Murphy v Stevens

Case [2003] SASC 238

EDWARDS & DEEP SEA ARK (AUST) PTY LTD v  OLSEN, TRUMBLE, MCCOLL, KIRKEGAARD, STEVENS & THE STATE OF SOUTH AUSTRALIA

MURPHY v STEVENS & THE STATE OF SOUTH AUSTRALIA
[2003] SASC 238

Full Court: Mullighan, Williams and Besanko JJ

MULLIGHAN J

Background
The claims
The hearing of the appeal
The Owner/Operator Policy
The 1917 Act
The 1971 Act
The state of the abalone fishery
Mr Chatterton
The respondent Olsen

Trumble

McColl

Kirkegaard

Stevens

The Case Stated
Admissions in Case Stated
Unrepresented party - role of the trial judge
Alleged Bias
Complaints of bias by the Edwards appellants

The Law

Delay
Alleged errors in the reasons for judgment
Conclusions about the respondent directors
Expert witnesses
The Verrier/Jefferson Issue
Judicial Intervention
The respondent Trumble
The respondent McColl
The respondent Olsen
The respondent Kirkegaard
The respondent Stevens
Other witnesses

The appellant Edwards
Dr Shepherd

The Case Stated affidavits
The Owner/Operator policy
Further observations about the reasons for judgment
The respondent’s opening
Observations of the learned Trial Judge as to lawyers

Conclusion

Complaints of bias by the appellant Murphy
The substantive appeals
Disallowing questions in cross-examination
Decisions of the Full Court
Refusal to allow evidence in rebuttal
The appellant Edwards
The appellant Murphy
The claims of the appellants Edwards and Deep Sea Ark
The appellant Murphy’s claim
The defences
The law

Misfeasance in Public Office
The claim in negligence

Findings as to credit

The appellant Edwards
The appellant Murphy

The respondent directors
Expert witnesses
Summary of the case of the appellant Edwards
Summary of the case of the appellant Murphy
The reasons for the appellants leaving the industry

The appellant Edwards
The appellant Murphy

Employee divers
The Trust Arrangements
Corporations and Partnerships
The appellant Edwards and Western Australian Abalone
Mr Edwards’ claim regarding his application for a prawn authority
The Claim of the appellant Edwards regarding tuna fishing
The appellant Murphy’s claims
General observation as to the appellant Murphy’s appeal

Conclusion

  1. The appellants Edwards and Deep Sea Ark (Aust) Pty Ltd  (“Deep Sea Ark”) (“the Edwards appellants”) brought an action against the respondents claiming damages for misfeasance on the part of the personal respondents in the discharge of their duties as public officers whilst serving successively as the Director of Fisheries or, alternatively, damages for negligence (“the Edwards proceedings”). The respondent Olsen was the Chief Inspector of Fisheries for five years from 1967 under the Fisheries Act 1917 (“the 1971 Act”) and was appointed Director of Fisheries after that office was established by the Fisheries Act 1971 (“the 1971 Act”) and later acted in that office. The other personal respondents in turn succeeded him as Director of Fisheries or in the case of the respondents Trumble and Kirkegaard as Acting Director of Fisheries. I shall refer to them collectively as “the respondent directors”. The Edwards appellants claim that each of the respondent directors made decisions about, or affecting,  them in the context of the fishing industry which were wrong and were made in misfeasance of public office. They presented an…

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Details
AGLC
Murphy v Stevens [2003] SASC 238
Case
[2003] SASC 238
Decision Date

CaseChat Overview and Summary

In the case of Murphy v Stevens, the appellants, former fishermen, challenged the decision of the Supreme Court of Victoria, which dismissed their claims against government officers. The appellants alleged misfeasance in public office and negligence due to the officers' enforcement of allegedly invalid fisheries regulations and policies. The trial lasted 110 days before being dismissed, leading the appellants to appeal the judgment. The legal issues focused on whether the appellants had a valid claim for damages against the government officers for relying on their allegedly incorrect advice and enforcing the regulations and policies. The court also considered whether the appellants' claims were time-barred and if the doctrine of laches applied.

The Full Court of the Supreme Court of Victoria dismissed the appeals, finding that the appellants had no valid claims against the respondents. The court held that the officers were acting in accordance with their duties and had not breached any duty of care or acted dishonestly. The Full Court emphasized that the promulgation of invalid regulations and administrative policies, without more, does not entitle members of the public to claim damages against public servants. The court further found that the appellants' claims were time-barred or subject to the doctrine of laches, making them invalid. As a result, the appeals were dismissed, and no liability was found on any of the appellants' claims.

The court's final orders were to dismiss both appeals, with the Full Court affirming the dismissal of the appellants' claims against the respondents. The court concluded that there was no basis to hold any of the respondents liable for misfeasance in public office or negligence, and the appellants' claims were either time-barred or subject to the doctrine of laches. The Full Court's decision highlights the importance of seeking judicial review or declarations of invalidity when dissatisfied with official responses, rather than relying on imprecise allegations to claim damages later.

Orders

Orders of the court

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Background

Background to the litigation

The actions proceeded to trial which occupied 110 days and were dismissed. The appellants appeal against that judgment.Background The proceedings by the Edwards appellants were instituted in 1986. Mr Murphy commenced his proceedings in 1987. Other actions of the same nature were commenced by other former fishermen seeking the same or similar relief. Some of those actions were brought to trial at the same time as the appellants’ proceedings but were resolved by agreement during the course of the trial. One of those plaintiffs has applied to set aside the settlement but we are not concerned with that matter on this appeal. Other actions are awaiting trial. In both the Edwards proceedings and proceedings of the appellant Murphy, there were applications for extension of time to institute the proceedings. The learned Trial Judge declined an application to hear and resolve discrete issues separately. He conducted the trial on the basis that all matters of liability and quantum and the applications for extension of time be heard together. Initially both the appellant Edwards and the appellant Murphy presented their cases at trial without legal representation and the respondents were represented by the same counsel, Mr Bell, at trial and also on this appeal. The Edwards appellants were represented on this appeal by Mr Borick QC. The appellant Murphy was unrepresented on the hearing of the appeal. He made brief submissions personally and adopted the submissions made on behalf of the Edwards appellants in so far as they are relevant to his case. The writ and particulars of claim and the initial Statement of Claim of each of the appellants were prepared and filed by solicitors and settled by counsel. However, the statements of claim were substantially amended many times by the appellants and, most recently, without legal assistance. The learned Trial Judge found these pleadings, particularly the Statement of Claim of the appellant Murphy, to be deficient and that it was not possible to obtain pleadings from the appellants, when unrepresented, at a standard to be expected if prepared by a solicitor. Nevertheless, he allowed the trial to proceed because he concluded that both appellants clearly had claims which were arguable and they were entitled to present them to the Court. He recorded in his reasons for judgment that he afforded them such assistance as he could give without undertaking the task of drafting pleadings for them. He took the view that the claims of the appellants must be determined on the evidence and not on the pleadings. Also, the learned Trial Judge noted that the appellants being unrepresented at the trial caused difficulties with respect to their adducing evidence in both examination and cross-examination. In his reasons for judgment he said that he assisted them so that their claims could be “fully and adequately ventilated”. He said that he led them through evidence-in-chief but, in the main, left it to them to lead witnesses called by them through their evidence. Also, he said that he only intervened in their cross-examination of witnesses occasionally to give assistance to them when they were endeavouring to follow a line of cross-examination to which objection had been successfully taken. As will be seen, this became a matter of contention on this appeal and I refer to it later.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J
Earlier in these reasons I mentioned the first proposed ground of appeal which the appellant Murphy sought to introduce. I reject the submissions that there were numerous errors of judgment by the learned Trial Judge or that his conduct was such that he must have been biased.Conclusion As has been seen, there is no basis to hold any of the respondents liable to any of the appellants on any of their claims either for misfeasance in public office or in negligence. It was conceded by the appellant Edwards that his claims were outside the period of limitation of six years and required an extension of time under the Limitation of Actions Act 1936. The appellant Murphy did not make any such application and the learned Trial Judge found that he did not require an extension of time. The respondents made a plea of laches against his claim which the learned Trial Judge did not resolve as he dismissed the appellant Murphy’s claim on the merits. In view of the conclusions which I have reached about each claim on the merits, it is unnecessary to consider the appeal of the appellant Edwards against the decision of the learned Trial Judge refusing an extension of time and the plea of laches against the claim of the appellant Murphy. For the reasons which I have given, I would dismiss both appeals. WILLIAMS J: I would dismiss each of these appeals for the reasons given by Mullighan J. The appellants claim to have arranged their affairs in reliance upon information provided by government officers as to limitations imposed by the Fisheries Act and regulations as to how professional fishers might carry on business. In my opinion the appellants (if dissatisfied with the official response to their enquiries) should have immediately moved to test their rights in proceedings for judicial review or in proceedings seeking a declaration of the invalidity of regulations. As a first step before action an intending plaintiff might have been expected to formulate a specific business plan for consideration by the departmental officers upon which a formal decision could be made and issue joined. Instead, the appellants rely on some imprecise allegations as to how they would have arranged their affairs if they had not accepted the restrictions which were inherent in the departmental advice which was expressed in general terms. The Full Court’s answers to the case stated appear to me to deal with hypothetical questions. The promulgation of regulations which are later declared to be invalid and the adoption and dissemination of administrative policy which is afterwards held to be lacking in authority (as has occurred in this case) does not, without more, entitle members of the public to claim damages against public servants whose official views of the law are later shown to be in error. If the officials were dishonest or if the officials breached some duty of care in tendering advice, then a claim in misfeasance or negligence might be available. In the present case the defendants have merely acted in accordance with their duty to enforce regulations and maintain government policies which to that point had not been declared invalid. The bona fide assertion by public servants as to the state of the law which they are administering does not ordinarily create tortious liability if the advice is subsequently found to be incorrect.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

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