall for consideration before Mr Spencer's application for an interim payment. Summary Dismissal and Striking Out 3 (NSW) Uniform Civil Procedure Rules 2005, r 13.4 authorises the Court, if it appears that the proceedings generally or in relation to any claim for relief in them are frivolous or vexatious, or disclose no reasonable cause of action, or are an abuse of the process of the court, to order that the proceedings be dismissed generally or in relation to that claim.

4 The power summarily to dismiss proceedings is exercised only where the defect in the plaintiff's claim is clearly established [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125]. Summary dismissal is inappropriate if there are serious questions of fact to be determined [Spellson v George (1992) 26 NSWLR 666]. Where factual issues turn upon evidence likely to be in the possession of the defendant, that circumstance itself may be sufficient to refuse an application for summary dismissal; it may be reasonable to suppose that the evidence will become available in the course of the proceedings [Wickstead v Browne (1992) 30 NSWLR 1]. While, as distinct from an examination of the pleadings alone, evidence may be adduced by an applicant/defendant to demonstrate that the plaintiff's case is hopeless [UCPR r 13.4(2); Willis v Earl Howe [1893] 2 Ch 545; Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (Hunt J, 6 May 1980, unreported], such applications are still concerned more with the weakness of the plaintiff's case, than the strength of the defendant's: it is usually practically impossible for a defendant to show on such an application, by affirmative evidence, that a contention of the plaintiff must fail at trial.

5 In the present application, the Defendants have not sought to prove that they have incontrovertible defences of fact. Rather, the arguments that the Defendants advance are that the Mr Spencer's causes of action are doomed to fail, as a matter of law, upon examination of the case as pleaded in his statement of claim. In an application for summary dismissal of the nature of the current application - which depends upon asserted legal defects in the plaintiff's claims, rather than on factual defects - the question is whether it is apparent that the case is absolutely hopeless, and that there is no possibility of the facts pleaded giving rise to a good cause of action; and that question must be decided on the footing that the plaintiff's case is taken at its highest, and the facts asserted by the plaintiff in its statement of claim are to be taken to be true. The applicant for summary dismissal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in it are reasonably capable of bearing [Penthouse Publications Ltd v McWilliam (NSWCA, 14 March 1991, unreported, BC9102223)]. An order for summary dismissal will be made on the examination of the pleadings only if it is apparent that the case is absolutely hopeless, or that there is no possibility of the facts pleaded giving rise to a good cause of action [Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 90; Tampion v Anderson [1973] VR 321, 325]. On such an application, a liberal construction should be given to the opposing pleading, and in order to justify dismissal the offending pleading must be beyond saving by legitimate amendment [Mutual Life and Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628, 639; Penthouse Publications Ltd v McWilliam; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937, 942]. 6 Uniform Civil Procedure Rules r 14.28 provides that the court may order that the whole or any part of a pleading be struck out if the pleading discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or has a tendency to cause prejudice, embarrassment or delay in the proceedings, or is otherwise an abuse of the process of the court. Although there is an overlap between summary dismissal under r 13.4 and striking out under r 14.28, the former is more concerned with the tenability of the claim as a matter of substance, and the latter with the adequacy of the pleading as a matter of form. Where the pleading is inadequate or defective, but not beyond saving by legitimate amendment, the appropriate course is to strikeout the pleading with leave to replead [cf Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489, 496; Worthington & Co Ltd v Belton (1902) 18 TLR 438, 439; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536].

Irrelevant and vexatious adjectival allegations 7 The Statement of Claim contains a number of allegations that are on any view untenable, irrelevant and vexatious, and ought to be struck out as an abuse of the process of the Court. These include paragraph 5, in which Mr Spencer alleges that consequentially upon (CTH) Judiciary Act 1903, s 64: … no judge appointed and dependent upon any of the defendants for his or her livelihood, can bring a fair, just and impartial mind to this dispute, and consequentially I claim the tribunal of fact introduced into Anglo-Celtic law by the Magna Carta from 1295 [sic] until the present day, derived from the passage in the New Testament of the Gospel of Matthew verses 15-20. 8 Similarly, paragraph 6: I claim by s 116 Constitution and the appearance of either the word The Queen, or Her Majesty forty times in the Australian Constitution that the Coronation Oath 1688 (Imp) is thereby incorporated into the Commonwealth of Australia Constitution Act 1900, and that the provisions of the Holy Gospels that Her Majesty Elizabeth the Second has agreed to uphold, are by that Act, incorporated into the law of Australia. 9 The untenability of these assertions has been repeatedly demonstrated [Gargan v Commonwealth Bank of Australia [2004] FCA 641, [4]-[5] (Hely J); Gargan v Director of Public Prosecutions (2004) 144 A Crim R 296, 312-3 (O'Keefe J); Little v State of Victoria [1999] VSCA 113, [16]; Gargan v Magistrate Dillon [2005] NSWSC 1106, [24]-[26] (Barrett J)]. Moreover, they are irrelevant because they do not form a material fact in any cause of action on which Mr Spencer could conceivably rely; they contain allegations which are at best entirely adjectival in character. 10 To the extent that I conclude that Mr Spencer's claim should not be dismissed and/or that he should have leave to replead, that will be conditional upon the omission of these allegations from the pleading. The substantive claims 11 Shorn of these and other irrelevancies, however, the gravamen of the claims that Mr Spencer wishes to agitate may be summarised as follows. First, as against the Territory, that it has mismanaged the national park, with resultant damage to Mr Spencer's property including loss of value, and has thereby set the conditions for the later detrimental operation of the Native Vegetation Act. Secondly, as against the State, that it enacted the Native Vegetation Act, in excess of its legislative power, and/or in breach of an agreement with Mr Spencer (or his predecessor in title) embodied in his fee simple title, with the result that Mr Spencer is prevented from clearing the secondary regrowth from Saarahnlee, occasioning further, permanent, damage to the value of his property. Thirdly, as against the Commonwealth, that it has acted in concert with the State to preserve native vegetation through the (NSW) Native Vegetation Act, in order to position itself to claim that it has achieved Kyoto Protocol standards in the reduction of greenhouse gas emissions, and by making that claim has appropriated for its own benefit the carbon credits created by the preservation of vegetation on Saarahnlee. The claim against the Australian Capital Territory 12 Mr Spencer's complaint against the Territory, though in his statement of claim described as involving a "takings" or "trespass", is not properly brought in trespass, as the incursions of wild animals lack the directness and intent requisite for that tort. Nor is it properly brought in conversion, because no taking of Mr Spencer's property in any legal sense is involved, and the requisite intent to deal with his property inconsistently with his right to possession could not be established. 13 However, a lawyer would recognise in Mr Spencer's allegations against the Territory features of a cause of action in nuisance. The elements of a cause of action in nuisance in this context - the incursion of feral dogs from neighbouring Crown Land, killing stock - were discussed by Gillard J in Stockwell v State of Victoria [2001] VSC 497, in which the plaintiff alleged that the defendant State, as owner and occupier of nearby Crown Land, permitted wild dogs to occupy the Crown Land, and permitted them to leave that land and move onto the plaintiff's top paddocks and kill or severely injure his property, namely his sheep. The alleged nuisance had its genesis in wild dogs moving onto land owned and occupied by the State without any human intervention, and then those wild dogs - which were not owned, controlled or managed by the State or its employees - moving onto the plaintiff's property and causing a nuisance. His Honour explained that in order to prove a case in nuisance against the State, the plaintiff had to establish the following elements [at [241]-[249]]: · That the plaintiff is a person in actual possession of the land affected, either as a freeholder or tenant of the land in question or as a licensee with exclusive possession; · That the activity which causes the damage to the plaintiff's enjoyment of his land is a nuisance, that is, it interferes with the enjoyment of his rights in his land;

· That the activity which constitutes the nuisance was created by the defendant occupier, or was created by the actions or omissions of another or by natural causes and with knowledge of its existence or circumstances where he ought to have known of its existence, the defendant occupier suffered it to continue. Once a defendant occupier knows or is presumed to know of the hazards on his land, and if as a reasonable man he could foresee that the defect or condition if not remedied may cause damage to his or her neighbour's land, a "measured duty of care" arises; · That the plaintiff suffered damage as a result of the nuisance;

· That the failure to prevent or minimise the nuisance was a cause of the plaintiff's injury or damage; and

· That an employee, agent or independent contractor of the State, acting in the course and scope of his employment or engagement, was guilty of the wrongdoing, and if sued personally by the plaintiff would have been liable. This final element arises where the defendant is the Crown, because the Crown is liable in tort only where the tort is actually committed by an employee, agent or independent contractor, and then only if acting in the course and scope of the employment [ Stockwell, [15]-[20]]. 14 In Stockwell, Gillard J concluded that there were employees of the State of Victoria in the relevant department who, in the course of their employment, were guilty of permitting a nuisance which caused harm to the plaintiff and failed to take reasonable steps to eradicate it, so that that State was vicariously liable for the commission of the tort of nuisance. 15 There are facts alleged in Mr Spencer's statement of claim and supporting material that, if proved, are capable of sustaining a claim against the Territory in nuisance. Ultimately, Ms England, who appears for the Territory, was unable to submit that a claim in nuisance was manifestly untenable. 16 Ms England did submit that, as the statement of claim refers to damage suffered over a period of 27 years, it was vexatious or an abuse of process. Although it is now established that a civil proceeding (like a disciplinary [Walton v Gardiner (1993) 177 CLR 378 and a criminal [Jago v District Court of New South Wales (1989) 168 CLR 23] proceeding) may be stayed as an abuse of process where delay in their institution makes a fair trial impossible, even though the bringing of proceedings is not prevented by a limitation statute [Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27], prejudice sufficient to justify such a stay is not to be presumed from the mere fact of long delay, but has to be proved; for example, in Batistatos the evidence of the prejudice is set out in the judgment [at [37]]. Neither the Territory nor any other defendant adduced any evidence of prejudice of the type that would be required to establish grounds for a Batistatos stay. No limitation point has been taken, at least at this stage, and even if it were, it would not defeat a claim in respect of a continuing nuisance within the last six years before institution of the proceedings, though it might affect the recoverability of damage incurred before that period. 17 Accordingly, the claim against the Territory is not unarguable.

18 However, Mr Spencer's pleading does not refer to nuisance, and does not clearly articulate all the elements of such a cause of action, as outlined in [13] above - in particular, the sixth of them. As Gillard J said in Stockwell: 21 The plaintiff must plead facts which establish that an employee, agent or independent contractor of the Crown, acting in the course and scope of the employment or engagement, was liable to the plaintiff. In practical terms, this means proof of a cause of action against the employee, agent or independent contractor, and that the Crown is vicariously liable for the tort committed by the employee, agent or independent contractor. In my opinion, it is unnecessary to identify the employee, agent or independent contractor by name, but, nevertheless, it would be necessary to adduce evidence which would enable the Court to be satisfied of the existence of such a person or body, and that he or it was acting in the course and scope of the employment or engagement at the relevant time. Of course, the best evidence is the identification of the individual or body by name. … 23 If the plaintiff fails to identify such a person by name, then the plaintiff assumes a heavy burden of persuading the Court that some unidentified employee, agent or independent contractor was responsible for the damage. Each case will depend upon its own circumstances. There may be sufficient evidence to enable the Court to consider the acts or omissions of the unidentified person. But if the Court is left in the position where it is not able to identify such a person by name or office, then the plaintiff may fail because he cannot prove the liability of a Crown employee, agent or independent contractor. … 28 The original statement of claim in the present proceeding was technically defective, in that it was asserted that the State was liable without any pleading alleging that its employees, agents or independent contractors were liable. As a result, the State brought an application to strike out the statement of claim on the day before trial, and I granted leave to the plaintiff to amend his statement of claim to properly allege that the acts or omissions were those of an employee, agent or independent contractor. The result was that the statement of claim was amended, alleging that "the defendant, its servants or agents" did certain things, and particulars were given referring to a schedule. The schedule contained some three pages of names, without in any way identifying which particular named person was liable to the plaintiff. The matter was stood down to enable the plaintiff to identify, either by name or office, a particular Crown employee or agent. The result was the reduction of the number of names to some 34 names. 29 Counsel for the State did not raise any objection and accordingly, the trial proceeded on the pleadings as they then stood. 30 In my opinion, it is necessary for the plaintiff in his pleading to identify by name or office, or other circumstances, an employee, agent or independent contractor who was responsible for the tortious conduct. First, because that is the matter that has to be proven; secondly, to enable the defendant to know the case it has to meet, and, in particular, to assist it in preparing its defence to the case; and thirdly, and just as importantly, to focus the minds of the plaintiff and his advisers as to the matters that have to be proven in the case. 31 With the benefit of hindsight, the Court should have required the plaintiff's advisers to be more precise in identifying the particular employees and agents. The result has been much time at trial being spent by plaintiff's counsel attempting to identify who is at fault. More time in preparation and discovery of relevant documents concerning the issue, would have reduced the length of this trial.

19 For at least those reasons, Mr Spencer's statement of claim is defective insofar as it asserts a claim against the Territory. The pleading in that respect should be struck out, but as it is not beyond saving by legitimate amendment, there should be leave to replead as against the Territory. The proceedings against the Territory should not be summarily dismissed. The claim against the State of New South Wales 20 As to the cause of action against New South Wales, it depends on the notion that the enactment of the Native Vegetation Act was, at least in its application to Saarahnlee, either an invalid purported exercise of legislative power, or a breach of a contract founded on what Mr Spencer calls "the fee simple principle". At the centre of both those propositions is the theory that the grant of a fee simple is a grant of full and free ownership of the land to the grantee, subject only to such restrictions as affect it at the time of the grant, so that additional restrictions on its use cannot thereafter be imposed, except with the consent of the fee simple owner (or, perhaps, just compensation). This grant is said to be a contract (or quasi-contract) between the Crown and the grantee (and presumably the grantee's successors), so that the grantor cannot impose further constraints on the use of the land after the grant by the grantee and successors, without their agreement. 21 However, this theory involves a number of fatal fallacies. The first is that a grant of land in fee simple is not a form of contract (or quasi-contract, a concept which is entirely misconceived in this context) between the Crown and the individual, but a grant (pursuant to an Act of Parliament), which can be repealed, amended or varied by a valid Act of Parliament. In Dore v Penny [2006] QSC 125, Jones J, dealing with a similar argument, said: [7] … The applicants further argue that the Deed of Grant is a contract between themselves and the Sovereign of the Commonwealth, there being no sovereign for the State of Queensland. [8] The misguided nature of the argument is amply demonstrated at that point. The grant of land from which the applicants derive their title was not a contract but was a grant pursuant to a statute of the parliament of Queensland, namely the Land Act 1910. 22 Such statutory provisions confer on the Crown legislative (in substitution for prerogative) authority to grant wastelands, by transferring the power of doing so from the uncontrolled discretion of the Crown, to the Governor-in-Council acting under the direction of the Legislature, thus superseding the Crown's prerogative by a statutory power to make grants of land, and bringing its alienation and disposal under the authority of the Legislature [Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71 (Windeyer J); Commonwealth v Tasmania (1983) 158 CLR 1, 209-212 (Brennan J); Bone v Mothershaw [2003] 2 Qd R 600, 609 [18] (McPherson JA)]. They do not define the extent of the rights conferred on a grantee of land from the Crown. 23 The second is that even if there were any such contract, it could not fetter the powers of the legislature. As the Executive cannot, by representation or promise, disable itself from performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power [Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17 (Mason CJ)], a fortiori the Executive cannot by contract bind the Legislature not to exercise its legislative powers. Legislative acts of the State, if within power, are not reviewable by the courts: the State's constitutional power to make laws for the peace, welfare and general good government of the State is in the traditional formula used to confer "the widest law making powers appropriate to a sovereign" [Ibralebbe v The Queen [1964] AC 900, 923; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9-10], and admits of no inquiry by the courts as to whether, as a matter of fact or law, a particular statute is or is not a prudent exercise of the power or is calculated to attain its particular end or object [Riel v The Queen (1885) 10 App Cas 675, 678; Bone v Mothershaw, [6]].

24 Thirdly, the grant of an estate in fee simple, while the largest estate known to law and regarded as practically equivalent to absolute ownership, does not preclude the subsequent exercise of legislative power in respect of the land. Mr Spencer's argument seizes on the proposition contained in first sentence in the following passage from Fejo v Northern Territory (1998) 195 CLR 96, [43], but overlooks the qualification contained in the second, which I have emphasised: An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land" [ Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656; 116 ALR 26 per Deane, Dawson and Gaudron JJ. See also Mabo v Queensland (No 2) (1992) 175 CLR 1 at 80; 107 ALR 1 per Deane and Gaudron JJ] and confers "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination" [ Commonwealth v New South Wales (1923) 33 CLR 1 at 42 per Isaacs J quoting Challis's Real Property , 3rd ed (1911) p 218. See also Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 298 per Williams J and Wik Peoples v Queensland (1996) 187 CLR 1 at 176; 141 ALR 129 per Gummow J]. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute , by the owner of the fee simple or by a predecessor in title.

25 A sovereign parliament (such as that of a State) can lawfully impose by statute restrictions on the use of or activities which may be carried out on land held in fee simple. Arguments to the contrary, similar to those which Mr Spencer would advance, have been repeatedly rejected in Queensland [Bone v Mothershaw; Burns v Queensland [2006] QCA 235, [18]; Wilson v Raddatz [2006] QCA 392; Glasgow v Hall [2007] QCA 19]. In Burns, for example, Jerrard JA (with whom Cullinane and Jones JJ agreed) said (at [18]): The applications before him largely challenged the State's legislative power to impose planning requirements on Mrs Burns, or challenged the Planning and Environment Court's jurisdiction to hear the appeal. His Honour correctly held that those contentions were plainly untenable, because the sovereign law making power of the Queensland Parliament, considered in a somewhat similar context in the decision in Bone v Mothershaw , included the power to impose upon Mrs Burns the requirement that she have a development permit prior to changing the complexion or presentation of her land by clearing it. He remarked that in a different though analogous way, the Parliament was clearly empowered to authorise planning schemes which restricted what the owners of estates in fee simple might lawfully do with that land. I respectfully agree; if this challenge is correct, then there would seem no limit at all that a State Parliament could impose on the use to which a fee simple land owner put her or his land. Any such title holder could build, clear, or grow what they pleased; which activities would include growing cannabis, opium poppy, or noxious weeds, destroying historic buildings, or constructing buildings of any kind wherever they pleased. 26 The same idea is reflected in a decision referred to by Mr Spencer, that of Debelle J in Perpetual Trustee Co Limited v Valuer-General (2006) 95 SASR 338, in which his Honour cited from CSR Ltd v Value-General (1977) 17 SASR 446, the definition offered by Wells J (at 450) of the expression "an unencumbered estate in fee simple in the land" in the (SA) Valuation of Land Act 1971 (emphasis added): In my opinion, these words denote an absolute or pure estate in fee simple in the subject land, free of any private conditions, limitations, restrictive covenants, or other inherent restrictions affecting the estate or the land, but subject, of course, to any laws of a general nature that affect the use or alienability of the land . 27 A law that regulates or imposes restrictions on the use of land is not inconsistent with ownership in fee simple and does not involve the acquisition of land. As McPherson JA said in Bone v Mothershaw (at [25]): The Council has not taken any interest of Mr Bone's, so as to attract the operation of the Acquisition of Land Act 1967 or otherwise. He retains unimpaired, for what it is worth, his estate in fee simple absolute in the land. He has been stripped of virtually all the powers which make ownership of land of any practical utility or value. There is, as is attested by an affidavit from the valuer provided at the hearing, no doubt that the value of the land has been greatly reduced. But the law provides no remedy for this action or its consequences when it is the result of legislation validly passed under law-making authority that by its terms or nature authorises or permits such an outcome. 28 And later, at [26], his Honour continued: The second [answer to the objection] is that it in no sense involves acquisition of Mr Bone's property in the land. Both in purpose and effect, ch 22 resembles the legislation in the Tasmanian Dam Case (1983) 158 CLR 1, from which it may have taken some of its inspiration, in prohibiting damage to and use of the subject land, without amounting to an "acquisition", by the Commonwealth or anyone else, within the terms of s 51(xxxi) of the Constitution : 158 CLR 1, 145-146 (Mason J), 181-182 (Murphy J), 247-248 (Brennan J), 281-285 (Deane J). Legislation enacted by or under Parliamentary authority may, without providing compensation, prohibit and deprive or expropriate without involving acquisition … 29 Fourthly, even if an acquisition of land were involved, there is no common law right to compensation where a person is deprived of property by a State law. A State parliament has the legislative power to deprive a person of property without just compensation, though by reason of Commonwealth Constitution, s 51(xxxi), the Commonwealth does not [Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399; see also Jerusalem-Jaffa District Governor v Suleiman Murra [1926] AC 321, 328; Bone v Mothershaw, [25]-[26]]. Commonwealth Constitution s 51(xxxi) imposes no constraint upon the legislative powers of the States [Pye v Renshaw (1951) 84 CLR 58, 79]. While some state statutes - such as (NSW) Land Acquisition (Just Terms Compensation) Act 1991 - provide for compensation in the event of such an acquisition, there is no right to compensation in the event of an acquisition under a State law which does not fall within the terms of such a statute. 30 This point may be concluded by reference to the recent judgment of the Queensland Court of Appeal in Glasgow v Hall, in which Holmes JA said: The applicant mounted associated arguments: the first, that because he and his wife held an estate in fee simple in their land the Crown had no power to legislate in respect of its use or management; … The first notion, that the grant of an estate in fee simple somehow precludes the exercise of legislative power in respect of the land, was comprehensively rejected by this Court in Bone v Mothershaw [2002] QCA 120 and Burns v State of Queensland & Anor [2006] QCA 235. There are two points to be made further: special leave was refused in Bone v Mothershaw because of the lack of prospect of success. In Burns v State of Queensland , Mr Walter assisted the applicant in mounting her argument; as he did again in a similar case in which an extension of time was rejected, Wilson v Raddatz [2006] QCA 392. The absence of merit of the argument must surely be becoming apparent even to Mr Walter. 31 Accordingly, even if the (NSW) Native Vegetation Act prohibits the clearance of the secondary regrowth on Saarahnlee, its enactment involved neither excess of power nor breach of contract by the State, and no cause of action can be founded on the valid exercise of the State's legislative power. It is easy to understand and sympathise with Mr Spencer's concerns: the Native Vegetation Act has the potential to impact severely on the use and value of land that if affects, without compensation for the landowner, a circumstance that, in Bone v Mothershaw, attracted the sympathy of the Queensland Court of Appeal for the similar position of Mr Bone. McPherson JA, with whom Byrne J agreed, explained: [23] This brings me to what is really Mr Bone's fundamental complaint about the whole process of vegetation protection that has been imposed on his land under ch. 22. It is that, by the Council's action in making the order, his land has been struck with sterility in relation to the uses he can now lawfully make of it. Except with Council approval, there is practically nothing he can do with it except continue to grow vegetation and perhaps walk on it. His refusal or failure to recognise that this state of affairs now prevails has already cost him $20,000 in penalties, to say nothing of legal costs, his own as well as those of the Council. For this severe limitation on his rights as owner, he has received and will receive no compensation, although he continues to enjoy the privilege of paying the rates that the Council levies on his land. The action taken by the Council was no doubt undertaken in the public interest, as it claims, of the citizens of Brisbane; but it is not they who will bear the financial disadvantages of the action taken in their interest. It is of little consolation to him to learn that, as the Council proudly proclaims in some of its material, it is the only local authority in Australia that provides this service (or some stages of it) to a land owner who is targeted completely free of charge. [24] The question is whether our legal system permits such prohibitory action to be taken. … 32 But His Honour concluded that it did: [28] Despite feeling a measure of sympathy for Mr Bone for the scant respect with which his rights as owner have been trampled on, an appeal against the decision below cannot in law succeed.

33 Similarly, Williams JA said: [35] One of the major concerns of the appellant is that the value of his property has been significantly diminished by the impact of the vegetation protection order; effectively he cannot lawfully use his property in the way in which he could immediately prior to that order being made. Fair minded citizens would regard it as only just that a person in that position should be compensated for the loss suffered. But as is implicit in the reasoning of the High Court in Durham Holdings Pty Ltd v. State of New South Wales (2001) 205 CLR 399 there is no common law right to compensation in Australia where a person is deprived of property rights by a State Law; it must follow that there is no such right where the loss is occasioned by a local authority by-law. [36] In many instances statute law provides for compensation in such cases. Where a change in a planning scheme reduces the value of an interest in land the owner has a right to compensation; ss 5.4.1 and following of the Integrated Planning Act 1997. But there is no equivalent provision with respect to ch. 22 of the Brisbane City Council Ordinances. [37] Many right thinking citizens would consider that the absence of a provision for compensation made the Ordinances unreasonable, but for the reasons given above (rather reluctantly) I must conclude that the absence of such a provision for compensation does not make the by-law invalid.

34 It follows that in my opinion Mr Spencer has no triable case against the State of New South Wales. The refusal of special leave in Bone v Mothershaw concludes the issue as unarguable. Accordingly, the proceedings as against the State should be summarily dismissed.

35 It might be added that Mr Spencer's case would encounter the further difficulties that the Act does not prohibit the clearing of regrowth, other than "protected regrowth" [s 19], and it is not apparent that the regrowth on Saarahnlee is "protected regrowth". Even in respect of "protected regrowth", the Act does not prohibit the continuation of existing agricultural or grazing activities [s 23]. While my decision does not depend on any view that Mr Spencer might be able lawfully to conduct clearing activities under either of those sections, but rather on the view that, assuming that he cannot, there is no cause of action against the State, I should not be taken to endorse the assumption as correct.

The claim against the Commonwealth of Australia 36 As against the Commonwealth, Mr Spencer's case depends on the theory that the State and the Commonwealth have acted in concert to procure a result that enables the Commonwealth to avoid international stigma by claiming that it is meeting the targets that would apply to it, were it a signatory to the Kyoto Protocol, through the effect of the various States' native vegetation preservation legislation, and has thereby appropriated for its own benefit the carbon credits associated with the carbon sink created by the enforced re-forestation of Saaranhlee. 37 There are several fundamental deficiencies in this theory: · First, Australia is not a signatory to the Kyoto Protocol. To be able to claim that it is meeting targets that would hypothetically apply were it a signatory - and thereby (so it is said) avoid international stigma - does not involve the use or appropriation in any legal sense of any property of Mr Spencer. The claiming of political credit for a result that has been brought about by the imposition of some burden on a citizen does not found any cause of action. · Secondly, for reasons already explained, the enactment of legislation by a sovereign state is not an act capable of attracting legal liability on the part of that state, for conspiracy or otherwise. · Thirdly, even if the enactment of legislation could be an act in pursuant of a conspiracy (and in my view it could not), my conclusion that no legal wrong is involved in the State enacting the Native Vegetation Act means that any cause of action in conspiracy (if otherwise available) would involve as a requisite element that the predominant object of the combination be to harm the plaintiff. As Evatt J explained in McKernan v Fraser (1931) 46 CLR 343, at 403, liability for conspiracy by lawful means depends entirely on the motive or the purpose of the combination, and it is insufficient that, for example, the members of a union engaged in an industrial dispute with an employer or a rival union are injuring their economic adversary in the course of defending their own trade interests, since that "is equivalent to asking of a soldier who shoots to kill in battle, whether he does so for the purpose of injuring his enemy or of defending his country". His Honour said that to establish the commission of the tort, the court must be satisfied that the motive or ultimate object, rather than the immediate purpose, of the combination is to inflict injury on the plaintiff, or that the defendants were actuated by "disinterested malevolence" directed against the plaintiff individually rather than as a member of a group with which he may be associated. Even if it could be established that the Commonwealth and the State acted in concert in the manner alleged, it would in my view be impossible to establish that they did so with the predominant object of harming Mr Spencer. There is no prospect of Mr Spencer establishing that the government was actuated by "disinterested malevolence" directed at Mr Spencer; his own case is that the motive was to achieve reductions in greenhouse gas emissions. 38 I am unable to imagine any known legal basis of liability that might be asserted against the Commonwealth. It follows that in my opinion Mr Spencer has no arguable claim against the Commonwealth, and the proceedings as against the Commonwealth must be dismissed.

39 (NSW) Civil Procedure Act 2005, s 82, provides for interim payments to be ordered on account of anticipated judgments in certain circumstances. However, s 82(3) provides that the court may not make an order for an interim payment unless the defendant has admitted liability, or the plaintiff has obtained judgment for damages to be assessed, or the court is satisfied that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant. The third of these limbs requires a high degree of certainty that the plaintiff will ultimately succeed; it requires satisfaction, not that the plaintiff will probably succeed, but that the plaintiff will succeed.

40 Here, no defendant has admitted liability, and the plaintiff has not obtained judgment for damages to be assessed; and I am not satisfied that the plaintiff would obtain judgment for substantial damages against the defendant. To the contrary, I have concluded that there is no arguable case against the State or the Commonwealth, and although I have concluded that Mr Spencer's case against the Territory is not manifestly unarguable, it is also far from clear that it will ultimately succeed: there is no satisfactory pleading of that case before the court, and such evidence as there is relevant to that claim is in a very generalised form. It is quite impossible for the court to be satisfied, on the evidentiary material presently available, that if the proceedings go to trial the plaintiff will obtain judgment for substantial damages against the Territory.

41 The motion for interim payment must therefore be dismissed.

Conclusion 42 My conclusions may be summarised as follows: 43 The claim against the State cannot succeed. The State has power to legislate with respect to the use of land held in fee simple. 44 The claim against the Commonwealth cannot succeed. The claiming of political credit for a result obtained at the expense of a citizen founds no cause of action known to law. 45 The claim against the Territory is defectively pleaded, but it is not unarguable. While the pleading in that respect should be struck out, there should be leave to replead against the Territory, and the proceedings against the Territory should not be summarily dismissed. However, as I am not satisfied that if the case goes to trial the plaintiff will obtain judgment for substantial damages against the Territory, the conditions for an interim payment are not satisfied. 46 It follows that I will dismiss the proceedings as against the State and the Commonwealth. I will strike out the statement of claim, but with leave to replead a cause of action in nuisance against the Territory. I will dismiss Mr Spencer's motion for an interim payment. 47 My orders are:

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

Order that the statement of claim be struck out, with leave to replead against the first defendant, the Australian Capital Territory, upon condition that the allegations in paragraphs 5 and 6 of the statement of claim, or allegations to substantially the same effect, not be repeated in any amended statement of claim. 3. Order that the plaintiff pay the costs of the second and third defendants of their motions filed respectively on 9 March and 28 February 2007. 4. No order as to the costs of the first defendant's motion filed on 13 March 2007, to the intent that the plaintiff and the first defendant bear their own costs of that motion.

Order that the plaintiff Mr Spencer's motion filed on 12 March 2007 be dismissed with costs. 48 Ms England suggested that if any part of the proceedings survived, Mr Spencer should be referred to the Pro Bono Scheme. I was myself inclined to share that view, in the hope that it might facilitate the production of an appropriate statement of claim. Mr Spencer, however, does not wish such a referral. That is a pity, since if he has a viable cause of action it is far more likely to be pleaded properly if he has the benefit of legal assistance. But I see little point in compelling him to seek it when he apparently does not want it. If he reconsiders, he can make his own application for a referral.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Native Vegetation Act 2003(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (33)