Sunday, 16 December 2012


Article provided by Ian Hampton

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. 
Previous related discussions


  1. Minor PR success - there is an article in today's Monaro Post which is similar to the above account, and based on a media release sent out Monday morning.

    At least people in Cooma and on the Monaro will know that Spencer is still IN THERE and fighting on...


    Peter Spencer and his legal team will be attending the mediation (ordered by Justice Emmett) with the other parties this Thursday 24th January. At this meeting Spencer's legal team will put on the table categories of documents that have been sought and not produced, also documents that relate to produced documents.

    Whatever the outcome, Spencer and his legal team will be be back in the Federal Court on Friday 8 February opposite the Commonwealth and State of NSW lawyers for a further directions hearing.

    I am getting this information second hand, and I don't know the detail.... but there is a sense of growing confidence in the Spencer camp that the momentum is with Spencer and heading towards the trial that Spencer has always wanted.

  3. Keep the Peter Spencer updates comming Ian. People are interested. Even though this blog article is over a month old people are still checking in & looking at it. The information in the dashboard that the admins can see provides how many hits per day any article is recieving.

  4. Beautifully written article Ian. I was at the hearing that day and can corroborate. The disgraceful stalling and stonewalling on handing over documents is an affront to justice.In some of the previous hearings, the Commonwealth had teams of 8 or so lawyers. This suggests they may have something to hide. Peter King rightfully pointed out that at the current rate of progress with refusal to hand over documents, the case would go on another 5 sessions or more.Hopefully the mediator is allowed full access to the documents.Looking forward to the outcome of today's directions hearing.

  5. Thank you, Ian for your highly informative articles re the Peter Spencer case. A further update would be greatly appreciated.

    To my mind, the Commonwealth's dilatory tactic alone is evidence of culpability on their part. If there was nothing to hide, why not immediately exercise transparency by full and open disclosure?

    Unfortunately, it is clear that the full forces of the Commonwealth are arrayed against Peter because justice in his case is pivotal to the obtaining of justice for many others. Peter's strength of character in persisting in this seemingly never-ending battle never ceases to amaze me.

    1. Elizabeth, You can read the latest on Peter's case by going to and typing in ACD24/2007 in the file number box and press search file by file number.
      It's always nice to get updates from people that may have attended the hearings though! Peter will attend court again early April and then again in May 2013
      Elizabeth Richardson

  6. Thanks Elizabeth in your reply to Elizebeth for giving the link to where to find the details of Peter Spencers case. As in these Blooger comment box you must provide HTML code to make a link active I will provide it below so people can click on it rather than copy & paste.
    Commonwealth Courts Portal

    The page you go to has the appearance that you will need to sign up but I found a way around all that.
    On the top right hand corner click on Federal Law Search
    Either type or copy & paste into box beside File Number, this code ACD24/2007
    Click on Search by File Number
    The page will refresh and at the top you will see the file number in red & next the Matter Title - Peter James Spencer v The Commonwealth of Australia
    Click on the File Number that will be in red.
    Click on Administrative Law to be able to view the various documents.

  7. Thanks Elizabeth for the info you provided and Dale for taking the trouble to simplify a search for the details of Peter's case. Unfortunately, the link didn't work for me for some reason. I'll try the address Elizabeth gave.


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