Edwards v Olsen & Ors; Murphy v Stevens & Anor No. Scgrg-86-2556, Scgrg-87-742

EDWARDS & ANOR v OLSEN & ORS;
MURPHY v STEVENS & ANOR
[2000] SASC 438

Civil

INDEX

1...... History of the Proceedings...................................................... 4
2...... The Abalone Fishing Industry................................................. 10
3...... The Plaintiffs’ Business Operations...................................... 14
A...... Mr Edwards..................................................................... 14
B...... Murphy............................................................................ 22
4...... An Overview of the Claims and Defences............................. 27
A...... Mr Edwards’ Claim........................................................ 29
B...... Mr Murphy’s Claim....................................................... 31
C...... The Defences.................................................................. 32
5...... The Legislation........................................................................ 33
A...... The Fisheries Act 1917................................................. 33
B...... The Fisheries Act 1971................................................. 36
C...... The Fisheries Act 1982................................................. 42
6...... The Decision of the Full Court.............................................. 44
A...... Validity of the Abalone Permit System....................... 44
B...... The Owner/Operator Policy.......................................... 46
C...... Transfers, Trusts, Corporate Holdings
........ and Partnerships............................................................. 48
D..... Multiple Holdings.......................................................... 52
E...... Contemporaneous Holding of Interstate
........ Licence........................................................................... 52
F...... Multiple Holdings of Boats.......................................... 52
G..... Forfeiture of Licences, etc, on Transfer...................... 53
H..... Delegation by the Director to the Prawn
........ Fishing Industry Advisory Committee
........ and/or the Minister of Fisheries................................... 53
7...... The Decision in Edmunds, Smoothpool Nominees
......... Pty Ltd and Anor v Pickering and Ors................................... 54
8...... The Ruling on the No-Case Submission................................ 58
9...... Legal principles - Misfeasance in Public Office................. 59
10.... Legal principles - Negligent Mis-statement......................... 61
11.... Factual Findings....................................................................... 72
A...... Findings as to Credit...................................................... 72
(1)... Mr Edwards........................................................... 73
(a).... Dishonest Correspondence and
......... Dealings with the Department
......... of Fisheries.................................................. 73
(b).... Untruthful Statements in Evidence
......... by Mr Edwards as to the state of
......... the Abalone Industry................................... 77
(c).... Untrue Statements by Mr Edwards
......... with respect to his health............................ 79
(d).... Making Business of Litigation................... 81
(e).... Other Matters.............................................. 85

(2)... Mr Murphy............................................................ 88
(3)... The Director Defendants..................................... 89
(4)... Expert Witnesses as to Fisheries........................ 90
(5)... Accounting Evidence............................................ 91
(6)... Other Lay Witnesses............................................ 92

B...... Why the Plaintiffs sold out of the Abalone
........ Fishing Industry.............................................................. 93
(1)... Mr Edwards........................................................... 93
(2)... Mr Murphy............................................................ 98

C...... The Defendants’ Representations as to
........ Employee Divers, Corporate Holdings,
........ Partnerships and Trusts............................................... 102
(1)... Employee Divers................................................ 103
(2)... Trust Arrangements............................................ 107

11.... Mr Edwards’ Claim with respect to Western
......... Australian Abalone................................................................ 119
12.... Mr Edwards’ Claim re his Application for a
......... Prawn Authority.................................................................... 129
13.... Mr Edwards’ Claim re Tuna Fishing.................................... 137
14.... Mr Murphy’s Two Boat Claim............................................. 145
15.... Limitation of Actions........................................................... 146
A...... Mr Edwards’ Claim...................................................... 148
B...... Mr Murphy’s Claim..................................................... 162
C...... Exercise of the Discretion under s 48....................... 165
16.... Laches.................................................................................... 167
17.... Conclusion as to Liability.................................................... 168
A...... Claims re Employee Divers........................................ 168
B...... The Claims concerning the Defendants’
........ Representations as to Corporate Holdings,
........ Partnerships and Trusts............................................... 171
C...... Mr Edwards’ Claim with respect to Western
........ Australian Abalone....................................................... 171
D..... Mr Edwards’ Claim re his Application
........ for a Prawn Authority.................................................. 171
E...... Mr Edwards’ Claim re Tuna Fishing........................... 171
F...... Mr Murphy’s Claim re Two Boats.............................. 172
18.... Final Conclusions and Disposal of the Actions................. 172

PERRY J. This judgment follows the joint trial of two actions.

Both actions concern the fishing industry, more particularly the commercial harvesting of abalone.
In one action, Mr Edwards and a company controlled by him, Deep Sea Ark (Aust) Pty Ltd (“Deep Sea Ark”), are plaintiffs. I will refer to that action as Mr Edwards’ action.
In the other action, Mr Murphy is the sole plaintiff.
In Mr Edwards’ action the first five defendants successively held office as Directors of Fisheries in and for the State of South Australia. That is subject to the qualification that for the first five years from his appointment in 1967, the defendant Mr Olsen’s position was as Chief Inspector. As such, he headed the Department, and continued as head when the position was renamed in 1972 and thereafter as Director. For convenience I will refer to him throughout as holding the office of Director.
In Mr Murphy’s action one of the former Directors of Fisheries, Mr Stevens, is sued in that capacity.
I will refer to the Directors of Fisheries who are sued as the director defendants.
In both actions the State of South Australia is joined as a defendant.
The plaintiffs seek damages for alleged misfeasance on the part of the director defendants in the discharge of their duties as public officers, and alternatively damages for negligence. In the main, the claims are based upon alleged maladministration of the various Fisheries Acts in their application to the South Australian abalone fishery over certain periods during which Mr Edwards and Mr Murphy carried on business as commercial abalone divers. Their claims run into some tens of millions of dollars.
In both actions the joinder of the State of South Australia is on the basis that pursuant to the Crown Proceedings Act 1972 (since repealed) it is liable to the plaintiffs for the alleged tortious conduct of the director defendants.
At the hearing Mr Edwards and Mr Murphy appeared in person. In Mr Edwards’ case, he was permitted to represent Deep Sea Ark.
The trial extended over some 110 days, commencing in February 2000. The parties who gave evidence and the witnesses who took the stand amounted to some 45 in all. A very considerable volume of exhibits was tendered.
At times, despite my endeavours to confine the hearing to the issues raised between the parties, it seemed to be assuming the dimensions of a royal commission into the administration of the abalone fishing industry.
HISTORY OF THE PROCEEDINGS

Altogether there are some 16 proceedings, including the two actions now before me, which have been instituted in this Court by abalone divers or companies with which they are associated. In all of those proceedings much the same claims are advanced against various Directors of Fisheries and the State of South Australia. The plaintiffs in all of the cases seek damages for misfeasance in public office, or alternatively, in negligence.
The first group of proceedings was brought in 1986. That included Mr Edwards’ proceedings and three others. Mr Murphy instituted his proceedings in 1987. Other proceedings were issued at various stages between then and 1998.
The various acts and omissions alleged to have occurred, and which are said to give rise to the causes of action pursued in the proceedings, span a period of time commencing in the late 1960s and extending to the early 1980s. On the face of it, all of the proceedings were instituted outside of the relevant period of limitation. At least that is so if one puts aside contentions that in a few instances, proceedings on certain causes of action were brought within the relevant limitation period, having regard to the date upon which certain discrete causes of action are said to have arisen.
Regrettably the progress of the action through the courts has been appallingly slow. Interlocutory proceedings, particularly those to do with pleadings and discovery, became extraordinarily protracted. There were a number of interlocutory appeals, or attempted appeals. Applications were brought by the defendants to strike out some of the actions, but they were unsuccessful.
Eventually it was recognised that issues common to all or most of the cases involved questions of construction of the various Fisheries Acts which were in force during the period in question. That perception prompted a Master to state a case for the consideration of the Full Court. In the case stated, a number of questions, largely as to construction of the various Fisheries Acts and Regulations, were posed.
The case was stated in Mr Edwards’ action, but the questions were formulated on the footing that the answers to them were likely to be relevant, at least in part, to all of the actions.
The case stated came on for hearing before a Full Court of which I was a member in May 1996. The judgment of the court was given on 25 September 1996.[1]
[1] Olsson, Perry and Duggan JJ, judgment No S5703 reported in (1996) 188 LSJS 153 and (1996) 67 SASR 266.
After the judgment of the Full Court on the case stated had been pronounced, efforts were made to bring the actions to trial. But delays continued.
At the end of the day, none of the parties will own up to responsibility for any of the delay, blaming others or events beyond their control. But insofar as it may be relevant to attribute any blame for the delay, it must be sheeted home primarily to the plaintiffs. In particular, I do not accept Mr Edwards’ contention that the defendants are to blame, whether by reference to any supposed tardiness in making discovery of documents or otherwise.
It is for plaintiffs who have brought proceedings to get on with them in a timely fashion. Their failure to do so may have adverse implications for the plaintiffs with respect to applications for extension of time, costs, interest and a failure to satisfy the onus of proof where the factual basis of a particular issue can no longer be satisfactorily resolved due to witnesses having died or the recollection of those witnesses who have survived having faded due to ill health or the lapse of time.
Following the Full Court hearing, and in an endeavour to expedite the passage of the pre-trial proceedings, the court directed that the cases be judge-managed. I thereupon took in hand, with the assistance of a Master, the task of completing the pre-trial proceedings.
Towards the end of 1998 there was an attempt to mediate one of the cases, being an action brought by Mr Hopcroft and an associated company.[2] The defendants would not agree to mediation, whereupon, in the exercise of my power under s 65 of the Supreme Court Act 1935, I directed that a mediation proceed, notwithstanding the lack of consent of the defendants.[3] In the result, the mediation was unsuccessful.
[2] Action No 2112 of 1987.
[3] See Perry J (unreported) judgment No S7009, 21 December 1998.
Eventually I determined to bring the matters, or at least a representative group of them, to trial. In doing so I met with considerable opposition from the plaintiffs.
I first assigned a trial date, namely a date in February 2000, upon which to commence the hearing. I then heard argument as to how the matters might best be listed for trial.
The defendants contended that the preferable course would be to bring to trial initially a representative group of six actions, on the footing that together they raised what seemed to be the central issues joined in the proceedings taken as a whole. The plaintiffs opposed this course, and submitted that only the matter of Hopcroft should first be listed.
In June 1999 I ordered that the six actions which it had been suggested by the defendants should be brought to trial, come on for hearing in February 2000, on the footing that they be heard jointly, “subject to any further submissions which may then be made as to the sequence of trial of the actions”.[4] The six actions which I ordered to be heard together were Mr Edwards’ action, Mr Murphy’s action and the actions brought by Mr Fox, Mr Ey, Mr Smith and Mr Hopcroft.
[4] Ex tempore reason for ruling delivered Wednesday 16 June 1999.
The parties other than Mr Murphy and Mr Hopcroft sought leave to appeal against that order. The application was referred to the Full Court. By order made on 14 October 1999, the Full Court refused leave to appeal.[5]
[5] See Doyle CJ, Mullighan and Wicks JJ, judgment No [1999] SASC 411.
Mr Edwards made an application, heard in December 1999, that Mr Bell, leading counsel for the defendants, be disqualified from further appearing in the matter. The basis of the application was that Mr Bell had from time to time proffered advice with respect to fishing industry matters while a solicitor employed in the office of the Crown Solicitor of South Australia. Mr Edwards further submitted that there were instances where Mr Bell had given advice to the Fisheries Department, or officers of the department, which in effect caused them to act illegally. I dismissed his application for the reasons given ex tempore on Wednesday 22 December 1999.
Just before the trial was due to commence on 21 February 2000, I was advised by counsel that Mr Hopcroft’s action had settled.
At that stage, apart from Mr Hopcroft, three of the plaintiffs were represented by counsel, namely Messrs Fox, Smith and Ey, the remaining two plaintiffs, namely Mr Edwards and Mr Murphy being unrepresented.
After the trial had proceeded for about a month, and while the cross-examination by Mr Bell of the first plaintiff to give evidence, Mr Fox, was still in progress, I was advised by counsel that the three actions of Fox, Ey and Smith had settled.
I thereupon proceeded with the hearing of Mr Edwards’ and Mr Murphy’s cases, the taking of evidence in those two cases having been completed on 28 September 2000.
At the conclusion of the cases presented by the plaintiffs, Mr Bell submitted that there was no case to answer with respect to certain elements in the various claims. After hearing argument from the parties, I allowed the submission as to two limited matters, but otherwise dismissed it.[6] The extent to which I allowed the submission of no case to answer appears later in these reasons.
[6] See ruling 3 August 2000, judgment No [2000] SASC 263.
When the taking of evidence had been completed I directed that written submissions be prepared by all parties in both actions. After the written submissions had been received, I heard oral argument from the plaintiffs and counsel for the defendants.
I should mention that a difficulty arose as to the actions which had been settled.
Initially there was some delay in securing the execution by the plaintiffs who had settled, of formal deeds recording the terms of settlement. Mr Hopcroft, Mr Ey and Mr Smith then challenged the enforceability of the settlements. Eventually Mr Ey and Mr Smith dropped their challenge, but Mr Hopcroft maintains his position, and acting on his own behalf, has taken out an application to set aside the settlement of his action. He pleads that he was subjected to duress or undue influence.
Although I have not been advised as to an amount of money which was paid to Mr Hopcroft, I eventually ordered the balance then remaining of his settlement moneys to be paid into court, and adjourned his application to set aside the settlement to a date to be fixed after the completion of the present proceedings.
At the outset of the joint hearing I made it clear that there could only be one body of evidence when trials were heard together in this way, but that out of that body of evidence each case fell to be considered individually and in accordance with the evidence which was admissible and relevant in the particular case.
The question arose upon settlement of Mr Fox’s action as to how his evidence was to be treated, given that some of it was relevant to Mr Edwards’ and Mr Murphy’s claim. As I have indicated, Mr Fox’s case settled at the stage when he was still undergoing cross-examination by Mr Bell of counsel for the defendants, and neither Mr Edwards nor Mr Murphy had had an opportunity to cross-examine him. Accordingly, I intimated that I would be prepared to have Mr Fox recalled for further cross-examination by the defendants and by Mr Edwards and Mr Murphy if any party sought that course, notwithstanding the fact that Mr Fox no longer pursued his own claim.
In the events which happened, Mr Bell intimated that he did not wish further to cross-examine Mr Fox, and both Mr Edwards and Mr Murphy intimated that they did not seek his recall for the purpose of cross-examination by them.
So that to the extent that it is relevant, Mr Fox’s evidence, in part the subject of cross-examination by the defendants but not the subject of cross-examination by the plaintiffs, has been taken into account by me in resolving Mr Edwards’ and Mr Murphy’s cases.
Although an application was made during the pre-trial phase of the cases for an order that as trial judge, I should deal with certain discrete issues ahead of other issues, for example, by trying all questions of liability first, I declined to do so. In the result, the trial proceeded as to all aspects of Mr Edwards’ and Mr Murphy’s claims, that is, as to the alleged liability of the defendants, the applications for extension of time within which to institute the proceedings, and as to quantum.
At the outset of the hearing with respect to Mr Edwards’ and Mr Murphy’s claims, I spent some time dealing with arguments as to the pleadings, in the main with respect to objections by the defendants to the statements of claim of Mr Edwards and Mr Murphy.
Their statements of claim had been the subject of considerable attention during the pre-trial phase of the case. It became obvious that, particularly in the case of Mr Murphy, it was simply not possible to obtain pleadings which would answer to the standard which would be expected if they were legally represented.
However, both plaintiffs clearly had claims which were arguable and which they were entitled to present to the Court. In those circumstances I gave what assistance I could without going so far as to attempt to draft their pleadings for them. At the same time I intimated to the defendants that so long as they were fairly on notice as to the nature and extent of the claims, whether by way of the pleadings or by way of the expert reports which had been put forward by Mr Edwards and Mr Murphy in support of the quantification of their claims, or by way of opening addresses, that would be as far as the Court could go. I was not prepared to embark on a process of trying to achieve the impossible and seek to have the two unrepresented plaintiffs then remaining attempt to express their claims with the precision and in the terms which one might expect from experienced legal counsel.

It follows that the claims went to trial on pleadings which were far from satisfactory, but which were the best which could, in the circumstances, be achieved. The essential nature of the plaintiffs’ claims was clear enough, and there was no suggestion that any evidence was adduced by either Mr Edwards or Mr Murphy which caught the defendants by surprise.
The fact that the plaintiffs were unrepresented gave rise to particular difficulties with respect to the leading of evidence. Again I was mindful of my responsibility on the one hand to remain impartial and to deal with all parties in an even-handed fashion, but on the other hand to give such assistance to the unrepresented plaintiffs as was reasonably necessary to enable their claims to be fully and adequately ventilated.
In the somewhat difficult situation in which I was placed, I found it necessary to lead both Mr Edwards and Mr Murphy in their examination-in-chief. I did so by reference to their pleadings and my understanding of the cases as opened by them. So far as their witnesses were concerned, I endeavoured to leave it to Mr Edwards and Mr Murphy to lead their witnesses. But at times it was necessary to intervene to put questions in an admissible way, sometimes following a series of objections by counsel for the defendants.
Obviously I could not properly intervene in the cross-examination by Mr Edwards and Mr Murphy of witnesses called by the defendants, except occasionally, when I found it necessary to put in an admissible fashion a line of cross-examination which they were endeavouring to pursue and as to which a successful objection had been taken.
A very considerable volume of documents was tendered, largely by the plaintiffs, more particularly Mr Edwards. There were numbered exhibits exceeding 5000 in all, some numbers representing volumes of documents.
Many of those exhibits are strictly irrelevant. I was not prepared, however, to entertain extended argument as to the relevance of particular exhibits. Rather, with some exceptions, I preferred to admit them on the footing that if they were relevant they would be taken into account and given whatever weight I considered appropriate. If irrelevant, they would be disregarded.
It was obvious from the outset that both Mr Edwards and Mr Murphy harboured strong feelings of antagonism towards the director defendants, or such of them as held office under the Fisheries Acts while the plaintiffs were diving for abalone. Furthermore, it was clear that the plaintiffs felt that over that period of time they had been badly treated by the Fisheries Department and its officers, and prevented from a full realisation of the financial benefits which their exertions as abalone divers deserved.
While it might be putting the matter too highly to suggest that they were pursuing a vendetta, they took every opportunity to criticise every conceivable aspect of the Department’s regulation of the abalone fishing industry, at least insofar as it was perceived by them to be against the interests of the divers. In consequence a very considerable body of evidence was admitted which was of marginal relevance, if relevant at all, to the legal and factual issues upon which the cases fall to be determined.
In dealing with the admission of evidence, I took what some might suggest was a somewhat benign approach, partly as an expression of my concern to ensure that the unrepresented plaintiffs were not disadvantaged by reason of their inexperience with court procedures and lack of legal knowledge, and partly as an expression of my concern to ensure that all relevant evidence was before the Court.
However, in these reasons for judgment, I have confined myself only to items of evidence which are relevant to the determination of the issues. It may be assumed that I have taken into account all evidence which was presented, and that in making the findings of fact upon which the judgment turns, I have rejected the evidence inconsistent with those findings, even though in every case I may not specifically identify that evidence.
THE ABALONE FISHING INDUSTRY

Much evidence was given during the case as to the fishing industry in general and as to the commercial taking of abalone in particular.
With some exceptions, such as in the case of aquaculture, fish stocks throughout the world are generally regarded as a “common property resource”. It is this characteristic which gives rise to a natural tendency towards over-exploitation.
In response, regulatory authorities impose various forms of control. Commonly this is achieved by limiting entry to the fishery in one way or another, usually by some form of licensing. Sometimes, in the case of recreational fishing, the licensing will be associated with catch limits, and in the case of professional fisheries, with quotas.
In South Australia a regime of control by legislation was first imposed by the Fisheries Act 1917. In the form in which it was first enacted the legislation did not seek to control the structure of the fishing industry, and fishing licences were available to any person paying the prescribed fee. However, amendments to the Act and eventually new Acts which superseded it, imposed progressively more stringent methods of control. The changes included provision for the limitation of entry into specified fisheries, which was a feature of the new Fisheries Act of 1971 which replaced the 1917 Act.
In South Australia the administrative responsibility for the management of fisheries under the 1917 Act and its successors has at various times been combined with either game management or fauna conservation, and the department has been variously entitled to reflect this, as has the description of the director. For the purposes of this case, nothing turns on those changes. To avoid unnecessary complications in describing the department and the directors, I have referred to the Department and the directors in their various guises as the Fisheries Department and the Director of Fisheries.
State control of fishing extends in South Australia to the areas encompassed by the Gulfs and beyond that to the three-mile limit from the coastline. The Australian Government administers fishing beyond the three-mile limit up to twelve miles from the coast. Some species of fish travel between the two areas, which fact, together with other circumstances, has given rise to a degree of tension between Commonwealth and State fisheries legislation.
Although Mr Edwards attempted to make much of some of the difficulties imposed by the interaction of Commonwealth and State fisheries legislation, I am not satisfied that those supposed difficulties have any bearing on the outcome of either case. They are irrelevant to Mr Murphy’s case.
This is largely because I accept the evidence of Dr Scoresby Shepherd that the distinction between Commonwealth and State jurisdictional limits over the sea bed was of no consequence to abalone fishermen who were licensed for that purpose under the State Acts and fished within State territorial waters.
Very few, if any, abalone is to be found in commercial quantities outside of State territorial waters. If there is or has been any occasional intrusion by abalone divers into Commonwealth waters, whatever may be the legal position, it has not had any practical consequences, in that the whole of the abalone catch has been brought to account under state legislation.
In South Australia the major fishing areas for abalone are: to the west, from a little north of Port Lincoln southwards and then north-westerly along the coast to D’Entrecasteaux Reef in the far north-west of South Australian waters; in the area of the gulfs, on the eastern side of Spencer Gulf from about Port Hughes southwards, the southern coast of Yorke Peninsula, the southern coast of Kangaroo Island and in Backstairs Passage in the area of Cape Jervis; in the south-east of the State, along the rocky coast east and south-east of Kingston.
The abalone is a mollusc, a gastropod, but unlike most gastropods it has a rather flattened shell. It is within the “snail” group of animals. Like a snail, it crawls on its foot, which is underneath its shell. Although occasionally individuals will travel over a sandy bottom to search for food, that is uncommon, and generally it is restricted to rock.
Two varieties are commonly found in South Australian waters. They are known as black lip (haliotis ruber) and green lip (haliotis laevigata). Green lip is more commonly harvested, comprising 55% of the catch in South Australia. It is somewhat more valuable on the market than black lip. Black lip, representing 45% of the South Australian catch, tends to congregate in caves or under rocky outlets, whereas green lip is found on more open, rocky formations.
Abalone generally do not travel far. Studies have indicated that in many locations individual abalone do not move more than a few centimetres in as long as ten years.
Fertilisation of eggs shed by female abalone occurs in the sea. Generally abalone are found in colonies, some quite dense. Abalone reach maximum size at seven to nine years of age.
Size limits are imposed upon abalone which may be taken by fishermen. Generally speaking, the minimum size at which abalone may be taken is reached in five to six years.
Abalone reach sexual maturity at about four years of age.
The maximum lifespan is probably 30 to 35 years, but that is rare. What has been described as the “ecological longevity” is more like 20 years. Fishermen generally take abalone aged from between five and ten years.
I accept the evidence of Dr Shepherd that a given population of abalone which is reduced by fishing by as much as 80% must be regarded as having “collapsed”, in the sense that it would be unable to repopulate.
Initially, entry into the abalone fishery in South Australia was uncontrolled. But early in 1968 there was what has been described as “a flood” of divers into the fishery. By February 1968 there were over 100 divers operating and a record 1,852 tonnes of abalone was harvested in 1967/68. It was clear that such a level of catch could not be sustained in that it involved an over-exploitation of the virgin stock.
To reduce the number of divers, the Department introduced a permit system and then progressively withdrew many permits on technical grounds (commonly the failure to present catch returns as required by the Department).
By 1971/72 there were only 42 divers operating and the total catch had declined to 1,128 tonnes.
Currently the 35 divers may take a maximum annual quota varying between 7.6 and about 10 tonnes per year each.
What is described by the administrators as the “unit of effort” in the abalone industry was the individual diver, who was licensed. When systems of authorisations or permits were introduced, it was the individual diver who had the benefit of the authority or permit.
The technique of diving for abalone does not appear to have changed in its basics during the period since 1968 when commercial abalone diving commenced in South Australia.
A skin diver wearing a wet suit operates from a small boat. The aluminium boats in common use are known as “tinnies”. In the early days scuba tanks were used, but now and for many years the divers breathe filtered air supplied through a long plastic hose from a compressor mounted in the boat. This apparatus is known as “hookah” gear.
In order to maintain the functioning of the compressor and the supply of air, to shift the boat in sympathy with the movements of the diver on the seabed, and to assist if difficulties arose, the diver is accompanied by another person who remains in the boat. That person is usually responsible for removing the flesh from the shell of the abalone. Although some abalone is landed in the shell, it appears that in most cases the flesh is removed from the shell on the boat. The person doing the shelling is sometimes called a “shucker”.
The diver dislodges the abalone from its position attached to the rock face using a screwdriver or chisel-shaped abalone iron. He places the abalone in a nylon mesh bag which, when full, he brings up to the surface. The shucker helps to bring it on board.
Diving is hazardous. Apart from the ever present threat of being taken by a shark, divers may suffer decompression sickness. As well there is a high incidence of aseptic bone necrosis, deafness and arthritis.
I accept evidence that most abalone divers would only work to the age of about 40, or at the most 50 years of age. I reject evidence to the contrary.
The average price per kilogram for abalone has increased dramatically since the days when it first began to be harvested commercially in this State. For example, the price expressed in terms of meat weight in 1969 was 78 cents per kilogram, which rose to $8.10 by 1980. That is a multiple of over ten times compared with the comparative increase in the Consumer Price Index of not quite three times.
As the price increased, popular perception that it was a highly lucrative business activity heightened. This resulted in much increased demand by persons wishing to enter the industry.
As will be seen, abalone authorities did not become transferable until 1980. The legislative changes which gave rise to transferability heralded a period over which the price at which abalone authorities changed hands increased dramatically, to a value measured in millions of dollars. The increase in value in turn heightened pressures on individual authority holders, who were likely to have incurred significant financial liabilities in order to buy into the industry, to maximise their catch.
It is the pressures resulting from these tendencies which in part explain how some of the issues in the case have arisen.
From July 1971 control of the abalone industry in South Australia was divided between three geographical zones known as the Western, Central and Southern Zones, which roughly equate to the three areas which I have described earlier.[7] Eventually the number of divers in each zone became static. Since the mid-1970s until now, there have been 35 licences on issue, 23 in the Western Zone and six each in the Central and Southern Zones.
[7] The precise locations are as follows. the Western Zone is comprised of all coastal waters west of the meridian of longitude 136º 30¢ east; the Central Zone all coastal waters between the meridian of longitude 136º 30¢ east and 139º east; the Southern Zone all coastal waters east of the meridian of longitude 139º east, together with the waters south of the parallel of latitude 37º south and east of the meridian of longitude 138º, excluding the waters of the Coorong and of the Murray River. [D5030]
In retrospect and with the benefit of the wide-ranging evidence which has been presented during the course of the hearing, it has become clear that, by and large, control of the industry has been successful. What is by all accounts a somewhat fragile natural resource has been preserved.
This is in marked contrast to the over-exploitation which has occurred in other parts of the world, and even in other parts of Australia, where some abalone fisheries have collapsed.
THE PLAINTIFFS’ BUSINESS OPERATIONS

A. MR EDWARDS

Mr Edwards is now aged 55 years. He attended Adelaide Teachers College and took his studies almost to the completion of a BA degree. He did not pursue training for the teaching profession after the end of 1967 when he began abalone diving.
Three or four years before then he had started recreational diving. His interest was aroused in abalone diving after he saw a professional abalone diver taking abalone. Mr Edwards and a friend saw the potential and began full-time diving for abalone for a living.
Fairly early in 1968 he and his friend were able to obtain permits, the system for issuing permits for abalone diving to divers having just been introduced, and they established an operation at Baird Bay on the West Coast.
Soon after that, Mr Edwards took up diving from Elliston, which is also on the West Coast, teaming up with another diver. He then bought a boat of his own (he had been using his father’s boat) and other plant and began to establish himself in the industry.
At that stage, he worked with a crew or shucker who was remunerated by taking a small percentage of the catch.
Eventually Mr Edwards bought a shack at Waterloo Bay near Elliston. He married in 1969. By his wife Suzette he had two sons who are now in their late twenties. He and Suzette separated in early 1979.
During the first few years Mr Edwards did not have any other remunerative occupation. His evidence is that he liked diving, enjoyed being his own boss, and made a reasonable living. He formed a partnership with his wife, but, to use his expression in evidence, “the Fisheries Department would never recognise my wife in any business relationships”, and the abalone was sold in his name only. However, as was the case with many abalone fishermen, he accounted for the proceeds within the partnership which he described as “for taxation purposes”.
In the early 1970s he bought a house at Port Lincoln, where he moved with his family, although he retained a shack at Elliston. He operated off the coast between Port Lincoln and Elliston. Occasionally he went up to Streaky Bay or Ceduna, and he made an excursion to the South-East and to Kangaroo Island, but his main area of operation was between Elliston and Avoid Bay.
In 1968 he went to Western Australia for a week or two. He next went there in the latter part of 1969, on that occasion for three or four months.
Initially he explored the coast between Esperance to Cape Leeuwin. He obtained a licence from the Western Australian Fisheries Department and he sold small amounts of abalone which he harvested in that State.
From 1971 onwards, when the scheme of licensing changed, he held what was then described as an A-class licence, together with an abalone permit. These were re-issued from year to year.
In 1971 or 1972 Mr Edwards and his wife purchased a prawn trawler in Queensland for about $22,500. He said in evidence that he had been keen to bring a trawler back to use in South Australia, that is, prawning off the coast of South Australia, but he thought that he would first try to learn something about the industry by operating the boat off the coast of Queensland.
He employed a skipper on the prawn boat who held the necessary licence to operate it in that State. The boat was operated for six months of the year in Moreton Bay, and for the remainder of the year in the Palm Islands group between Cairns and Townsville, sometimes at Charlotte Bay.
Mr Edwards and his wife sold the boat in 1974 or 1975. He maintained in evidence that he made a profit on its sale, the price then being something over $30,000.
Abalone was still his main source of income, the prawn operation being regarded by him as something of a sideline. His evidence was that he disposed of the prawn boat on failing to obtain the issue of a South Australian authority in 1974, when the Department issued seven more prawn authorities. As will be seen, one of the elements of the claim which he now pursues is based upon his failure to obtain a South Australian prawn authority.
In February 1974 there was a shark attack on another abalone diver named Terry Manuel at Streaky Bay. According to Mr Edwards’ evidence, Mr Manuel’s shark attack caused Mr Edwards to take stock of his position and to consider whether he should be looking at “alternative ventures”.
In February or March 1974 he moved with his family to Adelaide, where he leased a house, and bought the business known as the Red Garter Restaurant at Burbridge Road, Hilton.
At that stage, apart from running the restaurant with his wife, he flew backwards and forwards to Port Lincoln, still maintaining an abalone diving operation there. The restaurant business was carried on in partnership with his wife Suzette.
I am not satisfied that the restaurant business was profitable. When asked in evidence to state whether he could give any idea of the net profits derived from the restaurant business, Mr Edwards said that he had “no idea”. Mr Edwards and his wife disposed of their interest in the restaurant business in about December 1974 It seems likely that he sold it for something less than he paid for it. His evidence was that he sold it for some $12,000.

Mr Edwards had had no previous experience with a restaurant business. When asked in evidence-in-chief what prompted him to get out of the restaurant business, his answer was, “It was driving us crazy. It was long hours, hard work. We were away from our children”.
In 1975 Mr Edwards claims to have been the co-inventor of a motorised shark cage. He received a Federal Government grant from the Fishing Industry Research Trust Account Committee amounting to $12,500 to cover his research and development costs.
In fact, he eventually acknowledged in evidence that the invention was the product of a joint endeavour between him and a Mr Ellis. The grant retrospectively covered costs incurred in the development of the shark cage which he had met from proceeds of sale of the prawn trawler and of the restaurant business. The work on that project took Mr Edwards about nine months which very likely includes a period between March and July 1975 when he put in “nil” catch returns.
So that between the Red Garter Restaurant in 1974 and the shark cage project in 1975 he did very little abalone diving.
Mr Edwards says that once the project on the shark cage was finished, he used it all the time when he dived for abalone, and that he returned to that occupation, diving from the shark cage, until he left the industry. However, there was no evidence to suggest that he made any money out of the shark cage as a commercial development.
It was not long before Mr Edwards became involved in other business ventures.
In the late 1970s he bought a fresh fruit juice round involving the delivery of fruit juice to shops and households at Port Lincoln. His wife did the deliveries while Mr Edwards went on with his abalone diving. That business only lasted about a year. Again there is no evidence that he made anything of consequence from it.
It was in about 1979 that he parted from Suzette. Later they were divorced.
Mr Edwards had other business sidelines apart from those to which I have so far referred.
From about the mid-1970s he began to spend periods at Andamooka prospecting for opal. He bought a shack there. He would go to Andamooka for perhaps a week at a time, possibly three or four times a year. He admitted in evidence that he did not make any money from that business.
In 1979 Mr Edwards set up an exhibition in a long van. The van was specially built for the purpose and was 30 to 35 feet long. The rear 20 feet or so, which was in fact a shipping container, was fitted with glass viewing windows to house a white pointer shark and a giant squid. He built a demountable annexe to the side of the van in which other exhibits were housed, including the shark cage, a collection of scrimshaw and some diving equipment, together with items obtained from shipwrecks.
He exhibited the display at the Adelaide Show of 1979 and subsequently at the Melbourne Show and at some country shows in South Australia and Victoria.
The maintenance of the exhibit, which required constant refrigeration of the shark and the squid, was beset with many practical problems. Again there is no evidence which satisfies me that this was a profitable business.
In November 1980 Mr Edwards sold his abalone authority and surrendered his A-class fishing licence. By then he was living with another woman who became his second wife, Sandra Campbell.
After selling out of the abalone business Mr Edwards went fossicking for gold in Victoria. He went to Victoria with the witness Danny Thorpe. Mr Edwards acquired some suction dredges which he used in Victorian rivers. According to the witness Mr Thorpe the venture lasted only about two months. I accept Mr Thorpe’s evidence that the gold which was recovered, and it appears that there was some small recovery of gold, was meant to be pooled. But Mr Edwards never paid him his share or gave him any of the gold which was found.
It is obvious that the witness Mr Thorpe was very antagonistic towards Mr Edwards, and I have been circumspect in evaluating Mr Thorpe’s evidence. But I accept his evidence with respect to the gold dredging venture. I also accept his evidence that he had put some $12000 into the travelling shark show and that he asked Mr Edwards for his money back after he became aware that Mr Edwards had received money on the sale of his abalone business.
I accept Mr Thorpe’s evidence that Mr Edwards has never to this day repaid him, and that Mr Edwards’ response to the request for repayment after Mr Edwards had sold out of the abalone business, was “Look, I haven’t got that money. It is all invested. What do you think I am, anyway, Father Christmas”.
Mr Edwards’ evidence was that he had made “tens of thousands of dollars” from the gold dredging in about 1980. He asserted, and the point was not challenged, that he did not have to declare earnings from dredging for gold in his income tax returns. Later there was some sort of inquiry by the Australian Taxation Office as to what his earnings might have been in the gold dredging business, but Mr Edwards said in evidence that he had “cleared all that up”
The two of them set off to Queensland and Tasmania, amongst other things looking for sites at which the travelling exhibition might have been displayed. It does not appear that he in fact exhibited it other than to the limited extent which I have indicated. Eventually he disposed of the shark and preserved the squid in formalin, in which state it has since been housed at the museum at Wallaroo.
When Mr Edwards and Ms Campbell journeyed to Tasmania, they came across a wine bar known as Nickleby’s Wine Bar. Mr Edwards bought the business, which involved a lease of the premises, and renamed the business the Rum Barrel Bar and Bistro. This was situated in Sandy Bay at Hobart.
He purchased the business in February 1982. The two of them ran the business for about a year and a half. He sold out in 1983. He maintains that it was profitable while he was running it. I am not satisfied that it was.
He says that he bought it for roughly $82000 and sold out for $95000, but there is no corroboration of that assertion and I am not prepared to accept Mr Edwards’ evidence alone as to that. Evidence of an accountant, Mr Wishart, indicates that Mr Edwards’ tax returns do not disclose any substantial profits being derived from that business.
Mr Edwards married Ms Campbell in 1985. In about 1997 they parted and divorce proceedings were in train between them at the time of the trial.
After selling the Hobart business, Mr Edwards and his wife returned to Adelaide. This was in about 1993. He brought some Huon pine off-cuts with him from Tasmania, intending to utilise them in a business involving impressing pieces of Huon pine with nautical designs. He bought some equipment to do with the business, but never actually got it started.
In late 1989 Mr Edwards was working in a foundry in Portland, Victoria, when he apparently suffered a fractured wrist. This was in about 1989. He made a successful claim for worker’s compensation and received weekly payments of compensation for some not inconsiderable period.
Either then or after that he took up residence with his wife in Hamilton, Victoria. It seems likely that after the payments of worker’s compensation ceased he subsisted on Social Security payments. At all events, towards the mid-1990s he set up a consultancy known as Moonraker Research Group. He was assisted in doing so by a payment of some $5000 under a Commonwealth scheme known as the NEIS scheme. The business was some sort of fisheries consultancy. His proposal was to assist Aborigines and others.
He did some unpaid work which he described as providing “research data and assistance” to the Aboriginal and Torres Strait Islanders Commission. He agreed that it was part of his consultancy proposal “to assist fishermen in liaising with solicitors to take action against governments”. He admitted in cross-examination that he had said in the application document:
“Moonraker Research Group will act as a bridge between interested parties in preparing relevant documents and bridging as required”.

He admitted that he had also said:

“A particular niche market currently exists within the South Australian fishing industry, in particular in respect of fishermen/government liaisons and in respect of fishermen/solicitor liaisons”.

He said that he meant by that that fishermen had:

“.... a lot of trouble explaining or dealing with governments or solicitors ... and they need assistance, they need people to type letters for them and write and put it in better form.”

However, when asked straight out whether he held himself out as an expert “in suing the South Australian Government” he denied that that was so, and suggested that people approached him because they heard that he was suing the Government.
His assertions in that respect stand to be contrasted with the findings which I make later in these reasons under the heading “Making a Business of Litigation”.
At all events, it was the taxation inquiry to which I have earlier referred which, according to Mr Edwards, took him to the public library where initially he started to look at the taxation legislation. For some reason, not clearly explained in the evidence, he also began to look at the fisheries legislation, commencing with the 1917 Fisheries Act.
I have explained at some little length the nature of the many and varied activities pursued by Mr Edwards since he first began to earn a living. His evidence was supported by very fragmentary records of his business activities. In particular, he has failed to supply, although under an obligation to make discovery of them if still in his possession, a number of income tax returns relating to the earlier years and financial statements which one would expect to be in existence, given the nature of the business which he has been operating.
He admitted to maintaining accounts with a number of banks, but made only fragmentary discovery of bank statements.
At the end of the day I was left with the clear impression that Mr Edwards has been selective in the discovery which he has made in this case. Records which it suited him to produce were forthcoming, but few records which were of detriment to him have seen the light of day at the trial.
The defendants retained an accountant, Mr Richard Wishart, to examine the financial records and such other information as they were able to furnish to him of the plaintiff’s business activities. He was also given the loss report prepared by Mr Irving of Sims Lockwood & Partners upon the basis of which Mr Edwards formulated his claim for damages.
Apart from concluding that the income losses as calculated by Mr Irving could not be accepted, Mr Wishart gave some more general evidence based upon what was known of Mr Edwards’ actual business activities to date.
I was most impressed with Mr Wishart, who is a highly qualified accountant with a great deal of experience with small business operations. I was struck by the depth of his investigation into the industries in which Mr Edwards’ business activities have been concentrated.
In his report concerning Mr Edwards’ financial affairs and in his evidence, he gives a sage and hard-nosed assessment of what the records and the known history of Mr Edwards’ business activities suggest as to Mr Edwards’ business acumen and the likelihood of him building up the empire which he claims he was prevented from creating by reason of the alleged wrongful conduct on the part of the defendants.
In particular, I accept the general conclusions expressed by Mr Wishart, which include the following observations:
“It is my professional experience that a very small proportion of people are prepared to seriously pursue, and make the personal sacrifices necessary, to generate wealth substantially in excess of their normal living requirements. Mr Edwards makes numerous claims relating to a number of different fisheries and refers to attempts to enter those fisheries at different times. I believe there is a serious doubt that all such claimed actions would have been pursued, particularly in respect of later claims if an intended earlier claim had been successful. It is natural that if a person seeking to exploit a business opportunity is thwarted, a second opportunity will then be pursued. It is much less likely that a second opportunity will be pursued if the first opportunity was secured and exploited.
Mr Edwards claims, amount to the establishment of very substantial and diverse fishing operations. His actual fishing activities to 1980 give no indication that he would be able to organise and manage such a business operation. His actual business activities since selling out of the Abalone Fishery in September 1980 do not show him to be a successful businessman. I do not have a statement of his assets and liabilities, but on the basis of income earned, it would seem that Mr Edwards has either lost most of the money generated from the sale of his abalone interest, or it is invested in non-income producing assets. Apart from the sale of the abalone licence in 1980 and the sale of marine items to the national maritime museum in 1988 for $33,950, the most substantial monetary returns reflected in his income tax return are receipts from Social Security and wages .....” (emphasis added)
As for Mr Edwards claims that he would have bought up various fishing licences to enable him to create the business empire which he states he would have embarked upon, Mr Wishart comments:
“... I believe it is unlikely that they would have been granted to him and that it is also seriously questionable as to whether he could have arranged finance to purchase them on the open market.”
In accepting that conclusion, I reject Mr Edwards’ evidence as to his financial resources and the evidence of his witness Mr Vater, whom he proffered as a witness who would have been prepared to assist him with loans of capital.
B. MR MURPHY

Mr Murphy is 57 years of age. After leaving school he did not quite complete a diploma of chemical engineering. He gained employment in Melbourne, where he was brought up, as a contract draftsman. He pursued that occupation until the age of 27 when he went to Port Lincoln to live.
He had always had an interest in boats, in snorkelling, spear fishing and water pursuits. His brother Vincent (“Vin”) had earlier embarked on a career as an abalone diver.
Mr Murphy joined his brother at Port Lincoln in about mid-1971 to turn his hand to abalone diving. By then he had tired of what he perceived as the confinements of office work as a draftsman. He began working for his brother as a sheller. Later in 1971, in time for the commencement of the cray fishing season, he bought a cray boat. His brother helped him with the financing of it, other moneys being obtained on a bank loan. Another person skippered the boat for him. Mr Murphy acted as deck-hand.
After the cray fishing season, Mr Murphy was engaged relief diving for his brother, and shelling. He then continued dividing his time between helping with his brother’s abalone diving business and operating the cray boat.
His last season with the cray boat was between 1975 and 1976. During the intervening time he had also tried his hand at shark fishing, but this was not particularly successful.
In 1976 he sold the cray boat for $20000. By then he had paid off the loans from his brother and the bank. At that stage Mr Murphy was effectively operating independently from his brother under the business name Sunbeam Enterprises, but he still worked with his brother, helping his brother with the latter’s business.
Mr Murphy assisted his brother by relief diving and shelling. This was his main living until he bought an abalone permit in his own right.
In 1978 or 1979 he started living with his partner Judy whom he married in October 1982.
Mr Murphy unsuccessfully applied for an abalone permit in his own right in 1976.
In 1980 Mr Murphy took up full-time relief diving. About then he spent some three months in North America and Alaska, spending some of his time looking at the abalone industry there, but he returned to Port Lincoln at a time soon after abalone authorities could be offered for sale. He began looking seriously for an authority which he could buy and operate on his own account.
Eventually he bought an authority for $115000 pursuant to an agreement dated 15 December 1980. Of the total purchase price of $115000, $10000 was attributed to an aluminium boat and other plant.
Mr Murphy began operating the authority immediately. He dived out of Sheringa Beach and Pt Drummond, selling his catch at Port Lincoln.
Although by that stage relief divers up to 21 days a year were permitted,[8] he rarely took advantage of that concession. He wanted to work as hard as he could for his own direct benefit in order to pay off the borrowings which financed his purchase of the authority. He had borrowed $50000 from his brother, mortgaged his house at Port Lincoln for about $25000 and left some money to be paid later to the vendor.
[8] Managed Fisheries Regulations 1971-1980, reg 35 as substituted by amending regulations gazetted on 28 August 1980.
Mr Murphy traditionally fished for black lip abalone which he maintains threw less stress on his back, having regard to the difference in their usual habitat. He stated further that one reason why he concentrated on black lip abalone was that he suffered what he described as “a bubble sticking out of my eye - a nasty bend” when fishing at a depth of 85 feet. Subsequently he decided to confine himself to shallower water. He mainly dived 30 or 40 feet.
Mr Murphy bought a replacement boat in about mid-1981. He also bought a share in Shore Products, a processing company for abalone.
In about mid-1981 he formed a company, Sunbeam Fishing Nominees Pty Ltd, at a time when the abalone divers were lobbying hard for the right to own abalone authorities through a company.
He created a family trust.
Once the company and family trust structure was in place, Mr Murphy accounted for the proceeds of the operation of the abalone licence through the family trust.
Mr Murphy said in evidence that he worked hard at his business and dived for long, sustained periods because he “didn’t know what the Fisheries Department would do next”. He had a fear, for example, that the Fisheries Department might grant new licences which might have the effect of devaluing his own licence.
By then he was over 40 years of age. He had seen “good divers go to 50 years old”, and he hoped to go to that age, with the idea of putting a diver in then full-time. He thought that he might then work as sheller to keep an eye on the fishing operation. He said in evidence:
“I loved the game but I was often heard to say if they could take the diving out of abalone diving, it would be a bloody good game.”
Mr Murphy remained a member of the Abalone Divers’ Association throughout the period he held his authority and operated it.
As was the case apparently with most abalone divers, the activity involved in diving and taking abalone threw unusual stresses on Mr Murphy’s back. The divers wore heavy lead belts and lifted heavy containers of abalone. As well, there was the work involved in hitching the boat on the trailer to the truck.
Although Mr Murphy had suffered some back pains and discomfort before January 1983, it had not reached a level at which it was interfering with any of the activities with which he was involved.
On a day in January 1983 when he was doing some maintenance on his boat, he said that he lifted up the forward part of the frame of the boat trailer on which the boat was mounted in order to hitch it to the tow-bar of the truck. This was a manoeuvre which he had performed on many occasions. Although he was not aware of feeling anything at the time of the process, two or three hours afterwards he suddenly developed severe pain in the back. He said in evidence that he “couldn’t move”. His wife assisted him to the car and took him to Investigator Clinic where a doctor referred him on to a physiotherapist.
Eventually, with the assistance of a fibreglass back splint prescribed by a surgeon, Mr Fletcher, he was able to get back to diving, which, from the catch returns, appears to have been early in February 1983. He says he was fortunate in finding a big “hit” of abalone at a time when he had a relief diver, Mr Rex Bichard, with him.

By this time he was involved in trying to sell his licence. Indeed, he had commenced advertising it for sale even before the back incident.
I go into the detail of the circumstances surrounding his sale of the licence later in this judgment. For present purposes it is sufficient to note that he continued working the licence but with the assistance of a relief diver and subsequently the purchaser of his licence, a Mr Ken Bascombe.
A sale to Mr Bascombe was effected and Mr Bascombe took over Mr Murphy’s abalone diving business in May 1983 for a price of $166000 for the abalone authority and items of plant, including his boat, at a further $16500, a total of $182500.
Mr Murphy had by then substantially paid off his brother, the bank and the other loans he had taken to buy the licence, so that most of the money derived from the sale came into his hands.
With the money which he received he bought some 25 acres at Byron Bay ($25000) and four blocks of land in Adelaide for approximately $15000 each. He sold his house at Port Lincoln and moved to Adelaide in 1984. He bought another house at Belair.
Mr Murphy then attempted to earn a living by buying and selling land and entering the building trade, but this venture was not profitable.
In January 1986 he bought a 48 foot fishing boat with the intention of fishing for tuna off Ulladulla on the New South Wales coast. He rented a house at Ulladulla. By then he had to borrow most of the money to buy into the boat, with its concomitant licence, for about $115000. He operated that business out of Ulladulla for about two years in partnership with Mr Max Stewart.
Although the returns from the tuna fishing operation were not substantial, he made a significant profit on resale of the boat when he sold out of that business in 1986.
He then had enough money to buy a house in Adelaide for $90000 in cash, and in July 1988 he went back to abalone shelling. After shelling for a year or two, he discussed with Trevor Dorward buying a Central Zone licence (there was one on offer at the time from a Mr Pennington for $900000). That did not proceed, as apparently Mr Dorward was not prepared to join in with the proposal.
Mr Murphy then made his living from a combination of investments and Social Security.
In 1999 he and his mother sold their suburban houses and together bought a 20-acre property in the Hills.
Mr Murphy has a son now aged 16 and a daughter now aged 14. The son is at TAFE and the daughter is still at school.
Mr Wishart conducted a similar exercise with respect to what was known of the financial affairs of Mr Murphy, as he did with respect to Mr Edwards. His opinions and conclusions are set out in his report.
Apart from some criticisms which he makes as to the calculation of alleged income losses performed by Mr Murphy’s accountant Mr Staker, he makes some general comments as to Mr Murphy’s record with respect to business ventures.
He comments that interest which could have been earned on the realisation of the capital appreciation of the value of the abalone licence when he came to sell it in 1983:
“... would have provided Mr Murphy with an above average income. That he subsequently lost this money in various alternate ventures is of little consequence, except that it demonstrates that he was prone to change on a regular basis and therefore unlikely to have maintained his fishing operations until the present day. ...
Mr Murphy had suffered substantial losses from real estate dealings in 1985 and 1986, and it is doubtful that he could have raised additional moneys if required for a more extensive fishing operation in South Australia, even if the relevant licence had been obtainable.” (emphasis added)
I accept those opinions.
AN OVERVIEW OF THE CLAIMS AND DEFENCES

Initially both plaintiffs were legally represented, and statements of claim were drawn up by their solicitors and settled by counsel. Ordinarily one would look, at least in the first instance, to the statement of claim in each case to determine the nature of the claims.
However, before the close of the pre-trial phase of the cases, both Mr Edwards and Mr Murphy personally took over the conduct of the proceedings. Thereafter a number of amendments were made to the statements of claim which were drawn less expertly.
Furthermore, requests by the defendants for particulars of the plaintiffs’ claims were eventually dealt with on the footing that rather than attempt further complicated amendments to the pleadings, the defendants would be entitled to treat the reports from the accountants who assisted both plaintiffs with the formulation of their claims, as a particularisation of them, at least as to matters of quantification, and inferentially to identify the nature of the business operations which the plaintiffs allege they would have conducted had it not been for the alleged wrongful conduct on the part of the defendants.
In any event, it is pertinent to point out that, irrespective of the deficiencies in the pleadings arising by reason of the fact that for most of the course of the proceedings the plaintiffs were unrepresented, pleadings generally have a diminishing role to play as the case, and I speak of any civil cause, proceeds through the course of the trial. I will expatiate a little on the varying role which pleadings fulfil as the case progresses, as it is commonly not fully understood.
Before the commencement of the hearing, the pleadings will have served the dual purposes of alerting the opposing party to the nature of the claim or defence, and of defining the issues. During the course of the hearing, the pleadings serve the additional purpose of confining the scope of the evidence to be adduced, in the sense that, to be relevant and admissible, evidence must relate to the issues as defined in the pleadings.
However, that latter observation is subject to the qualification that other issues may arise during the course of the hearing which become the real issues in the case, or additional issues, and which may supplement, displace or render irrelevant the formal statement of issues to be drawn from the pleadings.
In any event, the actual course of evidence might, for one reason or another, run outside the scope of the pleadings. This is a common enough circumstance.
At the end of the day, when all the evidence is in, the case must be determined on the body of evidence as it then appears, and not on the pleadings.
Furthermore, generally speaking, it is not necessary for the parties to plead matters of law or to identify specific causes of action. The court must give such relief as a party is entitled to on the basis of the evidence as it stands at the conclusion of the trial. This is subject to the qualification that, generally speaking, the court would be disinclined to countenance making an award in favour of a plaintiff on a cause of action which, if it had been identified at an earlier stage, might have altered the course of the trial, more particularly with reference to the nature of the evidence which might have been adduced.[9]
[9] See, for example, S.P. Hywood Pty Ltd v Standard Chartered Bank Ltd (unreported) Perry J, 21 December 1992, Supreme Court judgment No 53764.
With those observations in mind, while I will refer to the claims as they appear in the statements of claim, I also make allowance for the fact that it became clear from the course of the evidence presented in each case, more particularly that of Mr Edwards, that the basis of his claim was not fully explained in the formal pleadings. Particularly bearing in mind the fact that he was unrepresented, I have endeavoured to make every allowance for this and to address the substance of his claims, whether they were adequately identified in the formal statement claim or not.
On the other hand, during the course of the trial I refused one or two applications by both Mr Edwards and Mr Murphy formally to amend their statements of claim, for reasons which I explained at the time, largely because they would have introduced a new claim or a new basis for an existing claim in circumstances which would have been unfair to the defendants.
Against the background of those observations, I will endeavour to summarise the salient features of each claim.

A. MR EDWARDS’ CLAIM

I include under this heading the claim by Deep Sea Ark.
As was the case with all of the abalone fishermen, during the whole of the time he was in the industry Mr Edwards held an A-class fishing licence, and separately a licence to employ another person in the business. It was the employee who managed Mr Edwards’ boat while he was in the water, including the supply of air, and who did the shucking of the abalone when it was brought on board.
I have already referred to Mr Edwards’ unsuccessful attempt in 1974 to obtain the issue of a prawn authority, and to his earlier brief incursion into the abalone fishing industry in Western Australia.
When Mr Edwards sold out his interests in the abalone fishing industry in 1980, he surrendered his A-class fishing licence and did not thereafter engage in the business of fishing, whether for abalone or for any other fish.
It is common ground that throughout the relevant period the Fisheries Department and the director defendants administered the abalone fishing industry, and indeed other managed fisheries, in accordance with what has been described as the “owner/operator” policy. The essential feature of that policy in its application to the abalone fishing industry was that, with certain exceptions which I will explain in due course, only the person licensed and authorised to take abalone could do so, that is, only that person could dive for abalone to the exclusion of the person engaged under the licence to employ. The employee was permitted to perform all of the necessary above-water operations, including shucking, but not to dive.
Another manifestation of the owner/operator policy in its application to the abalone fishery was that the Department, including the director defendants, regarded the licence or authority which authorised the taking of abalone as personal to the holder in the sense that it was the holder who was to have control of and who was to derive the benefits from its operation. Mr Edwards alleges that not only was it laid down by the director defendants that the holder was to be a natural person, but he or she was not permitted to hold the licence pursuant to a trust or similar arrangement by which the benefit of the fishing operation would enure to Mr Edwards.
Against that background, Mr Edwards and his company advance various claims. For present purposes the main elements may be summarised in this way.

(a)The director defendants acted wrongfully in refusing to allow persons employed under a licence to employ to dive for abalone, and in refusing to allow abalone authorities to be held in trust for another person, or by other means pursuant to which Mr Edwards or his company might have secured the benefit of the operation of abalone authorities by others.
(b)The dismissal of his application for a prawn boat authority in South Australia in 1974 was wrongful.
(c)Mr Edwards’ surrender of his A-class fishing licence when he left the fishing industry in 1980 was mandated by wrongful policies adopted by and applied by the Department, and he should have been entitled to retain his A-class fishing licence.
(d)If he had done so, he would have entered the tuna fishing industry, more particularly he would have fished for sushimi quality tuna in Commonwealth waters, his belief being that a prerequisite for that was the holding of a South Australian A-class fishing licence as well as the necessary Commonwealth licence.
(e)The refusal by the Fisheries Department to countenance the issue of an abalone authority in the name of a corporation was wrongful and prevented his company, Deep Sea Ark, from owning and operating an abalone authority for his benefit.
(f)His failure to renew his Western Australian fishing licence was in response to wrongful assertions by the director defendants that he could not hold such a licence and at the same time retain his South Australian abalone authority.

Mr Edwards claims that had it not been for the various matters to which I have just referred, he would have remained in the industry, held abalone authorities indirectly through trusts, through his company and in more than one of the abalone fishing zones in South Australia, and at the same time held, directly or indirectly, fishing licences in Western Australian which would have enabled him to conduct a parallel abalone fishing business in that State.
As well, he would have had the benefit of the operation of a prawn authority in South Australia, and conducted a tuna fishing business based in South Australia.
Mr Edwards claims that the directions, representations and other conduct of the director defendants underlying the matters to which I have referred, in their impact on him, constituted misfeasance in public office. Alternatively Mr Edwards asserts that the various statements which the director defendants or officers of the Department acting on their behalf and at their direction made in support of the owner/operator policy and in the manifestations of it of which he complains, amounted to negligent mis-statements.
In summary, Mr Edwards’ claims are multi-faceted. In short, they boil down to an assertion that wrongful acts on the part of the defendants deprived him of the opportunity to operate a large fishing undertaking which would have involved a number of elements incorporating the diverse fishing businesses which I have described.
As for the quantification of the claims, Mr John Irving, a partner in the firm of Sims Lockwood & Partners, Chartered Accountants, furnished a report and gave evidence. His opinion was given on an assumption that all of the business operations which Mr Edwards claims he was prevented from embarking upon had been carried out and were still being conducted. According to his calculations, to the date of his report given in March 1998, the losses incurred by Mr Edwards and his company, including interest which it is suggested he would have earned on the surplus profits in his hands, would have amounted to a figure of the order of $46 million, including capital losses said to be attributable to “premature” relinquishment of his licence and authority.
B. MR MURPHY’S CLAIM

Mr Murphy carried on a business in his own right as a professional abalone diver between December 1989 and June 1983.
As originally formulated, Mr Murphy’s Statement of Claim made assertions substantially replicating those made by Mr Edwards with respect to the alleged loss of an opportunity to derive benefits from employing divers to take abalone on his behalf. However, during the course of the hearing Mr Murphy abandoned any claim in that respect, calculated up to the time when he left the industry in 1983, although he maintained the claim for the period thereafter.
His claim was couched in somewhat similar terms to that pursued by Mr Edwards, namely, that by reason of the policies formulated and applied by the director defendants, he was deprived of the opportunity, rather than selling out of the industry, of maintaining his abalone fishing business by either employing somebody on his behalf to do the diving, or sharing the diving with him, or by making use of a trust or other arrangement by which his authority would be held by another for his benefit.
As in Mr Edwards’ case, his claim is formulated on the same legal basis, that is, misfeasance in public office, or alternatively, negligent mis-statements.
In the result, Mr Murphy claims for the loss of income which he alleges he would have derived by reason of the operation of his licence during the intervening period between June 1983 and now, together with the difference between the capital value of his authority at the time he disposed of it in June 1983 and what it would be worth now.
A quantification of Mr Murphy’s claim was effected by a chartered account, Mr Greg Staker of Greg Staker & Co. He offered the view that on the assumptions which he had been asked to adopt, and projecting his calculations up to June 2000, Mr Murphy’s loss of income amounted to a figure of the order of $3 million, to which must be added a further alleged loss attributable to what it was suggested would be the accretion in the capital value of the licence and authority if they had remained in Mr Murphy’s hands.
C. THE DEFENCES

The defences are much the same in substance, although different in detail, in both cases.
While there is no denial of the owner/operator policy and of the fact that the plaintiffs were precluded by reason of the application of that policy from employing persons to dive for them, it is pleaded, in the first place, that in implementing the policy in that respect the director defendants acted bona fide and in accordance with the discretions given to them under the legislation. It is further pleaded that the director defendants honestly and reasonably believed that as a matter of law the licence to employ did not authorise the employee to dive and take abalone.
The director defendants plead that they “do not know and/or cannot recall particular occasions upon which representations of the kind asserted in the statements of claim as having been made by the defendants with respect to the owner/operator policy might have been made”, and assert that even if the representations were made, they were not made in circumstances which exposed the defendants to any liability either by way of misfeasance in public office or negligence.
With respect to Mr Edwards’ claim relating to corporate ownership, the defendants deny that a corporation might have lawfully held an abalone permit or authority during the period in question.
As for Mr Edwards’ claim with respect to his application for a prawn authority, the defendants deny that it was assessed other than in accordance with proper procedures.
As for his assertion with respect to the surrender of his A-class fishing licence, the defendants assert that no relevant representations which might have induced that action on Mr Edwards’ part were made by the director defendants, and that even if they were, that it did not have the consequences which he suggests.
As to both claims, the defendants assert that both plaintiffs left the abalone fishing industry for reasons unconnected with any conduct on the part of the defendants.
I do not at this stage attempt to summarise the claims for extension of time and the defences to those claims. It is best to address them discretely when I come to deal with that aspect of the matter.
THE LEGISLATION

From the start, commercial fishing for abalone has been controlled by the Fisheries Department, at first under the Fisheries Act 1917 and subsequently under the various Acts which have replaced it following its repeal in 1971.
In this summary, I do not deal with provisions relating to recreational fishermen, or other provisions not relevant to the issues which arise in these proceedings.
It may be assumed that where emphasis by use of italics appears, the emphasis is mine.
A. THE FISHERIES ACT 1917[10]

[10] The Act came into force on assent on 15 November 1917.

The Act had separate provisions dealing with licences on the one hand, and registration of boats on the other.
The licence was of general application; under s 53 it was an offence to take any fish or oysters “without a licence in that behalf”.
Under s 13(1), licences to take fish and oysters were to be issued on application to that end, and payment of the fee. The licence was a yearly licence (13(2)), provided that every licence was to expire on the last day of November next after it is issued.
There was no procedure for renewal, strictly understood, although a licence holder could, at any time up to 60 days before the expiry of his or her licence, obtain another licence which was “deemed to be issued upon the date of expiry of the current licence” (s 13(2a)).

I have already pointed out that responsibility for the inexcusable delay in getting on with the proceedings must be with Mr Edwards and his company rather than the defendants.
If, contrary to the views which I have expressed, a proper basis was made out in the evidence so as to enliven the discretion to extend the time for the institution of the proceedings under s 48, in all the circumstances, I would refuse the application.
LACHES

The defendants advance a plea of “laches” against Mr Murphy’s claim. They do so in the following terms (Defence, para 18(A)):
“This action is wholly unmaintainable (sic) owing to the laches, acquiescence and delay of the plaintiff in commencing the proceedings.”
Some eight paragraphs of particulars are then set out detailing the alleged failure by Mr Murphy to complain to Mr Stevens as to Mr Stevens’ conduct upon which Mr Murphy now bases his claim, and matters going to alleged prejudice of the defendants in pursuing their defence.
If laches is available as a defence, the Court is entitled to take into account both delay in commencing the proceedings and delay in prosecuting them.[81] However, the defendants have chosen only to rely upon delay in commencing the proceedings.
[81] Lamshed v Lamshed (1963) 109 CLR 440. ? applied by Lander J in Edmund v Pickering para [1458]
In any event, the problem for the defendants is that the availability of defence of laches in answer to a legal as opposed to an equitable claim is doubtful.
While admittedly obiter, the following assertion by Deane J in Orr v Ford[82] is apposite:
“The availability of a defence of laches and what will suffice to make it good depends upon the nature of the claim. Laches is an equitable defence and is not available in answer to a legal claim.”
[82] (1988-1989) 167 CLR 316 at 340.
Mr Cuthbertson referred to other authorities, notably Habib Bank Ltd v Habib Bank AG Zurich[83] and Shay v Applegate[84] where there is dicta suggesting that in fact the defence of laches may be available in answer to a common law claim.
[83] (1982) RCP 1 per Oliver LJ at 36.
[84] [1977] 1 WLR 970 per Goff LJ at 979.
On the present state of authority I think it unwise for a judge at first instance to decide the point unless it is essential in order to dispose of an action.
In this case, as Mr Murphy’s claim must be rejected on the merits, it is unnecessary for me further to consider the defence of laches.

CONCLUSIONS AS TO LIABILITY

The application of the legal principles as I have defined them to my conclusions as to relevant factual matters results in the following outcomes with respect to the various claims which are advanced by the plaintiffs:
A...... CLAIMS RE EMPLOYEE DIVERS
The claims by Mr Edwards and Mr Murphy concerning the use of employee divers based upon alleged statements and directions of the director defendants or other officers within the Department of Fisheries, fail.
Any such statements or directions which were made or given, were not made or given in circumstances attracting a liability on the part of the defendants or any of them either for the tort of misfeasance in public office or in negligence.
The tort of misfeasance in public office is not made out, as I am satisfied that all of the director defendants acted bona fide. They held a genuine belief that upon a proper construction of the Act and Regulations, or having regard to policies lawfully laid down by the Government of the day, a licence to employ did not permit the employee to dive and take abalone.
In particular the plaintiffs have failed to prove a lack of an honest belief on the part of the director defendants that their statements and directions were lawful. There was no actual knowledge on the part of any of the director defendants of any lack of power to impose any limitation upon the use which might be made of the licence to employ, nor has a reckless indifference as to the availability of any such power been made out on the evidence.
Accordingly, the plaintiffs have failed to establish the element of bad faith which is essential to proof of the requisite state of mind.
Insofar as the plaintiffs advance their claim in the alternative on the basis of negligent mis-statements, the allegations in that respect are founded on an alleged failure on the part of the director defendants to exercise reasonable care in ascertaining the nature and extent of their powers. In such circumstances, it is doubtful that negligence will be established if the conduct in question does not amount to misfeasance in public office.
If I was to be wrong in that conclusion, it would become necessary to have regard to the question whether in all the circumstances the director defendants owed a duty of care to the plaintiffs. But no such duty of care can properly be found to exist if the relevant statutory provisions indicate an intention to exclude such a duty.
In my opinion, such an intention should be inferred upon a proper construction of the provisions of the Fisheries Acts which were in force throughout the period in question.
The Acts conferred responsibility for the control of commercial fishing operations upon the Fisheries Department and the director defendants. It was the responsibility of the Department and its officers to administer the various fisheries in accordance with their understanding of the Act and Regulations and any relevant policies generated by the Government of the day.
It was a natural consequence of the regulatory scheme imposed by the statutes that the Fisheries Department and officers of the Department, including the director defendants, would have regular contact with licensed fishermen. This involved, amongst other things, the need to answer any queries which might be made from time to time by fishermen as to what particular licences, permits or authorities permitted them to do with respect to their fishing operations.
In my opinion, it was not within the contemplation of the Fisheries Acts that the director defendants or any other officers of the Fisheries Department would be exposed to a liability in negligence if in their dealings with licensed fishermen they may not have accurately described the extent of the legal authority conferred by a particular licence, permit or authority, or if they made an innocent mistake as to the legal entitlement of licensed fishermen in some respect.
That is not to say that there may be cases where particular circumstances could arise where the Department or its officers might have been liable for inaccurate advice or unlawful directions. But there is no evidence in this case of any circumstance which could give rise to liability, such as evidence indicating any serious doubt as to the lawfulness of any conduct on the part of the Department or its officers, and the failure to take reasonable steps to clarify any such doubt.
I have found that there was never any challenge to the approach adopted by the Department and its officers, including the director defendants, to the attitude which they took over the rights attaching to the licence to employ. Indeed, there is much evidence to suggest that this aspect of the regime of control of the fishery manifested by the Department and its officers was accepted without question by the licensed fishermen, and indeed, with the concurrence of many or most of them.
To saddle the director defendants or the State of South Australia with liability in negligence in such circumstances would, to use the words of Brennan J in Northern Territory v Mengel give rise to:[85]
“..... a chilling effect on the performance of their functions by public officers.”
[85] 185 CLR at358.
Neither the director defendants nor the departmental officers dealing with the plaintiffs from time to time held themselves out as lawyers, and I am not satisfied that they ever purported to give legal advice. On the contrary, they simply administered the Acts and Regulations in accordance with their honest belief as to the legal effect of the Act and Regulations.
It would be neither feasible nor sensible to think that the law would require the director defendants or their officers, in their day to day contact with the plaintiffs and the other fishermen in the abalone industry, to respond to every query by every fishermen as to the extent of the authority conferred by particular licences, authorities or permits by suggesting that they should work it out for themselves or see a lawyer.
While I accept that the extent to which the immunity from suit for negligence which by inference arises on a proper construction of the statutes will have some limitations, and that it could not be construed as a blanket immunity applying to everything which the director defendants or the departmental officers might say or direct in the course of their administration of the Act, the circumstances of both cases now before me fall far short of transgressing the boundary between what might and might not be actionable, having regard to the statutory provisions.
Even if, contrary to those findings, there was a duty of care, it could only ever be a duty to exercise reasonable care. What is reasonable is to be assessed according to all of the circumstances, including the fact that the director defendants and the other departmental officers with whom the plaintiffs dealt were not lawyers and did not hold themselves out as lawyers. Abalone divers, either individually or through their association, did not hesitate to seek and obtain legal advice when it suited them to do so. They were far less “vulnerable” than the plaintiffs suggested.
The terms of the legislation, particularly bearing in mind Reg 7 of the 1971 Managed Fisheries Regulations were not so clear cut as to support the conclusion that the director defendants and their officers were negligent in failing to anticipate the decision of the Full Court given in 1996, in which it was held that employees might dive and take abalone.
In any event, if that had been realised earlier, other measures would have been introduced to peg the level of fishing effort at the same level, and the plaintiffs would not have been any better off.
B...... THE CLAIMS CONCERNING THE DEFENDANTS’ REPRESENTATIONS AS TO CORPORATE HOLDINGS, PARTNERSHIPS AND TRUSTS.

Any representations which might have been proved with respect to corporate holdings and partnerships were, as I have already indicated, true, having regard to the decision of the Full Court.
Insofar as the plaintiffs assert that the director defendants gave or made any representations proscribing the holding of licences, permits or authorities on trust for another, the factual basis for the allegations has not been made out on the evidence. This claim fails for that and the other reasons which I have set out in my consideration of this head of claim.
C...... MR EDWARDS’ CLAIM WITH RESPECT TO WESTERN AUSTRALIAN ABALONE

I have made factual findings which destroy the basis of this claim as advanced by Mr Edwards. It is unnecessary to repeat the specific conclusions which I have set out above.
D...... MR EDWARDS’ CLAIM RE HIS APPLICATION FOR A PRAWN AUTHORITY
I have already made factual findings which illustrate that there was no irregularity in the processing of Mr Edwards’ application for a prawn authority. No basis for recovery under this head has been made out.
E...... MR EDWARDS’ CLAIM RE TUNA FISHING
It will be seen from my factual findings with respect to this aspect of the matter that there was nothing said or done by the defendants which prevented Mr Edwards from fishing for tuna. The most likely explanation for his failure to do so was that he never had any serious intention of operating a tuna fishing business.

1000 Insofar as this claim is linked with the assertion that Mr Edwards was wrongfully required to surrender his South Australian A-Class licence in 1980, in the first place, it has not been established that the holding of a South Australian A-Class licence was a prerequisite for the obtaining of a Commonwealth tuna fishing licence.

1001 In the second place, I am of the view that any obligation to surrender the A-Class fishing licence on selling out of the abalone fishery only in the event that the incoming purchaser did not already hold an A-Class fishing licence, has not been shown to have been unlawful.

F...... MR MURPHY’S CLAIM RE TWO BOATS

1002 This falls to be dismissed for the reasons already given.

1003 It will be seen from the above that none of the plaintiffs’ claims have been made out on the merits.

1004 Strictly, an analysis of the merits was unnecessary in Mr Edwards’ case, as he has not established an entitlement to an extension of time for the commencement of his proceedings, which are otherwise statute barred.

1005 But I took the view that it would be unfortunate after such a long trial if I did not deal with his claim on the merits.

1006 I have not troubled to assess damages, given my findings as to liability.

FINAL CONCLUSIONS AND DISPOSAL OF THE ACTIONS

1007 Standing back from the case for one moment, in retrospect one could be pardoned for thinking that the plaintiffs were fortunate to have made such a handsome income from their abalone businesses, and that they received on leaving the industry fair market value, having regard to the not inconsiderable sale price which they obtained. That they did so was largely a result of the successful management by the director defendants of what by all accounts was a fragile natural resource which could easily have been lost.

1008 I think it unfortunate that the plaintiffs did not rest content with that, and instead saw fit to raise such misconceived claims, which were, as I ultimately conclude, largely baseless.

1009 The observations of the witness Professor Parzival Copes are apposite:

“The superior condition of South Australian fisheries - compared with those of many other jurisdictions - that I observed in the mid-1970s owes much to Olsen’s foresight. I find it ironical that the plaintiffs in the case before us should be challenging the application of limited entry licensing and claiming loss of income in that connection. There can be no doubt that in the absence of limited entry at the time, the profitable rock lobster, abalone and prawn fisheries of the State would have been swamped by additional fishing units, causing catches and revenues per vessel to drop severely and destroying the profitability of these fisheries. The plaintiffs in fact have been fortunate to have had licensed access to a limited entry fishery, which has shielded them from exposure to the unfortunate conditions that have prevailed in the distressed open-access fisheries of many other jurisdictions.”

1010 Both proceedings are dismissed.

1011 In the case of Mr Edwards, the dismissal is on the ground that his proceedings are statute barred. But in any event, they would be dismissed on the merits.

1012 The dismissal of Mr Murphy’s action is on the merits, and the defence that his proceedings are statute barred is not made out.

1013 In the event of an appeal, I reserve the right to publish a separate engrossment of these reasons which includes references to transcript page numbers and exhibits.

1014 I will hear the parties as to costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Olsson, Perry and Duggan JJ, judgment No S5703 reported in (1996) 188 LSJS 153 and (1996) 67 SASR 266.
Action No 2112 of 1987.
See Perry J (unreported) judgment No S7009, 21 December 1998.
Ex tempore reason for ruling delivered Wednesday 16 June 1999.
See Doyle CJ, Mullighan and Wicks JJ, judgment No [1999] SASC 411.
See ruling 3 August 2000, judgment No [2000] SASC 263.
The precise locations are as follows. the Western Zone is comprised of all coastal waters west of the meridian of longitude 136º 30¢ east; the Central Zone all coastal waters between the meridian of longitude 136º 30¢ east and 139º east; the Southern Zone all coastal waters east of the meridian of longitude 139º east, together with the waters south of the parallel of latitude 37º south and east of the meridian of longitude 138º, excluding the waters of the Coorong and of the Murray River. [D5030]
Managed Fisheries Regulations 1971-1980, reg 35 as substituted by amending regulations gazetted on 28 August 1980.
See, for example, S.P. Hywood Pty Ltd v Standard Chartered Bank Ltd (unreported) Perry J, 21 December 1992, Supreme Court judgment No 53764.
10. The Act came into force on assent on 15 November 1917.
See Gazette 26 June 1980, page 1718.
12. Fisheries (General) Regulations 1971, reg 6(1).
13. (1996) 67 SASR 266 at 276.
14. The defence underwent a number of additions. I refer to the defence in the form in which it was filed on 23 June 1992.
15. See answer to Point of Law 9.6.
16. 67 SASR at 281-282.
17. (1987) 45 SASR 27.
18. (1990) 64 ALJR 234.
19. 67 SASR at 294.
20. See reg 7(d)(i).
21. 67 SASR at 287.
Lander J, 23 December 1999, unreported judgment No [1999] SASC 510.
23. Submission by plaintiffs as to the actions and representations of Stevens in para 16A, 27 and 29 of the claim, page 45.
Reasons for Judgment, para 1321, page 211-212.
25. Para 1339-1342.
26. Para 1348.
27. Ibid para 1324.
28. Judgment No [2000] SASC 263.
29. Para 17.
30. See Turner v Sterling (1671) 2 Vent. 25; (1672) 86 ER 287.
31. Tampion v Anderson [1973] VR 715 at 720 cited in Northern Territory v Mengel (1995) 185 CLR 307 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ at 345.
32. (Supra).
33. [2000] 2 WLR 1220.
34. R v Whitaker [1914] 3 KB 1283 per Lawrence J at 1296.
35. Northern Territory v Mengel per Brennan J, 185 CLR at 356.
36. See, for example, Ashby v White (1703) 2 Ld Raym 938; 3 Ld Raym 320; 92 ER 126; 710 cited by Brennan J in Northern Territory v Mengel, 185 CLR at 356.
37. See Three Rivers District Council and Ors v Governor and Company of the Bank of England [2000] 2 WLR 1220 per Lord Steyn at 1231.
38. See 185 CLR at 348.
39. Northern Territory v Mengel per Brennan J 185 CLR at 359. See also per Mason CJ et al at 347.
40. 185 CLR at 358.
41. 185 CLR at 358.
42. Benning v Wong (1969) 122 CLR 249 at 256; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458, 484.
43. See Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 at 39.
44. [1956] 2 QB 288 at 313.
45. (1857) 2 H & N 379 [157 ER 157].
46. cf Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 esp at 68; but see Rowling v Takaro Properties Ltd [1988] AC 473 at 511-512.
47. 185 CLR at 348.
48. [1988] 1 AC 473.
49. Ibid at 511.
50. [1989] 1 AC 1228.
51. Ibid at 1238.
52. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469.
53. (1999) 167 ALR 1.
54. [1995] 2 AC 633 at 738-9.
55. [1996] AC 923 at 951.
56. At para [86].
57. 499 US 315 (1991).
58. (1998) 151 ALR 147; 192 CLR 330 at 358-9 per Toohey J, 393-4 per Gummow J.
59. Citing Sutherland Shire Council v Heyman (1985) 60 ALR 1; 157 CLR 424 at 469 per Mason J, 500 per Deane J; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-4; 151 ALR 147 per Gummow J; Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 593-6; 135 ALR 128 per Black CJ, Davies and Sackville JJ.
60. Todd, Liability in Tort of Public Bodies, in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36 at 46-47.
61. Todd, Liability in Tort of Public Bodies, in Mullany & Linden (eds), Torts Tomorrow - A Tribute to John Fleming (1998) 36 at 47.
62. See, for example, The Council of the Shire of Sutherland v Heyman and Anor (1985) 157 CLR 424 and San Sebastian Pty Ltd v The Minister 162 CLR 340.
63. (1999) 164 ALR 606.
Unreported, Full Court, 6 July 2000, judgment No [2000] SASC 223 at para 84.
65. Hill v Van Erp (1996-1997) 188 CLR 159; Perre v Apand (1999) 198 CLR 180; Pyrenees Shire Council v Day (1998) 192 CLR 330.
66. See Pyrenees Shire Council v Day (1998) 151 ALR 147; 192 CLR 330 at 344 per Brennan CJ 385-8 per Gummow J, 408-12 per Kirby J; Stovin v Wise [1996] AC 923 at 953-5 per Lord Hoffmann (Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreeing); Capital & Counties Plc v Hampshire County Council [1997] QB 1004 at 1026-8 per Stuart-Smith LJ delivering the judgment of the court.
67. See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551; 120 ALR 42 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; Hill v Van Erp (1997) 142 ALR 687, 188 CLR 159 at 186 per Dawson J (Toohey J agreeing), 216 per McHugh ; Pyrenees Shire Council v Day (1998) 151 ALR 147; 192 CLR 330 at 372-3 per McHugh J, 421 per Kirby J, Perre v Apand Pty Ltd (1999) 198 CLR 180 at 194 per Gleeson CJ, 202 per Gaudron J, 236 per McHugh J, 259-260 per Gummow J, 289 per Kirby J and 327-328 per Callinan J.
68. See, for example, Pyrenees Shire Council v Day (1998) 151 ALR 147; 192 CLR 330 at 362 per Toohey J, 372 per McHugh , 389 per Gummow J, 420-1 per Kirby J; Perre v Apand Pty Ltd (1999) (1999) 198 CLR 180 at 194-195 per Gleeson CJ, 202 per Gaudron J, 236 per McHugh J, 259 per Gummow J, 288-289 per Kirby J, 298-299 per Hayne J and 327-328 per Callinan J. See also Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 307 per Kirby P; Stovin v Wise [1996] AC 923 at 939-40 per Lord Nicholls of Birkenhead; Brown v Heathcote County Council [1986] 1 NZLR 76 at 82.
69. State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liquidation) and Ors (1999) 160 ALR 585, para 88, page 617.
70. 67 SASR 288-289.
71. (1965) 113 CLR 177.
72. (1977) 139 CLR 54.
73. (1987) 163 CLR 628 per Wilson, Deane, Dawson, Toohey and Gaudron JJ at 636. See also Wright v Donatelli (1995) 65 SASR 307 per Lander J at 320:
“The plaintiff is under no obligation to establish that the material fact caused or even contributed to the decision to bring proceedings.”

74. Ibid 636.
75. Ibid 638.
76. Napolitano v Coyle (1977) 15 SASR 559 at 570.
77. See, for example, Edmunds and Ors v Pickering and Ors (supra) per Lander J at para 1206 “opinions do not qualify as material facts”.
78. 19 SASR 195 (Walters J) and (1979) 20 SASR 524 (Full Court).
79. Supra at 570.
80. See Hawkins v Clayton (1988) 164 CLR 539.
81. Lamshed v Lamshed (1963) 109 CLR 440. ? applied by Lander J in Edmund v Pickering para [1458]
82. (1988-1989) 167 CLR 316 at 340.
83. (1982) RCP 1 per Oliver LJ at 36.
84. [1977] 1 WLR 970 per Goff LJ at 979.
85. 185 CLR at358.

[2000] SASC 438

21 December 2000