EDWARDS & ANOR v OLSEN & ORS;MURPHY v STEVENS & STATE OF SA No. SCCIV-86-2556, SCCIV-87-742 [2003] SASC 238

EDWARDS & ANOR v OLSEN & ORS;MURPHY v STEVENS & STATE OF SA No. SCCIV-86-2556, SCCIV-87-742 [2003] SASC 238 - SASC 2003 case summary — Zoe

[92]

"11 The 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].

12 The 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."

[228]

"There does not appear to have been any policy consideration under the statutes or regulations which would found a prohibition against the vesting of beneficial interests in licences, registrations, authorities or permits in parties other than the actual holder, because this would have had no impact on the proper management of relevant fisheries or the due discharge of the legal and practical responsibilities of the legal holder, which would remain unaltered. Licences, registrations, authorities and permits are clearly 'property', the beneficial ownership of which can form the subject matter of legal relationships, absent some express statutory provision to the contrary (see Pennington v McGovern (1987) 45 SASR 27; Kelly v Kelly (1990) 64 ALJR 234). I would therefore hold that this was the situation. There is no perceivable basis on which it could be asserted that any such transaction required the approval of the Director, because it nevertheless remained the legal responsibility of the person in whom the licence, authority or permit was vested, actually to exercise the relevant rights and discharge all legal obligations under the applicable statute and regulations. Whether or not, on a licence, registration, authority or permit coming up for renewal, the Director could, legitimately, take into consideration any beneficial divesting of interest is a matter for debate, but it does not arise for consideration on the questions as posed.

The capacity of corporations to hold licences, registrations, authorities or permits raises some issues which are not readily resolved. Prima facie, the regulations under both relevant statutes appear to contemplate that authorities and permits are to be held by natural persons. Particularly in the case of abalone permits, they impose certain obligations which can only be discharged by a natural person. It is, however, difficult to see why, except in the case of an abalone permit, a licence, registration or authority could not be held jointly by several persons who were in fact in partnership, as seems to have been recognised by the Department over the years. By virtue of the Acts Interpretation Act 1915 (SA) the singular word 'person' is to be taken to include the plural. In the situation postulated the holding would be by the several partners, but not in the name of the partnership, as such, because such a body is not a separate legal entity.

In the case of the FA 1917, not only is the word 'person' defined to include a body corporate, but the sections dealing with the issue of licences manifestly contemplate that a body corporate may, with certain exclusions, as to type of body, be issued with and hold a fishing and related employee licence. A similar concept is carried through into section 31 of the FA 1971. The question posed ought to be answered accordingly.

On the other hand, those provisions are certainly not pertinent to registrations, authorities and permits and, in terms, do not extend to them. There is, in my view, simply no warrant for asserting rights related to corporate bodies beyond those which were erected by the statutes themselves."

[318]

"The distinction between actual bias and reasonable apprehension of bias involves, as I have endeavoured to point out, consideration of quite different questions and the making of quite different findings. It is for appellants to determine, with that understanding, whether they wish to allege either actual bias or reasonable apprehension of bias or both. The distinction has nothing to do with 'professional comity': it involves analysis and consideration of different issues. The 'real opinions of litigants' are irrelevant in relation to either allegation. If the allegation is one of actual bias that involves a consideration of the conduct of the trial, or the terms of the judgment, to determine whether actual bias is displayed therein. The opinion of the litigant is irrelevant to that. If the allegation is one of reasonable apprehension of bias, the opinion of litigants in that case is irrelevant: the relevant consideration is the view that a reasonable and intelligent lay observer might form, as Vakauta v Kelly makes clear.

Further, the existence of what Kirby P describes as 'the natural human desire for consistency of thought and action' which might be thought to operate to incline a judicial officer to 'uphold an opinion earlier expressed' which at the time it was expressed was 'supported by ground which seem totally convincing to that person at the time of their expression' cannot constitute or ground an allegation of actual bias. It may lead a reasonable and intelligent lay observer to a perception that the judicial officer may be biased such that he ought to be disqualified but that is quite a different finding to one of actual bias. Actual bias, in those circumstances, would involve a finding that the judicial officer did not attend properly to the evidence, but rather reached a decision determined by reference to previously expressed views. It involves a finding that the judicial officer was in fact unable to, and did not, comply with his judicial obligations.

In the concluding sentence of the paragraph I have quoted from the judgment of Kirby P, his Honour has taken what I said out of context. What I wrote in Spedley Securities Ltd (In Liq) v Yuill & Ors (No 2) (unreported, SC(NSW) Cole JA, 50190 of 1991, BC9102885) was as follows:

'By notice of motion filed 26 April 1991, Australian National Industries (ANI) seek a direction that this matter not be listed for hearing before me. The notice of motion is an elegant and kindly way of asking me to disqualify myself from hearing these proceedings.'

The fact that the applicant in that instance chose that form of notice of motion, rather than a notice of motion seeking that I disqualify myself upon grounds of apprehended bias, as distinct from actual bias which was specifically disavowed, is no ground for concluding that there does not exist a very real and important distinction between an allegation and finding of actual bias on the one hand, and an allegation and Ending of a reasonable apprehension in an intelligent lay observer that an impression of bias exists."

[333]

"That test has been adopted, in preference to a differently expressed test that has been applied in England (cf Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451), for the reason that it gives due recognition to the fundamental principle that justice must both be done, and seen to be done (cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Lord Hewart CJ). It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision' (R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 263, per Barwick CJ, Gibbs, Stephen and Mason JJ). The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' Vakauta v Kelly (1988) 13 NSWLR 502 at 527, per McHugh JA, adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 per Toohey J).

Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 73 per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 Brennan, Deane and Gaudron JJ, referring both to trial and appellant proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case' (see also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."

[537]

"In any event, it is pertinent to point out that, irrespective of the deficiencies in the pleadings arising by reason of the fact that for most of the course of the proceedings the plaintiffs were unrepresented, pleadings generally have a diminishing role to play as the case, and I speak of any civil cause, proceeds through the course of the trial. I will expatiate a little on the varying role which pleadings fulfil as the case progresses, as it is commonly not fully understood.

Before the commencement of the hearing, the pleadings will have served the dual purposes of alerting the opposing party to the nature of the claim or defence, and of defining the issues. During the course of the hearing, the pleadings serve the additional purpose of confining the scope of the evidence to be adduced, in the sense that, to be relevant and admissible, evidence must relate to the issues as defined in the pleadings.

However, that latter observation is subject to the qualification that other issues may arise during the course of the hearing which become the real issues in the case, or additional issues, and which may supplement, displace or render irrelevant the formal statement of issues to be drawn from the pleadings.

In any event, the actual course of evidence might, for one reason or another, run outside the scope of the pleadings. This is a common enough circumstance.

At the end of the day, when all the evidence is in, the case must be determined on the body of evidence as it then appears, and not on the pleadings.

Furthermore, generally speaking, it is not necessary for the parties to plead matters of law or to identify specific causes of action. The court must give such relief as a party is entitled to on the basis of the evidence as it stands at the conclusion of the trial. This is subject to the qualification that, generally speaking, the court would be disinclined to countenance making an award in favour of a plaintiff on a cause of action which, if it had been identified at an earlier stage, might have altered the course of the trial, more particularly with reference to the nature of the evidence which might have been adduced."

[813]

"The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability (See James v The Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 359-360, per Dixon J. See also Racz v Home Office [1994] 2 AC 45 at 50-54, per Lord Jauncey of Tullichettle). And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton ([1897] 2 QB 57), or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm."

[831]

"The tort is generally regarded as having two limbs. The first limb, traditionally described as 'targeted malice', covers the case where the official acts with intent to harm the plaintiff or a class of which the plaintiff is a member. The second is said to cover the case where the official acts without such intention but in the knowledge that his conduct will harm the plaintiff or such a class. I do not agree with this formulation. In my view the two limbs are merely different ways in which the necessary element of intention is established. In the first limb it is established by evidence; in the second by inference.

The rationale underlying the first limb is straightforward. Every power granted to a public official is granted for a public purpose. For him to exercise it for his own private purposes, whether out of spite, malice, revenge, or merely self-advancement, is an abuse of the power. It is immaterial in such a case whether the official exceeds his powers or acts according to the letter of the power. (See Jones v Swansea CC [1989] 3 All ER 162, [1990] 1 WLR 54). His deliberate use of the power of his office to injure the plaintiff takes his conduct outside the power, constitutes an abuse of the power, and satisfies any possible requirements of proximity and causation.

The rationale of the second limb is not so transparent. The element of knowledge which it involves is, in my opinion, a means of establishing the necessary intention, not a substitute for it. But intention does not have to be proved by positive evidence. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it may and will usually be enough for the necessary intention, and therefore of the requisite state of mind, to be inferred. The question is: why did the official act as he did if he knew or suspected that he had no power to do so and that his conduct would injure the plaintiff? As Oliver LJ said in Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1985] 3 All ER 585 at 624, [1986] QB 716 at 777:

'If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not "intend" the consequences or that the act was not "aimed" at the person who, it is known, will suffer them.'"

[847]

"It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. The principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered (Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202, at pp219-220; Benning v Wong (1969) 122 CLR 249, at pp307-308) has been applied mainly to private Acts. However, it has been frequently applied in Australia to public authorities, notably public utilities, exercising powers under public statutes: Sermon v Commissioner of Railways [1907] HCA 61; (1907) 5 CLR 239, at pp245, 254; Essendon Corporation v McSweeney [1914] HCA 7; (1914) 17 CLR 524, at p530; Metropolitan Gas Co. v Melbourne Corporation (1924) 35 CLR 186, at pp193-194, 197_; South Australian Railways Commissioner v Barnes_ [1927] HCA 48; (1927) 40 CLR 179; Cox Bros (Australia) Ltd v Commissioner of Waterworks [1933] HCA 50; (1933) 50 CLR 108; South Australian Railways Commissioner v Riggs [1951] HCA 25; (1951) 84 CLR 586, at pp589-590_; Voli v Inglewood Shire Council_ [1963] HCA 15; (1963) 110 CLR 74, at pp88, 89, 100_; Birch v Central West County District Council_ [1969] HCA 67; (1969) 119 CLR 652. While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority (McSweeney; Metropolitan Gas Co), the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, at pp455-456; London and Brighton Railway Co v Truman (1885) 11 App Cas 45, at p61_; Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd_ [1916] HCA 12; (1916) 21 CLR 181, at pp199-200_; East Suffolk Rivers Catchment Board v Kent_ [1940] UKHL 3; [1941] AC 74, at pp88-89_; Riggs._ And at least since the decision in Fisher v Ruislip-Northwood Urban District Council and Middlesex County Council [1945] KB 584, esp at pp592-593, 615, 619-620, it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care."

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Judgment (1160 paragraphs)

EDWARDS & ANOR v OLSEN & ORS;MURPHY v STEVENS & STATE OF SA No. SCCIV-86-2556, SCCIV-87-742 [2003] SASC 238 (1 August 2003)

Legislation Cited (6)

Cases Cited (47)