FACTUAL FINDINGS
11 In the principal judgment at [39]-[42] I set out some of the history of this proceeding, however it is necessary to repeat it here. Mr Spencer commenced this proceeding on 12 June 2007, with the Commonwealth as the only respondent. On 26 July 2007 the Commonwealth filed a notice of motion seeking summary dismissal of the proceeding pursuant to s 31A of the Federal Court Act, which was heard by Emmett J in May and June 2008. On 26 August 2008, his Honour gave reasons why both Mr Spencer's interlocutory application for interim relief and the proceeding should be dismissed: see Spencer v Commonwealth [2008] FCA 1256. Orders were made on 28 August 2008 dismissing the proceeding: Spencer v Commonwealth (No 2) [2008] FCA 1378. Costs were awarded in favour of the Commonwealth, although discounted because of the element of public interest in Mr Spencer's claim.
12 Mr Spencer was granted leave to appeal the decision of Emmett J on 9 October 2008. The appeal was heard by a Full Court in February 2009 and, on 24 March 2009, the Full Court dismissed Mr Spencer's appeal: Spencer v Commonwealth [2009] FCAFC 38; 174 FCR 398. Costs were awarded in favour of the Commonwealth.
13 Mr Spencer sought special leave to appeal to the High Court. After some delay occasioned by a case with some related legal issues (Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3; 240 CLR 242), on 12 March 2010 Mr Spencer's application for special leave was referred to an enlarged full court for argument as on appeal: Spencer v Commonwealth [2010] HCATrans 55, and argument was heard on 16 June 2010. On 1 September 2010 the High Court granted special leave to appeal, allowed Mr Spencer's appeal, set aside the orders of the Full Court and Emmett J and dismissed the Commonwealth's application for summary dismissal: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118. An order for costs was made in Mr Spencer's favour. The terms of that order awarded Mr Spencer his costs of the application for special leave and the appeal to the High Court, the costs in the Full Court of the Federal Court and the costs of the Commonwealth's motion before Emmett J.
14 Following the High Court decision, the proceeding returned to the docket of Emmett J, with the State of New South Wales being formally added as second respondent on 12 November 2010, although the Court's file suggests the State had appeared before this date.
15 The Commonwealth's submissions on costs take as the appropriate starting point the remitter to Emmett J, and the State's approach is consistent with this.
16 Mr Spencer's further amended statement of claim was filed on 14 February 2011. It is appropriate to see that as the time at which the proceeding "began again", so to speak.
17 After February 2011, there were ongoing issues about discovery - both its scope, and the respondents' compliance with orders made. At all times during this process Mr Spencer was legally represented.
18 Orders as to discovery by each respondent were made on 31 May 2011, and in respect of the Commonwealth were made by consent.
19 As part of compliance with those orders it seems, claims of public interest immunity were made by the Commonwealth over documents contained in Cabinet files and relating (by way of a general description) to issues of climate change, natural resource management and negotiations with the States on those issues. Those claims were heard in an interlocutory hearing in April 2012, almost 12 months after the orders for discovery were made. Why the discovery process had only advanced to that stage in 12 months is unexplained on the evidence before me, or in the reported decisions.
20 On 7 June 2012, Emmett J upheld the Commonwealth's claims of public interest immunity: see Spencer v Commonwealth of Australia (No 3) [2012] FCA 637, and ordered that the Commonwealth's costs in relation to the question of public interest immunity be costs in the proceeding. It was these kinds of claims by the Commonwealth which fuelled Mr Spencer's apprehension that the Commonwealth was hiding documents which could prove the case he wished to make against the Commonwealth about an informal agreement to achieve its goals of reduction in native vegetation clearance. An appeal from Emmett J's decision on public interest immunity was dismissed by the Full Court in November 2012: Spencer v Commonwealth of Australia [2012] FCAFC 169; 206 FCR 309. Mr Spencer was ordered to pay the Commonwealth's costs of the appeal, although provision was made for further submissions on a foreshadowed additional claim by the Commonwealth for indemnity costs in relation to one aspect of the appeal:
In respect of the bundle of documents referred to in paragraph 59 of the reasons for judgment and the notice to produce dated 2 November 2012, leave be granted to the first respondent to file and serve written submissions in support of the first respondent's foreshadowed application for indemnity costs within seven days, the applicant to file and serve its written submissions on the issue of indemnity costs within a further seven days thereafter, and the first respondent to file and serve any written submissions in reply within a further three days.
21 It appears that material was not filed and instead agreement was reached between the Commonwealth and Mr Spencer, reflected in orders made by consent by the Full Court on 4 December 2012 that in respect of those costs, Mr Spencer pay the Commonwealth's costs on a party/party basis as agreed or taxed.
22 While that appeal was on foot, discovery was agitated again before Emmett J. In a decision made on 30 August 2012, his Honour refused to order further discovery by way of categories of documents pressed by the applicant, which had not been the subject of the consent orders in May 2011: Spencer v Commonwealth of Australia (No 4) [2012] FCA 1142. From his Honour's reasons, it seems discovery of these categories was a dispute which predated the May 2011 consent orders, but had been held in abeyance for some time while the agreed aspects of discovery proceeded and inspection occurred. On 30 August 2012 Emmett J reported in his Honour's reasons that, amongst other things, inspection of documents was still not complete. His Honour raised with the parties (it appears from the reasons at [12]) the suggestion that discovery issues could be referred to a referee, or to mediation. It does not appear either of these events occurred. Mr Spencer was ordered to pay the Commonwealth's costs of 30 August 2012 and the costs of the discovery application were otherwise to be the parties' respective costs in the proceeding.
23 Some impression of the nature and extent of the discovery issues in this case can be gleaned from the affidavit filed in relation to costs by the State. Ms Namey, a solicitor for the State, deposes as follows:
Additionally, in August 2013, five members of the junior bar were engaged to assist in reviewing documents for the purpose of discovery. Counsel fees for this task were $125 an hour. Counsel fees for discovery exceeded $80,000.
…
The applicant sought extensive discovery from a number of State agencies. The State gave discovery by categories in multiple tranches. During 2013 large volumes of documents were reviewed for the purposes of discovery. In addition, more limited discovery of documents occurred in 2011, 2012 and 2014.
I am informed by Ms Sasha Lowes, the solicitor with carriage of the matter from March 2013 to February 2014, that most of the documents that were required to be reviewed during 2013 for the purposes of discovery were held in hard copy form. In order to manage the documents for discovery and the matter more generally, the second respondent engaged "e.law" a legal technology service provider in July 2013 to provide an electronic document management system for this matter. Even after being converted to electronic format, not all of these documents were searchable using electronic search terms. Accordingly, a manual review of each of the electronic documents was conducted by solicitors, paralegals and/or counsel.
I am informed by Ms Leonie Taylor, a representative of e.law, that e.law individually scanned and uploaded approximately 90,000 documents, totalling 305,615 pages, onto this system. This involved significant initial time and expense. The documents have been hosted on an online database for which e.law has charged since mid-2013, and continues to charge, a monthly data storage fee. The amount of that monthly data storage fee has varied according to the number of documents being hosted and is presently approximately $5,000. In total e.law costs have exceeded $300,000.
24 In his costs submissions, Mr Spencer reveals, at least in general terms, what appears to have caused his dissatisfaction with the practical outcome of the High Court's costs orders, although on the surface it would seem he has recovered the costs of this proceeding up until the matter was remitted to this Court in 2010. At [8] he states:
I also ask the Court to note that my lawyers who worked very hard for me did not get the benefit of any costs order made by the High Court because whilst the money was in Mr Gouliaditis the AGS lawyer's hands after the assessment of costs, my creditors served a garnishee notice on the AGS which then paid all the moneys away, that was then available. Other than an insignificant amount divided amongst the entire legal team. I remain concerned as to how those creditors knew to serve such a notice at the exact correct time so that neither I nor my lawyers benefitted in any way from the High Court order.
25 He submits that, because of the Commonwealth's unreasonable behaviour, this Court should "refuse all costs to the Commonwealth since the High Court decision". He goes further and submits that the Commonwealth should pay all his legal costs and expenses, although at one point in his submissions he also includes the State in this further submission.
26 He also identifies the following matters as supporting this outcome:
(1) the Commonwealth's history of delay in giving discovery;
(2) the public interest in the litigation;
(3) his success on a number of interlocutory issues, and on the issue of whether there was a "taking" of his land, as I determined in the principal judgment: Spencer v Commonwealth of Australia [2015] FCA 754 at [550].
27 As for the State, while Mr Spencer appears to recognise in his submissions that the State has taken a pragmatic approach which is generous to his interests, he nevertheless seeks an order that the State should pay its own costs. He speculates that it is likely the State "is seeking a sum certain so that it can destroy my appeal rights by serving a bankruptcy notice".
28 The file in Mr Spencer's proceeding for the period over which he complains about the Commonwealth's delay in giving discovery informs consideration of Mr Spencer's allegations about the number of times he had to return to Court, through his lawyers, to try and "force" the Commonwealth to disclose documents.
29 The first notice of motion in that period was filed by Mr Spencer on 12 November 2010 and gave notice of a motion to file a further amended statement of claim and to join the State. Submissions were filed by each party on the motion and affidavits were filed by the Commonwealth and by Mr Spencer.
30 Following that, four notices of motion or interlocutory applications were filed by Mr Spencer seeking discovery from both the Commonwealth and the State: on 6 May 2011, 26 May 2011 (seeking discovery from the State only), 23 August 2012 and 30 November 2012. Affidavit material was filed by the respondents in opposition on each occasion, and in particular a very substantial amount of material was filed in respect of the 30 November 2012 application, with the Commonwealth and the State each filing three affidavits in addition to their outlines of submissions. In addition, the Commonwealth filed from February to May 2012 four affidavits in support of its claim to public interest immunity from discovery, the resolution of which by Emmett J and the Full Court on appeal I have described earlier in these reasons. Over the course of this proceeding since 2010 the respondents have also sought and been granted leave to issue various subpoenas to produce documents.
31 A review of the file reveals that from the time the matter was remitted by the High Court up until (but not including) the final hearing before me, the parties appeared before the Court on at least 35 occasions, on most occasions appearing for directions in respect of, or for the hearing of, Mr Spencer's discovery applications against both respondents. Appearances were also occasioned by listings for mediation or case management (attended by all parties) and at the returns of subpoenas at which one or the other of the respondents appeared. The State identifies in its affidavit material 21 directions hearings so far as the State is concerned. Although the State also identifies eight interlocutory applications since its joinder, a review of the file indicates the dates identified by the State correspond not to eight discrete applications but to the dates on which the parties appeared before the Court in respect of interlocutory issues. For example, the parties appeared on several occasions in connection with Mr Spencer's discovery application filed on 30 November 2012. Not all of those directions hearings and interlocutory applications took place during the period from 2011 to 2014, which period, as I explain below, should in my view be considered separately in the exercise of the costs discretion in the particular circumstances of this proceeding.
32 In the absence of detailed evidence from the parties, all I can conclude is that the Court's file reveals a significant number of interlocutory steps, spread over a long period of time, but provides no sufficient basis for determining which party or parties bear responsibility for what was, on any view, a substantial delay in the completion of interlocutory processes.
33 In his affidavit, Mr Spencer made some assertions about the role of Mr Nick Gouliaditis, the senior solicitor from the Australian Government Solicitor with carriage of the proceeding on behalf of the Commonwealth for most of the duration of the proceeding since its remittal. Mr Spencer made a number of statements in his affidavit about Mr Gouliaditis' circumstances. For the purposes of exercising the costs discretion and reaching a conclusion on the submissions put by Mr Spencer, I consider I can take judicial notice of the fact that Mr Gouliaditis has been charged, and convicted (after entering a guilty plea) of a number of offences, most of which are drug-related. It is a matter of common knowledge within s 144 of the Evidence Act 1995 (Cth), and the parties have, through Mr Spencer's affidavit and submissions, had an opportunity to deal with it. I am satisfied there is no unfair prejudice, to the Commonwealth in particular, in my taking it into account in the limited way I propose to do.
34 The Commonwealth has chosen not to answer any of Mr Spencer's allegations about Mr Gouliaditis and the alleged impact on the way this proceeding was conducted on behalf of the Commonwealth, other than to submit the allegations are irrelevant to the exercise of the costs discretion. Nor has the Commonwealth provided any evidence about this matter, in its reply to Mr Spencer's submissions.
35 There is currently an insufficient evidentiary basis on which the Court could make positive findings in favour of any of Mr Spencer's allegations about the impact he alleges Mr Gouliaditis' conduct (which led to the criminal charges against him and his subsequent conviction) had on the manner in which this proceeding was conducted on behalf of the Commonwealth. There does appear to be considerable overlap in timing, and Mr Spencer deposes expressly to his own observations of Mr Gouliaditis in court on various occasions, and gives descriptions which are not favourable to Mr Gouliaditis in terms of the way one might expect an officer of this Court to perform his duties. It was not unreasonable for Mr Spencer to raise these matters on the question of costs, and my inability to resolve them because of insufficient evidence contributes to my inability to reach a clear view that it is appropriate for Mr Spencer to bear the entire costs burden of this period.
36 In order to attempt to form a view about what Mr Spencer submitted the High Court said concerning the discovery process in this proceeding, I have read the transcript of argument before the High Court on 16 June 2010. It is true to say that in argument, several Justices asked questions about the discovery process, generally directed, it seems to me, to attempt to understand how the "informal agreement" argument had been pleaded and put, if at all, to that point and what obligations the Commonwealth might have had, at the time of the s 31A application, to make discovery. Ultimately, as part of its consideration of the application for special leave to appeal, the High Court required copies of all notices to produce (the matter being at a stage before Emmett J where it was too early for orders for discovery as such) served by the applicant on the Commonwealth to be provided to the Court. As it turned out, in its reasons for judgment, the Court did not refer to the notices to produce.
37 In those circumstances, Mr Spencer's current submission that the High Court "considered that the Commonwealth's lawyers had conducted its defence in an unreasonable manner" finds no support in the transcript, nor in the Court's reasons for judgment. What can be said is that, in argument, it was apparent that issues of discovery and production of documents were raised by the Court, and considered to have some relevance to the issues on the special leave application. As the Court recognised in its reasons (see Spencer [2010] HCA 28; 241 CLR 118 at [31] and [48]), discovery or production of documentary evidence supporting the allegations of an informal agreement was always going to be critical to this aspect of Mr Spencer's case.
38 Overall that leaves the evidence in an unsatisfactory and uncertain state, and no clear picture emerges of where responsibility lies for the manner in which the proceeding was conducted between the remitter to Emmett J and approximately April 2014.