Graham Barclay Oysters & Ors v Ryan & Ors

[2002] HCATrans 74

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S258 of 2001

B e t w e e n -

GRAHAM BARCLAY OYSTERS PTY LIMITED

First Appellant

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Second Appellant

and

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING AND BROSOW HARDY

First Respondents

GREAT LAKES COUNCIL

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

Office of the Registry
  Sydney  No S259 of 2001

B e t w e e n -

GRANT RYAN

Appellant

and

GREAT LAKES COUNCIL

First Respondent

GRAHAM BARCLAY OYSTERS PTY LIMITED

Second Respondent

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Third Respondent

STATE OF NEW SOUTH WALES

Fourth Respondent

Office of the Registry
  Sydney  No S261 of 2001

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING AND BROSOW HARDY

First Respondents

GREAT LAKES COUNCIL

Second Respondent

GRAHAM BARCLAY OYSTERS PTY LIMITED

Third Respondent

GRAHAM BARCLAY DISTRIBUTORS PTY LIMITED

Fourth Respondent

CLIFT OYSTERS PTY LIMITED

Fifth Respondent

M.W. & E.A. SCIACCA PTY LIMITED

Sixth Respondent

TADEVEN PTY LIMITED

Seventh Respondent

THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LIMITED

Eighth Respondent

R.A. KING (WHOLESALE) PTY LTD

Ninth Respondent

MANETTAS LIMITED

Tenth Respondent

SHONID PTY LIMITED (TRADING AS “TIM & TERRY OYSTER SUPPLY PTY LIMITED”)

Eleventh Respondent

VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LIMITED (TRADING AS “RICHMOND OYSTERS”)

Twelfth Respondent

SMITHS OYSTER SERVICE PTY LIMITED

Thirteenth Respondent

GEORGES OYSTERS PTY LIMITED

Fourteenth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 MARCH 2002, AT 10.16 AM

Copyright in the High Court of Australia

MR C.R.R. HOEBEN, SC:   May it please the Court, I appear for the appellants in the Graham Barclay matters – that is matter No 258 of 2001 – with my learned friend, MR A.P. COLEMAN.  (instructed by PricewaterhouseCoopers Legal)

MR T.K. TOBIN, QC:   If your Honours please, I appear with MR J.B.R. BEACH, QC and MR B.M. ZIPSER for the appellant against the Council in S259, and the respondent in the appeals by Barclay, S258, and the State of New South Wales, S261.  (instructed by Slater & Gordon)

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friends, MR P.W. TAYLOR, SC and MR M.J. WINDSOR, for the appellant, the State of New South Wales in 261 of 2001 and as the third respondent to Graham Barclay’s appeal and as the fourth respondent to Mr Ryan’s appeal.  (instructed by Crown Solicitor for the State of New South Wales)

MR W.H. NICHOLAS, QC:   If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, for the Great Lakes Council.  (instructed by Coudert Brothers)

GLEESON CJ:   There is an application to intervene?

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:  May it please the Court, I appear with my learned friend, MS J.C. PRITCHARD, on behalf of the Attorney‑General for Western Australia, seeking leave to intervene.  (instructed by the Crown Solicitor for the State of Western Australia)

GLEESON CJ:   Is that application opposed?

MR TOBIN:   No, your Honour.

MR WALKER:   No, your Honour.

GLEESON CJ:   You have that leave.

MR MEADOWS:   May it please the Court.

GLEESON CJ:   There is a certificate from the Deputy Registrar in relation to matter S261 of 2001 that she has received letters regarding the non‑appearance of respondents Scott Callaghan, Kevin Gower, David Holness, Geoffrey Bennett, Bryan Hocking and Brosow Hardy in the form of a letter from Slater & Gordon, solicitors, advising that no determinations have been made in respect of those parties throughout the progression of the matter to date and consequently they have no interest in the appeal. 

There is a letter received in relation to Clift Oysters Pty Limited from Phillips Fox advising that the proceedings against that respondent were discontinued some years ago.  There is a letter received in relation to the respondents M.W. & E.A. Sciacca Pty Limited and Tadeven Pty Limited from Minter Ellison advising those respondents do not seek to be heard on the appeal and submit to any order of the Court save as to costs.  In relation to the respondent The Oyster Farmers Association of New South Wales Pty Limited, there is a letter from Slater & Gordon, solicitors, advising that that respondent was dismissed as a respondent in the Federal Court proceedings and there is no interest in the appeal.

In relation to the respondents R.A. King (Wholesale) Pty Ltd and Smiths Oyster Service Pty Limited, there is a letter from PricewaterhouseCoopers Legal, solicitors, advising they are not instructed to participate in the appeal on behalf of those respondents.  In relation to the respondent Manettas Limited, there is a letter from Ebsworth & Ebsworth, solicitors, advising that that respondent does not wish to take any active role in the substantive hearing. 

In relation to the respondent Shonid Pty Limited (trading as “Tim & Terry Oyster Supply Pty Limited”), there is a letter from Deacons, solicitors, advising that that respondent will not take part in the High Court proceedings.  In relation to the respondent Victorian Frozen Food Distributors Pty Limited (trading as “Richmond Oysters”), there is a letter from Corrs Chambers Westgarth, solicitors, advising that the twelfth respondent does not wish to formally participate in the appeal.  And in relation to the respondent Georges Oysters Pty Limited, there is a letter from Henry Davis York, solicitors, advising that that respondent does not wish to play an active part in the appeal.

I understand that there is leave sought to amend, in one respect.

MR HOEBEN:   Yes, that is right, your Honour.  It is just a minor housekeeping matter, but leave is sought in matter S258 of 2001 to amend the notice of appeal to add the other members of the Ryan class.  They were those persons named in the letter from Slater & Gordon, Scott Callaghan, Kevin Gower, David Holness, Geoffrey Bennett, Bryan Hocking and Brosow Hardy.

GLEESON CJ:   Is that application opposed?  You have that leave.  There is a memorandum from the Deputy Registrar to the effect that she has been informed by Slater & Gordon, solicitors, that no determinations have been made in respect of those additional respondents that you have just named

throughout the progression of the matter and consequently they have no interest in the appeal.

Has there been any agreement between counsel as to an order of addresses and division of time?

MR WALKER:   Yes, there has as to order of addresses.  There has been discussion about division of time which has not resulted in any exact division but seems to have resulted in a consensus as to how the matter should proceed.  May I tell your Honours what the Bar table would respectfully suggest?  That I commence for New South Wales in its appeal against Mr Ryan.  That the learned Solicitor for Western Australia follow me in support of the State’s position.  That Mr Hoeben follow in Barclays’ appeal against Mr Ryan and also in Barclays’ appeal against the Council.  Then follow Mr Tobin as respondent to the appeals respectively by the State and by Barclays and as appellant against the Council.  Then follow Mr Nicholas for the Council as respondent to the appeals respectively of Mr Ryan and Barclays.  Then follow Mr Hoeben in any reply thought necessary with respect to Barclays’ appeal against the Council.  Then follow Mr Tobin in any reply thought necessary in the appeal against the Council.  Finally, me, in any reply thought necessary in the appeal against Mr Ryan.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Walker.

MR WALKER:   Your Honours, the liability which has been held at trial and on appeal by majority of the State of New South Wales for the injuries undoubtedly suffered by Mr Ryan, held to have been caused by the ingestion of an oyster or oysters containing hepatitis A virus, appears to be based upon a reading of certain statutes which, in our submission, will reveal on a proper and full reading the insecurity of the foundation of the finding.  It would appear there are two statutory schemes still in play, as it were, namely, those to do with fisheries and those to do with food, though there may be a third about which your Honours might hear on behalf of Mr Ryan, namely, those to do with pollutions in clean water.

In my address I will concentrate particularly upon the fisheries, to a lesser extent on the food legislative schemes, and in particular, the way in which the fisheries management regulations evolved but, in our submission, it will be inescapable to observe how the pleading was mounted, how the trial judge stripped down issues, it would appear both in deference to or acquiescence in issues not being pressed and by a dismissal of various of the claims as they were formulated on behalf of Mr Ryan.

Those findings which found the dismissal of certain of the claims are important for our present position, eliminating, as they do, in our submission, reliance in this Court, as it appeared to eliminate reliance in the Full Court of the Federal Court, on a number of the statutory provisions which might otherwise have been thought very important in a claim against the State.

May I start with the proposition, which is repeated against us in the Full Court and which so far as it goes must be correct, that the submerged land and waters upon which the oysters in question must have grown, by inference, was land owned in the sense that that appertains to a State by the State.  Then if I may take your Honours to the bundle of legislation, commencing with the Fisheries Management Act 1994 itself, leap straight to section 163 by which matters moved on from that bald statement of ownership.

It is our submission that at the end of the day ownership will have very little light to cast indeed on the relevant aspects of control and management which, on all sides of the Bar table, would appear to be a pivotal feature of the case.

McHUGH J:   You seem to want to frame the issue in terms of whether the State’s statutory powers give rise to a common law duty to exercise the power.  May it not be the correct way to look at this case that you would have had a duty of care whether any legislation was passed or not, simply by reason of (a) your ownership and (b) the fact that you are a government, and that there is in these waters viruses and other risks to the health of people in this State?

MR WALKER:   The short answer to your Honour’s question is no, that is not an available way of looking at it, but there are two levels of answer to it which require different elaboration.

The first is to inspect the pleadings, the submissions as they are recorded and determined at trial and in the Full Court because it is not, in our submission, possible in this Court to throw open the gates which have been closed, both by concession on the part of the applicant and also by decision not challenged.  But the second and more far‑reaching answer is that the twin factors of ownership and governmental power have not been relied upon in any of the decisions against us as simply and solely sufficient to make out a claim for a failure to exercise more or different control from that which was exercised.

McHUGH J:   Are there any decisions where a State, as such, has been sued?  It seems to me that you are into a different area of discourse when you are talking about the duties of a government owed to all its citizens.  Supposing there was a smallpox outbreak, why would there not be a duty to protect the population which is vulnerable?

MR WALKER:   Your Honour, I do not wish to be pedantic about nomenclature but, first, it is important to distinguish between government being the ministerial party, government being the activity, and the State being the polity.  I appear for the polity.

McHUGH J:   Yes, I know.

MR WALKER:    Its affairs include both private and public.  It is public affairs which are in question in this case as they impinge upon private affairs.  The activities of government, small “g” as it were, are largely carried out by the Government, spelt with a big “G”, which has its officers, from a Minister, at least two of whom are relevant to this case, to various heads of departments of State such as Directors‑General, through to relatively much more lowly officers such as persons who may or may not carry out inspections of various places.

So when one talks about government, it is going to be important, not least because we do not operate in a statutory vacuum in this case, to identify who are the players, what are their roles and what are their powers, because this case has never been put against us in a way which would have been truly radical, namely, to say that once one has a polity and a government given by constitution power of governmental control in the broadest sense, there is an executive capacity to do things for failure of which a breach of an antecedent duty of care may be detected.  The case was not put in that fashion.

GUMMOW J:   Well, there is no executive capacity to do things involving expenditure of money without legislation, for starters. 

MR WALKER:   Quite.  That is the first reason why, in our submission, that would be a truly radical suggestion, because it would require, not least, proper interaction with the law – constitutional, as it happens – concerning appropriations.  One may leave to one side at the moment the theoretical possibility of executive action that requires no government money, subject to some important observations we are going to make later about the political choices about funding which underlay the background in this case.  In short, there was going to be an industry funding of an industry participation, so-called self-regulation – more accurately, perhaps, called nowadays co-regulation. 

The second reason why what your Honour Justice McHugh has suggested is simply not available in this case comes up because of what your Honour Justice Gummow has noted, namely, that at the very outset, even if one is thinking about a so-called pure executive matter, the legislation intrudes.  In this case, naturally, the even more radical, one would say completely quixotic, attempt has never been attempted, to argue that the government’s capacity – using that word in a loose sense – to have prevented Mr Ryan’s illness came about because it had, through Parliament, and through delegated legislation controlled by Parliament, the powers, obviously, of legislation.  So this is not a case which undertakes to have the judiciary opine about the wisdom of legislating or not, or the form of particular legislation.  Once one puts that aside ‑ ‑ ‑

HAYNE J:   But if the area for immediate debate is whether foresight, plus capacity, equals duty, capacity requires the closest attention to capacity to do what, and what was it that was alleged that the State could have or should have done?

MR WALKER:   Yes.  Your Honour, that is why, like the man in the Bateman cartoon, I am going to go to the pleadings, perhaps for the first time in a long time in this case, but one thing we can say very simply:  we are held liable at the moment, about which we complain to this Court, on, it would appear, one single basis, elaborated though it may be in some of the supporting reasons, but the single basis appears to be that the State, through its officers – through designated officers, in particular – had the capacity to close the fishery.

Now, that is a capacity which requires quite precise attention, to which I will be coming. It is section 189 of the Fisheries Management Act but if your Honours will forgive me I do not want to go there straightaway.

CALLINAN J:   Mr Walker, it seems to be entirely to develop, implement and enforce programs and plans.  Is there anything else alleged against New South Wales?

MR WALKER:   Your Honour has correctly anticipated what one will observe from the pleading and, with great respect, that is the summary.  I was going to undertake to summarise it in even just one word, “programs”, because every pleading against us in the main claim against us is programs.  I need to qualify that because there are two other forms of claim to which I will be taking your Honours in the pleading which stand apart from that, but as against the State simpliciter your Honour is correct.  We have findings in our favour from the trial judge, not open to sensible challenge in this Court, about those programs.

CALLINAN J:   But it would need not only the development of a program but also its enforcement and that might require a large sum of money of the kind to which Justice Gummow referred.

MR WALKER:   One of the choices which for the State was never absent and is not merely theoretical in this case, for once, was between funding directly from consolidated revenue by an entirely State apparatus which would have involved, no doubt, without too much exaggeration, State officers on punts, State officers at wharfs and State officers in workrooms where date labels are applied, for example, to bottles of oysters.  That was one possibility.  Another possibility was to involve, as regulation of many industries or professions seems nowadays to be indicated, the active engaged participation of those who profit from the industry or profession.  The latter was the political choice made and it included financial ramifications, including statutory and regulation powers to recoup costs from those who profited from the commerce.

McHUGH J:   Yes, but you are the lessor here, are you not, of these oyster leases?

MR WALKER:   Yes.

McHUGH J:   So, you own the lake and you lease it?

MR WALKER:   Yes, we are no mere owner.

McHUGH J:   You say you are not a mere owner but ‑ ‑ ‑

MR WALKER:   We are the polity.

McHUGH J:   Yes, but you are, nevertheless, the lessor.

MR WALKER:   Yes.

McHUGH J:   And you allow these oysters to be grown in your waters.  You want to look at the case in terms of an analysis of whether the State statutory powers give rise to a duty to exercise them.  What I have been putting to you is that the cases can be looked at in a much more narrow sense.

MR WALKER:   No.  Your Honour understands that my first response to that is that at this stage it cannot be looked at in that way for the two reasons, one peculiar to the forensic course of the case and the other because the necessary premises, namely, that one could identify either bare executive action or legislative choices as rendering the State liable, is simply not available and is not pressed.  Could I before being taken too readily to assent to the question of lease however take your Honours to the particular provisions in which that word ‑ ‑ ‑

McHUGH J:   Could I could just interrupt you.  Has nobody ever sought to compare this sort of case with a reserves case?  One asks whether or not the Crown owns ‑ ‑ ‑

MR WALKER:    Your Honour means naval or ‑ ‑ ‑

McHUGH J:   ‑ ‑ ‑ a public reserve on land, or whatever it is, duty owed to occupiers, Aiken v Kingborough Corporation type case, one does not ask whether or not there is money available or whether there has been an appropriation before a duty of care is owed.

MR WALKER:    No.

McHUGH J:   The duty arises from the fact that you allow things to be done or you invite people onto your reserve.

MR WALKER:   There are traces in the reasons against us of ownership being treated as important, and I am going to take your Honours in particular to the way Justice Wilcox, whose conclusions and, to an extent, reasoning, seems to be adopted by the majority of the Full Court, dealt with that matter.  However, there is no explanation proffered as to what it is about this form of ownership that carried the control and management of the kind that one sees discussed by this Court in Nagle v Rottnest or Romeo v Northern Territory.  So I think the proper answer to your Honour’s question is no, exact analogy was never urged, though it is clear that there are matters called in aid which are common to Nagle, Romeo and Ryan.

McHUGH J:   Just so you will know what my thinking is at the moment about this sort of case.  What is the difference between this sort of case and the private landlord who allows a lessee to produce some deleterious material which the landlord knows will cause harm to outsiders and knows that there are no efficient safeguards?  Now, in that sort of case I would have thought the landlord owed a duty of care to ‑ ‑ ‑

MR WALKER:   Your Honour, an authority does not spring to mind which imposes on a landlord who has truly parted with the leasehold estate with knowledge or perhaps even sometimes, as one sees, a stipulation as to the use of the land, where simply and solely by reason of that there is liability, for example, for, say, food poisoning.  Now, perhaps the key to why it is difficult to think of an authority which involves that indirectness of causation, that is, a production of a commodity to standards which are clearly unacceptable, their consumption by acts of quite extraneous volition of third parties, the biological effect which either always or very often will lead to disease et cetera, because, as in this case, there is no neat inevitability, be it about any of the matters of knowledge or outcome to which your Honour’s example understandably does not suggest any doubt.

In this case it is factually critical that the description by Justice Lee of the outcome as inevitable be considered against the findings which have been made.  The findings which have been made include two salient features, to which we may return in more detail later.  They are that in Wallis Lake, with its catchment and its farmers and its techniques of depuration, none of them perfect because the world is not, there had been no outbreaks of HAV in the past.  It was unprecedented.  That is the first fact.

The second fact is – and this is a fact that one sees from gaps in the book.  What one sees is there has never been a suggestion that the sources of faecal pollution, be they people, where people are or the moving locations of where people are, there is no suggestion that they were either newly created or greatly and recently magnified between the last heavy rain and the November 1996 rains in question in this case.  In short, the fact that the outbreak was unprecedented has a realistic and material effect on predicting the matter of risk.  For reasons which I am going to come, that is a critical factor for the one and only statutory method by which the question of the State’s capacity is held to render it liable both at trial and on appeal.

McHUGH J:   But Professor Brown’s evidence condemns that, does it not?

MR WALKER:   No, your Honour.

McHUGH J:   You may have a good legal point in this case, but I do not think any of the respondents in the application have much merits about them.

MR WALKER:   No, your Honour.  We, with respect, urge our merits with some vigour for this reason:  the notion that all water is pure or all food is pure need only be stated to be rejected.  These are all relative states.  The question is whether something had been brought to our attention, whether it be in the highly particular manner of the remote case of Pyrenees v Day or whether it be in some more generalised fashion, as to Wallis Lake oysters, rainfall and HAV.  The fact is there had been Wallis Lake oysters grown, sold and eaten since the beginning of last century at least and there had been heavy rainfall from time to time during the same period.

There had also been habitation on the shores of the land which drained into the oyster‑growing area.  So the notion that one can simply put to one side the unprecedented nature of this outbreak as been of no moment and as somehow nonetheless justifying a finding that what happened was inevitable is a classic case of retrospective reasoning.

McHUGH J:   But was it not until around 1980 that the connection between the faeces and this virus in the oysters was really come to attention?

MR WALKER:   Well, if your Honour is talking about virology and the effect of oysters and the survival rates of viruses, no doubt the knowledge is still not anywhere near perfect.  But, yes, it is relatively recent, the state of knowledge which was presented to the court.  One would expect that in the nature of things, that is, that the court would have the most up-to-date knowledge in these areas.  That does not mean, however, that it has not been known for a long time that you can get sick from eating bad oysters and that nothing is more calculated to make oysters bad than bad water and nothing is more calculated to make water bad than human faeces.

Now, your Honours, section 163 of the Fisheries Management Act is where one starts to move, as we submit, away from this image of pure owner, simple owner.  One sees that public water land may be leased for use for aquaculture.  Section 142 defines aquaculture in a way that includes the oyster farming carried out in this case.  One sees that under subsection (2), as if it were a common law lease as it were, it can occupy specified strata.  One then sees that one moves to activity rather than parcel, as it were, so as to define the species of fish, et cetera, which are “authorised to be cultivated”.  One sees other indicia similar to true leases. 

When one comes to section 164, one finds that the exclusive right, however, in paragraph 164(1)(a) is the right to cultivate the relevant species of fish and to take them.  It is the right to the ownership of those fish.  It does not confer, subsection (2):

the right of exclusive possession of the leased area.

And then in subsection (3), it:

is subject to the public right of fishing and to any right recognised by the regulations, except as provided by subsection (1) –

Subsection (4) applies generally, obviously, both to the lessee and, more to the point, people, for example, exercising the public right of fishing whereby they cannot tear up the oyster beds.  One then finds, with respect to the lease as such, section 177, which we emphasise has not been used as a basis of liability in this case, subsection (1):

The Minister may . . . call on the lessee to show cause why the lease should not be cancelled –

and paragraph (b) of that subsection:

the leased area is so polluted that fish . . . are unfit for human consumption and the pollution is likely to continue indefinitely.

McHUGH J:   Are these truly leases, having regard to Wik?

MR WALKER:   No, that is why I am drawing to your attention the specific provisions.  The word “lease” is used, and perhaps none the worse for that, however, there are obvious distinctions between this and what one is taught, for example, in Radaich v Smith as the indicia of a common law lease.

GUMMOW J:   Well, section 180 is interesting.

MR WALKER:   Yes, but that is a dealing of course with the statutory creature.

GUMMOW J:   Yes.

MR WALKER:   And the lease referred to in section 180 is that which emerges by the process commencing in 163.  Section 177, as I say, section 177(1)(b) was not used in this case, but is a powerful indicator of the way in which Parliament intended such matters to proceed.  It is a “show cause” procedure.  Subsection (3), procedural fairness must be afforded.  Subsection (4) are merits appeal, so-called, to the District Court.  No more an appeal, perhaps, than a lease is a lease, but there is a case taken from the executive to the judiciary about the merits of the determination of pollution and the likelihood of continuing indefinitely.

May I then take your Honours back for the next link to section 163(3), the second sentence of which refers to the connection with an aquaculture permit. May I then take your Honours back to the provisions with respect to aquaculture permits.

They commence at section144 with the most familiar manner of, to use the jargon, control by a State of any activities on any territory, whether it owns it or not, namely, to prohibit the activity and to licence its conduct, either in return for money, or on other conditions.  In our submission, that is a degree of control which should not, in this Court, be held to be an integer leading to a duty of care being imposed.  The capacity of a polity as the supreme law maker and enforcer in a territory, by legislation, to forbid activity and then to licence it, should not, of itself, lead to the imposition of a duty of care which is by way of an indemnity or any carelessness of the person so licensed.

Section 144(1) imposes that prohibition.  Subsection (2) permits permits of various classes.  Section 145 regulates the mode of application for a permit.  Section 146(2) makes it crystal clear that these are not to be withheld on whim.  This is not the role of a private owner of land who can choose, subject to anti‑discrimination legislation, who he, she or it will permit to conduct any activities on the owners land.  Subsection (2) regulates the ways in which people who want to go into oyster farming to earn their livelihood have, by Parliament’s protection, certain expectations that they will get a permit and they have to do, amongst other things, with satisfactory preparation and qualifications for undertaking the aquaculture in question.

Section 147 obviously relates to the lease power because it requires specification of the areas of authorised aquaculture and your Honours will have noted, I apologise, subsections (3) and (4) of section 146 render justiciable by way of so‑called:

appeal to the District Court . . . a refusal . . . to issue a permit –

So this is not an owner simply able to control by its say‑so who is on its land and even what they may do.  Section 152 permits the aquaculture, or authorises aquaculture permits to be conditioned in various ways.  We have not faced in this case any findings going to the liability conclusion against us concerning the nature of conditions which were imposed, the enforcement of conditions which were imposed or conditions which may have been imposed but were not.

HAYNE J:   Is the holder of a permit bound to exercise it?

MR WALKER:    I think not, your Honour.  I think your Honour is raising the question as to whether there is an obligation to be an oyster farmer if you have a permit to be one.

HAYNE J:   Are you bound to carry on aquaculture or does it simply permit you to do it?

MR WALKER:    No, it is a permit.  One of the grounds of cancellation ‑ ‑ ‑

GUMMOW J:   Paragraph (f)?

MR WALKER:    ‑ ‑ ‑ yes – looks to what would clearly be a factual decision as to whether you have given up – not undertaking is the expression.  Now, your Honours know, of course, that oyster farming, or oyster harvesting I should say, is seasonal.  I apologise to oyster farmers for suggesting they have six months off every year, but it is the harvesting that is seasonal and no doubt there would be factual questions as to somebody who is not carrying out activities in the usual fashion, whether they are no longer undertaking the matter.  There is no question that you will not get one unless you say you propose to undertake it, see section145(2) ‑ ‑ ‑

GUMMOW J:   There is an appeal to the District Court against cancellation as well.

MR WALKER:    Yes, your Honour, so there would be a factual inquiry as to whether your state of passivity amounts to not undertaking the aquaculture permitted.  I think that is an answer to your Honour Justice Hayne’s question.  May I then move to ‑ ‑ ‑

HAYNE J:   But it would be consistent with that regime for the permit holder by the current commercial farm development plan to say that, “I will carry this on only at such times and in such ways as will produce a product that is entirely safe.”

MR WALKER:   Yes.  Safety, efficiency, market advantage – that is, will not produce while the market is glutted, for example – no doubt, all of those matters, which will be an amalgam of self-interest and altruism – to produce only good oysters is obviously in one’s self-interest, notwithstanding it serves the purpose of protecting others. 

One sees, in section 151, the concept of cancellation is the method by which the duration otherwise stipulated can come to an end.  There is also the question of suspension.  Before getting to those, could I draw to your Honours’ attention section 156, which is one of the provisions in this case concerning funding matters.  Under section 156, subject to the requirement being in regulations, annual contributions towards certain costs, including in paragraph 156(1)(b) quality monitoring, may be recovered from the permit holder. 

One sees in subsection (6) that Parliament has required – and we unashamedly call this a matter of policy – that there be a committee on whom the majority are “relevant representatives of the aquaculture industry” to “advise the Minister about the level of services”, which in turn, of course, will inform the amount of costs which can be recovered.  Following various financial provisions about that, may I take your Honours then to cancellation and suspension, which commence with 159, a power which did not exist in this case and need play no further part.  That is peremptory cancellation or suspension.  But section 160 is the one which might have played a part in this case, but it did not.  Under section 160(1)(i) your Honours will see a head of cancellation or suspension concerning an area: 

being so mismanaged that the production of fish . . . has been prejudicially affected or that the suitability of that area or any surrounding area for aquaculture is threatened –

et cetera.  That, also, is not called in aid in this case, perhaps not surprisingly, on the facts.  The area, of course, is the permit area, which will be the submerged land and water.  Under subsection (2), procedural fairness is required, and under subsection (5), an appeal to the District Court is provided. 

I should draw to your Honours’ attention, perhaps against ourselves, section 100 is a statutory immunity provision which does not apply to any of the matters that were germane in this case.  I apologise, your Honours do not have it in your folder, for which I am sorry, however, I can tell your Honours that section 100 refers only to immunity with respect to the exercise of powers or actions taken under Part 3, Division 9, which has to do with the share management fisheries appeal power – sorry, a share management fisheries register – Division 10 of Part 3.  It has nothing to do, therefore, with this case.  The statutory provisions your Honours have been looking at, and will look at, in the Fisheries Management Act do not come with an immunities provision that we can call in aid. 

Could I then take your Honours to section 189 which, as we apprehend the case still put against us and as we respectfully read the findings against us, is the sole ‑ ‑ ‑

GUMMOW J:   It was never pleaded, was it? 

MR WALKER:   I am sorry, your Honour? 

GUMMOW J:   There was no pleading based on section 189.

MR WALKER:   No, there is not. 

GUMMOW J:   How did it all happen? 

MR WALKER:   I do not know.  I am going to trace for your Honours the way in which one moves from the pleading to the critical passage in Justice Wilcox’s reasoning.  In our submission, it is, on any view ‑ ‑ ‑

GUMMOW J:   The pleadings are over 100 pages long.

MR WALKER:   Yes.  The way in which issues ‑ ‑ ‑

GUMMOW J:   Why bother?

MR WALKER:   There is chaos, your Honour, with respect to ‑ ‑ ‑

GUMMOW J:   This sounds like a product of case management.

MR WALKER:   It may be a polluted product of case management, your Honour.

GUMMOW J:   Yes, but you do not see many ‑ ‑ ‑

MR WALKER:   Like oyster farming, case management, no doubt, can be carried on more hygienically.  There is real chaos in trying to compare the pleading to the first instance judgment.  There are some queries, with great respect, when one moves from the first instance judgment to the appeal.  We would not dissent from what your Honour suggests, namely, that the pleading really did not convey what one would expect, even pre‑Brodie, as a pleading which called in aid the capacity granted by section 189.

KIRBY J:   That often happens in the way parties run cases.

MR WALKER:   That is why your Honour will not hear me run a pleading point as such, but it is very important in evaluating the kind of arguments which anew might be put in this Court, or for the first time might be put in the Court, nonetheless to observe the way in which the case was presented and argued.

GLEESON CJ:   I am looking at page 110, paragraph 47(d).

MR WALKER:   Yes, your Honour.  That is it, I think, your Honour.  That is the means by which – it is the only means by which one can get there.  I will come back to why that is a most unsatisfactory pleading for what is said to arise from it in just a moment.

GUMMOW J:   That says:

But for the acts of negligence pleaded in paragraphs 38, 41 & 44 ‑ ‑ ‑

MR WALKER:   That is the means by which I would seek to demonstrate its unsatisfactory nature, your Honour.

GUMMOW J:   They are all about, as Justice Callinan said, plan.

MR WALKER:   Yes, your Honour, quite. In one word, they are about program. Section 189 refers to “a fishing closure under Part 2”, to which I will take your Honours back in a second. This is the capacity permissive, that is, a power – and, yes, we are obliged – obviously, pace what your Honour Justice McHugh said in opening, we are obliged to observe. There is no duty imposed by that statute. There is the power to prohibit, during a specified period, the taking of oysters cultivated under a permit, if the Minister is satisfied.

GUMMOW J:   There is a jurisdictional fact, which is the existence of the satisfaction.

MR WALKER:   Yes.  It has been found in this case that that did not exist, that jurisdictional fact, namely, ministerial satisfaction, and, in our submission ‑ ‑ ‑

KIRBY J:   That would not be his subjective satisfaction, would it?

MR WALKER:   No.  It would, undoubtedly in this case, your Honour, be a la discussion in Peko‑Wallsend.  It would be a satisfaction formed in the public service hierarchy, the subject of recommendation, ultimately, to the Minister.

GUMMOW J:   And on reasonable grounds.

MR WALKER:   It has to be on reasonable grounds, yes, in our submission.  This is a fact which, not subjectively, but objectively, needs to exist:

if satisfied:

(a)  that the area is in such a condition that the taking –

of oysters:

ought to be suspended or –

and the one that probably is the important one, paragraph (b), that the oysters:

are, or are likely to be, unfit for human consumption.

One therefore has to go back to Part 2, because it is the Part 2 method by which that is carried out.  Part 2 is “GENERAL FISHERIES MANAGEMENT”, the last word of which is, no doubt, called in aid against us in this Court as it was in the reasoning below.  In our submission, there is management and management.

KIRBY J:   Where is Part 2?

MR WALKER:   It starts at section 8. Section 8(1), the Minister has the power:

from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish –

which will include oysters:

from any waters or from specified waters.

It is a very general provision which, as your Honours could see, could apply throughout the whole State or to particular waters specified to include many different estuaries, for example.  That is a “fishing closure” says subsection (2).  Subsection (9) stipulates for the mode of notification, which is primarily to be by publication in the Gazette – notoriously, not something which is instantaneous.  However, in the event that the Minister considers urgency is required, subsection (2) authorises much more rapid notification, including radio broadcast.

The duration is limited to five years and otherwise, as specified.  It may be amended or revoked.  Section 11 ‑ again, I apologise for something missing from the bundle.  Section 14 makes it an offence to take the fish in contravention of a closure. Your Honours will find a reference to that in volume 19, Justice Wilcox’s reasons at 4515, paragraph 102.  That, in our submission, gives the force of law in the sense of changing the regime for permitted activities with respect to oysters, generally or in particular places, to a fishing closure.

I need then to draw to your Honour’s attention the way in which the Act otherwise provides for what is called in the Act “management”.  Section 57 provides for management plans for so‑called share management fisheries.  Then, may I take your Honours, in particular, to section 143 which provide for:

aquaculture industry (“development plans”).

Your Honours there see a power, not, we submit and stress, a duty to determine plans, development plans.  It may relate – subsection (2) – to any aspect of the industry.  Subsection (3) – they are given the status that they must be taken into account, that is, the Minister must have regard to them when he is exercising his other functions under the Part.  Then, under subsection (4) there is permissive list of what the plan may contain which by paragraph (e) extends to matters very general indeed, according to what the Minister considers appropriate, no doubt including by reference to what on any view would be policy matters.

Subsection (8) is of some significance because it continues the pattern of industry consultation compulsorily.  The Minister is required to give the industry and the public an opportunity to make submissions on the proposed plan and to take that into account.

CALLINAN J:   Mr Walker, I am sorry to interrupt you but could I just ask you these questions.  The allegation in the pleading seems to be, as we have discussed, failure to develop an implement a plan.  That is correct, is it not?

MR WALKER:   That seems to be the main allegation against the State.

CALLINAN J:   The main allegation.

MR WALKER:   Simply as to State, yes.

CALLINAN J:   Yes.  Now, am I correct in thinking that the ratio, as it were, of the decision of her Honour Justice Kiefel is at page 4660 in paragraph 603 where her Honour seems to be saying at line 16:

In my view, the State thereby came under a duty to exercise its powers and prohibit harvesting until the Minister could be assured –

in effect of quality.

MR WALKER:   Yes.

CALLINAN J:   Now, if that is the ratio, it does not seem to involve any plan.

MR WALKER:   No, it does not.

CALLINAN J:   If you go then to 4694, paragraph 61, and the judgment of Justice Lee, he seems to reach the same conclusion in the same way except he seems to be making some sort of a distinction between a core policy and some other policy.  Now, I will come to that, but the ratio seems to be something different from what is pleaded.  Is that your point?

MR WALKER:   It is certainly one of the points, that investigating – I should say in considering whether this is correct.

CALLINAN J:   That is a very simple case.

MR WALKER:   That is our attack in this Court.

CALLINAN J:   But the finding seems simply to be in the case of the majority in the Full Court a negligent failure to ban harvesting for a period.

MR WALKER:   That is right.  Could I urge on your Honour that paragraph 62 on page 4694 is also critical to an appreciation of Justice Lee’s ratio.  I will not go to it now but paragraph 62 is a very important paragraph.

CALLINAN J:   Yes.  But, that does ‑ ‑ ‑

MR WALKER:   At line 39 the point that your Honour has been making is, with great respect, well made again.  In particular, his Honour says:

in failing to close the Lake fishery –

et cetera.

CALLINAN J:   It is probably me – it is a very record – but is that the case that was made against you, or sought to be made against you, that there was simply a failure to close the oyster bed or to prohibit harvesting for a period?

MR WALKER:   By evolution, throughout the litigation, yes.

CALLINAN J:   How does the program or plan come into it then?

MR WALKER:   It does not.  We have a finding from Justice Wilcox that there was nothing wrong about Cabinet determining that that ought to be the way in which the industry regulated – was regulated with respect to its product’s quality, that there was no legal wrong in the time it took after regulations were promulgated, coming into effect at the middle of 1995, the timing being, of course, that they had not come into effect by the heavy rains at the end of November 1996.

CALLINAN J:   Can you, for completeness, refer me to the passage in Justice Wilcox’s judgment where his Honour, if he does, reaches the same sort of conclusion as the majority judges in the Full Court?

MR WALKER:   It starts, your Honour – perhaps it would be convenient, in deference to that and other questions, if I jumped out of my intended order to go straight to that part and deal with it once and for all of Justice Wilcox’s reasons.  May I step back then, in volume 19 of the record, to page 4589 commencing at paragraph 316.  I apologise this is going backwards in one respect because the pleading would come first, but one could be forgiven in this case that it did not keep up with the race.

At paragraph 316 there are four elements by that stage, identified by the trial judge, in the applicants’ case against the State.  There is the first, which was described as “essential” by themselves was:

the State failed to prepare or implement any proper oyster management plan –

that could be called the “program case” which one does find in the paragraphs referred to in the pleading.

CALLINAN J:   I am sorry again to interrupt you, but that does not seem to loom very large, if at all, in the majority judgments in the Full Court.  Am I right about that?

MR WALKER:   That is right.  Your Honour is right.

GUMMOW J:   Had it disappeared in the Full Court?

MR WALKER:   I cannot say it has disappeared because the same considerations that informed his Honour’s determination of that matter seemed to underlie their Honours’ avowed acceptance of his Honour’s conclusions.

CALLINAN J:   It seems to me to be a different case, Mr Walker.

MR WALKER:   Yes, your Honour.  The second aspect in paragraph 317 was to do with the Environment Protection Authority, and your Honours really should not hear much more about that than the fact that it does not go anywhere.

GUMMOW J:   It is pleaded at great detail.

MR WALKER:   Pleaded in great detail.  There is even more detailed pleading about some committees that your Honours need not hear about.  The third aspect, paragraph 318, had to do with the Health Department and the depuration facilities.  You will not hear about that either, not least because we win on the merits.  If I may be so bold as to remind your Honour Justice McHugh that we have not been found as it were to have conducted, through our various organs, a ramshackle approach to the monitoring of oyster qualities.  His Honour says:

The third and fourth point may summarily be dismissed.

So depuration goes.  The fourth point, paragraph 321 on page 4590, emerged late in the hearing.  Perhaps that is a relevant comment with respect to what therefore may be my pedantry about pleadings.  It is said to depend upon conjecture.  It is gone.  Then his Honour turns back to the first point and goes to some provisions of the regulation, to which I was otherwise about to go, concerning the scheme by which Cabinet’s decision was implemented, namely a regulation by which the Minister and the industry and various State officers co‑operated in producing programs.  We really ought not have to say more than that than that Justice Wilcox finds no falling short of any relevant standard in the way we went about that activity.

GLEESON CJ:   Whereabouts is that?

MR WALKER:   That is coming up, your Honour, at paragraph 331, page 4593.  In understanding that conclusion, your Honours need to see on 4590 at the foot of paragraph 322 that about line 41 his Honour recorded:

Counsel argue this program could, and should, have been approved earlier.

The timing point.  So that if the State consults with the industry, and that takes a while, people who are injured in the meantime can complain about negligence.  In our submission, it is self‑evidently wrong, to argue in that fashion.

CALLINAN J:   Mr Walker, I am having a lot of difficulty here.  There is no reference at page 4589 – I am sorry, there is.  Where is his Honour’s finding on the first element, Justice Wilcox ‑ ‑ ‑

MR WALKER:   On the first element?

CALLINAN J:   Yes.  The plan point.

MR WALKER:   It is found in 331, 4593, foot of the page:

I accept the submission that neither the Fisheries Management Act nor the Fisheries Management (Aquaculture) Regulation imposed an obligation on the Minister to approve a quality assurance program within any particular period of time.

So that is an answer to the argument recorded three pages earlier.

In any event, I would not be prepared to say a delay of about 18 months, between the making of the Regulation and the Wallis Lake “rainfall event”, was so excessive as to constitute a breach of the Minister’s obligation, under cl 12B of the Regulation, to approve a quality assurance program.

CALLINAN J:   So his Honour is saying, even if there was an obligation to have a plan, there was no negligence because it was not in operation at the time.

MR WALKER:    Yes, he does not use the word “negligence”.  He specifically says “no breach of that duty”, so that falls away.  It fell away at trial, it remains fallen away in the Full Court, and it surely cannot be resurrected here, in our submission.  Going back to the ways in which there was summary dismissal of various matters by his Honour, at the foot of page 4590, paragraph 323, the Environment Protection Authority case disappears.

CALLINAN J:   Where does the case that was found in the Full Court come from?

MR WALKER:    I am sorry, your Honours, may I complete that reference?

GLEESON CJ:   Page 4597.

MR WALKER:    Yes, may I complete that ‑ ‑ ‑

GLEESON CJ:   Paragraph 340.

MR WALKER:    Yes, may I just have my references in order?  I had given your Honours the first part of the reference to the EPA.  The second part of the reference to the EPA is paragraph 330, page 4593 – it falls away.  The basis upon which the trial judge found us liable is introduced by the first sentence of 331 on 4593:

the State failed to exercise its management powers in such a way as to minimise the risk of HAV infection of oyster consumers.

With great respect, that appears to be his Honour’s pleading.

McHUGH J:   But it is in 332 – and that is what I was putting to you earlier ‑ ‑ ‑

MR WALKER:    Paragraph 332 is the critical paragraph to which I wish to come, if I may, in just a moment, your Honour.  Your Honour the Chief Justice referred to 340.  Paragraph 339 and 340 on page 4597 is where his Honour then makes the finding on what he described as the only case open against the State.

GLEESON CJ:   He refers to the State – and I am not sure exactly what this means – as “the ultimate manager of the fishery”.

MR WALKER:    Yes.  Now, the word “ultimate”, your Honour, is one of the reasons why I started with ownership, because it may well be that that is one of the aspects – 332 would suggest this – that his Honour had in mind in talking about “ultimate”, that is, in the last analysis it all starts with ownership by the State.

GLEESON CJ:   And a control of the kind given by section 189.

MR WALKER:    Yes, it would appear to be only 189 now, though the matter is not clear.  May I, in an attempt to clarify the degree of that lack of clarity, go now to 332, which is truly critical?  At that passage his Honour says that he has in mind certain facts to support his conclusion that the State already had – that is, before it determined to embark upon and embarked upon the course of getting a program – “a responsibility to ensure the matters identified by counsel in their paragraph 62.1”.

GLEESON CJ:   Just before you pass from that word “ensure”, does that mean something different from “take reasonable care to prevent harm”?

MR WALKER:    As a matter of English, it is emphatically different and is the language of warranty or insurance.  However, as a matter of law, bearing in mind other matters to which his Honour has referred, namely that perfection is not to be expected, it must be charitably read as meaning “reasonable efforts towards achieving”.  Now, the 62.1 reference ‑ ‑ ‑

HAYNE J:   If that is so, where do we find his Honour dealing with the absence of reasonable effort?  If you are right to say that that sentence is to be understood as “had a responsibility to take reasonable steps”, where do we find his Honour dealing with what was, in the circumstances, reasonable to undertake?

MR WALKER:    I think, to be fair, your Honour, I have to give a paradoxical answer:  everywhere and nowhere.  The whole history that his Honour sets out is of the material that he says imported upon the State, as one must say it would import upon the growers and anybody concerned with the commercialisation of oysters, the fact that pollution on land tends, by the inexorable operation of rain hydraulics and gravity, to go into water bodies; if you grow fish which will be eaten by humans in the water bodies, et cetera, et cetera, et cetera.  Now, that is everywhere.  His reasons are understandably imbued with that.  There is also the simple finding, not contested, that we did not close the fishery at the relevant time – it came later.

Otherwise, we are entitled to observe that what his Honour found in detail – and Justice Lindgren in the Full Court sets it out perhaps in even more detail – namely, the political course of industry self‑regulation or co‑regulation which had not yet culminated in a program at the time of Mr Ryan’s misfortune – otherwise, what his Honour finds there, in our respectful submission, tends against the notion that there was a failure to achieve a reasonable standard.  His Honour deals with it quite differently.  He observes, in effect, not having closed, bearing in mind what was known in general terms state of art about viruses, oysters, water and human habitation, means that there was, as we would put it, without much more, probably without anything more, a duty of care which had been breached.

HAYNE J:   Well, that seems at the moment, at least to me, to be an argument “could have, did not, equals liability” with no consideration given to “should it have”.

MR WALKER:   Yes.  Now, assuming that one can go from could ‑ ‑ ‑

GUMMOW J:   Well, look at paragraph 336 and the first line of 337.

MR WALKER:   Yes.  The first sentence of 336 – it is unfair, no doubt, to take a sentence in isolation, but standing on its own, in our submission, is a completely unsatisfactory statement of reasoning which could lead to liability.  Now, it is unfair to take it on its own, because his Honour has made some very detailed findings about what he calls “the State’s involvement in the management”, but, in our submission, boiled down it all comes back to the 189 power, a matter which was never the subject of an undertaking to prove and, therefore ‑ ‑ ‑

GUMMOW J:   Was 189 mentioned in the anterior material before 336?

MR WALKER:   Yes, I am going to come back to that.  Justice Lindgren, of course, points out that 189 – there was no evidence, indeed, it must be the contrary, of it becoming available as a power.  Capacity is too glib an expression for the nature of the statutory regulation, binding the State as much as it binds the oyster farmers, of this fishery.

Your Honours, if I can pick up the internal reference.  Paragraph 332 refers to the content of the matter that his Honour held the State already had a responsibility to ensure, and one finds that on page 4592, paragraph 329, and they are the items (a), (b) and (c) just below line 40.  So that reading those, one has Justice Wilcox, with great respect, formulating, perhaps despite the pleading, a case whereby the State had a responsibility, presumably to take reasonable effort towards achieving, one, requirements for sanitary surveys; two, cessation of harvesting after a fresh, that is when the rainwater rushes off the land into the estuary; and (c) extreme caution in reopening. 

Now, it is, with respect, quite difficult simply to import 62.1 into paragraph 332.  Doing the best one can, it would appear that the State’s responsibility, which his Honour says already devolved on it in a way which rendered breach actionable, or failure to achieve it actionable, had to do with the conduct of sanitary surveys, ceasing harvesting by a statutory means that his Honour does not identify apart from closure, and the need for extreme caution in reopening.

May I interpolate a reference to the facts, namely that the evidence showed – there is no doubt about this – that Wallis Lakes, the oyster farmers, did routinely, as was lore in the industry, cease to harvest after a fresh.

GLEESON CJ:   Did the fresh occur in November 1996?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Well, at paragraph 340 Justice Wilcox seems to have said, not that there was any negligence in the response to the fresh, but that “long before November 1996” they should either have required a “sanitary survey or closed the fishery”.

MR WALKER:   That is right.

GLEESON CJ:   Who was responsible for conducting the sanitary survey?

MR WALKER:   That raises a question which may go a long way to explain why we are simply sued as the State.  A sanitary survey, as the evidence shows and as one might expect, involves literally scouting the land and the water to find the sources, relevantly, of faecal contamination into the growing area.  So that one does not know in advance, as it were, of conducting it where you are going to find things.  It should go without saying that faecal contamination can be washed into an estuary from private land. 

Your Honours will recall my opening reference to the Clean Waters Act.  That is because, on our analysis – we may be wrong – so far as the State is concerned, assuming that it is proper to elide distinction between the statutory authority, the EPA, on the one hand, and the polity of the State on the other – assume that in favour of the applicant – it is under the Clean Waters Act that officers of the EPA would have authority to enter upon private land on certain conditions in order, for example, to inspect whether one’s septic tank is leaking into the lake. 

Now, that is not a satisfactory answer to your Honour the Chief Justice’s question, but it means that whoever is to conduct it, if it is to be a sanitary survey which actually scouts the land which might be the source of faecal contamination, it must have included, presumably, the EPA.

Your Honours, may I point out that the mere conduct of a survey would simply describe rather than rectify.  So there must be shorthand in his Honour’s reference back to 62.1, the shorthand must be for:  having conducted a survey, do something to prevent detected – that is, evaluate the contamination and do something to prevent it.  That, of course, is where it is quite difficult to ascertain, and one finds that in his Honour’s findings about sanitary survey, which are found in his paragraphs 42 and following – I do not think I need to take your Honours back to it – that is the reference ‑ which commence on page 4491 of volume 19.  Paragraph ‑ ‑ ‑

GLEESON CJ:   Justice Wilcox seems to have concluded that before November 1996, there was such a risk of the kind of contamination that ultimately occurred in November 1996, that these businesses should have been closed down. 

MR WALKER:   That is exactly what he is saying.  May I just add one more reference.  His Honour’s paragraph 47 of page 4493 includes his quotation from evidence he accepted concerning the principal components of a sanitary survey.  It can be seen that the word “survey” is definitely elliptical, because it involves doing things after you have detected bad things, in order to rectify them.  Your Honour the Chief Justice is, with respect, correct.  The gravamen of the case, the only means by which we were held liable, was that at an indeterminate time, long before November 1996 – thereby severing any nexus with the idea of a program, for example – a stage had been reached whereby unless there was a sanitary survey – meaning, description plus rectification – the fishery had to be closed. 

GAUDRON J:   Yes, but you have just used the word, “control”, when I am sure you meant, “power”.  In no relevant sense does the State control who goes to the toilet, when or where, and whether they go in a septic tank or not. 

MR TOBIN:   No, of course ‑ ‑ ‑

GAUDRON J:   It may have power to control some aspects of that process, but you said, “control”.  It seems to me, one of the problems in this case is that everywhere people are slipping from power to the assertion of control. 

MR TOBIN:   Yes.  Your Honour, we would want to put the case – and perhaps I can do that tomorrow ‑ ‑ ‑

GLEESON CJ:   Well, you also, in your submission, treated legislation requiring depuration as an exercise of State power.  That also seems to involve the concept of the State in a different capacity ‑ ‑ ‑

MR TOBIN:   Well, the Department of Health ‑ ‑ ‑

GLEESON CJ:    ‑ ‑ ‑ as though, by the enactment by Parliament of legislation, a State is taking steps in fulfilment of a duty of care. 

MR TOBIN:   We would not put it that way, your Honour.  The legislation that set up a purification regime was an aspect of the State’s – we say ‑ control, or management, of the oyster industry ‑ ‑ ‑

GLEESON CJ:   So could an act of negligence on the part of the State consist in the inadequacy of its legislation? 

MR TOBIN:   No, that is not the case we want to make.  We want to make a different case, which is that having embarked upon the management of the oyster industry in the way that it did, and having imposed an element – the depuration process – to assure public health, and in the knowledge that it required the other element, sanitary surveys, to ensure that the depuration process was not made ineffective because of pollution, that, in that context, and with other factors, the duty of care can be discerned. 

GLEESON CJ:   All right.  Now, you are going to be followed by Mr Nicholas, then Mr Hoeben, then Mr Beach, then Mr Walker, is that right? 

MR TOBIN:   Mr Beach will be after me, your Honour, dealing with Mr Hoeben’s address this afternoon. 

GLEESON CJ:   Then are we going to hear you again after Mr Hoeben? 

MR TOBIN:   I would propose to ask my learned junior to address the Court in answer to Mr Hoeben’s submissions. 

GLEESON CJ:   So we are going to hear you, then Mr Beach, then Mr Nicholas, then Mr Hoeben, then you again? 

MR TOBIN:   That is so, your Honour.  Then Mr Walker. 

GLEESON CJ:   Well, now, how are we progressing in terms of time? 

MR TOBIN:   I think all right, your Honour.  As long as Mr Nicholas does not get a run on. 

GLEESON CJ:   I just wanted to ensure that we will not need to be sitting longer than usual hours tomorrow. 

MR TOBIN:   I do not think so, your Honour. 

GLEESON CJ:   Very well, then we will adjourn until 10.15 tomorrow morning. 

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 MARCH 2002