Murphy v Stevens

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

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 alternative case in negligence.
The appellant Murphy brought his action against the respondent Stevens claiming damages for the same causes of action and the legal basis of his claim was the same.
Both the appellant Edwards and the appellant Murphy were abalone fishermen at relevant times.
All appellants also sued the State of South Australia on the basis that it is vicariously liable to them for the alleged tortious conduct of the respondent directors pursuant to the Crown Proceedings Act 1972 which was in operation at relevant times but has since been repealed.
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.
The learned Trial Judge admitted into evidence exhibits exceeding 5,000 in all, even though he regarded many of them as inadmissible, in order to avoid extensive and time-consuming legal argument. He said that he preferred to admit them on the basis that if they were relevant he would have regard to them and give such weight to them as he considered appropriate. Those which he did not regard as relevant he disregarded. There is no complaint about this approach on this appeal. He expressed his approach to the conduct of the trial as follows:
“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.”
He heard a vast body of oral evidence. The transcript of the trial runs to 9746 pages.
The learned Trial Judge concluded that both Mr Edwards and Mr Murphy had strong feelings of antagonism towards the respondent directors who held office whilst they were diving for abalone. They both felt that they had been badly treated by the Fisheries Department and its officers and had been prevented from realising the financial benefits which they deserved. The learned Trial Judge made this observation:
“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.”
This observation is the subject of complaint on this appeal.
The claims
The claims of the appellant Edwards and the appellant Murphy arise out of their involvement at relevant times in the abalone fisheries in South Australia. Also the Edwards appellants made claims arising out of alleged attempts to be involved in other fisheries in this State. The learned Trial Judge found that the administrative responsibility for the management of fisheries at relevant times was conferred for all practical purposes upon the Director of Fisheries and the Department of Fisheries, although under early legislation the Chief Inspector of Fisheries performed, for present purposes, the role of the Director of Fisheries, an office established by the 1971 Act. The learned Trial Judge, for the purpose of the case, referred to both offices as the Director of Fisheries and I shall do likewise. At all relevant times, and for all practical purposes, the control of fishing for abalone rested in the Director of Fisheries.
I set out some findings of the learned Trial Judge regarding abalone and fisheries relevant to the issues in the present case. They are not in dispute. Abalone is a shellfish known as a mollusc. It has a life span of usually about 20 years with a maximum of 30-35 years. Abalone does not usually move by more than a few centimetres. They are found in dense colonies. They reach sexual maturity at about the age of four years and maximum size at the age of seven to nine years. If a colony of abalone is reduced by as much as 80 per cent by fishing, it must be regarded as having collapsed in that it is unable to repopulate. The major areas of the abalone fishery are to the west of the State, in the Spencer Gulf, the southern coasts of Yorke Peninsula and Kangaroo Island, in Backstairs Passage in the area of Cape Jervis and in the south-east of the State.
The learned Trial Judge found that initially there was no control over abalone fishing and by early 1968 there were over 100 divers. A record of 1,852 tonnes of abalone was harvested in the 1967/1968 season. The abalone fishery could not be sustained with that level of exploitation.
Divers were required to hold a fishing licence which was known as a class A licence. A permit to take and sell abalone was endorsed on that licence.
The Department introduced a permit system to reduce the number of divers and then progressively withdrew many permits on technical grounds. The learned Trial Judge found that a common ground was the failure to present catch returns as required by the Department. By the season of 1971/1972 there were only 42 divers operating and the total catch of abalone had declined to 1,128 tonnes. At the time of the trial, there were 35 divers, each with an annual quota of between 7.6 and about 10 tonnes. Quotas were introduced in about 1987. Permits were issued to individual divers and had to be used by that person whom the Department referred to as the “unit of effort”. The method of catching abalone was for the diver to operate from a small boat usually with a supply of air from the boat. He was assisted by another person who remained in the boat. When the catch was brought to the surface and the boat, the flesh of the abalone was removed from the shell in a process called “shelling” or “shucking”.
The learned Trial Judge accepted that the work of diving for abalone is dangerous with the threat of shark attack, decompression sickness or other conditions such as aseptic bone necrosis, deafness and arthritis. He accepted that most abalone divers work to the age of about 40 years or, at the most, 50 years. He rejected evidence to the contrary.
It was also established to the satisfaction of the learned Trial Judge that the price for abalone has increased substantially over the years. In 1969 the price was 78 cents per kilogram. In 1980 it was $8.10 per kilogram. As the price has increased, more persons have wanted to become divers.
Until 1980 the permits were not transferable. When transferability was introduced by amendments to the Managed Fisheries Regulations 1971-1980 on 28^th August 1980, authorities to take and sell abalone replaced permits. The learned Trial Judge found that upon the introduction of transferability the value of abalone authorities increased dramatically and eventually to in excess of millions of dollars. Many permit holders incurred significant financial liabilities in order to acquire a permit and appropriate equipment. From July 1971 the abalone fishery was divided into three zones, Western, Central and Southern. Since about 1975 there have been 35 licences, 23 in the Western zone and six in each of the other zones.
The hearing of the appeal
There have been two hearings of this appeal. The first hearing was by the Full Court comprised of Williams and Wicks JJ and me. The appellants were unrepresented at that hearing which occupied three days.
The Edwards appellants’ Notice of Appeal before the Court at that hearing contained 127 grounds. The appellant Edwards argued the appeal for both of the Edwards appellants. He submitted a written summary of his arguments in support of each ground which is comprised of 550 closely printed pages, a document which was his primary submission comprised of 334 pages, a lengthy schedule of documents and books of transcript references. He supplemented that summary with oral submissions which occupied about one and a half days. In addition, he presented many volumes of exhibits and transcript selected by him upon which he relied.
The appellant Murphy’s Notice of Appeal contained 22 grounds. The first ground of appeal adopts the grounds of the appeal of the appellant Edwards “to the extent that they are relevant to [his appeal]”.
Consequently, in considering each ground in the appeal of the appellant Edwards, it has been necessary to keep in mind the appeal of the appellant Murphy. He also provided a summary of his arguments in support of the appeal which is comprised of about 108 pages as well as a collection of key documents. The appellant Murphy also supplemented these arguments and materials with oral submissions. The appellants continued to rely on all of these grounds when the appeal was heard on the second occasion as well as other submissions.
The respondents also provided extensive written submissions and schedules of documents which Mr Bell, who appeared for them, supplemented with extensive oral submissions.
The appellants, with the permission of the Court, submitted replies in writing to the submissions of the respondents. At the first hearing, the reply of the appellant Edwards was comprised of 150 pages.
The Court considered this vast amount of material as well as the evidence given at the trial and the reasons for judgment of the learned Trial Judge. Judgment was reserved. Reasons for judgment were prepared by each member of the Court and it was proposed to give judgment on 3^rd December 2002.
On 29^th November 2002, solicitors acting for the Edwards appellants informed my chambers by letter that they had been asked to advise the Edwards appellants about two matters, namely, the conclusion of the learned Trial Judge that the appellants were largely responsible for the delay in the completion of the proceedings which were commenced in 1985 and that the learned Trial Judge was biased against all of the appellants. Neither the Edwards appellants nor the appellant Murphy were aware at that stage that the Court proposed to give judgment on 3^rd December 2002.
Delivery of judgment was deferred and the matter was called on for hearing on 4^th December 2002. The Edwards appellants were represented by Mr Borick and the appellant Murphy appeared in person. The Court was informed that the appellant Edwards had originally spoken to Mr Borick about the first issue about five weeks earlier. The appellant Edwards then instructed his present solicitor.
The Court informed the appellants that in the judgment which it proposed to give, the reason for delay in completion of the proceedings was not regarded as a matter of significance. Mr Borick informed the Court that in view of this intimation he did not propose to take that matter any further, but that the Edwards appellants wished to re-open the hearing of the appeal and add grounds of appeal complaining that the learned Trial Judge was biased towards the Edwards appellants.
Particulars of the allegation of bias were given at this time. This complaint was not a subject of the appeal which had been earlier heard by the Court and was not included in the substantial written submissions or oral submissions presented by the appellants, although some aspects of the factual basis for the allegation of bias, particularly allegedly excessive intervention at the trial by the learned Trial Judge, were raised in submissions at the hearing of the appeal.
In the original Notice of Appeal, the Edwards appellants made complaints that the learned Trial Judge had exhibited unfounded prejudice against the appellant Edwards by describing abalone divers, such as him, as “scum” and thereafter continuing to hear the matter, and further, that he failed to remain impartial and to deal with the Edwards appellants in an even-handed fashion compared to his dealings with the respondents. Also, it was alleged that he failed to give assistance to the Edwards appellants as was reasonably necessary to enable their claims to be fully and adequately ventilated.
It is accepted that the learned Trial Judge had never referred to abalone divers, including the appellant Edwards, as “scum”. That expression was attributed to one of the respondent directors.
The Edwards appellants also complained in the original notice of appeal that the learned Trial Judge had a conflict of interest in exercising jurisdiction under Commonwealth law and State law, and in knowing that the appellant Edwards was cut off in his opening address.
The learned Trial Judge managed the appeals of the appellants before they were heard by assisting them in the preparation of the many grounds of appeal. He struck out the proposed grounds which I have mentioned.
It may be seen that complaints of bias had been made which were clearly untenable, as the learned Trial Judge had never referred to abalone divers as alleged, and he did not have a conflict of interest as alleged. However, the complaints that he was not impartial, failed to give assistance to the Edwards appellants, and cut short the opening of the appellant Edwards should not, in my view, have been struck out. I expect the learned Trial Judge was attempting to do no more than promote the efficient hearing of the appeal, but these complaints could not be decided by him as it could be argued that they demonstrated bias on his part. Whilst I do not think there could be any basis in such an allegation, that matter should have been determined by the Full Court, not by the learned Trial Judge. In all events this is now a matter of no consequence as we have heard and considered all the allegations of bias made by the appellants.

The learned Trial Judge allowed a complaint of bias to remain in the notice of appeal to the extent that at near to the end of his reasons for judgment he said:
“.... one could be pardoned for thinking that the [appellants] 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.
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.”
Earlier in his reasons for judgment, the learned Trial Judge had said that the appellants had claims which were clearly arguable and which they were entitled to present to the Court. I consider this matter later and mention it at this stage so that it may be seen that in striking out complaints in the Notice of Appeal he did not remove all the allegations of bias.
The learned Trial Judge managed the preparation of the appeal due to the vast body of evidence and submissions given at the trial and the wide scope of the grounds of the appeal, including giving consideration to the grounds of appeal. In doing so he acted pursuant to R 95.12 of the Supreme Court Rules which permits orders and directions to be made and given in pending appeals. He struck out the complaints which I have mentioned. The appellants claim that in consequence they did not argue any claim of bias on the hearing of the appeal. The appellants indicated that they wanted to raise other complaints of bias.
Mr Bell appeared for the respondents and opposed the application for leave to amend the Notice of Appeal to raise the complaints of bias and to re-open the appeal.
The Court decided that the appellants should be permitted to make an application for leave to re-open the hearing of the appeal on the grounds of alleged bias which had been summarised by Mr Borick and, to some extent, by the appellant Murphy. The appellants were required to file and serve appropriate documents, setting out the grounds of the application and an outline of the submissions made in support of it, within a specified period of time, and the respondents were directed to file and serve any written response. The time limits were extended and the parties complied with them. The Court intimated that it would hear the argument in full and, if the appellants were successful, leave would be granted and the complaints of bias would be considered in the context of the whole appeal. If the appellants were not successful, the application would be refused. The parties did not oppose this course.
Before the application could be heard Wicks J gave notice of his resignation from the Court on the ground of ill health. His resignation was effective as from 28^th March 2003, and his condition was such that he could not continue to be a member of the Court and to hear the application.
On 13^th March 2003 the matter was called on before Williams J and me as the remaining members of the Court which heard the appeal, and we discussed with the parties what course should be taken as Wicks J was unable to participate as a member of the Court. Mr Borick, who spoke for all appellants, intimated that they wished the matter to proceed before the remaining members of the Court. Mr Bell submitted that we were unable to do so.
The Full Court is defined in s 5 of the Supreme Court Act 1935 as follows:
“‘Full Court’ means the Supreme Court consisting of -
(a)not less than three judges; or
(b)if three judges are not available to sit in the Full Court, any two judges.”
The Full Court may be comprised of different judges when hearing the same matter if the circumstances so require: Elliott v Harris (1974) 8 SASR 458 and McAdam v Robertson (1999) 73 SASR 360. However, I do not think the Court may be comprised of only two judges if another judge is available. In Elliott v Harris the Full Court said at 461:
“We are of opinion that where an appeal or reference is part-heard before the Full Court, but it becomes impossible for the court so constituted to continue the hearing, either at all or without undue delay, it is competent for the remaining members of the court to continue with the hearing providing that there is a quorum of three, or of not less than two if no other member of the Court is available. If the number of members of the court sitting at the first hearing is reduced below three, and at least one other member of the court is available to sit with them at the resumed hearing, then it is not competent for the remaining members of the court as originally constituted to continue sitting unless they are joined by at least one other judge to bring the number up to the quorum. In that event, of course, it would be necessary for the appeal or reference to be argued de novo. And where the circumstances require an argument de novo, bearing in mind that, however constituted, the Full Court remains technically the same court, we see no bar to the court constituted by different judges from hearing the case when it is re-argued. In Wyman v Paterson [1900] AC 271, as we have mentioned, the House arranged for the two surviving members to sit at the resumed hearing. This would no doubt be a proper and convenient arrangement in many cases; but we do not think that this must necessarily be so.”
As their Honours mentioned earlier in their reasons for judgment in Wyman v Peterson one of the members of the Court of Appeal died after an appeal had been argued but before judgment. The surviving members of the Court did not constitute a quorum but that difficulty was overcome by the case being re-argued before the two surviving members of the Court with three additional members. The member of the Court who died did not leave a written judgment. In the present case Wicks J left a written judgment before his state of ill health forced his retirement.
Nevertheless, the application for leave to re-open the hearing of the appeal had to be heard by the Full Court and enquiries revealed that another judge, namely Besanko J, was available to join Williams J and me to hear and determine the application. That is the course which had to be followed and so the Full Court, comprising of Williams and Besanko JJ and me, heard the application.
I appreciate that in McAdam v Robertson (No 2) [2001] SASC 206 (unreported, 15 June 2001) two members of the Full Court, Debelle and Nyland JJ continued to hear and determine an appeal when the hearing was re-opened after the other member of the Court, Millhouse J, had retired from the Court and was living permanently overseas. It seems that the decision in Elliott v Harris was not brought to their attention. In all events we were bound by Elliott v Harris which I must say, with respect, was, in my view, correctly decided and governs the situation in the present case.
The Court, as presently constituted, heard argument in relation to the application to re-open the hearing of the appeal for leave to amend the grounds of appeal on 17^th and 18^th March 2003 and concluded with the complaints of bias had to be considered in the context of the original grounds of appeal. As Besanko J had not heard the arguments in support of the other grounds of appeal, it was decided that the parties could argue the appeal afresh and they did so. It was accepted that all of the submissions made orally and in writing by the appellants on the first hearing were before us on the hearing of the appeal and need not be given again. They have been considered.
It is not possible to consider the complaints of bias without understanding the context in which they are made and the main issues at the trial.
The Owner/Operator Policy
In order to appreciate issues at the trial and on this appeal, it is necessary to appreciate the owner/operator policy implemented by the respondent directors with regard to abalone fishermen, including the appellant Edwards and the appellant Murphy. The appellants claimed at the trial that they were forced out of the abalone fishery because they were not permitted to have a trust arrangement for the operation of their abalone authorities without having to be the diver. I mention the nature of these respective claims later. It was denied by them that their proposals were declined because they were contrary to the owner/operator policy. In this context I mention salient features of the legislation and regulations which were in operation during the period from late 1967 until late 1980. The appellant Edwards was an abalone fishermen at various times and during1980 to 1983 when the appellant Murphy was also an abalone fisherman. It is also necessary to mention features of the legislation and regulations in existence at these times.
I also mention answers given by the Full Court in the Case Stated prior to the trial: Edwards v Olsen (1996) 67 SASR 266.
Briefly expressed the owner/operator policy was that an abalone permit or authority could only be held by the person who was to dive for and take abalone and it could only be operated by that diver. The reason for this policy was expressed in different ways, including that the person who undertakes the effort should have the reward. It was regarded as a way of preserving the stocks of abalone by using the limitation of the capacity of the diver to take the fish. The diver was regarded as the “unit of effort”. The policy did not permit “absentee ownership” of a permit or authority or the employment of divers. The owner/operator had to be a natural person.
The 1917 Act
The 1917 Act continued in operation with amendments until the commencement of the 1971 Act. A principle object of the 1917 Act was the preservation and protection of fish. For present purposes the salient features of the 1917 Act, at the relevant times, were that licences to take fish (which includes abalone) were issued upon payment of the prescribed fee: s 13(1). They were annual licences which expired on the last day of November in each year: s 13(2). A licence could be issued to a body corporate established under, and subject to, the laws of, and with its head office at, some part of the Dominions of the Crown: s 13(4).
Section 14(1) provided that a licence issued to an individual person was sufficient for that person and his wife or one member of his family under the age of 21 years whilst those persons were working with the same plant as the licensee. The Chief Inspector could issue to the licensee an employee’s licence to take fish and oysters which was also a yearly licence: s 14a(1). An employee’s licence was deemed sufficient to take fish and oysters for any one person employed by the licensee: s 14a(4).
The 1917 Act also provided for the registration of boats and prevented a person from taking fish or oysters for sale in any boat unless registered and marked as prescribed by regulation s 16(1). Section 16(4) provided that upon transfer of ownership of a boat written notice had to be given to the Chief Inspector.
It may be seen that a fishing licence could be issued to a body corporate, employee licences could be issued to an existing licensee which would enable the employee to take fish and oysters, and some family members could take fish and oysters under the one licence.
Regulations relevant to issues in this appeal were made under the 1917 Act on 22^nd February 1968, being the Preservation of Abalone Resources Regulations 1968. Their purpose was stated to be protecting and improving the abalone fisheries of the State: Reg 1. These Regulations imposed restrictions upon persons licensed to take fish with respect to abalone. A person could not take abalone from or under abalone waters unless pursuant to a permit and from a registered boat: Reg 4.
Regulation 5 permitted that the holder of an abalone permit or one person authorised by him, but not both at any one time, to take abalone. A person could not apply for a permit unless he or she was the holder of a licence to take fish under the Act: Reg 6. Regulation 7(d) provided:
“7 (d) The Chief Inspector of Fisheries may grant or refuse the permit applied for (which, if granted, shall be in the form of schedule two) and for the purpose of reaching a decision upon the application shall, in addition to any other matters indicated by the scope and purpose of the Act and these regulations as being relevant, take into account the following matters namely, whether, in his opinion -
(i)the applicant is a fit and proper person to hold a permit; and
(ii)the abalone resources of the abalone waters are such that, in all the circumstances, they will not be adversely affected by the taking of abalone in pursuance of the permit.”
Regulation 11(b) provided:
“11 (b) The Chief Inspector may cancel the abalone permit where he is satisfied that -
(i)the holder or person authorized has committed an offence against the Act or these regulations, a felony or a misdemeanour; or
(ii)in or in connection with, the application for the abalone permit, information was furnished that was false or misleading in a material particular.”
These Regulations were revoked and replaced by the Preservation of Abalone Resources Regulations 1971 made on 15^th July 1971. Their purpose was also stated to be “for the purpose of protecting and improving the abalone fisheries of the State”. They created the three zones which have been mentioned. They prevented any person from taking abalone unless the holder of an abalone permit: Reg 4(1). If taken from a boat, it had to be a fishing boat registered under the Act or for which a current Survey Certificate had been issued: Reg 4(2). When granting a permit, the Chief Inspector of Fisheries was required to specify the zone or zones to which the permit applied. In doing so they had to consider such matters which they considered relevant, including, inter alia; the success (or otherwise) of the abalone fishing operations of the holder of the permit; the number of permit holders already operating, or expected to operate, in any zone or zones; the general situation prevailing, or expected to prevail, in the abalone fishing industry; and the degree of success or expected degree of success of any abalone fishing operation conducted in abalone waters: Reg 7(1). In addition Reg 7(1)(g) provided:
“(g)any other relevant matter, fact or thing which, when considered jointly with one or more of the matters hereinbefore referred to, will enable the Chief Inspector to justly and equitably assign the holder of a permit to any particular zone or zones, provided however, that the need to preserve and improve the abalone fishing resources of the State, shall, at all times, be regarded as the paramount consideration.”
Regulation 7(2) prevented a permit holder from taking abalone from any abalone zone other than the zone or zones specified in their permit. Regulation 7(3) provided that the Chief Inspector could make any permit issued by him subject to such terms or conditions as they thought necessary for the purpose of preserving or improving the abalone fishing resources of the State. Regulation 7(5)(d) provided that the holder of a permit was required to forward to the Chief Inspector, within 15 days of the end of every month, a monthly return compiled and submitted as required by other regulations. These returns required, inter alia, disclosure of the amount of the catch. Regulation 11 provided:
“11(1) Where the Chief Inspector is satisfied, by production of a medical certificate, that a permit holder is ill or incapacitated, he may authorize a person nominated by the permit holder to take abalone during the period of the permit holder’s illness or incapacity.
(2)Any person so authorized shall, for the period of such authorization, be deemed to be the holder of the permit held by the permit holder who is ill or incapacitated.
(3)The duration of the period of such authorization shall be as determined by the Chief Inspector, provided however, that such period shall not exceed 30 days.”
It may be seen that important changes had been made to the regulations of the abalone fishery by these Regulations. No longer was there provision for an employee permit. Zones were established and permit holders were restricted to a zone or zones. Monthly returns of the catch had to be given to the Chief Inspector. It appears from Reg 7(d)(i) of the 1968 Regulations and Reg 11 of the 1971 Regulations that only a natural person could be the holder of an abalone permit.
The respondent Olsen was Chief Inspector of Fisheries from 16^th October 1967 until 23^rd November 1972. None of the other respondent directors held office before the 1971 Act came into operation.
The 1971 Act
The 1971 Act repealed the earlier legislation and established a new scheme for regulation of the fisheries in South Australia, including the abalone fishery. The Act came into operation on 1^st December 1971. The stated object was the management and conservation of fisheries and the regulation of fishing. The Preservation of Abalone Resources Regulations 1971 and other existing regulations remained in force and were deemed to have been made under the new Act: s 4(2)(a).
I mention matters of significance to the issues on this appeal. The office of Director of Fisheries was created and the respondent Olsen was appointed to that office on 23^rd November 1972 which he held until 5^th July 1973. He was then appointed Director of Fisheries Research and remained in that position until 2^nd October 1975. He was the Acting Director of Fisheries until 26^th November 1975 and was the Chief Fisheries Officer until 26^th October 1979. The respondent Trumble was Acting Director of Fisheries from 15^th October 1975 until the 1^st July 1976. The respondent McColl held the office from that date until September 1979. The respondent Kirkegaard was acting as the Director of Fisheries from that time until May 1980 and the respondent Stevens held the offices from then until November 1987.
Section 28 provided that there were two classes of fishing licences, a class A and a class B. A fishing licence authorised the taking of fish for sale, subject to the Act, by lawful devices of every kind or by those devices specified or described in the licence. Only a holder of a fishing licence could take fish for the purpose of sale: s 29. A person could not be granted a class A fishing licence unless the Director was satisfied that the applicant intended to carry on the business of fishing for profit as his or her principal business: s 30(1)(a). A person could not be granted a class B fishing licence unless he or she satisfied the Director that they intended to carry on the business of fishing for profit regularly as a seasonal or part time business. In either case, the Director had to be satisfied that the applicant had sufficient equipment, experience and resources to enable the business of fishing to be carried on efficiently and profitably: s 30(1). Section 30(2) provided that where a class A licence relates to fishing that is subject to regulations made under s 36 of the Act, as the case with abalone fishing, it was sufficient compliance with s 30(1)(a) if the person applying for the licence satisfied the Director that he intended to carry on the business of fishing for profit as his principal business during any period during which, pursuant to these regulations, he may engage in that fishing.
Section 31 provided that a body corporate could not, without the consent of the Minister, be granted a fishing licence unless incorporated under the law of a State or the Commonwealth or a country declared by proclamation. Section 32 provided that the holder of a fishing licence could not employ any other person to take fish unless the holder of that licence also held a licence authorising the employment of persons to take fish. Every application for a fishing licence, or a licence to employ, had to be made to the Director and be dealt with by the Director: s 33. Section 32 was amended by Fisheries Act Amendment Act 1980 (No 41 of 1980) by inserting after subsection (4) the following:
“(5)A licence to employ shall be subject to such conditions as are specified in the licence relating to the circumstances in which an employee may take fish.
(6)A holder of a licence to employ shall not cause, suffer or permit an employee to take fish in contravention of a condition contained in the licence.
Penalty: Two hundred dollars.”
Section 34 provided:
“34(1) A person who applies for a fishing licence or a licence to employ and complies with the provisions of this Act applicable to his application, shall be entitled to be granted such a licence unless there are grounds for refusing it in accordance with this Act.
(2) The Director may refuse an application for a licence -
(a)if the applicant does not comply with any relevant requirement of this Act or is not a fit and proper person to exercise the rights which would be granted by the licence;
or
(b)if the refusal is necessary for the purpose of giving effect to any administrative policy approved by the Minister for the conservation of any species of fish or the proper management of any fishery.
Section 34(3)-(6) provided that the Director had to give written reasons to the applicant if the application was refused and provided a process for review of that decision.

By Fisheries Act Amendment Act 1976-1977 (No 27 of 1977), s 34 was amended by striking out subsections (1) and (2) and inserting in lieu thereof:
“34(1) The Director may -
(a)grant an applicant a fishing licence or licence to employ;
or
(b)refuse an application for a fishing licence or licence to employ.
(2) The Director shall not grant an applicant a fishing licence or licence to employ unless he is satisfied that the granting of that licence will not prejudice the proper management of the fishery in relation to which the relevant licence is applied for.”
This new provision came into operation on 26^th January 1978.
Section 34 was again amended in 1980 by varying the procedure for review of a decision of the Director. These provisions are not relevant for present purposes. These amendments came into operation on 27^th June 1980.
Regulations were made under the 1971 Act entitled Managed Fisheries Regulations 1971, which came into operation on 30^th November 1971, and revoked the Preservation of Abalone Resources Regulations 1971 and other regulations.
Regulation 7 provided, inter alia, that no person, being the holder of a fishing licence, shall take abalone unless a permit from the Director of Fisheries had been obtained. Regulation 8 provided that the permit be issued by the Director in the form of an endorsement on the applicant’s fishing licence. Regulations 11, 12 and 14 provided as follows:
“11The Director may grant or refuse to grant an authority or permit applied for or may grant an authority or a permit subject to any limitation as to the use of any device or any device of a class or kind or number of devices, or as to area in inland waters and may for the purpose of deciding whether any application shall be granted or refused, take, into account such relevant matters as he thinks fit, and, without limiting the generality of the foregoing, may take into account the following matters, namely, whether in his opinion:-
(a)the applicant is a fit and proper person and the applicant’s boat is fit for the purpose for which it is to be used;
(b)the fish resources are such that, in all the circumstances, they will not be adversely affected by the taking of fish pursuant to the authority or permit in the assigned zone;
(c)that the fish resources of the zone or zones to which the boat is, under regulation 12, assigned can be satisfactorily fished by the applicant;
(d)the applicant has adequate equipment to ensure that all catches of fish are capable of being kept in a thoroughly wholesome condition until such time as the catch is landed;
(e)[not applicable].
12The Director shall, when granting or renewing an application for an authority or permit, specify the zone or zones to which the authority or permit shall apply, and, for the purpose of deciding which zone or zones shall be specified may take into account such matters as he considers relevant, and, without limiting the generality of the foregoing, may take the following matters into consideration, namely:-
(a)the zone or zones (if any) to which the holder of an authority or permit has been previously assigned or for which he has applied;
(b)the success (or otherwise) of the fishing operations conducted by the holder of the authority or permit in the zone or zones (if any) to which he has been previously assigned;
(c)the suitability and adequacy of the boat which the holder of the authority or permit is or will be using to take fish;
(d)the number of authorized boats or permit holders as the case may be already operating or expected to operate in any zone or zones;
(e)the general situation prevailing or expected to prevail in the controlled fishery and the degree of success or expected degree of success of any fishing operation; and
(f)any other relevant matter, fact or thing which, when considered jointly with one or more of the matters hereinbefore referred to, will enable the Director to justly and equitably assign the holder of an authority or permit to any particular zone or zones, provided however, that the need to preserve and improve the fish resources of the State, shall, at all times, be regarded as the paramount consideration.”
Regulation 14 provided, inter alia, that in the case of a permit to take abalone, the holder of the permit could only take abalone in the zone or zones specified in the permit. Regulation 31 provided that the Director could not grant or renew an application for a permit to take abalone unless he was satisfied by the production of a medical certificate or otherwise that the applicant was medically fit to dive. Regulation 35 provided that where the Director was satisfied, by production of a medical certificate, that a permit holder was ill or incapacitated, he could authorise a person nominated by the permit holder to take abalone during the period of the permit holder’s illness or incapacity. Any person so authorised would, for the period of such authorisation, be deemed to be the holder of the permit held by the permit holder who was ill or incapacitated.
These Regulations were amended on 9^th November 1972 in various respects but, for present purposes, the only significant amendment was the introduction of the following Regulation:
“21ANo person shall be the holder of more than one of the authorities or permits listed hereunder:
Abalone Permit
Inland Waters Permit
Prawn Authority
Rock Lobster Authority”.
The Regulations were again amended on 28^th August 1980. There were significant amendments for present purposes. Regulation 5 was amended to provide that a person could not use a boat for the purpose of taking abalone unless she was a boat for which an authority had been granted, was under the immediate control of a person holding a Certificate of Competency and was being used in all respects in accordance with the conditions of the authority. Regulation 21A was varied by deleting the words “Abalone Permit” and inserting in lieu thereof “Abalone Authority”. Other Regulations were amended in the same way so that an abalone authority took the place of an abalone permit.
Regulation 35 was revoked and the following regulation was substituted:
“35(1)The Director, by endorsement made upon an abalone authority, may authorise any person of good character and repute who has been nominated by the holder of an abalone authority and is fit for the purpose of acting as a replacement for the holder of the abalone authority during the period specified in the endorsement, to take abalone in accordance with the abalone authority in lieu of the holder of the abalone authority for any period or periods not exceeding in the aggregate 21 days during the currency of the abalone authority and any person so authorised shall be entitled to take abalone during the period of authorisation as if he were the holder of the abalone authority.”
Regulation 35(2) provided that the authorisation had to be obtained in advance and if not was invalid. Regulation 35(3) provided for authorisation by telephone where otherwise impractical.
“35(4)Any person whose name is endorsed upon an abalone authority pursuant to subregulation (1) of this regulation shall observe and perform during the period specified in the endorsement all the obligations on the part of the holder of the abalone authority to be observed and performed and contained in the fishing licence held by the holder of the abalone authority and the abalone authority upon which his name is endorsed.
35(5)Except as provided for by this regulation:-
(a)no person shall be entitled to take abalone in accordance with an abalone authority or to dive from an authorised boat except the holder of the abalone authority; and
(b)the holder of an abalone authority shall not cause, suffer or permit any person to take abalone or to dive from the boat in respect of which his authority is granted.”
Regulation 35AA provided for circumstances where there was the transfer of an abalone authority from the holder of the authority to another person. In essence it permitted the owner of the authority to apply to cancel the authority contemporaneously with an application by the purchaser for a new authority.
It may be seen from the provisions of the 1917 Act, the 1971 Act and the various Regulations that commercial fishing in this State was very closely regulated by the zoning and licensing. The Director was given wide power to ensure that the objectives of the Acts and the Regulations were achieved. The system included the regulation of the amount of fish to be taken in the way I have mentioned, from where it could be taken and who could take the fish. The scheme enacted in the legislation involved considerable detail with the objective of preserving the various fisheries.
Both the appellant Edwards and the appellant Murphy had ceased to be involved in fishing well before the Fisheries Act 1982 was enacted. It did not come into operation until 1^st July 1984. As has been mentioned, the appellant Edwards sold his abalone authority and surrendered his class A fishing licence in November 1980 and the appellant Murphy ceased to be a professional abalone diver in May 1983. Consequently it is unnecessary to consider the provisions of the 1982 Act and Regulations made under that Act.
The appellant Edwards commenced working in the abalone fishing industry after the end of 1967. The 1917 Act and the 1971 Act, as amended, and the Regulations made under those Acts are relevant to issues in his case. The appellant Murphy worked in the abalone fishing industry after mid-1971. It is only the 1971 Act and the Regulations made under that Act which apply to the issues in his case.
As has been seen, an abalone permit or authority could only be issued to a person who was a fit and proper person to hold the permit so the abalone resources would not be adversely affected. The applicant had to be medically fit, employee divers were not permitted except in circumstances of unfitness to dive and only for a limited purpose, a fishing licence could not be granted unless the applicant intended to carry on the business of fishing for profit as his or her principal business and, after 9^th November 1972, only one permit or authority could be held.
The state of the abalone fishery
The learned Trial Judge received evidence from Dr Shepherd which he accepted. Dr Shepherd had a long history of involvement in the fishery and with the Department since 1968. He is highly qualified, widely read and published regarding matters relevant to South Australian Fisheries and has undertaken close study of the various fisheries in this State and, in particular, the abalone fishery.
His evidence was that regulation of the abalone fishing industry was essential to preserve the fishery. There were serious concerns about over fishing as early as the years 1968 to 1971. Stocks were depleted and stringent measures were required to conserve remaining stocks. The policy of reducing the number of divers after 1968 was adopted because of uncertainty about the resilience of stocks or sustainable catch and the realisation that there were too many divers. The number of divers did not have to be further reduced when quotas were introduced in 1985 because the amount of abalone to be taken could be divided among the divers. These measures had to be taken to prevent over fishing.
According to Dr Shepherd, if the owner/operator policy had not been implemented in 1968 and thereafter, the abalone fishery would have followed a downward trajectory as had occurred elsewhere. He expressed the opinion that if 150 divers had fished for 80 to 100 days a year, collapse of green lip populations in the Western and Central Zones would have occurred by 1976-1977 and of black lip population by 1980. In the Southern Zone, due to inhospitable weather, the decline would have taken longer, possibly another three to five years.
There were 110 divers in 1968. If each of them had been able to employ another diver, two divers could have worked together on any diving day or they could share the diving and thereby dive for more hours each day. Another possibility is that between them they could have dived for more days each year. Dr Shepherd estimated that whatever option was employed, the diver could have easily doubled his effort so that the effect on the fishery would have been the same as there being 220 divers.
Also, he expressed the opinion that if an employee diver could have dived on days when the diver holding the authority was not diving, the number of days when diving occurred could have been increased by about 100 days each year for each authority. Various other propositions were considered by Dr Shepherd, all of which involved additional divers and which, if permitted, could have caused a collapse in stocks from about 1975 onwards.
Dr Shepherd was called as an expert witness by the respondents. However, he was an adviser to the Department at relevant times subsequent to 1968. It may be seen that it was his opinion that stocks of abalone would have been seriously compromised if the owner/operator policy had not been implemented.
The respondents called Dr Copes who, at the time, was Professor of Economics at Simon Fraser University, British Columbia. The learned Trial Judge found that in 1976 he prepared a review of South Australian fisheries for the Department of Agriculture and Fisheries. In 1978 he prepared a report for that Department relating to the rock lobster fisheries. In 1986 and in 1990 he undertook studies for the South Australian Government as to the management of prawn fisheries in South Australian waters. He prepared a report for the respondent as to issues in the present case. The learned Trial Judge accepted his evidence.
Dr Copes also expressed opinions as to matters in issue which may be sufficiently summarised for present purposes in brief terms. He expressed the view that government must manage fisheries to prevent exploitation and decline of stocks which cannot be reversed. He summarised the statements of United Nations bodies as follows:
“....... responsible and effective fisheries management requires structure regulations in relation to three major requirements, namely those of biological conservation, economic efficiency and social equity.”
According to him, limiting the number of licensed units in a fishery is the best known and most widely used measure employed by fisheries authorities in industrialised nations to balance fleet capacity with available fish resources. He went on to say that it is usually complemented by additional restrictions on fishing effort, through limits on fishing time, fishing areas or size of catch, and in recent years by individual quota systems.
Dr Copes expressed the opinion that South Australia became the leading jurisdiction in effective fisheries management and as many of the State’s fisheries were only in the “start up” phase when controls were introduced, it was more a question of over-exploitation than of correcting it. He stated that a limited entry system for crayfish or rock lobster in this State came into operation in 1967, for abalone in 1968 and for prawns in April 1969. He attributed much of these initiatives to the foresight of the respondent Olsen whom he described as “alert and perceptive” and who was cognizant of the dangers of over-exploitation. Without these initiatives, the profitability of these fisheries would have been destroyed. He expressed the opinion that regulation power for protection of the fisheries was essential.
According to Dr Copes, owner/operator policies have been used in many places in this country and overseas and are important in protection of fisheries and the achievement of equity. He also supported restrictions on divers being employed by owner/operators, particularly because of equity. Equitable distribution of benefits to participants in the fishery is achieved by the beneficiaries being those who undertake the principal effort and take the greater risk. He also expressed opinions contrary to multiple licence holdings also on the grounds of equity. In his report, which was admitted into evidence, he expressed views against such holdings which I need not repeat. They are based upon equity and the need to prevent over exploitation.
Also, according to Dr Copes, discouragement of corporate and trustee holding of authorities should be seen as a complementary regulation to owner/operator provisions aimed at equitable distribution of benefits in small scale fisheries. He expressed the views that equity in this context is logically tied to the life-time performance of participants, giving successive generations of owner/operators all a share of the benefits in relation to their performance in the fishery. He said that corporate and trustee holdings do not reflect the equity rationale of owner/operator provisions and would undermine a policy based upon that rationale.
The respondents also called Dr Prince, who is a marine biologist. The learned Trial Judge found that he is acknowledged internationally as an expert on abalone fisheries. He also prepared a report at the request of the respondents which was submitted into evidence.
The Edwards appellants submit that the evidence of the expert witnesses called by the respondents, namely Dr Shepherd and Dr Copes, was irrelevant because they had expressed opinions on the basis that the appellant Edwards was challenging “limited entry” into the abalone fishery. Information provided to the witnesses was wrong. It was dependent upon limited entry.
This submission overlooks the purpose of the evidence. As can be seen from my brief summary of the evidence of Dr Copes, he supported the purposes and widespread uses of the owner/operator policy in the abalone fishery and restrictions on employee divers and the holding of multiple licences. The learned Trial Judge does not refer to the evidence of Dr Prince in his reasons for judgment. His evidence supported the position of the respondents as to the desirability of controlling the abalone fishery. He expressed the opinion that control of the numbers of divers and, or, catch levels was desirable.
His specialty is fish population dynamics, stock assessment and management of fished stocks, especially abalone. He is highly qualified and widely experienced in such matters and his evidence was accepted by the learned Trial Judge. He had practical experience in various fisheries in Australia and had written many articles which had been published in scientific journals. He undertook consultancy work for the Fisheries Department in 1988 to1990 and in 1989 for the Abalone Divers’ Association with respect to the Western Zone. He had studied and acquired considerable knowledge about abalone fisheries in other parts of Australia and overseas.
He told the learned Trial Judge that South Australia had fared as well as anywhere in Australia and overseas in the preservation of abalone resources. He said that it is not likely that there are any significant unlocated abalone resources around the coast of Australia. He had reviewed research work of Dr Shepherd as to abalone resources and did not regard his conclusions as too conservative. He expressed favourable opinions about the work of Dr Shepherd in establishing abalone stocks.
Dr Prince told the learned Trial Judge that in all other abalone fisheries in Australia employee divers could not take abalone. He had been made aware of the proposals of the appellant Edwards and the appellant Murphy for the use of employee divers and of the claim that the appellant Edwards should have been able to acquire and exploit multiple fishing licences. He expressed the opinion that this was the type of behaviour that led to rapid increases in the number of divers in some other fisheries in Australia and overseas. He stated that the action of the respondent directors in preventing the use of employee divers was highly beneficial. In places they had been allowed to dive and catch levels were uncontrolled, long term catches had declined by 75 per cent to 90 per cent and catch rates by 80 per cent to 90 per cent and the commercial fishery had been commercially extinguished.

It may be seen that Dr Prince regarded the owner/operator policy in the sense of preventing relief divers as essential to safeguard the abalone fishery. He said that the claim that numbers of divers could be introduced without affecting long term catch levels and rates was totally untenable.
As I understand the position, the appellants contend that the evidence of Dr Prince is also irrelevant but I disagree. It supported the case of the respondents.
Mr Chatterton
Mr Chatterton was the Minister of Agriculture, Fisheries and Forests in South Australia from 10^th June 1975 until late 1979, and then shadow minister in the opposition in these areas from that time until 1982 and once again Minister with the same portfolios from 1982 until he resigned in April 1983. The learned Trial Judge accepted his evidence.
In evidence he told the learned Trial Judge that when Minister he administered government policy in relation to fisheries and in particular to the abalone, prawn and rock lobster fisheries. He said that with respect to a class A fishing licence and an abalone authority it was his understanding that only the person who held the authority was entitled to take abalone. The diver was the unit of effort which was the important element of control. He said that this was the general policy but it was also supported by the Act and Regulations which had been cleared by the Crown Law Department. That policy was in force when he became the Minister in 1975 and he fully endorsed it. He informed his counterpart in the Federal Government that owner/operator fishing units were the best way of exploiting common property resources which policy had been endorsed by the Government as a whole.
Mr Chatterton confirmed the policy of the Government that he who bore the risk should take the profit. He said that abalone fishing was a risky occupation and those who undertook it, namely the divers, should benefit from the profits. He told the learned trial Judge that this approach was part of the underlying philosophy of the owner/operator policy. The other part, he said, was that there was a valuable resource which should be distributed as widely as possible among different groups, and if one person employed a large staff of divers, the profits would not be distributed among the families as the Government would have liked.
On 5^th April 1977 the Premier in the House of Assembly of the South Australian Parliament was asked by a member of the House whether it was the policy of the Government that bodies corporate and partnerships which conduct business as fish buyers and/or processors be not permitted to operate fishing vessels in controlled fisheries. He said that since 1971 the policy of owner-operated fishing vessels applied to the managed fisheries because the Government believed it to be an equitable way to distribute a common property resource among a large group of fishing families. Mr Chatterton explained that a draft of that answer would have been prepared by the Department, settled by him as the Minister and approved by Cabinet. He confirmed that the owner/operator policy correctly reflected Government policy.
Also, Mr Chatterton said that when he was Minister he was concerned by the extent of the use of relief divers in the abalone fishery. In consequence, the scheme was introduced where relief divers were only allowed during periods when the permit holder was incapacitated through illness or some other reason.
Mr Chatterton also gave evidence that if a Court had construed regulations in a way that permitted an employee diver to operate at the same time as the owner of the authority, he would have sought amendments to the Fisheries Act to prevent such activity as the amount of abalone taken could have doubled. He said that he had no doubt that he would have had full Cabinet support.
According to Mr Chatterton, the Abalone Divers’ Association and the Australian Fishing Industry Council, which are the peak bodies representing the commercial fishing industry in this State, opposed the owner/operator policy in the abalone fishery as the members wanted permanent relief divers and were pressuring the Government accordingly but the Government considered that any scheme permitting such divers would undermine the owner/operator policy.
He said that whilst he had no recollection of ever having considered abalone authorities being held by trustees on behalf of beneficiaries, he would have regarded persons other than the diver receiving benefits from the use of an abalone authority as contrary to the policy of the Government. In relation to corporate ownership, he said that he would have wanted the “relevant interest” in the company to be held by the person doing the fishing.
Mr Chatterton said that he was also opposed to transferability of abalone authorities during the period when he was first the Minister, but the Liberal Government had permitted transferability before his second period as Minister. He told the learned Trial Judge that he would have been concerned if a person had purported to transfer an abalone authority and retained control of it because it would have negated the policy of the person taking the risk receiving the profit.
The respondent Olsen
The respondent Olsen commenced employment in the Department of Agriculture and Fisheries on 16^th October 1967. He obtained a Bachelor of Science degree from the University of Tasmania in 1940 and a Master of Science degree in the same University in 1946. I mention only a few features of his evidence as to his experience which are particularly relevant to issues in the present case. He worked extensively in the Commonwealth Scientific and Industrial Research Organisation, as it is now known, as a bacteriologist and later as a biologist and eventually in the Division of Fisheries and Oceanography in the Organisation. He worked extensively in research of sharks and other sea life, including rock lobster. He qualified as a diver in 1949 and thereafter was a regular diver. He undertook a survey of abalone in 1955 in Tasmania.
I have mentioned the offices which he held under the 1917 Act and the 1971 Act and when the appointments were made. I add that when he was appointed Director of Fisheries Research, for administrative reasons he was also appointed Acting Director of Fisheries. At his request, he was relieved from that office in 1971 and the respondent Trumble was appointed in his place. On about 5^th October 1975 the Department of Agriculture and the Department of Fisheries and Fauna Conservation were amalgamated and the respondent Olsen was appointed to the position of Chief Fisheries Officer which involved research. He had no responsibility for the administration of the 1971 Act except when requested by the new Director or, presumably when he was Acting Director. He was not given any delegated responsibility for the licensing in relation to fisheries. Such responsibility was undertaken by the Director or Acting Director from time to time.
According to Mr Olsen, at the time when he was first appointed to office, there were not any managed fisheries in this State. If a person had a licence to take fish, any fish could be taken for sale. There was a very small abalone fishing industry which had been started by recreational fishermen.
In 1966 a select committee of the State Parliament conducted a hearing in relation to fisheries and produced a report in the following year. The committee recommended the establishment of separate managed fisheries. Upon his appointment, the respondent Olsen was required to implement the recommendations in the report. The first recommendation adopted was to protect the rock lobster fishery. Regulations were prepared and came into operation on 1^st February 1967.
The respondent Olsen gave evidence that the next fishery to be managed was the abalone fishery. It was perceived that there was a need to preserve abalone resources. Regulations were prepared to permit licences to be issued to approved fishermen by the Minister and for a minimum size limit. This approach was supported by abalone divers. The regulations are the Preservation of Abalone Resources Regulations 1968 which, as has been mentioned, came into operation on 22^nd February 1968. Soon after the Abalone Divers’ Association of South Australia (“the Abalone Divers’ Association”) was formed, procedures were introduced to require the divers to provide information as to the catch and the time taken in the catch. The respondent Olsen said that because the extent of the abalone resources was not known, the number of divers was limited. Stocks interstate had been seriously depleted and interstate divers were coming to the fishery in this State. At his request, the then Minister acted quickly and the regulations came into operation. They had been drafted by the Crown Solicitor who gave a certificate of validity. They were approved by the Minister. These regulations provided that the permit to take abalone was issued to the diver, not to a vessel. Preservation of the abalone stock was protected in that way because only the diver was the unit of effort and his activity was necessarily limited.
According to the respondent Olsen, he had many discussions with the senior lawyer in the Crown Solicitor’s Office who drafted the Regulations when instructions were given and it was made plain that the diver was to be the unit of effort because, unlike many species, abalone could be seen, and was to be taken by the diver, which assisted in the preservation of stock. The Crown Solicitor was instructed that the diver was to be the permit holder and, with limited exception, only the permit holder could take abalone in order to preserve resources. He said that it was the intention that the Regulations should provide for use of a relief diver only for a short period of time and when the permit holder was unable to dive due to ill health. At no time did anyone suggest to him that these Regulations were invalid.
At the instigation of the Government, about 110 permits were issued after the Regulations came into operation, well above the number which the respondent Olsen considered prudent, but the number reduced over the next few years. Later it was appreciated that the Regulations did not restrict the use of a relief diver to occasions of illness or incapacity of the permit holder. The respondent Olsen informed the Abalone Divers’ Association accordingly and sought the views of its members. Regulation 11(1) of the Preservation of Abalone Resources Regulations 1971 was introduced to cover that deficiency and provided that the Chief Inspector, if satisfied by production of a medical certificate that the permit holder was ill or incapacitated, could authorise a person nominated by the permit holder to take abalone during the period of the permit holder’s illness or incapacity. Regulation 11(2) provided that the person so authorised shall, for the period of such authorisation, be deemed to be the holder of the permit held by the permit holder. These Regulations were also drafted by the Crown Solicitor and certified by him to be valid. The Minister approved the Regulations. The respondent Olsen informed the abalone fishing industry accordingly.
According to the respondent Olsen, the Abalone Divers’ Association supported this approach. He sent a circular to all abalone fishermen dated 29^th July 1968 relating to relief divers, the effect of which was to advise that the permit holder had to be in the boat when the relief diver was working and that two divers could not be in the water at the same time. He advised that the purpose of Reg 5, pursuant to which authority for relief divers was granted, was to provide assistance to permit holders with a cold or head infection, and who were therefore temporarily unable to dive. This circular confirmed the owner/operator policy and was subsequent to an opinion of the Crown Solicitor which also confirmed the policy.
As has been mentioned, the 1971 Act came into operation on 1^st December 1971 and the Managed Fisheries Regulations came into operation on 30^th November 1971. This Act, and these Regulations, remained in operation until after the respondent Olsen moved to research duties in 1975. According to him, he was involved in the drafting of the Act and Regulations which was undertaken by a former Parliamentary Draftsman, Sir Edgar Bean. At the time the 1971 Act and these Regulations came into operation, the owner/operator policy was in force. There were between 30 and 45 divers with permits to take abalone. Dr Shepherd was continuing his investigation of, and research into, abalone stocks and the respondent Olsen consulted him regularly.
The respondent Olsen told the learned Trial Judge that he would have opposed any suggestion, if it had been made, to substantially increase the number of permits to take abalone in the period he was Acting Director before he went to research. His concern was the preservation of the fishery. He was aware of the information provided through the catch and diving returns. He had regard to the financial returns to permit holders and what was the maximum sustainable yield. It was his opinion that if there had been a substantial increase in the number of permitted divers, the fishery would have collapsed.
The respondent Olsen told the learned Trial Judge that in the course of preparation of the present case, he was informed of the decision of the Full Court on the Case Stated relating to the owner/operator policy. It was put to him that the Full Court had held that the licence to employ provisions of the Fisheries Acts, allowed an abalone diver to employ a person to dive and take abalone. He said that he had never believed that a licence to employ enabled a permit holder to employ a diver to dive and take abalone. He said that position was never intended.
As has been seen, the respondent Olsen had been involved with the management of fisheries in this State and, in particular, the abalone fishery, since managed fisheries commenced and the owner/operator policy had been consistently implemented in relation to the abalone fishery through his period of responsibility. This had been confirmed by opinion of the Crown Solicitor and the respondent Olsen had been consulted in the drafting of the 1971 Act and Regulations. The policy had been supported by the Abalone Divers’ Association.
His evidence does not bear upon the correctness or otherwise of the decision of the Full Court on this matter which is not in issue on this appeal and in respect of which his evidence would be irrelevant, but it bears upon whether in his implementation of the owner/operator policy, he was guilty of misfeasance in public office or negligent misstatement. I return to that matter shortly. He went on to say that if such a decision had been given when he was in office, he would have sought advice from the Crown Solicitor with a view to preparing legislation for submission to the Government to clarify the position and he would have opposed the use of employee divers other than for relief purposes.
The respondent Olsen said that whilst he was in office, there were seven Ministers of the Crown responsible for the administration of the Fisheries Acts and, as far as he could recall, all of them supported the policy. He said he could not recall anyone opposing the policy except some divers in the early 1970’s. He said that he believed that the policy was established in the Fisheries Acts and Regulations and no-one ever suggested otherwise. No legal proceedings raising the matter were ever instituted.
The respondent Olsen said that no‑one ever suggested to him that an abalone permit could be held by a person or trust for another entity. He said that the permit was issued to the licence holder.
I have mentioned Reg 21A of the Managed Fisheries Regulations which was introduced on 9^th November 1972 which, it will be remembered, prevented a person from holding more than one type of permit or Authority. According to the respondent Olsen, there was a government policy to the same effect before that Regulation came into operation. He said he recommended the policy to Ministers. At no time was it ever suggested to him that Reg 21A was invalid.
It seems clear from the evidence that all Regulations were drafted by a solicitor in the Crown Solicitor’s Office and were approved by the Minister and the Cabinet before being made by the Government with the advice and consent of Executive Council. Pursuant to s 38 of the Acts Interpretation Act 1915, after being made by the Government, Regulations were published in the Government Gazette and laid before both Houses of Parliament within 14 days of publication and if Parliament was not in session, within 14 days of the commencement of the next Session of Parliament.
Trumble
The respondent Trumble was the first witness called in the Defence case. He was appointed as Acting Director of the Department of Agriculture and Fisheries in the middle of October 1975 and assumed the duties of Director of Fisheries for the purposes of the Fisheries Act and discharged those responsibilities until 30^th June 1976 when the respondent McColl was appointed as Director. He was greatly experienced in matters relating to agriculture and public sector management. He had no prior experience with fisheries. He had no recollection of any dealings with either the appellant Edwards or the appellant Murphy and he said that he had no reason to know either of them in the conduct of his work as Acting Director of Fisheries. Indeed, the appellant Edwards said that the respondent Trumble had not made any representations to him.
He said that he met with the Minister at least once a week. He had frequent dealings with senior staff and said that he had a good understanding of the relevant legislation. He had meetings with members of the fisheries organizations and he was satisfied with the work of his senior staff.
The respondent Trumble was the Acting Director at the time the report commissioned by the Government from Dr Copes was produced. It is unnecessary for present purposes to set out the findings and conclusions in the report but some matters need to be mentioned. Dr Copes was retained by the Government to undertake an overall study of fisheries management and produced a report in January 1976 known as Fisheries Management Green Paper Number 1. According to the respondent Trumble, Mr Chatterton received the Report enthusiastically and accepted that it provided a theoretical and consensual basis for fisheries management policies which he believed should be developed and strengthened throughout the various appropriate fisheries in South Australia. It was released to the industry and other interested persons. The respondent Trumble said that it was broadly supportive of the existing policies of the Department and that it strengthened these policies because Dr Copes was regarded as a world expert.
When the respondent Trumble took office as Acting Director of Fisheries, the owner/operator policy existed relating to the abalone fishery. As with other respondent directors, his evidence was that Mr Chatterton knew of the policy and approved it. Indeed, he said it was the Minister’s Policy and was advocated by him. He understood that the Government approved of the policy. He acknowledged that this policy excluded absentee ownership. He said this policy was in existence when he was appointed and he could not recall it ever being questioned or queried.
The respondent Trumble told the learned Trial Judge that the policy was necessary to protect the stocks in the abalone fishery. He said that the policy of the Government was that the unit of effort in the fishery was the diver who could be expected to dive under average conditions over a period of time and take an expected quantity of abalone. A concept of “level of harvest” went with each diver. To allow existing permit holders to increase effort by using employed divers would have been contrary to Government policy and would have adversely affected the fishery. He said that the policy of the Government was to allow as many owner/operators as possible so as to share the rewards of the value of the fishery among as many fishermen as the fishery could sustain. He said that it was government policy that any additional access to the fishery should be by new entrants to the fishery, rather than by employees.

In March 1974 the Department, upon the initiative of the respondent Olsen, advertised for applications for prawn authorities which had to be made by 30^th April 1974. The appellant Edwards made his application and in all there were 153 in time and a further nine applications by 2^nd May 1974.
The learned Trial Judge found that a preliminary meeting as to the processing of the applications was held on 16^th May 1974. A policy recommendation was adopted setting out thirteen criteria to be taken into account in determining the applications. The respondent Olsen did not attend but an Inspector Fairbanks, a licence assessor, attended.
The learned Trial Judge accepted the evidence of the respondent Olsen that he made a selection of 15 applicants with the assistance of officers of the Department and recommended seven of them to the Minister who referred the 15 applications and the recommendations to the Committee. The process in selecting the 15 applicants was that points were issued for particular criteria for all applicants and those with the highest number of points comprised the group of 15 applicants. This system had been used on previous occasions. The respondent Olsen said that the Minister wanted the opinion of the industry as to the recommendation. The Committee considered the 15 applications on 4^th and 5^th July 1974 and accepted the recommendations of the respondent Olsen and advised the Minister accordingly. The respondent Olsen attended that meeting. The Minister instructed the respondent Olsen to issue the authorities to the seven selected applicants.
The respondent Olsen said that he selected the seven successful applicants and made his recommendation so that the Committee could give advice as to whether those applicants were appropriate. He said that if the Committee had made a different recommendation, he would have reconsidered. He did not regard himself as being bound by any decision of the Committee.
On 22^nd July 1974, Cabinet approved the recommendation of the Minister as to the policy that should be adopted for the issuing of prawn authorities which accorded with the policy previously considered by the respondent Olsen and the Committee.
There was a qualification about one of the seven applicants relating to the suitability of his boat. On 1^st August 1974 the Committee met again. The respondent Olsen was present. The Committee recommended that six of the applicants be issued with authorities and that the application of the person with the issue about his boat be refused. That seventh authority was to be offered to another applicant.
On 2^nd August 1974 the respondent Olsen had a lengthy meeting with a solicitor in the Crown Solicitor’s Office. It was reported by the respondent Olsen to the Committee that the solicitor advised that the Department and the Minister had “sufficient legislative competence to make criteria and policy for the prawn fishery”. On the same day the secretary of the Committee informed the Minister of the recommendation of the seven applicants who should receive the authorities. The Minister approved the recommendation and informed the respondent Olsen accordingly. The appellant Edwards was advised by letter dated 16^th August 1974 that his application was unsuccessful.
Complaints from applicants were made to the Committee, the respondent Olsen and the Ombudsman but the appellant Edwards was not one of those complainants, at least until 12^th September 1974. He did not give evidence of having made a complaint but the respondent Olsen said that he had done so.
The learned Trial Judge found that the policy for the issuing of prawn authorities was widely promulgated. It was sent to the Abalone Divers’ Association and was published in the Committee’s magazine of August 1974. He found that it was likely that it was sent to the appellant Edwards at his home. The learned Trial Judge also accepted the observation of Olsson J in the Full Court upon consideration of the Case Stated that in arriving at his own decision the Director was entitled to have regard to properly evolved Government policies and recommendations of the Committee. However, he could not abdicate his personal duty of forming a judgment in light of all relevant considerations. He could not merely rubber stamp a policy or recommendation from other sources: 288-289.
The learned Trial Judge accepted the evidence of the respondent Olsen that he made his own decisions with respect to the applications, including the application of the appellant Edwards and his wife. He noted an occasion on 22^nd July 1974 at a meeting of the Committee when the respondent Olsen dissented from a majority decision of the Committee regarding an application to purchase an authorised prawn vessel and exercised his discretion in accordance with his own view. This evidence establishes that the respondent Olsen did not regard himself as bound by any recommendation of the Committee although he said that he was concerned to obtain some input from the industry into the process.
I can find no error in the conclusions reached by the learned Trial Judge or in his process of reasoning. He accepted the evidence of the respondent Olsen and there is no reason why he should not have done so. True it is that on the face of some of the documents, it could be suggested that the Minister or the Committee made the decision to accept the seven applications and thereby reject the application of the appellant Edwards, but consideration of all of the evidence justifies the conclusion that the respondent Olsen did make the decision and thereby discharged his obligation under the regulations.
Furthermore, the learned Trial Judge found that if the Minister or the Committee had made the decision, the respondent Olsen would have made the same decision. Also he concluded that it was unlikely that the appellant Edwards’ application could have succeeded on its merits as he accepted the contention of the respondents that he had far less experience of commercial fishing in this State than the successful applicants, he did not hold a current certificate of competency as required by Reg 5 of the Managed Fisheries Regulations, his boat was not then registered for fishing in this State and he provided false information in his application. I do not think it is necessary to consider what view the respondent Olsen would have taken about those matters if he had been aware of them as it appears that there were sound reasons for preferring the seven applicants.
The complaints of the appellant Edwards on this appeal are merely a re‑statement of his case, namely that the respondent Olsen did not discharge his function.
A minute from the respondent Olsen to the Minister dated 5^th February 1974 and approved by him contains the suggestion by the respondent Olsen that a decision should be made giving to the Committee the responsibility of selecting the successful applicant from a new list of applications received for the allocation of a new authority when a prawn authority is cancelled. He recommended that the Committee examine applications and recommended, inter alia, fishermen for the issue of additional prawn authorities. This minute was referred to in the submission of the Edwards appellants. It may appear to be some support for the contention that the Committee and not the respondent Olsen made the decision when a new prawn authority was issued. When asked about the minute, the respondent Olsen said in evidence that he wanted input from persons who knew the applicants who could make a recommendation to the Minister who would pass it on to him to make the final decision. This minute is not inconsistent with the evidence of the respondent Olsen as to who made the decisions regarding applications for prawn authorities.
It might also be suggested that the minute from the Minister dated 1^st February 1974 wherein he stated that terms of reference of the Committee included assessing applications for prawn authorities also suggests that the Committee was to make the decision and not the Director. In his evidence the respondent Olsen said that he did not see the document and that it was expressed poorly by a member of staff of the Minister.
I do not regard either of these minutes as contrary to the evidence of the respondent Olsen. The learned Trial Judge does not refer to them in his reasons for judgment, however he accepted the evidence of the respondent Olsen.
The appellant Edwards also contested the finding that it was unlikely that his application could have succeeded on its merits, on the ground that it is contrary to the evidence. There is no basis for this submission.
Lastly, the learned Trial Judge concluded that the respondent acted bona fide and consequently there was no basis to conclude that the necessary mental element in misfeasance in public office existed.
I entirely agree with all of the conclusions of the learned Trial Judge. The evidence plainly established that the respondent Olsen assisted in the development of Government and Ministerial policy which he implemented when discharging his obligation. He acted lawfully. There is no basis for a finding of negligence. He acted independently but in accordance with established procedures.
It follows that this part of the appellant Edwards’ claim must also fail.
The Claim of the appellant Edwards regarding tuna fishing
The appellant Edwards made a claim to the effect that he had been deprived of additional licences, including a licence to fish for tuna. This claim was inexpertly pleaded but the learned Trial Judge concluded that he was able to sufficiently identify the claim and its basis from the Statement of Claim and the explanation in the opening of the appellant Edwards.
The claim is that if he had not been forced to sell his class A fishing licence and boat and had been permitted to undertake his fishing operations through a trust he would have undertaken other fishing activities, including fishing for tuna. He claimed that he could not do so by reason of conduct on the part of the respondents which denied him a right to employ divers and that he surrender his class A fishing licence as a condition of sale of his abalone authority in 1980. However, as the learned Trial Judge observed, later in his opening the appellant Edwards said that if he had been allowed to proceed with his plans to fish for abalone, he would not have fished for tuna at all, as abalone fishing would have fully occupied his time.
The learned Trial Judge rejected this claim. He found that the appellant Edwards had not proved any representations of any of the respondents which caused him to surrender his class A fishing licence. Furthermore, the appellant Edwards said, in opening, that most tuna is to be found in Commonwealth waters and he did not intend to operate in State waters. Of course this statement was not part of the evidence but it is part of the particularisation of the claim.
In evidence the appellant Edwards said that when he sold out of the fishing industry in 1980, he forfeited his class A fishing licence. He said that he definitely would have kept it if he had been able to do so. According to him, the policy of the Department was that if an authorised boat was transferred, the class A licence had to be forfeited unless, as I understand the position, the purchaser held a class A licence.
When he applied to sell his boat, he filled out a form in which he was asked if he wished to retain his fishing licence for operation in another fishery. He replied in the negative. In the form he was informed that if the proposed purchaser was not the holder of a South Australian fishing licence, he would be required to relinquish his licence if the application to sell the boat was approved. He was also informed that if he was not prepared to relinquish his licence, the application could not be considered. In the section of the form where he was asked his reason for the sale of the boat, he answered “Other employment”.
It may be seen that the appellant Edwards was not obliged to surrender his class A fishing licence in any event, but only if the purchaser of the boat was not the holder of a licence. The respondent Olsen explained that this requirement was a policy of the Department so that there would not be an increase in the number of licences. The evidence of the respondents McColl and Kirkegaard was to the same effect. The respondent Kirkegaard gave a direction to the licensing officers that the “practice of allowing retiring licensed fishermen from a managed fishery to continue to hold a class A licence is not approved”. He regarded the policy as lawful and having ministerial approval. Mr Chatterton confirmed this evidence although he gave that evidence in the context of the scale fishery. He also said that if the person coming into the fishery already had a class A licence, the person leaving could retain his licence so that the total number of licences would remain the same.
The learned Trial Judge found this policy to be a valid policy of the Department and its formulation and application to have been made in good faith. He also found that the surrender of the class A fishing licence, on the evidence, would not have prevented the appellant Edwards from fishing for tuna in Commonwealth waters. Neither the evidence, nor any statutory provision, required a person applying for a Commonwealth licence to have a South Australian licence.
However, a minute from an administrative assistant in the Commonwealth Department to the respondent Stevens dated 15^th August 1980, shortly before the appellant Edwards sold out of the industry, indicated that several fishermen had applied for Commonwealth licences when their applications for South Australian licences had been refused. He stated that there was an agreement between the Commonwealth and the States since 1952 requiring a person to hold a State licence before a Commonwealth licence could be obtained and that applications were refused where there was no State licence. However, he pointed out that the Commonwealth had said that his Department had no right to refuse applications on that ground. They continued to do so because of the agreement. He acknowledged that legally the Department was on “shaky ground”.
I think it must be accepted that at relevant times it is unlikely that the appellant Edwards would have obtained a Commonwealth licence without being the holder of a South Australian licence.
The learned Trial Judge noted that this aspect of the claim, losses incurred by inability to fish for tuna, was first introduced in an amendment to the Statement of Claim on 28^th August 1995, about nine years after the proceedings had been instituted. It was alleged by the respondents that the claim was an after-thought and that the appellant Edwards never had any serious intention to fish for tuna. According to the respondent Kirkegaard, during the 1970’s and 1980’s the tuna fishery in Commonwealth waters was unrestricted. The appellant Edwards could have fished for tuna using an employee skipper and crew.
The appellant Edwards said in evidence that he did not apply for a Commonwealth fishing boat licence as he could not do so without first obtaining a State licence. The learned Trial Judge concluded that if the appellant Edwards had seriously intended to fish for tuna, it is to be expected that he would have applied for a Commonwealth licence and, at the same time, if his belief was that a South Australian fishing licence was a necessary prerequisite, to have applied for such a licence.
With respect to the learned Trial Judge, I do not think that conclusion is justified by the evidence. It is clear from the minute of 15^th August 1980, which has been mentioned, that whatever may have been the legal position, a Commonwealth licence would not have been issued to him unless he had a State licence. Upon his sale of his boat, he had to surrender his State licence because the purchaser did not have a class A fishing licence. If he applied for a South Australian licence, it would not have been issued unless he intended to use it in fishing as his principal business. It is reasonably possible that the appellant Edwards would have known of these matters.
However, I think the learned Trial Judge was correct in his other conclusions and findings. He concluded that the evidence did not establish that any of the respondent directors made any representations to the appellant Edwards about these matters.
In his opening the appellant Edwards said that if he had not been forced to sell his boat and to surrender his class A fishing licence, he would have been able to continue fishing other than for abalone by entering the tuna fishery. In cross-examination he said that he had read papers in which it was stated that he had to forfeit his class A licence. He also said he had discussions. When asked with whom he had discussed the matter, he said:
“I would say it would be either Ian Kirkegaard or Richard Stevens or inspectors at the time or things I read.”
There was no pleading that either of these respondents told the appellant Edwards that he was required to surrender the licence. The respondent Stevens said that he had no recollection of the matter and it was never put to the respondent Kirkegaard that he had told the appellant Edwards that he must surrender the licence. As has been mentioned, he ceased to be the Director of Fisheries in May 1980 about six months before the appellant Edwards surrendered the licence.
It may be seen that the evidence of the appellant Edwards was not capable of proving to the required standard that the alleged representations were made by either of the respondents Kirkegaard or Stevens. The respondent Kirkegaard did not give evidence about the matter but there was no definite allegation which required an answer. The learned Trial Judge found that the suggestion that either the respondent Kirkegaard or the respondent Stevens made the alleged statements about the need to forfeit the licence was a concoction designed by the appellant Edwards to bolster this part of his claim.
As has been mentioned, Mr Jeffries had been President of the Tuna Boat Owners’ Association of Australia since 1988, was Chairman of the Australian Seafood Industry Council from 1988 to 1996, Executive Director of the South Australian Branch of the Australian Fishing Industry Council from 1985 to 1988 and National Marketing Manager for Mitsubishi Australia from 1976 to 1981. The learned Trial Judge accepted his evidence. It was suggested by the appellant Edwards that if he had been permitted to fish for tuna, he would have sought small tuna known as sashimi tuna by trolling from a relatively small boat. The learned Trial Judge accepted the evidence of Mr Jeffries that only limited stocks of that type of tuna were available to be caught in that manner and it was expensive to get the fish to market if caught in South Australia. Consequently such a fishing activity was unlikely to produce commercial yields. The appellant Edwards disputed these findings on the basis that they were not justified on the evidence. However, those findings do reflect aspects of his own evidence. He said that the tuna fishing which he intended to develop was sashimi tuna by trolling and by long lines from 1981 onwards.
The learned Trial Judge summarised his conclusions and findings as follows:
1Any requirement that Mr Edwards surrender his class A fishing licence when he sold his boat and abalone business in the event that the purchaser did not have such a licence was an expression of a valid Ministerial policy.
2He could not find on the evidence that any representations were made to the appellant Edwards that it was necessary for him to hold a South Australian fishing licence as a prerequisite for the issue of a Commonwealth licence.
3The appellant Edwards never had any intention to fish for tuna and his belated claim is a concoction which had its genesis in his inspection of documents which suggested there might have been an agreement between the Commonwealth and the State of South Australia of the kind which was mentioned in the minute of 15^th August 1980.
4If there was such an agreement, there was no basis upon which he could hold that it was not a valid agreement.
5There could be no finding of misfeasance in public office because none of the elements of that tort had been established.
6For similar reasons, the alternative claim in negligence must fail.

The appellant Edwards challenged all of these findings. As to the first finding he submitted that it was an error of law. No sound basis for this argument was advanced, the submissions being based upon evidence. The learned Trial Judge obviously based his conclusion upon interpretation of the 1971 Act and Regulations and accepted that the requirement was necessary to keep the number of licences on the same level in order to preserve the fisheries. I can see no error in that conclusion. As has been seen, the evidence did not establish that the alleged representations were made.
In my view, all of these conclusions are fully justified. Unless relevant representations by at least one of the respondent directors could be proved, there could be no finding of misfeasance in public office or negligence. As no representations were proved that, in itself, required this aspect of the claim to be rejected. Even if such representations had been proved, they would have conveyed Ministerial policy. If either the respondents Kirkegaard or Stevens had made such representations, they would have done so genuinely and without the state of mind required to establish misfeasance in public office and their representation could not have been made negligently. Lastly it was not established that the appellant Edwards would have suffered any loss in consequence of any such representations had they been made as he did not intend to fish for tuna. Furthermore, if he had intended to do so his method of operation would have been uneconomical.
The learned Trial Judge was correct in rejecting this aspect of the claim and the grounds of appeal relating to this matter must be rejected.
The appellant Murphy’s claims
I have earlier mentioned the claims made by the appellant Murphy and that they were made on the same basis as the claims of the Edwards appellants. They related mainly to the owner/operator policy and the alleged prohibition against the use of trusts or a corporate structure.
These claims were rejected by the learned Trial Judge for the same reasons as he rejected similar claims made by the Edwards appellants. I have accepted that he intended that the submissions made by the appellant Edwards about those matters were adopted and relied upon by him. His appeal fails for the same reasons as the appeal of the Edwards appellants about those matters and I need not repeat those reasons. Also, the learned Trial Judge rejected the claims because he found that the appellant Murphy sold out of the fishing industry for reasons unconnected with any action on the part of the respondent directors, including the respondent Stevens. The evidence fully justified that conclusion.
The appellant Murphy also made a claim that he was wrongfully denied a right to hold simultaneously, “boat authorisation certificates” with respect to more than one boat. In his pleading he asserted that he had, and the respondent believed that he had, such a right.
The learned Trial Judge rejected this claim because of his finding that the respondent directors played no part in the appellant Murphy leaving the industry.
There was no specific appeal against the rejection of this part of the appellant Murphy’s claim, although, as been seen, the appellant Murphy did challenge the findings of the learned Trial Judge as to the reasons for his leaving the abalone fishing industry and that challenge has been rejected.
General observation as to the appellant Murphy’s appeal
As I have said, the appellant Murphy adopted some of the claims made by the Edwards appellants and some of his submissions in support of these claims. They must be rejected for the same reasons as the claims of the Edwards appellant were rejected.
Finally, I should say something about the submissions made in writing on this appeal by the appellant Murphy. Many of his submissions amount to a criticism of the owner/operator policy and the basis for it. He was critical of Dr Copes and the respondent Olsen and Stevens for applying the policy. He challenged the evidence that the policy did, and could, preserve the fishery, but he accepted that it did exist and was applied by the respondent directors. He had many other criticisms of the Department. None of these matters is relevant to the issues raised on this appeal. I have considered all of his submissions but they have not assisted him on this appeal.
Submissions made by him suggest that the respondent Olsen, at times, did not act according to the law and with malice but no basis was established to undermine any of the findings or conclusions of the learned Trial Judge.
Some of his submissions are merely repetition of parts of his evidence and submissions at the trial and some new factual assertions. Throughout the submissions the appellant Murphy was highly critical of the respondents Olsen and Stevens as to their alleged treatment of him and other abalone divers. Also, many of those complaints are not relevant to his claims against the respondents and at best only indicate an attitude on the part of the respondent Stevens of which the appellant Murphy did not approve.
Also, the appellant Murphy made some submissions which tended to contradict other submissions. I appreciate that he was not represented at the appeal and it appears he prepared the grounds of appeal and his written submissions without the assistance of counsel or a solicitor. However, I am satisfied that I have understood his real complaints about the findings and conclusions of the learned Trial Judge. I am equally satisfied that there is no basis in them.
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.
The relevant principles are explained by Dixon J in James v Commonwealth (1939) 62 CLR 339. In that case the plaintiff complained about the administration and enforcement of the Dried Fruits Act by the Commonwealth Department of Markets and Commerce. Steps were taken by departmental officers to ensure that regulations were observed; circulars were sent to dealers informing them that they must obtain owners’ licences; shipowners and other interested persons also received explanations from the officers as to the mode of administration of the regulations. The departmental advice was eventually found to be wrong and the regulations were held to be invalid. When James brought an action in tort (for interference with his contractual relations) Dixon J said at 369:
“…I am not prepared to hold that any exercise by the Governor in Council of a supposed power to make regulations which the Parliament has purported to confer upon the Executive can amount to a commission of a tort on the part of the Crown…
and at 372:
“The existence of the invalid statute may be regarded as a fact preliminary to and explanatory of the commission by the Executive of a tort…”
and at 373:
“The ground upon which I decide this part of the case against the plaintiff is that the Commonwealth incurs no liability for tort merely because A is induced to refuse performance of what turns out to be in fact a civil duty to B by an intimation made to A by the officers of the Commonwealth that, under the law of the Commonwealth, A is not merely absolved from the performance of the duty but is forbidden under penalties to do what would amount to performance and, by doing it, would expose himself to prosecution; provided that the officers act honestly in the purported execution of their duty to maintain and enforce the laws of the Commonwealth and, perhaps reasonably, as, for instance, on the faith of a statute not yet held to be invalid.”
And:
“I do not think a bona fide assertion as to the state of the law and an intention to resort to the courts made known to the third party can be considered a wrongful inducement or procurement. The situation is simply that the Executive, charged with the execution of the law, under a bona fide mistake as to the state of the law, proposes to proceed by judicial process. The courts are established by and under the Constitution for the purpose, among others, of determining whether the Executive is or is not mistaken in its view of the law which it seeks to enforce against the individual, and judicial process is the appointed means for bringing the question up for decision. To treat a proposal or threat to institute proceedings as a wrongful procurement of a breach of duty is to ignore the fact that, assuming bona fides, the law always countenances resort to the courts, whether by criminal or civil process, as the proper means of determining any assertion of right….”
I consider that these principles are of general application to claims in tort so as to constitute formidable obstacles to the claims which the appellants are now pursuing.
Upon a case stated in these proceedings a Full Court (Olsson, Perry and Duggan JJ) have provided answers to some questions (expressed in general form) as to the invalidity of certain regulations under the Fisheries Act and bearing upon practices of the Director of Fisheries or the Chief Inspector. This is but a first step in establishing tortious liability on the part of the Crown.
The plaintiffs base their claims upon misfeasance in public office and negligent mis-statement. Misfeasance requires some element of malice or knowledge by the defendant officer that his or her actions were beyond power (see Mengel v Northern Territory (1995) 185 CLR 307 and Three Rivers District Council & Ors v Bank of England (No 3) [2000] 2 WLR 1220). Although in principle an action may be available against the Crown for negligent mis-statement, it will be necessary to show (inter alia) that it was reasonable for the plaintiff to rely upon the accuracy of the information provided in answer to serious enquiry (see for example Shaddock v Parramatta City Council (1981) 150 CLR 225).
However, the decision of Dixon J in James’ case shows how an officer of Government is protected until a declaration of invalidity is obtained. The mistaken assertion by a public servant as to the effect of laws being administered by that official is generally not a source of liability in tort (see per Dixon J supra at 372-3).
The plaintiffs seek to extend to the Director of Fisheries an obligation which they might properly attach to a solicitor who was fully and properly privately instructed by them. (Apparently one of them has already gone down that path). Having heard full argument I am satisfied that the claims of the plaintiffs are misconceived in the absence of proof of mala fides on the part of the defendants. In my view there is no such evidence. Counsel for Mr Edwards contends that the defendants “knew” that the impugned regulations and policies were beyond power. However (as demonstrated in the reasons given by Mullighan J),it was at least arguable that the departmental view was correct in law. In my opinion the defendants were entitled to act as they did until a court decided to the contrary.
I would also dismiss the application made to this Court for leave to amend the appeal notices to raise actual bias on the part of the trial Judge as a ground of complaint. Although the appellants were permitted during the hearing to canvass fully their argument as to bias, the submission lacks substance. The trial Judge was responsible for the pre-trial management of the actions and although he was required to keep an open mind it is unrealistic to expect him to have an empty mind. Upon a fair reading of the transcript, I can see no evidence that the Judge had prematurely closed his mind to the case of either Mr Murphy or Mr Edwards or given that impression. I adopt the views expressed by Mullighan J as to why the allegation of bias fails.
BESANKO J I agree with the orders proposed by Mullighan J. I agree with His Honour’s reasons for those orders and there is nothing I wish to add.

[2003] SASC 238

1 August 2003