Friday, 24 May 2013

Peter Spencer Update May 2013

by Ian Hampton
Since the High Court decision that ordered the matter to return to the Federal Court for the discovery of internal government documents, there has been approximately 4000 documents produced predominately from the Commonwealth and some from the State (NSW).

After the reading of these documents it has been found that there are documents that relate to some of the documents that have not been discovered, and some categories that have not been produced by either the Commonwealth and the State.

The Australian Government Solicitors (AGS) and the Crown (NSW Government) have refused to discover any more related docs and also the categories that have not been discovered.

Last Friday 17th May there was a directions hearing where the document categories in dispute were filed and a submission made outlining the reasons why these categories are relevant to Peter's case. Federal Court judge, Justice Cowdroy J will hear the case for further discovery at a Interlocutory Hearing next Thursday 30th May in Federal Court, Sydney 9.30 am.
Effectively Peter will be arguing the relevance to his case of the further discovery and the AGS and Crown will be arguing that the documents are not relevant and they have exhausted there resources.
At the directions hearing last week Justice Cowdroy J made it quite clear that after reviewing the history of the case that if the documents sought by Peter are relevant to his case and can be found, bthen they must hand them over.

The outcome of this hearing next week will be very interesting.

Spencer v Commonwealth interlocutory hearing 30/5/2013
Please read details in the comment section below

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1 comment:

  1. Peter Spencer update sent in by Ian Hampton.
    Spencer v Commonwealth interlocutory hearing 30/5/2013

    Last Thursday was a very interesting day in the Federal court before Justice Cowdroy.

    Peter S was bombarded with affidavits from the Australian Government Solicitors (AGS) and the Crown Solicitors (NSW) leading up to last Thursday's hearing in which they made all kinds of accusations attacking Peter S's claims as to the further discovery of documents and the credibility of his case.

    This tactic of the AGS back fired right in there face

    Justice Cowdroy opened the court saying that he had thoroughly read all of the submissions.

    Then the AGS and Crown asked the court to order that the proceedings in this court be closed from the media with regards to privileged documents that have been made available to Peter S and his team under non disclosure agreements. This order was granted on consensus with Peter King.

    Counsel for Peter, Peter King started his oral submissions only getting into the first page when the court herd interjections from the Commonwealth and Crown.

    Peter K started by giving a detailed chronological account of signed international treaties, intergovernmental agreements, commonwealth/state legislation, commonwealth/state agreements and commonwealth/state committees starting with the United Nations Framework Convention on Climate Change in 1992 and followed on sighting in detail many High Court authorities with regards to the merits of the case.

    Justice Cowdroy asked Peter K many questions throughout his oral submissions also responding to the respondents interjections.

    Peter K did not finish his submissions as before that occurred the Judge took up the dialogue with the respondents......

    The Commonwealth and Crown barristers then started into their oral submissions. Justice Cowdroy intervening on many occasions questioning the relevance of their argument as to why these documents should not be produced. His Honour asked them many questions that they could not answer by which they responded by saying that they would have to get further instructions.

    His Honour asked the parties if Mr Spencer's farm was in the carbon accounts or not? they said no. His Honour then said "so he can go and clear his land then" they then backed away from their NO response.

    At 11.30 am justice Cowdroy pointed to the clock said he was going to adjourn while the Commonwealth and the Crown got further instructions. He also made a very strong statement that he would sit for as long as it takes - "five days if necessary", to cross examine any signatory to any affidavit who wanted to say the docs were not available.

    After three hours of negotiations and getting instructions during which their numbers swelled from nine to twelve. The Commonwealth at last agreeing to discover all categories of documents requested.

    The court reconvened at 2.30 pm when draft orders with consensus from the parties being the Commonwealth and the Applicant were handed up to justice Cowdroy.

    The State was not far behind in that they were waiting for instructions from someone not available till latter in the afternoon. His Honour gave them one more day to submit draft orders to the Applicant and then once completed to his chambers for processing, or he would reconvene the court.

    His Honour commended the parties for coming to agreement.

    The Commonwealth and State have eight weeks to produce the documents. The next directions hearing is set down for 12th August.

    The court can reconvene with three days notice if the compliance is not adhered to


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