Spencer v Commonwealth of Australia [2017] FCA 83

Spencer v Commonwealth of Australia [2017] FCA 83

The notice to produce was set aside because the Commonwealth's evidence established that compliance would be oppressive, the appellant had not satisfactorily explained the late issue of the notice shortly before the appeal, the proposed compromises did not alleviate the oppression, and the notice also lacked demonstrated apparent relevance or legitimate forensic purpose. Because the further evidence application depended on the documents sought by that notice, it was dismissed. Leave to amend the notice of appeal to add ground 7 was granted because the respondents neither opposed nor consented and the Court was inclined to allow it with supplementary submissions directions.

Jurisdiction
Australia
Judgment Date
09 February 2017
Procedural Posture
Appeal; Interlocutory Applications / Interlocutory Determination Before Scheduled Full Court Appeal
Outcome
Notice to produce set aside; interlocutory application to receive further evidence dismissed; leave granted to amend notice of appeal.
Legal Topics
['notice to Produce' 'further Evidence on Appeal' 'amendment of Notice of Appeal' 'oppression and Relevance' 'acquisition of Property on Just Terms' 'native Vegetation Clearance' 'kyoto Protocol']
['practice and Procedure' 'constitutional Law' 'administrative and Constitutional Law and Human Rights'] ['notice to Produce' 'further Evidence on Appeal' 'amendment of Notice of Appeal' 'oppression and Relevance' 'acquisition of Property on Just Terms' 'native Vegetation Clearance' 'kyoto Protocol']

Case Brief

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Procedural Posture

Appeal; Interlocutory Applications / Interlocutory Determination Before Scheduled Full Court Appeal

Legal Issues

  1. 1 ["Whether the appellant's notice to produce issued on 23 December 2016 should be set aside as oppressive and not reasonably relevant to the issues in the appeal." 'Whether the appellant should be granted leave under r 36.57 of the Federal Court Rules 2011 to receive further evidence in the appeal consisting of documents sought under the notice to produce.' 'Whether the appellant should be granted leave to amend the notice of appeal to add ground 7.']

Ratio Decidendi

The notice to produce was set aside because the Commonwealth's evidence established that compliance would be oppressive, the appellant had not satisfactorily explained the late issue of the notice shortly before the appeal, the proposed compromises did not alleviate the oppression, and the notice also lacked demonstrated apparent relevance or legitimate forensic purpose. Because the further evidence application depended on the documents sought by that notice, it was dismissed. Leave to amend the notice of appeal to add ground 7 was granted because the respondents neither opposed nor consented and the Court was inclined to allow it with supplementary submissions directions.

Court Disposition

Notice to produce set aside; interlocutory application to receive further evidence dismissed; leave granted to amend notice of appeal.

Orders

  • ['The notice to produce issued on 23 December 2016 is set aside.' 'The interlocutory application filed on 24 January 2017 is dismissed.' 'Leave is granted to amend the notice of appeal so as to add ground 7 as set out in the proposed amended notice of appeal dated 14 August 2015.' 'By 5:00 pm on 16 February 2017,...