SPENCER GAINS GROUND IN FEDERAL COURT - Commonwealth and NSW must attend Discovery mediation meeting
At the directions hearing of Spencer v. Commonwealth on Friday 14 December, Nick Gouliaditis for the Commonwealth Government asked the Court for an order prohibiting Peter Spencer from discovery of any further Commonwealth Government documents of any category on the grounds that the Commonwealth has fulfilled the discovery of all categories as the Court has ordered.
Spencer’s counsel, Peter King responded with a blistering attack on the orders sought by the Commonwealth and State of NSW. As a result, Justice Emmett J ruled for a mediation meeting between the parties (Spencer, Commonwealth and NSW Government), to be held early in the New Year to be followed by a directions hearing on Friday 8th February 2013.
In his presentation, King made reference to the mosaic picture arising from the quantity and contents of the documents discovered so far, covering a period of well over 2 decades.
The mediation meeting will enable Spencer to put on the table all categories of documents that have been sought and not produced, also documents that relate to produced documents.
This is a breakthrough for Spencer who has been frustrated by Commonwealth tactics since his historic win in the High Court in September 2010 where the finding was that Spencer should have access to the documents he needs to present his case. Since then the Commonwealth have produced 3,500 documents; however in a great many of these documents the relevant material has been redacted, and Spencer has been denied access to many documents on the grounds of “cabinet privilege”. With regard to the State of NSW they have only delivered 350 documents. These documents reveal absolutely nothing and appear to have been selected on their merits as a PR exercise. However, mediation will provide a forum for Spencer to pursue the categories not produced by the State.
There is a sense that with a consistent approach and solid research and advocacy, Spencer is starting to make headway in the Federal Court against the primary respondent, the Commonwealth. The charter of the Commonwealth Government Solicitor (CGS) is that the CGS is a “model litigant’; in fact the CGS has been anything but – alternately claiming that there is no case to answer, that Spencer is on a “fishing expedition”, using bluster and bullying tactics as its primary courtroom tactic, delaying and delaying the obtaining and supply of discovery documents. There are no clear tactics and it appears that His Honour, Judge Emmett J is now seeing through these tactics for what they are.
These are the same tactics used for almost 6 years by the Commonwealth Government which has incorrectly applied Section 31A of the Federal Court Rules, which the High Court in Its ruling said did not apply. These are the tactics of a Government not interested in the truth but desperate to keep their actions, and those of their predecessors deeply hidden from the people.
King also made reference to the recent failure of the Doha conference regarding the Kyoto Protocol in that it apparently is a failed policy and it is regrettable that Spencer’s farm should be taken among other wrongs for the purpose of a failed policy.