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

2 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.

3 Both the appellant Edwards and the appellant Murphy were abalone fishermen at relevant times.

4 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directors pursuant to the Crown Proceedings Act 1972 which was in operation at relevant times but has since been repealed.

5 The actions proceeded to trial which occupied 110 days and were dismissed. The appellants appeal against that judgment.

6 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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.

13 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.

14 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.

15 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.

16 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.

17 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".

18 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.

19 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.

20 Until 1980 the permits were not transferable. When transferability was introduced by amendments to the Managed Fisheries Regulations 1971-1980 on 28th 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.

21 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.

22 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.

23 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]".

24 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.

25 The respondents also provided extensive written submissions and schedules of documents which Mr Bell, who appeared for them, supplemented with extensive oral submissions.

26 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.

27 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 3rd December 2002.

28 On 29th 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 3rd December 2002.

29 Delivery of judgment was deferred and the matter was called on for hearing on 4th 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.

30 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.

31 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.

32 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.

33 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.

34 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.

35 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.

36 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.

37 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.

38 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.

39 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.

40 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.

41 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 28th March 2003, and his condition was such that he could not continue to be a member of the Court and to hear the application.

42 On 13th 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.

43 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] SASC 169; (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] UKLawRpAC 16; [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.

44 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.

45 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.

46 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 17th and 18th 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.

47 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.

48 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.

49 I also mention answers given by the Full Court in the Case Stated prior to the trial: Edwards v Olsen [1996] SASC 5703; (1996) 67 SASR 266.

50 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.

51 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).

52 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).

53 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.

54 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.

55 Regulations relevant to issues in this appeal were made under the 1917 Act on 22nd 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.

56 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."

"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."

57 These Regulations were revoked and replaced by the Preservation of Abalone Resources Regulations 1971 made on 15th 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."

58 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.

59 The respondent Olsen was Chief Inspector of Fisheries from 16th October 1967 until 23rd November 1972. None of the other respondent directors held office before the 1971 Act came into operation.

60 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 1st 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).

61 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 23rd November 1972 which he held until 5th July 1973. He was then appointed Director of Fisheries Research and remained in that position until 2nd October 1975. He was the Acting Director of Fisheries until 26th November 1975 and was the Chief Fisheries Officer until 26th October 1979. The respondent Trumble was Acting Director of Fisheries from 15th October 1975 until the 1st 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.

62 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.

63 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."

"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.

64 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 26th January 1978.

65 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 27th June 1980.

66 Regulations were made under the 1971 Act entitled Managed Fisheries Regulations 1971, which came into operation on 30th November 1971, and revoked the Preservation of Abalone Resources Regulations 1971 and other regulations.

67 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:

"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."

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.

68 These Regulations were amended on 9th November 1972 in various respects but, for present purposes, the only significant amendment was the introduction of the following Regulation:

"21A No 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".

69 The Regulations were again amended on 28th 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.

70 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.

71 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.

72 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 1st 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.

73 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.

74 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 9th November 1972, only one permit or authority could be held.

75 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.

76 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.

77 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.

78 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.

79 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.

80 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.

81 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.

82 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."

83 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.

84 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.

85 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.

86 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.

87 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.

88 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.

89 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.

90 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.

91 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.

92 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.

93 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.

94 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.

95 Mr Chatterton was the Minister of Agriculture, Fisheries and Forests in South Australia from 10th 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.

96 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.

97 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.

98 On 5th 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.

99 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.

100 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.

101 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.

102 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.

103 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.

104 The respondent Olsen commenced employment in the Department of Agriculture and Fisheries on 16th 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.

105 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 5th 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.

106 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.

107 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 1st February 1967.

108 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 22nd 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.

109 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.

110 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.

111 According to the respondent Olsen, the Abalone Divers' Association supported this approach. He sent a circular to all abalone fishermen dated 29th 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.

112 As has been mentioned, the 1971 Act came into operation on 1st December 1971 and the Managed Fisheries Regulations came into operation on 30th 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.

113 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.

114 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.

115 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.

116 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.

117 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.

118 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.

119 I have mentioned Reg 21A of the Managed Fisheries Regulations which was introduced on 9th 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.

120 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.

121 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 30th 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.

122 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.

123 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.

124 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.

125 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.

126 He said that in 1976 the Minister, Mr Chatterton, after taking advice following studies by Dr Shepherd and another researcher that the abalone fishery could sustain more effort, granted permits to five new divers. The respondent Olsen had made a recommendation to that effect. He also said that at no time whilst he was Acting Director, did he believe, or have any inkling, that the owner/operator policy was unlawful. Also, he said that if it had been established that employee divers could take abalone otherwise than in relief circumstances, he would have examined what action could be taken to prevent that activity, including by amendment to legislation. He expressed the view that if a right to employ a diver existed and had been taken up, the stock in the fishery would have been at grave risk. He said that he never had any reason to question the policy and its validity was never raised with him.

127 After considerable experience in agriculture, the respondent McColl became the Director of the Department of Agriculture and Fisheries in 1976, succeeding the respondent Trumble and continued in that position until the Department split in 1979. At that time he ceased to have responsibility for fisheries. He was succeeded in that responsibility by the respondent Kirkegaard who was responsible to him for the management of fisheries.

128 The respondent McColl told the learned Trial Judge that he accepted that there was a role in administrative policy in implementing the Act and Regulations. Mr Chatterton had an active involvement in developing, approving and providing policy instructions. He said that at no time did he have any concerns about the validity of policies. He said that the owner/operator policy operated in the abalone fishery during all of the time that he was the Director and that he had never had any reason to question it. He said that Mr Chatterton frequently referred to it.

129 He was asked what action, if any, he would have taken if the correct interpretation of the Act and Regulations was that employee divers could take abalone, presumably in non-relief circumstances. His response was that he would have sought amendment of the Act and Regulations if such course was necessary, but he would, as a first measure, have sought co-operation from the divers, many of whom he regarded as responsible. He said that if there had been any suggestion that abalone divers were allowed to use employee divers in addition to themselves he would have sought advice from the Crown Solicitor. If he had been advised that employee divers were allowed he would immediately have discussed the matter with the Minister.

130 The respondent Kirkegaard was employed by the former Department as the Principal Research Officer for Fisheries in 1976. He was appointed Assistant Director of Fisheries in July 1977 and Acting Director in September 1979 which position he held until mid-1980 when the respondent Stevens was appointed as the Director. In 1986 he undertook duties in another area and left the Department in 1989. Like the other director respondents, he said that he did not at any time bear any malice or ill will towards the appellant Edwards or the appellant Murphy.

131 He told the learned Trial Judge that he believed that he had a fairly broad discretion under the Act in relation to the granting of licences and permits with respect to abalone. The relevant legislation when he was the Director was the 1971 Act as amended in 1977. He accepted that pursuant to s 34(1), he had a wide discretion regarding the granting of fishing licences and permits, or permits to employ and that in exercising that discretion he could take into account the policies of the Government of the day and the Minister and was obliged to do so. He held the same view about the exercise of the discretion pursuant to Reg 11 of the Managed Fisheries Regulations.

132 The respondent Kirkegaard said that when he commenced employment with the Fisheries Department, there was a policy that employees of abalone permit holders were not to dive for abalone. He regarded this policy as consistent with the Act and Regulations. Having considered Reg 7, 31 and 35 of the Managed Fisheries Regulations, it was his understanding that they countenanced the policy of no employee divers. At no time was the legality of the policy ever challenged. According to him, Mr Chatterton and Mr Rodda, the Minister in the Liberal Government, were both aware of the policy and approved of it. He regarded himself as bound by it. He said that the number of abalone permits issued was determined on the basis that employees would not be diving to take fish. Also, he said the policy was supported by the industry which was evident at meetings of organizations within the industry. He was referred to various documents which support that evidence.

133 He told the learned Trial Judge that if suddenly all employees, presumably such as the shellers, could and did dive, he would have made recommendations to maintain the amount of abalone taken at the same level, which could have involved closing the fishery and negotiating with the industry associations to restore the number of divers to 35 or the making of regulations. Mr Kirkegaard expressed the opinion that in the late 1970's and early 1980's, the abalone fishery could not withstand any more effort than was being applied.

134 The respondent Stevens was appointed Director of Fisheries in May 1980 and continued to serve in that position until October 1987.

135 For nearly the whole period of his service as Director of Fisheries, the respondent Stevens operated under the 1971 Act as amended by the 1980 amendment which came into operation on 27th June 1980. It was that amendment which the learned Trial Judge held permitted the imposing of conditions to prevent employees of the holders of abalone authorities from diving for abalone except as relief divers: see s 28.

136 The respondent Stevens confirmed that the owner/operator policy was in force before he became Director of Fisheries and continued after 1980. He said that Mr Rodda was aware of the policy and he believed that he supported it. The subsequent Ministers, until the respondent Stevens left the Department, were also aware of the policy and it was supported by them.

137 He said that he did not recall someone other than the owner/operator having beneficial ownership of the fishing licence and authority did not "figure" in the owner operator policy. At all times when he was Director of Fisheries a person could only have one permit or authority and he had no recollection of any Minister wanting change.

138 The respondent Stevens told the learned Trial Judge that the only time he could recall the question of trusts, in relation to the abalone fishery, being raised with him personally was when he was Director was in a letter from the appellant Edwards which raised the issue of companies, partnerships and he thought, a trust. He said he had no understanding of what was meant by a trust. He also said that he did not believe that the Act or Regulations contemplated the Department being interested in what happened to the proceeds of sale of abalone.

139 He said that he could not recall the appellant Edwards saying anything to him about wanting to retain his abalone permit or authority and hold it on trust. He could not remember the specific nature of the conversations that he had with him. They were about management of the abalone fishery and were amicable. He said he could not recall if the appellant Edwards ever suggested to him that he should have been able to employ divers on his licence as opposed to the use of a relief diver. He said he could not recall any conversation on the telephone with the appellant Edwards in 1980 in which he raised the owner/operator policy or the possibility of a company with which he was associated purchasing an additional fishing licence on his behalf.

140 Towards the end of the cross-examination the appellant Edwards established that the respondent Stevens gave evidence at the trial of the action Edmunds & Ors v Pickering & Ors (1999) 75 SASR 407. He was again asked if he had a general understanding of trusts in the 1980s and he replied that he had already answered that question to the effect that he did not know what is a trust. It was put to him that he did have an understanding of trusts. He was pressed about that matter without objection or intervention by the learned Trial Judge. He again said that he believed that an abalone authority could only be operated by an owner/operator.

141 The appellant Edwards then asked the respondent Stevens a series of questions which unknown to the learned Trial Judge he had asked of him during the trial of the Edmunds v Pickering action. He had a copy of that transcript which he did not disclose. Most of the questions he asked were disallowed. Obviously the learned Trial Judge did not appreciate that the appellant Edwards wanted to establish that the witness had given different evidence in that action about the matter of trusts. Eventually the learned Trial Judge told the appellant Edwards that he was wasting time and that he was disallowing any further questions on the matter of trusts. The appellant Edwards said that he had asked his last question on that matter.

142 In my view the learned Trial Judge erred in disallowing many of these questions but I expect he would have taken a different view if he had appreciated that the appellant Edwards was attempting to prove that the respondent Stevens had made previous inconsistent statements. The appellant Edwards had not reached the stage of contradicting the respondent Stevens by use of his previous statements and so he had not complied with s 28 of the Evidence Act 1929 which required that the circumstances of his earlier statements sufficient to designate the particular occasions be mentioned to him and that he be asked whether or not he had made the statement.

143 We were informed when Mr Bell made his submissions on this appeal that he recalled the respondent Stevens and put to him a copy of the transcript of his evidence at the trial of Edmunds v Pickering which he verified. He said that he had looked at the transcript and so far as he was able to say his answers to questions were true and correct. The appellant Edwards said that he was happy to accept that the witness stood by the evidence. The learned Trial Judge intervened and appropriately asked if there was any part of the evidence that the respondent Stevens wanted to qualify or explain. He gave the following evidence:

1. 'Q. What was it about the regulations that prevented a trust to justify the policy that you had, as far as you were concerned, with respect to the abalone fishery.

A. A trust, as I recall, contemplated absentee ownership and control of the licence and the licence was held and operated by the person who exercised the fishing effort in the fishery. If it was a matter of considering the trust in the abalone fishery, then from my perspective it needed to be worked through properly - the proposed arrangement with respect to trusts needed to be properly considered, so if there were effort implications in the fishery the department was in a position to implement compensatory measures to ensure the fishery was not overexploited'.

1. What did you understand by the use of the word 'trust' when giving evidence in that case.
2. My recollection from what I've said and read in that evidence was that it involved external control of the licence.
3. By what mechanism, are you able to say.
4. I didn't know and -
5. And still don't know.
6. And still don't know."

144 Mr Edwards wanted to tender part of the transcript but Mr Bell tendered the whole transcript and the learned Trial Judge said that he would allow the parties to make such use of it as they desired.

146 During his evidence at the trial of Edmunds v Pickering the respondent Stevens said that during the period from 1980 to 1982 he did not recall that the Department had any special arrangement for any particular interpretation of the law designed to accommodate specifically nominee owners or trusts or that there was any directive which related to them. He said he was not aware of any divers who held abalone authorities on trust for other persons. He was informed of the nature of the trust arrangement in Edmunds v Pickering where the diver was the legal owner of the fishing licence and abalone authority and agreed to hold them and all of the rights and privileges as agent and trustee for the principal and for the benefit of the principal absolutely. He said that the policy of the Department was that those arrangements were illegal. He said that the arrangement that control was with an external party would have been regarded as illegal. He was shown other features of the trust arrangements in that case which he said would have been regarded as illegal.

147 In cross-examination he said that his concern about those trust arrangements was that the question of control in other than the diver who had the authority. He said that as long as the Department could control the diver as the person with the authority how the diver organized his affairs was his business and he made that clear to the Abalone Divers' Association. He did not recall any trust arrangements. He did not contemplate trust or company arrangements in the abalone fishery. He said that in his recollection the boat authority had to be owned by the diver and would not be the subject of a company or a trust. Later in the cross-examination the respondent Stevens said that in the abalone fishery there was no allowance for a trust. He said that as he recalled the Department was approached by one or two persons about whether a trust would be permitted and the response was that as it was thought that a trust would fetter the exercise of the licence (and presumably the authority) it would not be approved. He said that the Act and Regulations did not refer to a trust. He then gave the following evidence:

"Q You did know what a trust was in those days, the 80's.

1. What was it about the Regulations that prevented a trust to justify the policy that you had, as far as you were concerned, with respect to the abalone fishery.
2. A trust, as I recall, contemplated absentee ownership and control of the licence. And the licence was held and operated by the person who exercised the fishing effort in the fishery. And if it was a matter of considering a trust in the abalone fishery then, from my perspective, it needed to be worked through properly, the proposed arrangement with respect to trusts needed to be properly considered, so that if there were effort implications in the fishery the department was in a position to implement compensatory measures to ensure stock was not over-exploited."

He was later asked about the decision of the Full Court in the Case Stated on one matter which was peripheral:

"Q I'd ask you to assume that the Act and Regulations were interpreted in a way which did not give you an entitlement under the Regulations to reject the transfer of an abalone licence from one diver to another merely because the purchaser was going to hold the licence on trust for another person. If you had known that at the time that you were Director, in particular between 1981 and '82, would you have altered your policy.

1. Yes, we would have altered our policy.
2. When I say the policy, I'm talking about the owner/diver policy.
3. We would have had to contemplate making other changes to ensure that the overall aim of conserving the state's fish resources was still achieved but we would have had to deal with the outcome, yes.

1. I will ask you to assume that a court had determined that Regulation 21A which prevented the holding of more than once licence was invalid. If you were aware of that, I take it you would have altered your policy accordingly in 1980.
2. Yes."

148 The respondent Stevens later said that the policy in 1980 to 1982 was that there could be no trust at all with respect to the abalone fishery but he acknowledged when giving evidence there could be a trust as long as there was no control by the beneficiary. The matter was clarified:

"Q I want to be clear about this, was the policy from '80 to '82 that you wouldn't countenance a trust at all or you wouldn't countenance a trust unless you could be satisfied there was no improper control over the diver.

1. Yes, that's correct.
2. Which one was it, it's one or the other.
3. Well, on the approaches that I recall that were being made to me about trusts at the time in the abalone fishery, I responded that the Department was concerned about the licence being unduly fettered in relation to direction or control which might have an impact on the proper management of our fisheries. That's what I recall saying. If you're suggesting to me if a trust arrangement was submitted to the Department, and I don't recall any such trust arrangement being submitted to the Department, which said that there was not going to be control of the operations of the diver, then we would have considered it."

He said he only had one inquiry in writing but he did not recall the detail of the trust arrangement. However, there were persons who talked about a trust. He said that, at the time, he would not have considered a trust at all in the abalone fishery. His evidence continued:

"Q But now you're saying it was different, are you not.

1. You suggested to me, I thought, that if a person approached the Department with an arrangement for a trust which had no control over the operations of the diver would we have considered it. We weren't approached but I always considered approaches that were made to me in relation to arrangements made by licences and fisheries.
2. To test the situation, if someone had approached you in 1980, namely after August 1980 when the transferability of abalone licences was possible, and said 'We want to transfer a licence to another person but that person will hold it on trust for a third person and that the term of the trust deed was that the diver had to comply in all respects with the Acts and Regulations', you would have approved it.
3. I can't say.
4. You might have approved it.
5. I might have, I might not have."

He said that if approval was to be given, the ability to control the beneficiary of the trust would have required consideration under the policy of the Department.

149 Mr Borick made a great deal of the evidence given by the respondent Stevens in the trial of Edmunds v Pickering and I return to his main submission later. At this stage I simply say that I do not think there is any significant difference between his evidence at that trial and his evidence before the learned Trial Judge in the present matter. In his evidence to the learned Trial Judge, he did say that he did not know what is a trust and, after being reminded of his evidence at the Edmunds v Pickering trial, he told the learned Trial Judge that in the 1980's he had a general understanding of what was a trust. However, his evidence about a trust arrangement being inconsistent with the owner/operator policy and that it would not be permitted by him when Director of Fisheries remained the same.

150 Given the lapse of time between the early 1980's and the date of the trial and his lack of a precise understanding about trust arrangements, I do not think any of this evidence reflected upon his credit.

151 It may be seen from all of this evidence that the nature of the owner/operator policy was well understood and implemented by the respondent directors, and was a policy of successive Governments.

152 In order to appreciate issues in this appeal, it is necessary to mention the Case Stated which was in the action of the Edwards appellants. The Case Stated included the factual context in which the various questions were to be answered and allegations made by the Edwards appellants. These allegations were:

"4.2 It is alleged that:

(i) the action of the defendants denying the first plaintiff's right to employ persons to take fish including abalone pursuant to statutory licences to employ issued before and after 1.12.71 was unlawful (statement of claim paragraphs 10,11 and 12);

(ii) there was a wrongful refusal to issue boat certificates of registration and authorisation with respect to the prawn trawler 'Moonraker' and/or an unlawful delegation of the decision with respect thereto to the Prawn Fishing Industry Advisory Committee and/or the Minister of Fisheries on or about 18/3/74 (statement of claim paragraph 13A);

(iii) wrongful rejection in 1980 of applications from the plaintiffs Edwards and Deep See Ark (Aus) Pty Ltd in partnership and otherwise for licences and certificates of registration and authorisation (statement of claim paras 13B, 14, 15, 16, 17, 18, 19, 20, 21 and 22);

(iv) misrepresentations to the effect that the first plaintiff was unable to hold or own an interstate fishing licence while contemporaneously being the holder of a similar licence in South Australia (statement of claim paras 23, 24, 25 and 26);

(v) misrepresentations with respect to the ability or otherwise of the plaintiffs to employ persons to take fish including abalone (statement of claim para 27(1));

(vi) misrepresentations with respect to the ability or otherwise of the plaintiffs to hold licences permits or certificates under the Acts or Regulations in the name of a body corporate, a partnership, or in trust (statement of claim paras 27(2), 27A, 28, 29, 30 and 31); and

(vii) negligent statements or misrepresentations (para 15A in Action No. 1746 of 1995)."

The Case Stated included admissions and denials attributed to the respondent directors. They asserted, inter alia, that they acted bona fide according to law in accordance with a policy for economic management adopted by Ministers of Fisheries for the control of the number of units of fishing effort and pursuant to the owner/operator policy. The Case Stated records that they did represent that an abalone authority could only be issued to a natural person and could not be the subject of a trust or be held by a corporation or by a partnership. The following admission was set out in the Case Stated:

"7 It is further admitted by the defendants as follows:

7.1 The first, second, third, fourth and fifth defendants did each while holding office represent to the first plaintiff that an abalone permit or authority was not capable of being

(a) impressed with a trust;

(b) held by a body corporate; or

(c) held by a partnership.

7.2 Between June and November 1980, the fifth named defendant represented to the plaintiffs that Regulations made under the Fisheries Act 1971 on 28 August 1980 did not permit:

(a) the grant or transfer of an abalone authority to other than a natural person; or

(b) the transfer of an abalone authority except pursuant to the procedure established by Regulations 17 and 35AA.

7.3 Between June and November, 1980, the fifth named defendant also represented to the plaintiffs that it was lawful for him, in administering the Fisheries Act 1971 and Regulations, to

(a) refuse to approve the transfer of an abalone authority pursuant to Regulations 17 and 35AA except where the person transferring the authority agreed to surrender his A class fishing licence and licence to employ;

(b) consider the amount of consideration to be paid for the transfer of an abalone authority before approving such transfer;

(c) to refuse to register a body corporate as the owner of a boat to be used for taking abalone."

153 The learned Trial Judge was a member of the Full Court. The other members were Olsson J and Duggan J. The correctness of the decisions of the Full Court was not brought into question on this appeal and so those decisions have been mentioned and applied without comment, except in some respects which I mention shortly. The decision is reported: Edwards & Anor v Olsen & Ors [1996] SASC 5703; (1996) 67 SASR 266.

154 The first question in the Case Stated was whether the owner/operator policy was a valid administrative policy approved by the Minister for the conservation of any species of fish or for the proper management of any fishery within the meaning of s 34(2) of the 1971 Act, or otherwise, a lawful policy pursuant to the prerogative powers retained by the Crown with respect to fisheries. This question was asked in the context of any fishery.

155 The Full Court answered this question in the negative. It was held that the Director at a particular time could not adopt such a policy without formal approval of the Minister pursuant to s 34(2)(b) of the 1971 Act. Olsson J, with whom Perry and Duggan JJ agreed, observed at 273:

"There is no doubt that, over a lengthy period of time the Director, with the concurrence of the Minister of the day, sought to maintain and enforce what was known as an 'owner/operator' policy. However, a difficulty which arises is that such policy was never formally documented and generally promulgated. At best, the concept sought to be applied is to be extracted from a variety of references in the documents placed before the court."

Olsson J referred to various documents which had been placed before the Full Court which referred to the owner/operator policy. He went on to consider whether the policy was valid with respect to abalone authorities and concluded that Reg 5 of the Preservation of Abalone Resources Regulations 1968 was beyond the regulation making power in s 59 of the 1917 Act for the following reason at 276-7:

"On a fair reading of the statute it seems to me that there was no warrant for concluding that the general regulation-making power was intended to permit a significant whittling down (let alone a virtual abrogation) of statutory rights expressly conferred elsewhere in the enactment, save to the extent that the statute itself, in express terms envisaged that that would be the case. Parliament rendered it abundantly clear, in section 59 and other relevant sections, that this could be done in certain, clearly articulated, respects. To suggest that, quite apart from those aspects, the general fishing rights stemming from a commercial fishing licence could seriously be emasculated by the imposition of an additional permit (or secondary licensing system) is not logical and leads to a lack of cohesiveness in the statutory scheme itself. A more general right to anchor regulations necessary and convenient for the proper management of fisheries cannot, in my opinion, reasonably be construed as denying that which is expressly authorised by other specific licensing provisions in the statute.

In this regard, it is not without significance that the FA 1917 was successively amended in 1967 and 1969 to erect a separate permit system related to crayfish - amendments which would not have been required had the existing regulation-making power been as wide as is now contended for by the Solicitor General."

It was held that the creation of the abalone permit system, by the Preservation of Abalone Resources Regulations 1968 and the Preservation of Abalone Resources Regulations made on 15th July 1971, were beyond power and the permit system was therefore invalid.

156 However, the Court held that the Managed Fisheries Regulations 1971, which as I have said, came into operation on 30th November 1971 stood on a different footing. They determined that s 36(2)(a) of the 1971 Act provided that Regulations may require a person to hold a permit in addition to a fishing licence and it was a question of whether the Regulations, as they were from time to time, entitled the Director to adopt the policy upon which he insisted: see 277. Olsson J, with whom the other members of the Court agreed, said at 279:

"I have dwelt upon this later scheme in some detail because, given the obvious tension which arises between reg 35 and s 52 of the FA 1971 (dealing with the issue of licences to employees), there is nowhere to be seen any requirement that the permit holder must be in the boat at all times - nor was there any warrant for the Director seeking to impose such a policy. Not even reg 35 purports to impose or sanction that stance.

It is therefore apparent that the policy propounded by the Department was, at all relevant times, beyond power on any view. It is not necessary to attempt to resolve the apparent tension between reg 35 and s 32 in relation to Question 9.1. In all of the circumstances the appropriate response to Question 9.1 is:

'Insofar as such a policy may have been implemented it was not a valid administrative policy approved by the Minister, or otherwise a lawful policy.'"

157 As I have mentioned, the decision of the Full Court was not challenged in the present case and it is accepted as correct for present purposes. However, as will be seen, the evidence at the trial clearly established that the owner/operator policy was a policy of successive Ministers and was implemented by the respondent directors and s 34(2)(b) of the 1971 Act did not require that an administrative policy be approved by the Minister in writing. The Full Court did not have the benefit of the considerable body of evidence before the learned Trial Judge which clearly established that the owner/operator policy was an administrative policy which had been approved by the various Ministers and it was widely promulgated in the fishing industry.

158 The next question posed in the Case Stated was whether the policy that controlled the number of units of fishing effort was a policy within the meaning of s 34(2) of the 1971 Act, or otherwise a lawful policy pursuant to the prerogative powers retained by the Crown with respect to fisheries. The Full Court also answered this question in the negative for the same reason, namely that the policy was never promulgated by the Minister and that also there was no scope for the operation of any prerogative power.

159 Successive Ministers and the Department regulated the abalone fishery by regarding the diver as a unit of fishing effort. By granting permits, and later authorities, to a limited number of divers and by imposing the owner/operator policy, the amount of abalone taken could be controlled because of the natural limitations upon each diver. Controls were imposed with respect to other species by other means, such as imposing a closed season for crayfish or specifying where the fishing could take place at particular times for prawn fishing.

160 The Full Court held that s 32 did not operate to confer a fishing licence of any description on an authorised employee and the scheme of the section is:

"....... simply to authorise the licence/permit holder to employ one or more persons to assist in the relevant fishing enterprise. At no stage is the employee the holder of a fishing licence - that person is merely assisting in the exploitation of the primary privilege enjoyed by the employer.

It is instantly apparent that, in such circumstances, reg 7 can have no operation in relation to the employee. That regulation, by its very terms, is only applicable to the licence holder. When any employee of Edwards acts within the s 32 licence, the fishing is, in law, done by Edwards pursuant to his licence and permit. In concept then, the regulations, read in the context of the Act, in no sense conflicted with the statute conceptually and the net result was that both Edwards and one employee were entitled, at any time, to exploit the permit - either diving together or separately": per Olsson J at 280.

161 The next question which the Full Court had to answer was whether it was valid for the respondent directors to direct that the appellant Edwards should not and/or could not employ a person to take abalone for sale. This question was also answered in the negative applying the same reasoning as was considered and applied to the answer to the previous questions.

162 So, it may be seen that the Full Court held that the owner/operator policy, insofar that it applied to abalone divers, was invalid and the appellant Edwards could not have been validly directed not to employ divers.

163 The next matter related to ownership of licences by a company, trust or partnership.

164 On 3rd July 1980 Deep Sea Ark acquired an interest as a tenant in common with the appellant Edwards in the vessel named "Moonraker". The case of the Edwards appellants was that they agreed on or about that date to use the boat jointly in partnership in the business of taking fish, including abalone, for sale, in the coastal waters of South Australia.

165 The appellants Edwards and Deep Sea Ark claimed to have been entitled to the grant or transfer to them of a boat registration certificate, a class A fishing licence, a boat authorisation certificate and, or, an abalone authority pursuant to the Managed Fisheries Regulations 1971 and a licence to employ a person or persons to take abalone on their behalf and under their direction and control and to have these applications duly considered and determined by the first respondent, Mr Olsen, the fourth respondent, Mr Kirkegaard and the fifth respondent, Mr Stevens. They made joint applications for all of these registrations, certificates, licences and authorities on 28th August 1980 pursuant to the Managed Fisheries Regulations in force at that time. They made a separate application to Mr Stevens on 15th September 1980 to have the licences, the authority and the registration issued to the appellant Edwards as trustee for and on behalf of Deep Sea Ark.

166 The applications were refused. It was the policy of the Minister and the respondent directors at relevant times that; subject to the relief diver provisions in force from time to time, only the permit or authority holder could take abalone, that abalone diving should be the principal occupation of the holder of a class A fishing licence with an abalone permit or authority attached as the case may be, that abalone permits and later authorities, were not to be the subject of a trust or to be held by a corporation or a partnership. It was the claim of the Edwards appellants that they suffered substantial losses because of the refusal of these applications. The appellant Murphy made similar claims.

167 In the Case Stated, the Full Court was asked the following questions:

"9.6 Was a fishing licence, a permit, a licence to employ, and/or a boat certificate of authorisation or registration, capable of being transferred or alienated at law or in equity or otherwise held in trust or by a body corporate and/or by a partnership and if yes did such transfer or alienation require the approval of the Director of Fisheries?"

"9.13 Was an abalone permit or authority capable of being transferred except pursuant to the procedure established by Regulation 35AA?"

"(a) whether licences, registrations, authorities or permits were transferable, with or without the approval of the Director;

(b) whether they were capable of being held in trust for the benefit of a third party; and

(c) whether they were each capable of being granted to or held by a corporate body and/or partnership."

169 Prior to 28th August 1980, relevant respondent directors represented to the appellant Edwards that the abalone permit, which later became the abalone authority, was personal to him and could not be transferred. When Reg 35AA was introduced on 28th August 1980, that view was formalised.

170 The Full Court held that prior to 28th August 1980, licences, authorities and permits were personal and not transferable. There was no right to transfer and the fact that in practice, the Director agreed, in some cases, to a surrender and re‑issue procedure, in his discretion, did not confer any "general, legal right to transfer": 281.

171 As to licences or permits being held in trust for a partnership or other beneficiary, Olsson J, with whom Duggan J agreed, said at 281-282:

"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."

The Full Court held that a fishing licence, permit, licence to employ and a boat authorisation certificate (a) might be held in trust for some other person or body corporate, provided that full control over its exercise remained in the hands of the legal holder to the exclusion of any beneficiary and (b) might be held by a body corporate (except in the case of an abalone authority) or jointly by, and in the name of, the partners constituting a partnership: 295. Although it appears that the Full Court did not accept that this position related to an abalone authority because it also held that a corporation could be the owner of a registered boat, but could not be the owner of a boat for which an abalone authority had been granted under the Managed Fisheries Regulations 1971. Perry J expressed the following view with respect to trust arrangements:

"In the provisions now in question, there is no such expanded definition. Furthermore, it seems to me to be part and parcel of the scheme of both the 1917 and the 1971 Acts and the regulations made under each of those Acts that the control of a licence or authority must be in the hands of the holder of the licence or authority. The fact that in many instances it is only a fit and proper person who may hold a licence or authority is a strong indicator towards that conclusion.

True it is that in law a beneficiary under a trust cannot control the exercise by the trustee of any legal authority or licence which he or she might own. But in practice (as opposed to legal theory), the situation may be quite different.

If, to take an extreme example, a person with a known long criminal record was the beneficial owner by way of a series of trust instruments of every fishing licence in South Australia, the conclusion that he or she might in fact be in a position to control the operation of those licences might be inescapable.

It follows that in my view, although a licence or authority or the like might be held in trust for some other person or body corporate, full control over its exercise must remain in the hands of the legal holder to the exclusion of any beneficiary, otherwise the existence of a trust could make nonsense of the statutory scheme."

In his reasons for judgment at the trial, he qualified this view to some extent by acknowledging that a trust instrument could confer upon a beneficiary a measure of control over the exercise of any authority or licence held by a trustee, but he went on to say that if there was full control, the arrangement could be regarded as

a sham. However, he confirmed his view expressed in the Full Court that full control must remain in the hands of the legal owner.

172 Regrettably, it seems that the appellants have understood of the decision of the Full Court as permitting the ownership and operation of abalone authorities by trusts with the consequence that trusts should have been permitted before the appellant Edwards and the appellant Murphy left the abalone fishery.

173 I mention that in Edmunds v Pickering, Lander J had to consider, inter alia, whether a trust was illegal because it was in breach of the 1971 Act and Regulations and, further, because it left the control of an abalone authority in persons other than the holder of the authority. He said, at 564:

"It is clear enough from his reasons that Perry J [in the Case Stated] was concerned that the legal owner of the authority had the responsibility and the obligations to comply with the Act and Regulations. It was the legal owner who must be answerable for any breach of the Act or Regulations to the exclusion of the beneficiary.

I think that has to be so. If trusts are permitted, and it is clear enough that they are, it must be the legal owner who has the responsibility and obligation to comply with the Act and Regulations. The legal owner could not escape that obligation by pointing to a direction given by a beneficiary to him or her which then caused the legal owner to contravene either the Act or the Regulations.

Where the Court therefore is referring to control over the exercise of the authority the Court is indicating the responsibilities which are imposed upon the legal holder."

174 As will be seen, the appellant Edwards claimed that he was, in effect, prevented by the respondent Olsen from holding abalone permits or licences contemporaneously in Western Australia and South Australia. The Full Court was asked if it was lawful for the respondent Olsen to cancel or refuse to renew his licences, permits or boat certificates issued under the 1917 Act or the 1971 Act on the ground that he contemporaneously held a licence to take fish, including abalone, in Western Australia.

175 The Full Court answered this question in the negative. Olsson J, with whom the other members of the Court agreed, said that there was no provision in either Act or any of the Regulations which rendered the dividing of effort between the two States as contrary to the efficient and effective management of abalone fishing in each State. He went on to say that it would have been quite improper for a refusal to renew to be based upon a consideration extraneous to statute or Regulations: 282-283. It does not appear that any argument was advanced as to the effect of s 30 of the 1971 Act which provided, inter alia, that a person could not be granted a class A fishing licence unless he satisfied the Director that he intended to carry on the business of fishing for profit as his principal business. The purpose of this provision was to ensure that the fishery could be appropriately managed. Under utilisation of a licence might create difficulty in that respect. However, that provision does not appear to have been the basis of submissions to the Court.

176 The next question in the Case Stated was whether Reg 5, 17 and/or 21A of the Managed Fisheries Regulations, either before or after the amendment on 28th August 1980, were valid under the 1971 Act and if yes to the whole or any part thereof, according to the proper construction thereof, did they lawfully prohibit the holder of a permit or authorisation certificate from:

"(a) being other than a single natural person;

(b) owning a proprietary interest in a permit, authorisation certificate, or authorised boat, held in the name of another;

(c) having an interest, or occupying an office, in a company or partnership which was a permit or authorisation certificate holder;

or

(d) having a beneficial interest in the proceeds of exploitation of licences, permits, or boat certificates of registration or authorisation held by another."

"5 A person shall not use a boat for the purpose of taking prawns or lobsters unless: -

(a) she is a boat for which an authority has been granted; and

(b) she is under the immediate control of a person holding a Certificate of Competency; and

(c) she is being used in all respects in accordance with the conditions of the authority."

"17 (1) Where the owner of an authorized boat without first obtaining the consent, in writing, of the Director, grants or conveys a proprietary interest of any kind, (whether legal or equitable), in that boat, to another person or to himself and another person the authority in respect of that boat shall, immediately the grant or conveyance becomes effective in law or equity, lapse. The Director may grant or refuse an application for consent under this regulation, and when considering an application, shall take into account all relevant matters, including those set out in regulation 12 to the granting or refusal of an authority."

177 The Full Court held that Reg 5 was valid but did not directly bear on the issues raised in paragraphs (a) to (d) and that Reg 17 and Reg 21A were invalid.

178 I have mentioned Reg 21A of the Managed Fisheries Regulations which, as from 9th November 1972, provided that no person could be the holder of more than one authority or permit. The Full Court held that these Regulations were invalid. Olsson J expressed the following view: 286

"The essential scheme of the statute is based upon the view of fishing licences of unqualified type, upon which there may be grafted specific limitations, by way of a need for authorities and permits, to ensure proper control and conservation of specific fish stocks.

Nowhere is there any suggestion of an intention on the part of the legislature to require those entering the fishing industry to devote their whole effort to only a single line of endeavour. Moreover that has no bearing whatsoever on conservation of relevant fish stocks. Ample control mechanisms either exist elsewhere, or can lawfully be erected, to ensure that fish stocks are not unduly depleted in any fishery.

No doubt, if a specific authority or permit is under utilised to a gross degree that may be a matter for consideration in relation to authority or permit renewals, but that is for another day.

I am inexorably driven to the conclusion that Regulation 21A is not reasonably proportionate to the purposes of the regulation-making power and, in any event, is offensive to the general concept discussed in Shire of Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746. I would declare it invalid."

179 As has been mentioned, the appellant Edwards held a licence from the Western Australian Fisheries Department to take abalone in 1968 and 1969. He alleged that Mr Olsen, whilst Chief Inspector of Fisheries and Director of Fisheries between 1969 and 1971, represented to him that he was precluded from contemporaneously holding or exploiting a licence to take fish, including abalone for sale under the 1917 Act, the 1971 Act and the corresponding legislation in Western Australia, and threatened that the fishing licence and abalone permit held by the appellant Edwards would be cancelled or not renewed if he continued to hold or exploit the Western Australian licence. Mr Olsen denied many of those representations.

180 The next matter in the Case Stated is relevant to issues in the appeal regarding the refusal to register more than one boat.

181 The appellant Edwards and Deep Sea Ark claimed that they were denied the opportunity to own and operate for fishing purposes more than one boat at a time due to policies wrongly established by respondent directors during the period between 1st December 1971 and 28th August 1980. It was admitted by the respondent Stevens and the State of South Australia that such a policy existed.

182 The following question was stated to the Full Court:

"9.10 Was it lawful for the defendants to refuse to register for each of the plaintiffs at the same time one or more boats to take fish for sale?"

The Full Court answered this question in the negative.

"17 (1) Every application to register a fishing boat shall -

(a) be made to the Director;

(b) be in a form fixed by the Minister or prescribed by regulations and contain the information indicated in the form;

and

(c) be dealt with by the Director.

(2) If the Director is satisfied that the application is properly made and the prescribed fee paid he shall register the boat, grant the applicant a certificate of registration in the form fixed by the Minister, and allot to the boat a distinguishing mark.

(3) The fee for registration shall be as prescribed by regulation or in accordance with a scale so prescribed."

" It is clear that mere registration of a boat does not carry with it any right to fish on a commercial basis. Such a right is governed by other requirements.

Neither s 17 nor [the Fisheries (General) Regulations 1971] qualifies the right to seek registration and neither even infers any discretion to refuse registration of any boat, provided that it meets the requisite technical requirements.

It is said that, over some period of time, the defendants sought to erect and apply a policy whereby boats owned by corporate owners would not be registered and registration would not be granted to more than one boat per owner.

In my opinion the Crown Solicitor was plainly correct when, in effect, he advised, on 11 October 1973, that there was no lawful basis for the policy sought to be applied. The Solicitor General did not seek to resile from that opinion.

This question must be answered in the negative."

185 I have mentioned that none of the decisions of the Full Court were challenged on this appeal. However, as I have mentioned, the evidence of the respondent directors, which the learned Trial Judge accepted, established that none of the policies or Regulations were ever challenged. The Crown Solicitor had certified the validity of the Regulations which the Full Court held to be invalid. In all of the circumstances, mere acceptance of the decisions of the Full Court cannot establish the case against the respondent directors in either tort.

186 Before turning to the complaints of bias, I mention a complaint by the appellants as to how the learned Trial Judge regarded the admissions attributed to the respondent directors in the Case Stated.

187 A factual basis of the Case Stated was that while holding office all of the respondent directors represented to the appellant Edwards that an abalone permit or authority was not capable of being "impressed with a trust", held by a body corporate or held by a partnership. It was further stated that between June and November 1980 the respondent Stevens represented to the appellant Edwards that Regulations made under the 1971 Act on 28th August 1980 did not permit the grant or transfer of an abalone authority to other than a natural person, or the transfer of an abalone authority except pursuant to the procedure established by Reg 17 and Reg 35AA of the Managed Fisheries Regulations 1971. Further that it was lawful for him, in administering the 1971 Act and these Regulations, to refuse to approve the transfer of an abalone authority pursuant to Reg 17 and Reg 35AA except where the person transferring the authority agreed to surrender his class A fishing licence and licence to employ. Also, it was lawful for him to consider the amount of consideration paid for the transfer of an abalone authority before approving such transfer and to refuse to register a body corporate as the owner of a boat to be used for taking abalone.

188 Each of the respondent directors said that they had not seen the Case Stated when it was prepared and submitted to the Court and denied that they had given instructions for the admissions to be made.

189 In their Defence in the Edwards proceedings the respondent directors admitted that directions were given to some holders of abalone permits and authorities at some times that subject to the relief diver provisions in force from time to time, the permit or authority holder and only that person should dive and collect abalone from the sea bed.

190 The respondent Stevens in his Defence in action brought by the appellant Murphy pleaded, inter alia, that it was the policy of the Government of the day and of the Minister for the time being responsible for the administration of the Fisheries Act, no doubt meaning the 1971 Act, that only the abalone authority holder should dive for abalone or engage directly in the taking of abalone, that the abalone authority holder should not hold simultaneously boat authorisation certificates in relation to more than one boat and abalone authorities should not be impressed with a trust, held by a trustee body corporate or a partnership, transferred or assigned or charged. He also pleaded that the policy included that abalone authorities should not be cancelled and re-issued except upon application being made pursuant to Reg 17 and 35AA of the Managed Fisheries Regulations 1971 and except upon the contemporaneous surrender of the authority holders class A fishing licence and licence to employ. He pleaded that those policies "were communicated from time to time to some holders of abalone authorities" whom he could not now identify.

191 During the trial the learned Trial Judge held that the respondents were not bound by the admissions set out in the Case Stated. Indeed he said that he did not regard the "so-called admissions as significant, in view of other evidence as to the circumstances in which the Case Stated" was prepared.

192 There are two matters which arise out of this approach by the learned Trial Judge. The first is that the appellants complain that he was wrong in that decision which is part of their appeals. The second matter is that the learned Trial Judge was biased by refusing some of the attempts by the appellants to cross-examine the respondent directors about this matter.

193 At this stage of these reasons it is convenient to deal with the complaint which is a ground of appeal. The appellant Edwards contended that the appellants were ambushed at the trial because the respondent directors had made the admissions in the Case Stated and should have been bound by them.

194 Evidence was placed before the learned Trial Judge that the draftsman of the Case Stated, a solicitor employed by the Crown Solicitor, took the view that it should focus on legal questions and that it should not be necessary to deal with factual matters. He did not seek instructions from the respondent directors. He last had contact with them in about 1988. The respondent Olsen gave evidence that he had not given any instructions. He said that he had not seen the Case Stated until he gave evidence at the trial. The respondent Kirkegaard said that over a period of a couple of years he gave instructions to the Crown Solicitor's Office including that he had made some representations. He said that he would not have used the expression "impressed with a trust" which he did not understand. He said he did not see the Case Stated before giving evidence. Also, he said that he did not tell anyone from that office that he had made representations or had conversations with the appellant Edwards on any of the topics mentioned in the Case Stated. The respondent McColl said that he did not read the Case Stated before giving evidence. The respondent Stevens said that he could not recall giving any instructions to the Crown Solicitor's Office. He did not authorise the admissions and did not give any instructions in relation to the Case Stated. The respondent Trumble did not give any evidence regarding these matters.

195 Later in these reasons I mention the findings as to what representations were made by respondent directors to the appellants.

196 We were referred to a decision of Perry J in Brickworks Markets Pty Ltd v The Corporation of the Town of Thebarton [1996] SASC 5655; (1996) 67 SASR 180 which the appellant Edwards seems to suggest is authority for the proposition that at a trial the parties and the Court are bound by facts which have been agreed for the purpose of deciding a preliminary matter. That is not the effect of that decision. In fact the decision was to the contrary. Perry J acknowledged that there could be a difference between facts agreed for that purpose and facts ultimately found at trial.

197 It is well established that a party may not be bound by statements of fact in pleadings if to do so would defeat the interests of justice: O'Keefe v Australian Trencher Company Pty Ltd & Anor [1991] SASC 3017; (1991) 56 SASR 370 per King CJ at 376-377 and per Debelle J at 379: see also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 85. There is no reason to take a different view about facts set out in a case stated. No authority was cited to us by Mr Borick, Mr Bell or Mr Murphy to suggest that the factual matters set out in the Case Stated were binding on the parties. In my view, the admissions set out in the Case Stated stand no differently than a statement made by a party out of court. It may be used by the cross-examiner to impeach the credit of the party as a prior inconsistent statement if that is the case and, if accepted by the party that it is true, may be used like any other admission as evidence of the truth of the matter. It is not like an admission in a pleading which has the consequence that the admitted fact is not in issue.

198 It was entirely proper for the learned Trial Judge to receive evidence from the respondent directors about the circumstances of the preparation of the Case Stated and whether the admissions reflected the case of each of them. It is no different for the reception of evidence by a party as to the circumstances of the making of any admission out of court. The admissions must be considered in light of all of the evidence.

199 I turn to the fairness question. The trial commenced on 21st February 2000 with the cases of six plaintiffs, including the appellants being heard together. Other plaintiffs began to present their cases and eventually their claims were settled. The Edwards appellants commenced their case on 22nd March 2000. During his opening on that day, the appellant Edwards referred to the admissions made by the respondent directors in the Case Stated. The learned Trial Judge intervened. He offered to assist the appellant Edwards with that part of his case. He explained the purpose of the Case Stated and did so correctly. It is unnecessary to set out that explanation. However, I mention that the learned Trial Judge was not bound by anything asserted in the Case Stated. He said that the assertions, presumably of fact, were made on the best information available and the understanding of the case at that stage. He went on to say that the issues in the trial were determined by the pleadings which is undoubtedly correct and that they may be different from those set out in the Case Stated. He also said that the assertions which were made in the Case Stated may not be borne out by the evidence in the trial. It may be seen that at the beginning of the trial the appellants were aware that the admissions in the Case Stated may not be conclusive.

200 The Defence case commenced on 7th August 2000 which was the 52nd day of the trial since the case of the case of the Edwards appellants commenced. The respondent Trumble was the first of the respondent director to give evidence which commenced on 8th August 2000.

201 The appellants were well aware of the status of the admissions made in the Case Stated since the trial of their cases began and the suggestion of ambush is incorrect.

202 Obviously the learned Trial Judge concluded that, in all the circumstances, if there was any difference between the facts stated in the Case Stated and those found by him upon consideration of all of the evidence, the latter should be preferred in the interests of justice. I agree with that approach, particularly when, as in the present case, there is an adequate explanation for any inconsistency.

203 I mention another matter. The Case Stated is dated 30th November 1995. The Defence was further amended on 24th May 1996, 13th August 1997, 29th February 2000 and 28th March 2000 which shows that the Defence was under review at those times. The Defence did not adhere to the admissions in the Case Stated, which was known to the appellants.

204 Before considering the proposed grounds of appeal of the appellant Edwards, it is appropriate to make some observations about the role of a trial judge when a party is unrepresented and the particular problems which faced the learned Trial Judge in the present case.

205 In Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 the High Court observed, at 150:

"A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy."

The extent to which a judge is required to assist an unrepresented party depends upon the litigant, the nature of the case and the litigant's intelligence and understanding of the case: Abram & Anor v Bank of New Zealand & Anor (1996) ATPR 41-507 (Full Court of the Federal Court of Australia) and Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438. In the latter case the Full Court of the Federal Court cited with approval observations in Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986) per Samuels JA at 6:

"In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent...... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ..... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

"Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done."

See also Maher v Wall [2000] SASC 176 (unreported) per Duggan J.

206 Kirby P, in Burwood Municipal Council v Harvey (1995) 86 LGERA 389 said at 395:

"A judicial officer enjoys a wide discretion in the conduct of court proceedings. Appellate supervision (particularly in appeals limited to questions of law) will show restraint and respect for the primacy of a judicial officer conducting the trial. This is done out of recognition of the extremely large variety of circumstances which have to be taken into account in the conduct of a trial in ensuring that it proceeds to its result fairly and produces orders which dispose of the controversy justly and in accordance with law. Appellate courts also recognise the variety of the personalities and dispositions of those who constitute the judiciary. Some judicial officers are, by personality and disposition, more inclined to intervene in proceedings than others. The appearance of justice and fair procedures does not impose a monochrome uniformity upon judicial conduct such that only one style of conducting proceedings is permitted."

"(a) The increasing realisation of the significance of the public costs involved in the conduct of court proceedings and of the obligation of judicial officers, at least to some extent, to take an active part to prevent the injustices which may occur to parties and to the public as a result of the inefficient conduct of trials;

(b) The increasing number of litigants in person who, for default of legal aid, lack of confidence in legal representation or otherwise by choice, present their own cause and represent themselves; .....

(d) The heightened awareness of all courts of the requirements of fair procedure, including the requirement that parties and essential witnesses, whose evidence may be disbelieved, qualified or in some way affected by a contrary proposition, should have the fair opportunity of answering such proposition before a final decision is made ................

.........................

(3) Notwithstanding the foregoing, which sustains an increasingly active role on the part of judicial officers today, a judicial officer observing the conventions of the Australian courts must conform to certain restraints which have been accepted as inherent in the judicial office and necessary to the manifestly neutral determination of controversy in a court of law. In a well-known passage in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 (C A), Denning LJ, at 64, chartered the limits by reference to the metaphor of the layout of a courtroom."

He then referred to matters which reinforce the tradition of neutrality and limited intervention. He said at 397:

"They include the need, every day, to win the confidence of the litigants and their acceptance that the judicial officer has approached the controversy presented to the Court with detachment and equal attention to the arguments of each party. The losing party, in particular, must not be left with a sense of grievance that the judicial decision-maker has taken on the cause of, or become too close to, its opponent. To this traditional explanation may be added one offered by Sir Robert Megarry in his 'Temptations of the Bench' (1978) 16 Alberta L Rev 406 at 409. The judicial officer must be aware of the 'perils of self-persuasion'. So long as he or she retains a distance and is relatively circumspect in interventions in the conduct of the trial, the appearance, and the actuality of self-persuasion will be diminished. ....... Interventions, put forward provisionally, to test evidence and to invite further persuasion are perfectly permissible .... But interventions which suggest a partisan opinion are intolerable."

and later he said that where one party is represented and the other not, the trial judge was entitled at 399:

"..... to ask more questions than might otherwise have been conventional, to direct questions to the Council, its representative and witnesses in such a way as to bring out evidence that would otherwise have been presented in [the applicant's] case by a trained lawyer or an experienced valuer."

207 Smith J of the Supreme Court of Victoria in Panagopoulos v Southern Healthcare Network & Anor (unreported, Supreme Court of Victoria, Smith J, 15th September 1997) when discussing legitimate intervention by a trial judge made the following observation at 8-9:

"Most, if not all of the pronouncements in the past (see in particulars Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 have been made in the context of litigation in which all parties are legally represented. The absence of legal representation introduces a factor into the equation which creates great difficulties for the trial judge who has an obligation to ensure that a fair and just trial is conducted. It is proper to conclude, however, that it is now accepted that judges may, and in fact should, intervene to ensure that they properly understand the evidence, and to ensure that the parties and the witnesses are made aware of the judge's thinking at appropriate times. It also appears to be accepted that a judge should, to an appropriate extent, intervene where the conduct of the case for one party is less adept than the needs of justice require. (See Government Insurance Office (NSW) v Glasscock (1991) 12 MVR 521 at 529 per Mahony JA). The major emphasis, however, appears to have been on the importance of maintaining an appearance of neutrality and one gains the impression that the appearance of neutrality is seen to be the primary concern. I refer to the above cases and to those dealing with the approach to be taken in procedural matters. (See Johnson v Johnson, Full Court, Family Court, unreported, 7/7/97, and the cases there cited). In my view, however, the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial."

208 Last, I mention the well known cases of Yuill v Yuill [1945] P15; [1945] 1 All ER 183 and Jones v The National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 where the consequences of excessive intervention are discussed. I return to those cases later.

209 With those principles in mind, the complaints made by the appellants must be considered. However, it must be kept in mind that the task of the learned Trial Judge was difficult. The actions were about 14 years old when they came to trial. In the case of the Edwards appellants, witnesses were asked to recall events which occurred a very long time ago, in some instances over 30 years ago, and in all instances, not less than about 20 years ago in the case of the Edwards appellants, and not less than 17 years ago in the case of the appellant Murphy. There had been extensive discovery. The learned Trial Judge had assisted the appellants extensively in an attempt to get the pleadings in order. As has been mentioned, he had managed the proceedings at the pre-trial stage. He was familiar with the issues raised by the pleadings and he was a member of the Full Court which heard the Case Stated. Whilst these matters do not establish, or even suggest, that he had formed views about the case which were adverse to any of the parties or that he had pre-judged issues, it may be readily accepted that he had a sound knowledge of the issues before the trial commenced.

210 Perusal of the transcript reveals that it was necessary for the learned Trial Judge to intervene to ensure that there was no unnecessary repetition, only evidence relevant to facts in issue was given and that the appellants were able to advance their cases in a productive and economical manner.

211 This was an unusual case not only because the relevant events occurred so long ago and that the appellants were unrepresented, but because many issues were raised and a vast amount of evidence, oral and documentary, was given. The trial occupied 91 sitting days during the period from 22nd March 2000 until 11th December 2000. As the cases show, it was incumbent upon the learned Trial Judge to intervene to keep the trial on course and to promote economy of effort. He was obliged to ensure that the time of the Court was not wasted and was used productively.

212 Also, he had to have regard to the characteristics of the litigants. It is clear from the transcript and from the written submissions made to us by the appellant Edwards that he is articulate, knowledgeable about the issues in the trial, assertive although polite and well able to stand up for himself. The appellant Murphy has the same characteristics but not to the same extent. Nevertheless, he was able to cross-examine witnesses and make appropriate submissions. The transcript of the trial reveals that the appellant Murphy displayed knowledge of the issues at the trial and the ability to adduce evidence in relation to them.

213 It is convenient to first consider the proposed grounds of appeal relating to alleged bias. If they have substance, the amendment must be allowed and the appeals must succeed, unless it is plain that regardless of the attitude of the learned Trial Judge to the appellant Edwards and the appellant Murphy, claims of misfeasance in public office and in negligence could not succeed. If there is no substance in the proposed grounds leave to amend should be refused and the appeal should be considered as if the application had not been made but having regard to the submissions of the parties as to the grounds of the substantive appeal at the rehearing.

214 The application by the Edwards appellants to amend the grounds of appeal was to add the following grounds:

1 That in his reasons for judgment the learned Trial Judge demonstrated he had affected an actual bias against the Edwards appellants before the trial had started.

2 That the reasons for judgment give rise to a reasonable apprehension of bias prior to the trial.

3 That during the trial the learned Trial Judge affected actual bias against the Edwards appellants.

4 That during the trial the action and behaviour of the Trial Judge gave rise to a reasonable apprehension of bias.

5 That in his reasons for judgment the learned Trial Judge affected actual bias against the Edwards appellants.

6 That the findings set out in the reasons for judgment of the learned Trial Judge and the manner and way in which they were answered give rise to a reasonable apprehension of bias.

7 That subsequent to the judgment entered by the learned Trial Judge he affected actual bias against the Edwards appellants.

8 That certain decisions made by the learned Trial Judge gave rise to a reasonable apprehension of bias.

215 Particulars were given with respect to many of these grounds.

216 It is submitted that the alleged bias impacted upon all of the findings made by the learned Trial Judge, including the findings as to credibility or reliability of the appellant Edwards, the respondent directors and other witnesses.

217 It was submitted by Mr Borick that the learned Trial Judge was actually biased towards the Edwards appellants, or alternatively there is a reasonable basis for an apprehension of such bias, before the trial commenced and at all stages during the trial. The contention is that the learned Trial Judge made errors during the course of the trial which were due to his bias and are clear evidence of it. These matters are summarised as follows:

1 The extraordinary number of direct interventions by the learned Trial Judge in the conduct of the case of the Edwards appellants and in particular during the cross-examination by the appellant Edwards of various witnesses called by the respondents.

2 The failure of the learned Trial Judge to appreciate the extent, type and nature of his interventions and their impact upon the ability of the Edwards appellants to present their cases or alternatively the damaging use by him of such conduct in debilitating the presentation of the cases of the Edwards appellants.

3 There are a series of findings of the learned Trial Judge on a number of critical issues which are said to be obviously wrong and favour the respondents. On each occasion the findings are not accompanied by any judicial analysis of the evidence.

4 On occasions the learned Trial Judge permitted unnecessary, inappropriate or irrelevant criticisms and observations to intrude into his reasoning.

5 The learned Trial Judge permitted counsel for the respondents to engage in verbal abuse, which Mr Borick described as invective which was both unnecessary and unjustified.

6 On two occasions the learned Trial Judge permitted counsel for the respondents to attack the integrity of various legal practitioners who may have assisted the appellants without any comment or disapproval of what were unnecessary and unjustified attacks.

All of these matters, on the submissions of Mr Borick, indicate bias on the part of the learned Trial Judge in the sense which I have mentioned.

218 Each of these matters are considered in the context of the proposed grounds of appeal.

219 Before considering the many allegations and complaints made by the Edwards appellants against the learned Trial Judge, it is appropriate to consider the law which applies to claims of bias against a judicial officer, and to make some observations about the application of the relevant principles to the present case.

220 As has been seen, the Edwards appellants allege both actual bias and what has come to be known as a reasonable apprehension of bias.

221 As to actual bias, I accept that the law as correctly stated by Cole JA and Rolfe AJA in Ramadan v New South Wales Insurance Ministerial Corporation (1995) (unreported SC(NSW) Kirby P, Cole JA and Rolfe AJA, BC9507292). At 17 Cole JA said:

"It is important to firmly bear in mind a critical distinction between an allegation of actual bias and an allegation of reasonable apprehension of bias. They are allegations of an entirely different character. An allegation of actual bias requires an appellate court if it is to uphold the allegation, to make a finding that the trial judge was, in truth, biased against or prejudiced in the sense of having prejudged against the appellant. It involves a finding of judicial impropriety, and probably of judicial misconduct. It involves a finding of breach of the judicial oath.

An allegation of reasonable perception of bias is an allegation of, and involves, if it be upheld, findings of quite a different nature. It does not involve any finding of judicial impropriety or misconduct by the trial judge, nor does it involve any finding of breach of the judicial oath. It involves only a finding that a reasonable and intelligent lay observer may gain from the conduct of the proceedings or, in this case, a reading of the judgment, an impression that the trial judge may have been biased, not that he was. A finding of a 'reasonable apprehension' of bias in a reasonable and intelligent lay observer is quite a different finding to one of actual bias in the judge."

He went on, at 18-19, to say that he "profoundly" disagreed with the approach and remarks of Kirby P in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) & Ors (1992) 26 NSWLR 411 at 416-417, which I mention shortly.

"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."

"As in most cases of this kind, the present application was presented to Cole J in this Court as one of apprehended, but not actual, bias on the part of his Honour. I have always considered that this distinction, to which Judges, and other lawyers attach such great importance, is founded more upon professional comity than the real opinions of the litigants involved or of the reasonable members of the community whose imputed conclusions are taken to determinative of the matter.

Judges and other lawyers hasten to deny the possibility that they or their colleagues actually suffer from bias. They protest this rare psychological capacity, as a class, to put prior conclusions entirely 'out of mind'. This is said to be so, even if the bias which attends the natural human desire for consistency of thought and action are the usual inclination of any human being to uphold an opinion earlier expressed if supported by grounds which seem totally convincing to that person at the time of their expression. As Cole J said in this case (describing the vehicle used to seek his disqualification) such circumlocution usually owes more to 'elegance' and 'kindliness' on the part of the challenger than to the real opinion which the challenger holds."

224 In Ramadan Kirby P said that he had considered these observations of Cole AJ, but saw no reason to change what he wrote in Spedley: see 11-13. Rolfe AJA, in Ramadan, said at 5:

"However, an allegation that a judge acted in a proceeding notwithstanding that he was biased, is a serious allegation: at least ordinarily it will be so. It will ordinarily involve judicial misconduct, judicial incompetence, or default generally of a similar nature. If an allegation may properly be made, it is the right and, in some cases, the duty of a counsel or party to make it In Zanatta v Cleary [1976] 1 NSWLR 231 at 241, I said:

'I would not desire to qualify the right of a party, or the right of his professional advisers, fearlessly to press every matter which, within the law, may properly be pressed in support of a claim. However, justice requires that a proper sense of responsibility be exercised in this regard and if evidence, the tender of which is apt to cause damage to others, will not be admissible, then justice will normally require that that evidence be not tendered. The fact that such evidence may, if accepted according to its terms, indicate a degree of indiscretion would render it less rather than more appropriate to be tendered. Matters of indiscretion, if they arise, may be dealt with by other means.'

But it is accepted that, in respect of a party or witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it: see Rajski v Bainton (1990) 22 NSWLR 125 at 135-137. To put the matter no higher, nothing less is to be expected where such an allegation is made against a judge. Such an allegation should not be made upon grounds that are equivocal or, a fortiori, flimsy."

As I have said I favour the views expressed by Cole JA with which Rolfe JA appears to agree.

225 The making of the allegations of bias is a very serious matter as it is made by a member of the senior bar against a Judge of this Court. In his outline of submissions, Mr Borick said that he gave preliminary advice that bias should be argued. He drafted the proposed grounds of appeal, with the exception of some particulars of one ground, and he drafted the outline. Unlike in the case of the appellant Murphy, this is not a case of an unrepresented party possibly misunderstanding the significance of judicial conclusions with which he did not agree. This is a case where one of the most serious allegations which could be made against a judge are made by senior counsel, presumably after mature consideration and the discharge of the obligation not to make allegations which are untenable. In his submissions, Mr Borick said that in making the allegation of actual bias, the Edwards appellants do not allege misconduct by the learned Trial Judge, judicial or otherwise, and it is not alleged that the learned Trial Judge was unable to comply with his judicial obligations. I have difficulty in accepting the these contentions. The allegation of actual bias in the present case clearly alleges judicial misconduct and as will be seen some of the allegations attribute a motive which is entirely inconsistent with the proper discharge of judicial obligations.

226 In the present case the complaint of actual bias is based upon the conduct of the trial by the learned Trial Judge and decisions made by him which are said to be wrong. This is not a case of the trial judge being personally interested in the outcome of the case or having some interest or prejudice which was hidden from the parties.

227 In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, Deane J said at 74:

"I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court."

In IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors [1999] SASC 249; (2000) 78 SASR 151 Doyle CJ, with whom the other members of the Court agreed, after referring to this dictum of Deane J, said at 187:

"Despite what his Honour said, it may be that in exceptional circumstances it will be necessary or appropriate for a court to entertain a submission of actual bias on the part of a judicial officer and to make the appropriate finding. However, I wholeheartedly agree with his Honour's observation that the common law test for bias is of sufficient width to make it unnecessary for an allegation of actual bias to be made. If the reasonable apprehension test is satisfied, it will be unnecessary to consider an allegation of actual bias. If that test is not satisfied, I find it difficult to understand how an allegation of actual bias could succeed. As well, an allegation of actual bias raises difficult issues for the Court. It is a serious allegation to make. Bearing in mind that, in proceedings by way of appeal, there is no means by which the subject of that allegation can be heard, how can the Court deal fairly with the allegation? I appreciate, as was pointed out by North J in Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71, that actual bias may exist even if the decision-maker did not intend or did not know of his or her prejudice (see at 135). However, to say that does not, in my respectful opinion, detract from the seriousness of such an allegation."

228 Where possible I have approached the proposed grounds of appeal and the submissions in support of them by first considering if the appellants have satisfied the reasonable apprehension test. However, some of the complaints allege actual bias of a most serious kind and it has not always been possible to resolve complaints without considering actual bias.

229 I turn now to the principles to be applied when considering whether the conduct of the trial and statements made by the learned Trial Judge give rise to a reasonable apprehension of bias.

230 The test to be applied has been discussed in many cases and was recently stated in Johnson v Johnson (2000) 201 CLR 488. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492:

"It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide [eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41]."

"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."

In applying the principles, it is as well to keep in mind the observations of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:

"It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either than he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be 'firmly established': R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." (Footnotes omitted)

See also Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Gaudron and McHugh JJ at 100 and IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors [1999] SASC 249; (2000) 78 SASR 151.

231 It is well established that if a party considers that a judge has exhibited actual bias or that there is a reasonable apprehension of bias, that party is obliged to make that allegation known as quickly as possible. The party is not entitled to stand until the final judgment is known and if it is successful, attack the decision on the ground of bias: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, Hinton v Mill (1991) 57 SASR 97 and Ramadan. In the present case, the allegations of bias were not made at any time during the trial or in the Notices of Appeal. As has been seen, the two allegations of bias made in the original Notice of Appeal were of an entirely different nature. The allegations were not made during the first hearing of the appeal, although there was complaint about excessive intervention by the learned Trial Judge during cross-examination of witnesses by the appellant Edwards on occasions.

232 Mr Bell submitted that the Edwards appellants had waived any rights to allege bias pre-trial, during the trial and in the reasons for judgment. The same submission applies to the appellant Murphy because he had joined in the allegation of bias.

233 As the appellants were not legally represented at any stage during the trial, and the Edwards appellants were now represented by senior counsel, we considered that we should hear the applications to amend the grounds of appeal and the submissions as to the merits of the proposed grounds of appeal relating to bias. If merit is established, we should then consider if justice demanded that the appeal should be allowed. As will be seen, it has not been necessary to decide if the appellants are prevented from raising the issue of bias at this late stage.

234 First, I mention the contentions that the learned Trial Judge was biased generally throughout the whole trial. It was contended by Mr Borick that when considering these submissions, it is necessary to keep in mind the observations of Callinan J in Johnson at 518. He said:

"His Honour had earlier suggested to counsel for the appellant that he ought put to the respondent the actual documents evidencing an alleged loan whose existence she mistrusted. This had apparently remained undone. It was an entirely reasonable suggestion. By the time that his Honour made his comments the issues in the case should have been fairly clearly defined. His Honour's position might well therefore be contrasted with the position of a judge, who may have, for example, engaged in intensive case management before a trial, and has come to believe himself or herself so well educated about the proceedings, and the respective positions of the parties, as to be able to make predictions about the outcome on the impressions so far formed, a real danger which may lie in intensive case management undertaken by a judge who is to conduct the trial."

I have done so, but there is no reason to conclude that the learned Trial Judge's knowledge of the cases of the appellants acquired before trial affected his ability to consider the issues impartially and fairly.

235 Before embarking upon the extensive number of complaints put forward in support of the application, I make a general comment. It is evident that someone has trawled through the entire transcript of the trial, the submissions of counsel, many exhibits and the reasons for judgment of the learned Trial Judge and carefully weighed each word, observation, ruling or finding of the learned Trial Judge and usually asserted bias on the occasions when it is thought that an observation or decision was made contrary to the interests of the appellants. Many of the complaints could not possibly suggest bias. There does not appear to have been any filtering process.

236 I am not aware of any case where such a detailed and comprehensive attack has been made upon a judge and, in the main, about matters of little significance. However, in view of the nature of the attack, I have found it necessary to consider every complaint and to express reasons about my conclusions. I have not regarded it appropriate to deal with them in a compendious or summarising manner.

237 The first matter alleged to establish actual or apprehended bias is observations made by the learned Trial Judge as who was responsible for the considerable delay in the prosecution of the appellants' proceedings. The Edwards appellants commenced their action on 22nd August 1986. The appellant Murphy commenced his action on 9th April 1987. The actions came to trial on 22nd March 2000.

238 We were informed that at a hearing of an interlocutory matter in 1999 before the trial commenced, the learned Trial Judge said that he was not too "fussed" about the long delay in the actions reaching trial and he did not attribute blame to the Edwards appellants for the delays. In his reasons for judgment, the learned Trial Judge said that the blame for the delay in the proceedings "must be sheeted home primarily to the [appellants]". He said at paras 21-22:

"At the end of the day, none of the parties will own up to responsibility for any of the delay, blaming others or events beyond their control. But insofar as it may be relevant to attribute any blame for the delay, it must be sheeted home primarily to the plaintiffs. In particular, I do not accept Mr Edwards' contention that the defendants are to blame, whether by reference to any supposed tardiness in making discovery of documents or otherwise.

It is for plaintiffs who have brought proceedings to get on with them in a timely fashion. Their failure to do so may have adverse implications for the plaintiffs with respect to applications for extension of time, costs, interest and a failure to satisfy the onus of proof where the factual basis of a particular issue can no longer be satisfactorily resolved due to witnesses having died or the recollection of those witnesses who have survived having faded due to ill health or the lapse of time."

It is submitted that this finding was not supported by any reasons and is not the result of an analysis of evidence and argument. It demonstrates that the learned Trial Judge approached the trial with an element of bias in his mind which he did not disclose before the trial commenced.

239 I cannot see any basis in this contention for a conclusion that there is actual bias or a reasonable apprehension of bias. The learned Trial Judge obviously came to know more about the cases of the parties as the trial proceeded. There is simply no reason to apprehend that he had any bias towards any of the appellants before the trial commenced and the observations of responsibility for the substantial delay in his reasons for judgment does not suggest any bias at that stage. Furthermore, there is no reason to suppose that his conclusion about the cause of the delay had any bearing upon any decisions made by the learned Trial Judge as to matters in issue. As I have mentioned earlier, I do not regard the reason for delay in prosecuting the proceedings as of significance.

240 It was submitted on behalf of the Edwards appellants that there are errors in the reasons for judgment which indicate bias against them.

241 In the reasons the learned Trial Judge mentioned, in an unexceptional way, the difficulties caused by the appellants having been unrepresented and the approach which he took to assist them. He said at paras 49-51:

"The fact that the plaintiffs were unrepresented gave rise to particular difficulties with respect to the leading of evidence. Again I was mindful of my responsibility on the one hand to remain impartial and to deal with all parties in an even-handed fashion, but on the other hand to give such assistance to the unrepresented plaintiffs as was reasonably necessary to enable their claims to be fully and adequately ventilated.

In the somewhat difficult situation in which I was placed, I found it necessary to lead both Mr Edwards and Mr Murphy in their examination-in-chief. I did so by reference to their pleadings and my understanding of the cases as opened by them. So far as their witnesses were concerned, I endeavoured to leave it to Mr Edwards and Mr Murphy to lead their witnesses. But at times it was necessary to intervene to put questions in an admissible way, sometimes following a series of objections by counsel for the defendants.

Obviously I could not properly intervene in the cross-examination by Mr Edwards and Mr Murphy of witnesses called by the defendants, except occasionally, when I found it necessary to put in an admissible fashion a line of cross-examination which they were endeavouring to pursue and as to which a successful objection had been taken."

242 Later, I consider whether the learned Trial Judge accurately described the extent of his interventions and the role which he played but, having considered the evidence relevant to the issue on those appeals, I reject the submission that these observations indicate bias. The learned Trial Judge went on to say at paras 54-56:

"It was obvious from the outset that both Mr Edwards and Mr Murphy harboured strong feelings of antagonism towards the director defendants, or such of them as held office under the Fisheries Acts while the plaintiffs were diving for abalone. Furthermore, it was clear that the plaintiffs felt that over that period of time they had been badly treated by the Fisheries Department and its officers, and prevented from a full realisation of the financial benefits which their exertions as abalone divers deserved.

While it might be putting the matter too highly to suggest that they were pursuing a vendetta, they took every opportunity to criticise every conceivable aspect of the Department's regulation of the abalone fishing industry, at least insofar as it was perceived by them to be against the interests of the divers. In consequence a very considerable body of evidence was admitted which was of marginal relevance, if relevant at all, to the legal and factual issues upon which the cases fall to be determined.

In dealing with the admission of evidence, I took what some might suggest was a somewhat benign approach, partly as an expression of my concern to ensure that the unrepresented plaintiffs were not disadvantaged by reason of their inexperience with court procedures and lack of legal knowledge, and partly as an expression of my concern to ensure that all relevant evidence was before the Court."

In the circumstances none of these observations suggests bias. The transcript suggests that both the appellant Edwards and the appellant Murphy do have strong feelings of antagonism towards the respondent directors with whom they had dealings and it is clear that they felt that they had been treated badly and unfairly. At the trial the appellant Edwards pursued every possible complaint which he had against the respondent directors and other officers of the Department and at times was prevented from doing so due to lack of relevance. The appellant Murphy covered much less ground in the presentation of his case but he had strong views about the respondent Stevens. The learned Trial Judge had the advantage of seeing the appellants and noting their demeanour throughout the trial. There is no basis to conclude bias because of the observations which I have mentioned.

243 It was submitted that the learned Trial Judge failed to appreciate the extent of his interventions and their impact on the trial generally. I understand this submission to mean that his interventions caused conduct and attitudes on the part of the appellants which led the learned Trial Judge to make the observations. I can see no basis for that submission.

244 In his reasons for judgment, the learned Trial Judge said, at paras 64-66:

"Although Mr Edwards attempted to make much of some of the difficulties imposed by the interaction of Commonwealth and State fisheries legislation, I am not satisfied that those supposed difficulties have any bearing on the outcome of either case. They are irrelevant to Mr Murphy's case.

This is largely because I accept the evidence of Dr Scoresby Shepherd that the distinction between Commonwealth and State jurisdictional limits over the sea bed was of no consequence to abalone fishermen who were licensed for that purpose under the State Acts and fished within State territorial waters.

Very few, if any, abalone is to be found in commercial quantities outside of State territorial waters. If there is or has been any occasional intrusion by abalone divers into Commonwealth waters, whatever may be the legal position, it has not had any practical consequences, in that the whole of the abalone catch has been brought to account under state legislation."

245 It is submitted that these observations are incorrect and are made due to bias against the appellants. It is unnecessary for present purposes to mention the considerable body of evidence which was placed before the learned Trial Judge in relation to the control of Commonwealth waters. The control of the Commonwealth waters was entrusted to the Department. It was difficult for the Department to police the taking of abalone in Commonwealth waters. The appellant Edwards contended that his business as an abalone fisherman was damaged because he was not able to fish in Commonwealth waters.

246 The respondents called Dr Shepherd who is a marine biologist and had been employed by the Department since 1968. The learned Trial Judge found that he had made a particular study of the abalone fishery and had considerable experience in research of marine life and in particular abalone populations. He concluded that Dr Shepherd is of high standing in his profession and is a world-renowned expert in the study of abalone. The learned Trial Judge accepted his evidence and the broad correctness of his estimations as to the extent of abalone resources in South Australia over the relevant period. These estimations provided a reliable foundation upon which the Department based a number of policies regarding the abalone fishery and also for the resolution of issues raised in these proceedings.

247 It was submitted that the learned Trial Judge erred in his finding about the evidence of Dr Shepherd. This submission is based upon the transcript of evidence given by Dr Shepherd at a Parliamentary Select Committee of Enquiry into the owner/operator policy in 1991. It was submitted that Dr Shepherd expressed the opinion that if two or more divers could operate, one diver could dive in deeper waters, down to 30 or 40 metres, to exploit the deepest stocks and other divers could work in shallow waters. Profits could be increased. The risk of bends in diving extensively in deeper water would be reduced. Later in that evidence he said there were not many aggregations of abalone below 30 metres but he mentioned one large population on Southern Eyre Peninsula. He thought there were other deeper stocks of abalone.

248 Mr Borick submitted that this evidence does not justify the finding made by the learned Trial Judge. Dr Shepherd was cross-examined at great length by the appellant Edwards. He said that he was only aware of one place in Southern Australia, Linguanea Island, where abalone had been reported at 50 metres. He told the learned Trial Judge that his research did not support the view that there was a "pot of gold" of abalone in deep water which could have been reached with two divers working together. He went on to say that he believed that divers were exploiting all depths but the best depth for concentration of abalone rarely went beyond 25 metres. The divers were exploiting all commercially stable beds. The deeper water was in Commonwealth waters.

249 All of the evidence of Dr Shepherd justifies the observation made by the learned Trial Judge and there is no basis for concluding that it was made because of bias.

250 Towards the end of the preliminary part of the reasons for judgment, the learned Trial Judge said that having had the benefit of the "wide-ranging" evidence at the trial it had become clear that, by and large, the control of the abalone fishing industry had been successful and what was a somewhat fragile resource had been preserved in marked contrast to the over-exploitation which had occurred elsewhere where some abalone fisheries had collapsed. The Edwards appellants submitted that the resource of abalone was not fragile. The essential feature of good fishery management is the ability to "control capacity". The owner/operator policy was simply an administrative device and this finding of the learned Trial Judge demonstrates that he was taking the side of the respondents. These matters are purely argumentative. The learned Trial Judge had heard a vast amount of evidence from many witnesses, including expert witnesses, who justified and supported the owner/operator policy. The observation of the learned Trial Judge was justified by that evidence. A contrary opinion of the appellant Edwards does, and could not, establish that the learned Trial Judge was wrong, let alone biased.

251 As will be seen later in these reasons the learned Trial Judge made findings adverse to the appellant Edwards about his credibility. Mr Borick submitted that it was incumbent upon the learned Trial Judge to have informed the appellant Edwards of the significance of allegations of dishonesty made against him and to provide him with a clear opportunity and invitation to respond. His failure to do, it was submitted, was a clear example of bias.

252 We were informed that the appellant Edwards filed extensive written submissions in November 2000 and completed his oral address on 11th December 2000. Judgment was delivered on 21st December 2000. Mr Borick submitted that clearly by 11th December 2000 the dye was cast on the issue of credibility as well as all other issues and anything contained in the final submission of the appellant Edwards was hardly likely to change the mind of the learned Trial Judge about the appellant Edwards, the respondent directors or any of the issues in the case.

253 Also, it was submitted that the learned Trial Judge erred in his observation that the appellant Edwards had no answer to the extensive submissions of the respondents as to his dishonesty. That observation, it was submitted was patently unfounded, untrue and unfair in all the circumstances.

254 Whilst the circumstances of each case must be considered when deciding whether a party has been treated unfairly, I do not think there is any obligation on the part of a trial judge to inform a party that an adverse finding as to credibility could be made about that party. Usually a trial judge has formed a view about matters of credibility during the course of the trial, particularly if a long trial, but does not reach a final view until all the evidence has been received and the submissions completed and there has been opportunity to consider all matters which bear upon that question. To inform a party at an earlier stage of the trial that an adverse finding as to credibility could be made would usually be inappropriate.

255 The amount of time between the completion of the submissions of the appellant Edwards and the delivering of judgment is of no significance. It does not indicate pre-judgment only that the task of reaching conclusions and preparing the reasons for judgment had been completed before that judgment was given. Having considered the evidence upon which the learned Trial Judge made the finding as to the credibility of the appellant evidence, I have concluded that the finding was open to him. The submissions made on this appeal to the contrary do not establish the contrary. I reject the allegation of bias and unfairness.

256 The next complaint is that the learned Trial Judge accepted the evidence of Dr Shepherd that there were no substantial untapped stocks of abalone in deep waters. The learned Trial Judge said that the suggestion by the appellant Edwards that there were substantial untapped stacks in deep waters "is a deliberate fiction created by him in an endeavour to explain away the damaging comments in the catch returns, and to bolster his claim for damages". I have earlier referred to evidence of Dr Shepherd given at the trial and to the Parliamentary Select Committee of Enquiry.

257 The complaint is that there was no catch data available for abalone stocks in water deeper than 25 metres. Consequently no-one could know the extent of stocks in deep waters. The evidence of Dr Shepherd did support the conclusion of the learned Trial Judge as to the extent of stocks in deep waters. He had dived in deep water but probably not extensively. He is a marine scientist who had studied abalone in South Australian waters. His evidence was a sufficient basis for the findings made by the learned Trial Judge. No expert evidence to the contrary was placed before the learned Trial Judge. Even if the observation made by the learned Trial Judge was not justified by the evidence, and I think it was justified, mere error is usually not an indication of bias.

258 The learned Trial Judge concludes that the evidence established a course of conduct on the part of the appellant Edwards including through the agency of his second wife, by dishonest and deceptive means to obtain or attempted to obtain information from the Department which he thought might assist his case and the cases of other fishermen. Later in these reasons I express my conclusion about the complaint that the learned Trial Judge erred in reaching that conclusion as the complaint is a part of the substantive appeal. Mr Borick submitted that these matters could not be regarded as the equivalent of "consciousness of guilt" in the criminal law. I do not understand the analogy. Perhaps it is used because in the criminal law bias cannot be used as positive evidence of guilt unless there is no other explanation for the bias than consciousness of guilt of the particular offence charged. Such an analysis is entirely inappropriate when the exercise is merely the assessment of the credibility of a party, particularly in a civil action. The learned Trial Judge was referring to the evidence which lead him to the conclusion that the appellant Edwards lacked credibility. He was entitled to use that evidence along with other evidence to reach his conclusion. There is no basis for an apprehension of bias and no indication of actual bias.

259 The learned Trial Judge made specific findings as to why the Edwards appellants sold out of the abalone fishery which are challenged in the substantive appeal and mentioned later. It was submitted that these findings are wrong and were made because of bias. The case of the appellant Edwards argued at trial and on this appeal is that by 1980 the abalone industry had serious problems because abalone authorities could not be transferred, divers could not be employed, abalone in Commonwealth waters could not be exploited, trust arrangements could not be used and general problems in management of the fishery.

260 It was submitted that the learned Trial Judge found against the credibility of the appellant Edwards without even attempting to make any assessment of the whole of the evidence including the evidence as to problems in the abalone industry, the explanation of the appellant Edwards for the comments made in his catch return, his discussions with business rivals and his explanation for selling his authority. The learned Trial Judge found that the predominant motive for the appellant Edwards leaving the industry was his belief that the abalone fishery was fished out and there was no future in it. In his reasons for judgment the learned Trial Judge sets out his reasons for that finding which I mention later.

261 None of the matters raised at the trial and on this appeal by the appellant Edwards featured in discussions which he had with other fishermen. The statements made by the appellant Edwards in these discussions is described by Mr Borick as "back fence gossip" but they were admissions out of court made by a party to the action relevant to a fact in issue, namely why the appellant Edwards sold out of the fishery and they were made contemporaneously, in a general sense, with his doing so. The evidence was important and cannot be dismissed in the manner suggested by Mr Borick. This evidence was not the only evidence relied upon by the learned Trial Judge in reaching his conclusion. He set out various features of the evidence which led him to his conclusion. As will be seen the challenge to his findings on credibility cannot, in the circumstances, be overturned as this appeal and the arguments advanced do not make out a case of bias.

262 The same complaint is made about the findings of the learned Trial Judge that the appellant Edwards made untrue statements with respect to his health. Those findings were also challenged in the appeal and I mention them later. It is sufficient at this stage to mention that at the trial the appellant Edwards opened his case on the basis that when he left the abalone fishery in 1980, he was as fit as "a mallee bull". In his evidence he said that in essence he was in good health at relevant times. The learned Trial Judge found that this evidence was inconsistent with the pleading of the appellant Edwards in his Statement of Claim where he was making a claim for damages for personal injuries which he later withdrew. There is no basis for concluding that the findings were made because of bias. The reasons for them are set out by the learned Trial Judge and are appropriate.

263 The next complaint is that the learned Trial Judge erred in his conclusion that the appellant Edwards made a business of litigation and that the error was due to bias. I mention this matter later when discussing the complaint as part of the substantive appeal, however I mention some matters in considering the allegation of bias.

264 The learned Trial Judge found that the appellant Edwards encouraged other abalone divers to bring similar actions to these proceedings. He found that the appellant Edwards reached or attempted to reach agreements with some of them that he receive a portion of any damages recovered by them. The learned Trial Judge found that this matter confirmed the impression he had reached independently based upon other evidence that the appellant Edwards "is prepared to say or do anything in order to advance his claims". It is submitted that an observation made by the learned Trial Judge during the final address of Mr Bell demonstrates that the learned Trial Judge regarded this aspect of the case as the central feature of his overall assessment of the credibility of the appellant Edwards. At the time Mr Bell was mentioning factual similarities between the cases of the various fishermen regarding representations by the respondent directors. The learned Trial Judge said:

"The manner doesn't inspire one with confidence in the individual integrity of the claim."

There is no reason to suppose that the learned Trial Judge regarded this matter as the central feature when assessing the credibility of the appellant Edwards, although it was relevant. I reject the submission for which there is no basis. There is nothing about the learned Trial Judge's consideration of this matter which suggests bias.

265 Later in these reasons I mention the complaint about the conclusion of the learned Trial Judge as to the credibility of the appellant Edwards based upon the transaction when he sold his abalone authority to Mr Haagmans on 28th October 1980. It was submitted that the learned Trial Judge erred in his conclusions and his error was due to bias.

266 I reject that submission. The evidence justified the conclusion reached by the learned Trial Judge and there is no reason to apprehend bias against the Edwards appellants.

267 The next complaint relates to the finding by the learned Trial Judge that the appellant Edwards had made false statements to the New Enterprise Incentive Scheme (NEIS) when seeking a grant. This complaint is also a ground of appeal which is considered later. The Edwards appellants contend that the findings of the learned Trial Judge were not consistent with the evidence and were made because of bias against the Edwards appellants. I mention this complaint later when discussing the appeal against the findings as to credit adverse to the appellant Edwards.

268 The findings by the learned Trial Judge relating to the NEIS application were justified by the evidence and there is no reason to apprehend bias on his part.

269 I have also considered whether the combined effect of these decisions suggests bias on the part of the learned Trial Judge against the Edwards appellants. A decision adverse to a party is not, in itself, an indication of bias. It seems to me that the appellant Edwards has treated each adverse decision as an error and therefore an indication of bias. Such an approach is clearly untenable. I accept that a series of errors if made contrary to the evidence could indicate bias, but, as I have said, the decisions made by the learned Trial Judge are not erroneous.

270 It is submitted that the respondent directors cannot collectively claim "fading or imperfect recollection", "confusion" or "lack of complete understanding of the ramifications of trusts and of some other legal concepts" in order to explain difficulty with independent or "collective" evidence.

271 Mr Borick referred to the following passages of evidence in relation to trusts.

272 During cross-examination, the respondent Olsen said that he did not understand the full legal significance of a trust which he thought was used to avoid income tax. He said that he was aware that the Minister had a policy that abalone permits and authorities were not to be the subject of a trust or held by a corporation or a partnership. He said the appellant Edwards had shown him that policy. The respondent Trumble said that he did not know what was a trust and he thought that it was precluded by the owner/operator policy. The respondent McColl said that a trust did not come up during his term of office and if it had, he would have known what was being raised. Later he said that who received the proceeds of the fishing was not something with which he could be concerned. The respondent Kirkegaard said that he was aware of the provisions in the Act that abalone permits and authorities could not be the subject of a trust. The respondent Stevens said that if a trust was proposed in the abalone fishery the proposed arrangement would have had to have been considered carefully. Later I refer to his evidence a little more extensively.

273 In his reasons for judgment the learned Trial Judge said that some of the respondent directors were elderly and their recollections were eroded by the passage of time. He generally accepted their evidence and where he did not, the reason was not dishonesty but fading or imperfect recollections. The respondent Olsen was aged 82 years when he gave evidence and he had effectively administered a difficult industry. The learned Trial Judge found that at times the respondent directors were confused about the owner/operator policy and that most of them confessed to a lack of complete understanding of the legal ramifications of trusts but that did not reflect upon their credit.

274 I respectfully disagree with the learned Trial Judge in one respect. Consideration of the transcript of the evidence of the respondent directors indicates that they all had the same basic understanding of the owner/operator policy with regard to the abalone fishery. The owner/operator had to be a natural person who undertook the diving and taking of the abalone.

275 The respondent directors did not have a clear understanding of trusts. My clear impression is that the expression "trust" was often used in a general way which was unhelpful. Any meaningful evidence required a particular type of trust to be considered.

276 I have mentioned the issue which arose over the evidence which the respondent Stevens gave about trusts at the time of Edmunds v Pickering and his evidence before the learned Trial Judge. I reject the submission that there were "gaping conflicts" or that the learned Trial Judge must have ignored any differences in his evidence. Obviously he did not see the need to refer to all of them in his reasons for judgment.

277 The references to the evidence of the other respondent directors which are used in this part of the submission do not indicate any bias on the part of the learned Trial Judge. Their evidence as to trusts was clear enough in the context of the questioning which often lacked precision. The findings of the learned Trial Judge about the credibility of the respondent directors were open to him and I can see no reason to disturb them on this appeal.

278 There is no indication of actual bias or any reason to apprehend any bias on the part of the learned Trial Judge by reason of those findings.

279 The respondents also called Mr Jeffries who, at the time, was the President of the Tuna Boat Owners' Association since 1988 and a former Chairman of the Australian Seafood Industry Council. Later in these reasons I mention the claim of the Edwards appellants regarding tuna fishing and the evidence of Mr Jeffries in relation to that claim which the learned Trial Judge accepted.

280 I reject the submission of the Edwards appellants that the evidence of Mr Jeffries was irrelevant. There is no basis for a conclusion that it was admitted and relied upon due to bias.

281 As has been mentioned, the learned Trial Judge accepted the evidence of Dr Shepherd. In his reasons for judgment he said that "some criticism" was advanced as to particular techniques used by him in making estimates of abalone resources in this State. Mr Borick submitted that the expression "some criticism" is an example of the learned Trial Judge glossing over the accepted fact that Dr Shepherd's techniques produced data of limited value. It is submitted that his techniques produced "no indication of abundance". This expression was used by Dr Shepherd when explaining why catch rate is not a reliable index of abundance. This evidence does not support the submission and merely states the obvious, namely that catches taken from areas of abundance give no indication as to abalone resources elsewhere. I mention that Dr Prince expressed the opinion that the techniques of Dr Shepherd were the best "time series" that exist.

282 The criticism of the learned Trial Judge is misplaced. He was entitled to accept the evidence of Dr Shepherd who was well qualified and highly experienced to express the opinions which he gave. The submission that the approach of the learned Trial Judge demonstrates bias is without foundation and is rejected.

283 The last matter relating to expert witnesses is the manner of the learned Trial Judge intervening during the evidence of Dr Prince. It is submitted that he asked leading questions in such a way that counsel for the respondents could not have undertaken. No particulars of, or transcript references for, those interventions were given. I have perused the transcript. The learned Trial Judge did intervene on occasions during evidence-in-chief in order to obtain information he required about various matters. There was some use of leading questions but it is to be remembered that Dr Prince was an expert witness. His evidence-in-chief is recorded in 25 pages of transcript and there were five interventions, some of which may be described as extensive. However, none of them were unfair or indicated a biased approach. There was no re-examination. I reject this submission.

284 The Edwards appellants called Mr Verrier, a former Fisheries officer. By the time of the trial he was no longer employed by the Department. He had been an assistant Fisheries Inspector between 1968 and 1971

285 He told the learned Trial Judge that in the latter part of his employment, Mr Koch, who was senior to him, worked with him. Mr Verrier said he was trying to learn how the fisheries legislation was implemented. He said that he was confused that the legislation provided for fishermen to have employees but it was the policy that abalone divers were not allowed to have an employee's licence. He said that he discussed the matter with Mr Koch on occasions. He asked him why the abalone divers could not have employees and Mr Koch replied "It's bluff". He asked why the divers did not put it to the test and take the Department to court. Mr Koch replied, "Well, if you were a diver, would you do it? It would cost you too much money, for one thing, and you'd probably lose your licence for another". Mr Verrier added that the consequence was that the Department had the abalone fishermen bluffed.

286 This evidence was led by the Edwards appellants as a material fact which came to their attention in about August 1986 and was a basis for an extension of time under the Limitations of Actions Act 1936 to bring their claims.

287 The respondents called Mr Koch. He had been a fisheries inspector since August 1962. He denied ever having the conversation about the provision in the Act with Mr Verrier which I have mentioned and said that it was not likely that he would ever have said anything like that to him. He said that he did not believe that the policy preventing employee divers for abalone fishermen was a bluff.

288 The learned Trial Judge did not accept the evidence of Mr Verrier. He found that he had an axe to grind with the Department. He accepted the evidence of Mr Koch and that no such conversation had occurred.

289 The respondents also called Mr Jefferson who was an employee of the Department. He was given the task of contacting various persons referred to in interrogatories, personally administered by the Edwards appellants, so that answers could be given. He spoke to Mr Verrier. He told him that he had been asked by the Crown Solicitor to make the enquiries. Mr Verrier told him that he could not recall any conversations with the persons Mr Jefferson mentioned including Mr Koch. Mr Verrier denied having a conversation with Mr Jefferson, whom the learned Trial Judge incorrectly referred to as Mr Jeffries in his reasons for judgment. The learned Trial Judge rejected that denial which he regarded as a false denial and as a matter to take into account when assessing Mr Verrier's credit. He said he was not impressed with his demeanour and his responses to questions were at times evasive and unconvincing.

290 There is no appeal against any of these findings or conclusions. The matter is raised as an indication of bias on the part of the learned Trial Judge.

291 During cross-examination of Mr Jefferson by the appellant Edwards he asked a long question comprised of a series of questions which was disallowed by the learned Trial Judge without objection. The question was plainly objectionable for various reasons and the learned Trial Judge was correct in his intervention. He then tried to explain to the appellant Edwards some of the reasons why the question had been disallowed. The cross-examination resumed. The learned Trial Judge again intervened for good reason. He took over the questioning and assisted the appellant Edwards. The cross-examination continued and the learned Trial Judge observed that "We are going around in circles". The appellant Edwards then moved to another topic.

292 At the end of the trial the appellant Edwards during his address claimed that he had been stopped from continuing the cross-examination of Mr Jefferson. The learned Trial Judge rejected that assertion and, in my view was correct.

293 I cannot see any indication of bias on the part of the learned Trial Judge.

294 We were provided with a table of the number of questions disallowed by the learned Trial Judge during cross-examination of the respondents and witnesses called by them and the number of questions disallowed without objection.

295 It is submitted that the number of interventions by the learned Trial Judge indicates bias and a failure on the part of the learned Trial Judge to recognise the extent, type and significance of those interventions.

296 Mr Borick made lengthy submissions about this matter. They relate to witnesses called by the respondents. I have considered all of the submissions and the many interventions and have mentioned many of them, with the consequence that these reasons are very lengthy.

297 It must be accepted that during the case for the respondents the learned Trial Judge intervened extensively. Those interventions must be considered to see if they demonstrate apprehended bias, they resulted in unfairness to the appellants or they were justified in the circumstances.

298 Before I mention the interventions, it is appropriate to keep in mind that before the respondents called their first witness the trial had been progressing for 52 days. The appellants' case had been completed, which included extensive evidence by the appellant Edwards and, to a lesser extent, the appellant Murphy, and lengthy cross-examination during which the case of the respondents had been put to witnesses on the many factual issues. Also, Mr Bell had opened the case for the respondents at length. Consequently, the issues in the case were well known to the learned Trial Judge.

299 In my view, this was not a case of a trial judge having firm views about relevant matters based upon knowledge or prejudices acquired independently of the case.

300 I mention each of the main witnesses in the Defence case and most of the interventions which are the subject of complaint. Those which I have not mentioned are of no consequence.

301 The respondent Trumble was the first witness called in the defence case. I have mentioned the main features of his evidence which was accepted by the learned Trial Judge. His evidence-in-chief occupied a little over two and a half hours.

302 At the outset of the cross-examination by the appellant Edwards, he was asked questions about Commonwealth legislation. Upon objection, he was asked by the learned Trial Judge to indicate the relevance of the topic and said that it was the respondent Trumble's involvement in Commonwealth matters regarding abalone resources that were available in Commonwealth waters. The learned Trial Judge upheld the objection on the ground that fishing for abalone in Commonwealth waters was not part of his case.

303 The complaint is that the learned Trial Judge made a finding that there were no resources of abalone in Commonwealth waters and the appellant Edwards had been prevented from pursuing the matter. I do not think this intervention indicates any bias on the part of the learned Trial Judge. He had made a ruling as to admissibility of evidence based on relevance. Even if his ruling was incorrect, and I do not think that it was, there is no basis for a conclusion of bias.

304 The cross-examination continued. I mention this a little later. He asked a question about "taking of abalone for sale" which was the subject of objection. The appellant Edwards had said what he wanted to ask and the objection was overruled. The learned Trial Judge then took over the questioning and the witness explained what he understood by the taking of abalone. There is no basis for complaint about this intervention. In my view, the intervention of the learned Trial Judge was appropriate and helpful to the Edwards appellants because evidence was elicited which clearly expressed the understanding of the witness.

305 The cross-examination then continued for some appreciable time without any intervention by the learned Trial Judge, except on a few occasions to clarify evidence given by the witness.

306 Complaint is made about intervention which occurred some time later. The appellant Edwards asked a long question about a permit holder earning more income if another diver could also take abalone on the same occasion. The question had a number of concepts and there was an objection. The learned Trial Judge took over the questioning briefly. The effect of the answers then given was that increased effort by another diver could lead to a depletion of stock and therefore would not necessarily have resulted in increased profitability. Whilst it may be said that part of the questioning by the learned Trial Judge was in the form of leading the witness, as the respondent Trumble said, that consequence was a matter of common sense. The intervention did assist in the sense of enabling the witness to give the evidence. I reject the contention that the learned Trial Judge cross-examined by putting his own views.

307 The cross-examination continued for a substantial period without much objection or intervention until shortly before lunch. The appellant Edwards asked questions based upon documents. An issue arose as to whether the documents were complete and the luncheon adjournment was taken to enable the appellant Edwards to sort out the documents. Upon resuming, the learned Trial Judge received documents tendered by the appellant Edwards and then said that he would allow further cross-examination only until the end of the day, which was for another two hours. He said that he thought that the appellant Edwards had covered the main points and that the remainder of the afternoon was a reasonable time to complete the cross-examination. There was no complaint by the appellant Edwards to the learned Trial Judge and he proceeded with his cross-examination, which was continued for nearly the remainder of the day and was completed before the adjournment. The complaint is that the learned Trial Judge did not assist the appellant Edwards and a time limit should not have been imposed. There is no sound basis for this complaint. There was no suggestion made to the learned Trial Judge by the appellant Edwards that he needed more time to complete his cross-examination. In the circumstances the imposition of a time limit was justified. The learned Trial Judge did assist the appellant Edwards from time to time, including taking over the questioning on occasions to enable the evidence to be given.

308 Later in the cross-examination the learned Trial Judge disallowed a continuation of questions requiring the respondent Trumble to interpret an opinion expressed by someone else in a document. The learned Trial Judge was correct in this conclusion.

309 The appellant Edwards later returned to the matter of interaction between Commonwealth and State legislation. The learned Trial Judge disallowed questions on this topic as it was not part of the appellants' claim. The appellant Edwards said he wanted to establish that there were ample stocks of abalone in Commonwealth waters which could be exploited by South Australian divers. The learned Trial Judge prevented him from doing so.

310 In his reasons for judgment the learned Trial Judge said:

"Although Mr Edwards attempted to make much of some of the difficulties imposed by the interaction of Commonwealth and State fisheries legislation, I am not satisfied that those supposed difficulties have any bearing on the outcome of either case. They are irrelevant to Mr Murphy's case.

This is largely because I accept the evidence of Dr Scoresby Shepherd that the distinction between Commonwealth and State jurisdictional limits over the sea bed was of no consequence to abalone fishermen who were licensed for that purpose under the State Acts and fished within State territorial waters.

Very few, if any, abalone is to be found in commercial quantities outside of State territorial waters. If there is or has been any occasional intrusion by abalone divers into Commonwealth waters, whatever may be the legal position, it has not had any practical consequences, in that the whole of the abalone catch has been brought to account under state legislation."

The complaint is that the learned Trial Judge made these findings even though the appellant Edwards had been prevented from exploring the matter with the respondent Trumble. The findings were expressed in the part of the reasons for judgment in which the learned Trial Judge discussed the abalone fishing industry as part of the background to the issues in the case of the appellant Edwards.

311 It was submitted that the evidence of Dr Shepherd did not support this finding. Later in these reasons I mention aspects of the evidence of Dr Shepherd in some detail in the context of interventions made by the learned Trial Judge during the course of his evidence. There is an adequate basis in Dr Shepherd's evidence for these conclusions of the learned Trial Judge.

In my view the approach of the learned Trial Judge was correct. The subject matter was not relevant to the claim of the appellant Edwards and the refusal to allow the cross-examination was justified.

312 The next complaint relates to the admissions in the Case Stated which I have mentioned. The appellant Edwards mentioned these admissions and told the learned Trial Judge that he wanted to ask questions about them. The learned Trial Judge then asked the respondent Trumble if he had ever seen the Case Stated and he said that he did not think so. The Court adjourned to enable him to look at the document and the hearing resumed three minutes later. In answer to the learned Trial Judge, the respondent Trumble said that he was aware of the document but could not say if he had read it. The appellant Edwards commenced to cross-examine on the document. The respondent Trumble said that he did not believe the question of trusts arose when he was involved, presumably meaning as Acting Director of Fisheries. The learned Trial Judge then took over and asked leading questions:

1. You left the defences to be drawn up by the lawyers, I take it.
2. Indeed. I would dare not do otherwise.
3. Then when this says 'the defendants', you personally had no belief about trusts.
4. I know nothing about trusts, then or now.

HIS HONOUR I'm not sure where that takes you.

MR EDWARDS I'm not sure myself. Can you help me?

1. I understand trusts became an element in fisheries management later on."

The learned Trial Judge then resumed the questioning and the respondent Trumble said that he did not recall a trust being mentioned in relation to any matters. He was then asked if he was aware of any policy that a licence or authority could not be held by the holder of the authority on behalf of another person. He said that was his understanding. Thereafter followed lengthy questioning by the learned Trial Judge as to the owner/operator policy and the diver reaping the reward. Many of these questions were leading questions but not all of them.

I think the nature of the learned Trial Judge's questioning of the witness was unfortunate. The appellant Edwards wanted to question the respondent Trumble about the Case Stated and particularly the admissions set out in it. He did not get far along that path when the learned Trial Judge intervened. The topic of the questioning was changed to the owner/operator policy and the issue about trusts. The appellant Edwards did not return to the admissions in the Case Stated. Also, I do not think that in the circumstances the learned Trial Judge should have asked leading questions. The Edwards appellants were unrepresented. It was important that the witness give his evidence without the answers being suggested to him by leading questions from the learned Trial Judge.

313 However, I do not think this incident suggests bias on the part of the learned Trial Judge. It suggests error on his part which raises for consideration whether the Edwards appellants were treated unfairly. I consider that matter later.

314 The appellant Edwards resumed the cross-examination. The respondent confirmed his understanding of the owner/operator policy and that it precluded the owner holding the licence, and presumably the permit, for the benefit of someone else. He said he did not take steps to publicise the policy but explained that he was in a caretaker position.

315 I do not think any of the conduct of the learned Trial Judge during the cross-examination of the respondent Trumble by the appellant Edwards indicates apprehended bias and could not even suggest actual bias. The learned Trial Judge's interventions were well within the proper discharge of his responsibilities to keep the trial moving and, except in respect of the last matter which I have mentioned, he provided appropriate assistance to the appellant Edwards.

316 Whilst he did ask leading questions, the subject matter was not contentious because, on the appellant Edwards' own case, the respondent Trumble did not make any representations to him. Indeed, the evidence was that the two men had not spoken to each other. Cross-examination about the admissions in the Case Stated could not be of significance as it was common ground that the respondent Trumble had not made the representations referred to in the admissions in the Case Stated. That is a matter of significance for another reason. It establishes that those admissions were not correct.

317 I have mentioned that the respondent McColl was the Director of Agriculture and Fisheries from 1976 until 1979.

318 Mr Borick submitted that the interventions by the learned Trial Judge and the manner of them clearly indicates that he was biased against the appellants. It is necessary to consider the various complaints.

319 At an early stage of his evidence-in-chief, the respondent McColl was giving evidence about the owner/operator policy in the abalone fishery which he said was frequently referred to by the Minister, Mr Chatterton. He said that he did not believe that there was ever an occasion when he was Director of Fisheries that the policy was not applicable in the abalone fishery. The learned Trial Judge then intervened and asked what he understood by the policy. The witness answered that the abalone permits applied to natural persons and the diver was the unit of effort. Mr Bell then asked if the policy existed in other fisheries. The witness said that it did but it changed in relation to the prawn fishery. Mr Bell told the witness that he did not need to know about that matter and turned to another topic. There was no intervention by the learned Trial Judge.

320 The complaint is that the appellant Edwards was prevented from exploring with witnesses what happened in other fisheries and at this stage the respondents opened up that matter. There can be no criticism of the learned Trial Judge at this stage of the witness evidence. It was Mr Bell who rejected the topic.

321 I have mentioned the evidence of the respondent McColl that if it had been suggested that employee divers for abalone were permitted, he would have sought advice and amendments to legislation. It was submitted that this evidence indicates that the respondent McColl did not say that employee divers would result in a collapse of the abalone fishery. I do not understand this complaint. It was plain from the evidence of this witness and others that the purposes of the owner/operator policy, including the prevention of employee divers, was to preserve abalone resources.

322 A little later in the examination-in-chief the respondent McColl was asked about the policy of surrendering of a class A fishing licence when a prawn authority or rock lobster authority was relinquished by a fisherman. He said it was part of a freeze on such licences. The learned Trial Judge then took over the questioning. He sought clarification of the policy and the reason for it. The examination-in-chief resumed and the witness told the appellant Edwards that when he was the Director he could not remember any discussions about trusts, but there was discussion about partnerships and companies, mainly in the context of the prawn fishery. The learned Trial Judge then intervened. The witness told him that the concern of the Department, was that a nominee of the company had to hold the class A licence and authority, so that a natural person was responsible and could be prosecuted if there was a contravention of the Act. He also said that whoever received the proceeds of the fishing beyond the point of sale was of no concern to the Department.

323 I am unable to identify any valid complaint about these interventions. They enabled the learned Trial Judge to understand the policy and the reason for it. Mr Borick contended that the learned Trial Judge took over the questioning and recognised that the Department was not concerned about what happened to the proceeds. It should have been obvious to the respondent directors that there was, therefore, no legitimate objection to a trust. Clearly these interventions by the learned Trial Judge were, if anything, favourable to the appellants in the sense that they clarified that in some circumstances a corporation or a partnership could receive the proceeds of sale. There could be no suggestion of bias on the part of the learned Trial Judge and these interventions demonstrate that he was simply trying to ascertain, and understand, the evidence of the witness and his attitude when he was Director.

324 At the commencement of the cross-examination of the respondent McColl, the appellant Edwards asked him to look at the Case Stated and said that he would like to take him through "the admissions which you made in that document". The learned Trial Judge made an explanation of the document to the witness which included that it was drawn up by lawyers and presented to the Full Court to enable questions to be answered. He asked if the document was ever brought to his attention and the respondent McColl said that it was not and he was certainly never consulted about it or about its contents. He said he had never read the document.

325 The appellant Edwards told the learned Trial Judge that he wanted to question the witness about the schedule of an index of documents referred to in the Case Stated. After some interchange between the learned Trial Judge and the appellant Edwards, the learned Trial Judge questioned the witness. The learned Trial Judge put a leading question to the witness. The effect of his response was that he was aware that the Department required the person who held the class A licence and the permit to take abalone to undertake the diving, and that permits to employ were only for a person to be on the boat, shuck, drive the boat and watch the air supply to the diver.

326 I think the intervention can be criticised in that the learned Trial Judge should not have taken over the questioning at that stage of the cross-examination and instead should have allowed the appellant Edwards to have developed his cross-examination so that it could be seen if it was relevant. Also, he should have allowed the appellant Edwards to have made submissions about the course which the learned Trial Judge proposed to take. It was important that the appellant Edwards be given the opportunity to see what evidence the respondent McColl had to give about the Case Stated and eventually the admissions contained in it. I mention that at this early stage the appellant Edwards was attempting to cross-examine about another aspect of the Case Stated which related to pleadings and, as I say, he should have been allowed to develop his cross-examination. It is not necessary for present purposes to set out all that transpired.

327 The appellant Edwards then returned to the admissions made in the Case Stated. The learned Trial Judge intervened by saying "That was said by the lawyers". The appellant Edwards persisted by putting to the witness that the admissions were put in the Case Stated on the respondent McColl's behalf. Mr Bell objected and the learned Trial Judge made the observation in the presence of the witness that it was obvious from the look on the face of the witness that he had never read the document before. He then asked the witness if that was so and he agreed.

328 The appellant Edwards then asked the respondent McColl if he stood by the admissions. Before he could answer, the learned Trial Judge took over the questioning:

"Q These are points made on behalf of a whole group of defendants.

1. Yes.
2. You are perfectly entitled to indicate in response to any questions that you had no involvement, didn't do anything, or you did, whatever. You can only speak of your own involvement."

The appellant Edwards resumed the cross-examination and the witness said that the lawyers had discussions with him. He asked about specific matters. There were frequent objections on proper grounds but the cross-examination continued without intervention.

329 I think the learned Trial Judge erred by not permitting the appellant Edwards to develop the cross-examination in his own way. His interventions had the effect of deflecting the appellant Edwards from endeavouring to ascertain if he had given instructions for the admissions to be made on his behalf. It is no answer to say that it is a lawyer's document and was prepared for a particular purpose. The appellant Edwards was entitled to test the evidence of the witness. I do not think it is necessary to mention other matters on this topic raised by Mr Borick.

330 After careful perusal of the transcript and consideration of the submissions, I have concluded that this conduct of the learned Trial Judge does not indicate bias. Whilst I think it was erroneous in the respects I have mentioned, the appellant Edwards was permitted to cross-examine extensively.

331 Whilst it seems clear that the learned Trial Judge had, by this stage of the trial, formed a firm view about the status and significance of the admissions in the Case Stated, that view was correct in that the admissions were not binding on the respondents and were merely part of the evidence in the case.

332 Earlier I have mentioned Reg 21AA of the Managed Fisheries Regulations which provided that a person could only hold one of the authorities or permits for abalone, inland waters, prawn and rock lobster. Much later in the cross-examination, the appellant Edwards asked the witness if these fisheries would have been complementary and that a person could have an interest in two of them. The question was disallowed. He attempted to cross-examine about a document which I assume had been sent to the Minister of Fisheries containing recommendations and which was admitted into evidence. I have not been able to locate this exhibit and so I do not know who wrote it and when it was written. The respondent McColl said he was not sure if he saw it at the time but he had seen it recently. It seems that it contained a recommendation that a person should be able to hold authorities in different fisheries where the fishing activities were complementary. He was asked if he made that recommendation and the question was disallowed without objection. A number of questions he then asked were disallowed without objection and no reasons were given. I do not know, but I expect that the questions were disallowed because the witness had said that he did not know if he had seen the document at the time. Other questions were disallowed but for good reason which I need not mention for present purposes.

333 The appellant Edwards then told the learned Trial Judge that he needed some help. He was attempting to cross-examine the witness about assertions in the Defence and the learned Trial Judge took the view that he could only cross-examine about matters within the knowledge of the witness. At least that is how I interpret the position. The pleading made an assertion about why the appellant Edwards had decided not to employ a diver. The appellant Edwards persisted and his questions were disallowed. Eventually the learned Trial Judge said that he would not hear about the matter any further and that he would put a question himself because he wanted to have the topic covered and out of the way. The learned Trial Judge put to the respondent McColl in a precise manner the relevant part of the pleading, and the witness affirmed that the pleading was correct. He went on to say that if employees could have lawfully dived and taken abalone, he would have taken advice.

334 The complaint is that the learned Trial Judge took over the cross-examination and that the witness acknowledged that he could have taken action in relation to employee divers other than prevent them from diving to prevent the fishery collapsing. There is no sound basis for complaint about the course taken by the learned Trial Judge. He did not take over the cross-examination but simply put a few questions to cover the ground which the appellant Edwards was trying to cover and did so appropriately. There is no indication of bias and the fact that the witness could have taken other action is of no significance in relation to the allegation of bias against the learned Trial Judge.

335 A little later in the cross-examination, the appellant Edwards said that he wanted to ask questions about how he interpreted Reg 28 as to "taking by diving". The learned Trial Judge intervened. He said that he had been hearing evidence for six months. The directors had prohibited employee divers from "taking" not based upon a definition of "take" in the law but upon their own view as to the scope of a permit to employ. He said that the appellant Edwards could spend another six months questioning witnesses but he would not get any further evidence about the matter. He went on to say that it was plain to him and to everyone, that resolution of the issue did not depend upon what was meant by the word "take". It depended upon a more complex view of the relevant provisions, presumably of the Act and Regulations. The appellant Edwards said that he would move off that topic.

336 The first complaint is that the trial had not been proceeding for six months. This incident occurred on 1st September 2000. As I have said, the trial of the action by the Edwards appellants commenced on 22nd March 2000. So the trial had been proceeding for six months less a few weeks. The second complaint is that only two of the respondent directors had given evidence by this time and neither had given much evidence about this subject matter.

337 These matters do not establish bias. The learned Trial Judge was entitled to intervene. I do not think the respondent directors could assist the learned Trial Judge when he came to decide any of the principal legal issues in the case. The subject matter of this part of the cross-examination was at best peripheral to the issues relevant to liability. The learned Trial Judge had an obligation to keep the trial moving and it was bogging down over this matter. I reject the contention that this matter suggests bias on the part of the learned Trial Judge. The appellant Edwards made submissions to the learned Trial Judge as to why he wanted to pursue the matter but I do not think that the learned Trial Judge was in error.

338 The appellant Edwards then moved to the topic of trusts. The respondent McColl said that his understanding was that an abalone permit was endorsed on the class A licence of a natural person and that a permit could not be held through a trust. He was then asked if a natural person holding a permit could hold it for someone else or only for himself. The respondent McColl said that what business arrangements were entered into was not specifically of concern to the Department, whether for tax reasons or otherwise. He then asked the respondent McColl if he would have minded if a person entered into "some arrangement". Mr Bell objected and the question was disallowed on the ground that the "arrangement" could have amounted to all sorts of things. The complaint is that the appellant Edwards was prevented from explaining different types of trust arrangements. His next question was disallowed without objection because he had used the expression "benefits of the licence" which, according to the learned Trial Judge, was too nebulous. The learned Trial Judge then took over the questioning. The witness agreed that the Department could only look to the person who held the licence and permit, and if there was a contractual relationship to pay the proceeds of the sale of the abalone to some other person there was nothing the Department could do about it. He said it was not of specific interest to the Department.

339 This intervention was appropriate and assisted the appellant Edwards.

340 The witness was then asked if the licence could be held for another person in the sense that if certain things happened the licensee would be obliged to transfer it to that person. The respondent McColl said that he would have sought advice about that matter if it had arisen. The appellant Edwards then made submissions to the learned Trial Judge about the holder of the permit being involved in some trust arrangement and whether it could be transferred in law. The learned Trial Judge then took over the questioning and put to the witness that as he was not a lawyer he did not understand all of the ramifications of what the word "trust" means and the respondent McColl agreed. He rejected a proposition put to him by the learned Trial Judge and said that he had already explained what he meant.

341 I do not think there is any basis for criticism of the learned Trial Judge about this matter. I think one of the problems in this case, including in the Case Stated to the Full Court, is that a particular type of trust and its specific arrangements was not put to anyone. Some trusts may have been permissible in the opinion of the Director as the respondent McColl explained, or at least could not have been the subject of objection. Others may have been regarded differently. Some parts of a particular trust arrangement may have been acceptable and others not acceptable. Cross-examination, in general terms, was not of much assistance to the learned Trial Judge.

342 The respondent Olsen was the second respondent director called by the Defence.

343 He was examined by Mr Bell and cross‑examined by the appellant Edwards at length. Perusal of the transcript reveals that the evidence flowed without many objections or interventions by the learned Trial Judge.

344 The first complaint of bias based upon intervention of the learned Trial Judge during the evidence of the respondent Olsen occurred well into the cross-examination by the appellant Edwards. The respondent Olsen had explained the policy that a class A fishing licence and an abalone permit would not be issued or renewal granted unless the fisherman operated them as his principal business. The appellant Edwards sought to cross‑examine the respondent Olsen as to the position in Western Australia. It was his case that he wanted to fish for abalone in both Western Australia and South Australia and that the respondent Olsen made it plain to him that he would not issue the licence and authority to him if he held a licence in Western Australia. The learned Trial Judge refused to allow the further questioning on the ground of relevance. The legal position in Western Australia could have no bearing upon the position in South Australia. In my view that ruling was correct. The intervention by the learned Trial Judge by questioning the witness briefly was appropriate. There is no basis for an allegation of apprehended bias.

345 Next, it was submitted that an intervention by the learned Trial Judge when the appellant Edwards cross‑examined about his application for a prawn authority indicates bias. The appellant Edwards held an abalone authority when he and his wife applied for a prawn authority. In answer to the learned Trial Judge he said that the appellant Edwards' holding an abalone permit would have counted against him because he was already in a limited entry fishery. The appellant Edwards sought to cross‑examine the witness on the basis that this policy was relevant to his not being granted a prawn authority. The application for the prawn authority made by the appellant Edwards and his wife was made on the basis that if granted he would relinquish the abalone permit. The learned Trial Judge questioned the respondent Olsen who said that if the abalone permit was relinquished the applicant would be treated like anyone else.

346 The appellant Edwards complains that there was unfairness to him because of what Mr Bell said in making his objection which was the basis upon which the application was made which I have mentioned. Mr Borick contends that Mr Bell was repairing the damage caused by the earlier answer. I am not sure that I fully understand the point which Mr Borick was trying to make, but in any event there was no conduct on behalf of the learned Trial Judge which could possibly amount to apprehended bias. He controlled the cross-examination having regard to relevance to matters in issue and Mr Bell's basis of objection was entirely proper. There was no reason to allow the appellant Edwards to cross‑examine on an entirely hypothetical basis in the circumstances.

347 The respondent Olsen gave evidence in relation to the issuing of prawn authorities at the relevant time, a matter which is discussed later in these reasons, that the Minister decided how many authorities would be issued and he decided to whom they should be issued. The learned Trial Judge accepted this evidence and the appellant Edwards contested it. The evidence established that the Minister had decided how many new authorities were to be issued and the respondent Olsen had to decide who received them. The learned Trial Judge disallowed a question on the ground of relevance. The complaint is that the learned Trial Judge prevented the appellant from pursuing his point. I can see no basis for criticism of the learned Trial Judge. His decision to disallow the question was correct.

348 The appellant Edwards proceeded to cross‑examine the respondent Olsen about a feature of the application for one of the prawn authorities. The respondent Olsen said that the appellant Edwards proposed that the prawn boat had refrigeration or refrigeration and ice. He acknowledged that some prawn boats had only ice which, he said, was suitable if they were fishing at night and came back in the morning holding the catch in first class condition. As the questioning proceeded the learned Trial Judge intervened saying that the application of the appellant Edwards stated that his boat was being converted to refrigeration. He was asked why he was pursuing the suitability of ice. In fact, the appellant Edwards had said in evidence that the conversion was to ice. The complaint is that in his reasons for judgment the learned Trial Judge said that the appellant Edwards had falsely stated that the boat was presently undergoing refrigeration. Mr Borick submitted that this finding was not justified and is, presumably, therefore, an indication of bias. The application form did state that the boat had an ice‑box and was "presently undergoing refrigeration". I think the learned Trial Judge was correct in his conclusion as to fact and this matter could not be any indication of bias.

349 Section 34 of the 1971 Act provided, inter alia, that a person whose application for a fishing licence is refused may apply to the Minister to have the decision reviewed and the Minister would appoint a competent person to undertake that review. The Act did not provide for an appeal process. In cross-examination the appellant Edwards put to the respondent Olsen that he had said that the granting of a permit could not be re‑examined, to use his words, it was the licence about which there was an appeal. The learned Trial Judge intervened and explained the correct position in law to the appellant Edwards, namely there was no appeal but a review but that a person could bring the matter to a court by way of a prerogative writ. He said that the appellant Edwards had exhausted the topic and he could not ask any more questions about it. The complaint is that the appellant Edwards was an unrepresented litigant and would have difficulty in understanding the difference between an appeal and a review. His complaint was that he had not been told of the review process and the respondent Olsen had told him his decision was the end of the matter.

350 I can see no ground for complaint. The learned Trial Judge correctly informed the appellant Edwards of the correct position and his intervention was appropriate. The matter, if relevant, was peripheral as I expect the appellant Edwards could easily have obtained legal advice when the application for a prawn authority was unsuccessful. If he wanted to use the failure of the respondent Olsen to inform him of the right to apply for a review of the decision, he had already made that point.

351 The next complaint was that a little further in the cross-examination the learned Trial Judge disallowed a question as to whether his evidence would differ from that of Dr Shepherd as to whether divers could take abalone or were allowed to take abalone in Commonwealth waters after the coming into operation of the Continental Shelf (Living Natural Resources) Act 1973 (Cth). The learned Trial Judge said that Dr Shepherd's evidence was that divers did not draw any distinction between Commonwealth waters and State waters. The learned Trial Judge then asked the respondent Olsen if that was so and he agreed. Mr Borick submitted that the complaint is that the appellant Edwards wanted to make the point that there were abalone in Commonwealth waters and if a diver had been able to use an employee diver, such a diver could be used in the deeper Commonwealth waters. It was submitted that the appellant Edwards who wanted to establish that Dr Shepherd had no information about what abalone stocks were in Commonwealth waters because he was not obtaining information from fishermen and his information was wrong. I am unable to see how the appellant Edwards was prevented from exploring those matters at the time. He could not have explored them through cross-examination of the respondent Olsen.

352 A little later the appellant Edwards asked the respondent Olsen if it was safe to have two divers in the water. This topic of cross-examination was disallowed. The learned Trial Judge said that diver safety was not an issue in the case. In submissions the appellant Edwards said that he could have taken more abalone with two divers. The learned Trial Judge refused to allow cross-examination on that matter. It had been raised in the statement of claim of the appellant Edwards but had been struck out.

353 Mr Borick submitted that Dr Shepherd had said that diving in company was safer and the appellant Edwards was not able to explore what was in the respondent Olsen's mind at the time.

354 This matter does not even suggest bias on the part of the learned Trial Judge. He made his ruling on the ground of relevance and that ruling was correct, in my view. The appellant Edwards was attempting to challenge the owner/operator policy. It was submitted to us that there was a policy to exclude employee divers but it was a decision of the respondent directors because to allow employee divers would be too hard to police. Such a submission is contrary to their evidence and to the evidence of Mr Chatterton. The purpose of the owner/operator policy was explained by them as I have mentioned to protect the fishery.

355 The next significant complaint relates to the regulation of the taking of abalone from Commonwealth waters. We were informed that the responsibility for enforcing that regulation had been given by the Commonwealth to the State of South Australia and was exercised by the respondent Olsen when he held office. The abalone permit, and later authority, enabled the holder to take abalone in only State waters, not in Commonwealth waters. According to the respondent Olsen it was difficult to police divers who went into Commonwealth waters. He wrote an article dated 29th April 1981 for the Professional Fisherman magazine. In that article he wrote that all abalone taken had to come from State waters.

356 I am not sure that I understand the complaint made about this matter. There can be no criticism of the learned Trial Judge. He assisted the appellant Edwards to obtain the evidence for the appellant Edwards by appropriate intervention. It seems that it is alleged that the respondent Olsen was making the rules not the Minister. On the Edwards' appellant's case that is a matter of importance and is referred to later. At this stage it is sufficient to say that the way in which the learned Trial Judge handled this matter does not suggest a bias on his part but, indeed, the contrary.

357 The appellant Edwards wanted to cross‑examine the respondent Edwards about matters set out in the Case Stated being references to pleadings and the admissions which I have earlier mentioned. The learned Trial Judge ruled that he was entitled to do so and said that he would endeavour to assist him to put proper questions. He then proceeded to question the witness in the course of which he told him of the Case Stated and its purpose, that it had been prepared by lawyers and that he was not bound to agree with what was attributed to him as one of the defendants in this action. In the course of his explanation he also said:

"We often get cases where the party gets into court and says, 'Well, my lawyers have pleaded that, but the true position is a little bit different'. So don't feel that you have to agree with everything here...

Lawyers have been twisting and turning a bit as well."

358 Mr Borick contended that this explanation was demonstrably unfair and also the remark about lawyers was unfair.

359 I think this intervention by the learned Trial Judge at this stage was inappropriate. The appellant Edwards was entitled to cross‑examine on this document as the learned Trial Judge had ruled and he should have been allowed to do so. If any unfairness to the witness arose, the learned Trial Judge could then have intervened, but it is likely that Mr Bell would have kept a look out for his interests. The problem with this intervention is that it carried the implication that the witness could refute any responsibility for the contents of the Case Stated and that it was the result of improper conduct of the lawyers.

360 The next complaint is that the learned Trial Judge simply took over the cross-examination. He questioned the respondent Olsen about the factual assertion made by the respondents in paragraph 6 of the Case Stated. This questioning occupies over seven pages of transcript. The respondent Olsen accepted that the contents of this paragraph represented his position. It may therefore be seen that although the intervention was inappropriate, it established that the respondent Olsen's position was as set out in paragraph 6. At the conclusion of this intervention the learned Trial Judge asked the appellant Edwards if he had covered the point and he replied that the learned Trial Judge had been helpful.

361 I mention that the evidence of the respondent Olsen was that the owner of the fishing licence and abalone authority had to operate them and take and sell the fish. What that person did with the proceeds of the sale was of no concern to him. He had never put his mind to "trusts". Whether the proceeds of the sale of abalone were disbursed under a trust, a contract, a mortgage or a bill of sale were not matters of any concern to him. He gave that evidence in answer to questions from the learned Trial Judge. On the appellant's case the question of trusts did not arise until transferability of abalone authorities was permitted by changes to legislation and regulations (which was in 1980) and so the matter of trusts was of little significance in the evidence of the respondent Olsen.

362 There is no indication of bias on the part of the learned Trial Judge during the evidence of the respondent Olsen. Although I think that the learned Trial Judge erred in his approach at times, as I have mentioned, those errors do not indicate bias.

363 The respondent Kirkegaard became Acting Director of Fisheries in September 1979 and held that position until the middle of 1980 when the respondent Stevens was appointed Director of Fisheries. He held the office in that acting capacity for a period of about nine months only.

364 Mr Borick submits that the learned Trial Judge frequently intervened when the respondent Kirkegaard was giving evidence and usually to assist the respondents. His interventions establish bias.

365 The first of these interventions occurred during evidence‑in‑chief. He was being asked if he had a view as to the ability of a fishery like an abalone fishery to recover from over fishing if all divers with permits had used employees to dive. The learned Trial Judge intervened seeking clarification of a question. He heard a submission from Mr Cuthbertson who also appeared for the respondents and made a suggestion as to how the question would be formulated which was adopted. Another question was asked but the learned Trial Judge took over the questioning before it was answered. During the course of this questioning the witness told the learned Trial Judge what he could have done if the fishery was threatened by over fishing. The complaint is that the intervention was made to assist Mr Cuthbertson and the interests of the witness.

366 During examination‑in‑chief about a proposal by the appellant Edwards to change zones of the abalone fishery, the respondent Kirkegaard was asked if he had ever exercised partiality, malice or ill will towards the appellant Edwards. The witness said that he had not except in that he had been partial in that he had given fair consideration to the appellant Edwards. The learned Trial Judge intervened to say that there was no claim, presumably by the Edwards appellants, about the change of zones.

367 It is submitted by Mr Borick that these incidents are examples of the learned Trial Judge intervening and assisting the case for the respondent Kirkegaard. I reject that submission. I do not think either of them assisted the case for any party. The extent of the questioning by the learned Trial Judge during the first incident was extensive and could have been left to Mr Cuthbertson, but it was even handed and elicited the relevant evidence appropriately. There is no indication of bias from either of these incidents.

368 The next complaint is that when the respondent Kirkegaard was being asked questions about "absentee control" of abalone permits he said that the policy of the Minister on the Government was that there should be no outside control of fisheries permits. The learned Trial Judge intervened and asked questions of the witness which suggested that there could be difficulty in managing the fishery and controlling "the licence" in the circumstances of absentee control. The witness agreed. Once again the complaint is that this questioning assisted the respondents. I do not think it did any more than have the witness express in clear terms the attitude and policy of the Department which was expressed in much the same way by all of the witnesses called by the Defence who knew anything about the matter. The learned Trial Judge did ask leading questions at times but the evidence was hardly controversial. The real issue was whether the policies were thought to be lawful.

369 The respondent Kirkegaard proceeded to give evidence to the effect that the Department was not concerned about arrangements by the owner/operator of an abalone permit which gave benefits to family members for taxation purposes. He said that he regarded the policies being pursued by the Department as lawful policies and they were approved by the Minister. The learned Trial Judge intervened and asked a few questions which were leading. However these questions followed on from the evidence of the witness and summarized aspects of his evidence.

370 The next complaint is that the learned Trial Judge intervened when the respondent Kirkegaard was giving evidence‑in‑chief about the Case Stated. He was taken to the paragraph containing the admissions of the respondent directors which have earlier been mentioned. The learned Trial Judge intervened by explaining to the witness the purpose of the Case Stated. There can be no basis for complaint about that explanation. The respondent Kirkegaard was asked if he had ever represented to the appellant Edwards that an abalone permit or authority was not capable of being impressed with a trust. The appellant Edwards objected on the ground that such an admission was before the Full Court. The learned Trial Judge ruled that evidence could be called contrary to the admissions but he disallowed the question which had been asked. The learned Trial Judge heard submissions about the matter.

371 Eventually the question was asked in the same way without reference to the Case Stated and the witness said that he was sure that he had not made that representation to Mr Edwards because "impressed with a trust" is not a phrase he would use. However he said that he thought he did tell the appellant Edwards that an abalone permit or authority was not capable of being held by a body corporate or a partnership. In answer to a question from the learned Trial Judge he said that he told the appellant Edwards that the permit or authority was not capable of being held other than by a natural person competent to dive. The learned Trial Judge then took the witness to the admissions in the Case Stated and asked him to explain why they appeared in the document. The witness said, "With no disrespect, I would take that as being the way a lawyer drafts what I would have said". The learned Trial Judge continued with the questioning. He asked if he had given instructions which could have results in the admissions being attributed to him as opposed to other defendants. The witness said that he gave instructions that only a natural person could hold a permit or an authority.

372 At the beginning of this incident, the learned Trial Judge said to Mr Cuthbertson that he could attempt "to defuse" the making of the admissions in the Case Stated. The remark is the subject of complaint. Mr Borick submitted that in making that remark the learned Trial Judge was acknowledging that there was a problem with the admissions and his answer was to say "I am going to ignore them". He was committing Mr Cuthbertson to "get rid of the problem in advance, if you can". I must say that I think this submission is plainly wrong and it is offensive. It overlooks what occurred. When the learned Trial Judge took over the questioning the respondent Kirkegaard confirmed the accuracy of the admissions except with regard to trusts. The learned Trial Judge had made it plain earlier in the trial that he did not regard the admissions as necessarily binding but as evidence to consider along with the other evidence in the case. There can be no reason to assert that he regarded the admissions as a problem. I do not regard any part of this intervention on the ruling as indicating bias.

373 Mr Borick also contended that in every occasion the learned Trial Judge intervened during the evidence of the respondent Kirkegaard the consequence was to benefit the respondents. I reject that submission. I have mentioned the instances of intervention mentioned by Mr Borick in his submissions. None of them have the consequence which he asserts. Most of the interventions were about matters which in the end were inconsequential. They assisted counsel, the witness or the appellant Edwards and I do not think any of them suggest bias.

374 None of these incidents when correctly understood suggest bias on the part of the learned Trial Judge.

375 As has been mentioned, the respondent Stevens became Director of Fisheries in May 1980. The Edwards appellants sold their interests in the fishing industry about five months later on 28th October 1980. The respondent Murphy sold his interests in May 1983. Later in these reasons I mention the findings of the learned Trial Judge as to the reasons why the appellants left the industry. The respondent Stevens was the last of the respondent directors to give evidence. He was an important witness in the cases of all of the appellants. It is the case of the appellants that they were deprived of having abalone authorities operating for their benefit through trusts due to the respondent Stevens telling them that trusts were not permissible. They claim that in consequence they left the fishery with adverse financial consequences.

376 Mr Bell led Stevens through his evidence-in-chief. The learned Trial Judge intervened by asking questions on many occasions during the evidence-in-chief, or otherwise, on many occasions. On some occasions he disallowed questions asked by Mr Bell. He upheld some objections made by the appellant Edwards. On occasions he asked questions of the appellant Stevens. These interventions were appropriate and reasonable.

377 I have mentioned that the appellant Stevens said that when he was Director of Fisheries that he did not have any understanding of trusts. He gave that evidence in evidence-in-chief. During his evidence-in-chief the respondent Stevens said that he could not recall giving instructions about the admissions in the Case Stated. At the commencement of cross-examination by the appellant Edwards, the respondent Stevens said that there was no arrangement whereby there could be an absent owner in the abalone fishery. The owner of the fishing licence and abalone permit, and later authority, had to undertake the fishing operation. He said the Department had never been advised of the situation where the owner was absent from the diving operation.

378 Mr Borick submitted that from the beginning of the cross-examination by Mr Edwards, the learned Trial Judge intervened and disallowed questions without objection. We were informed as to the number of interventions and objections during the evidence set out in the first seven pages of the transcript. I do not think there is any basis for complaint about those interventions. The appellant Edwards was able to develop his cross-examination and it was only when he asked questions which were unclear, required memory of particular provisions of legislation or were irrelevant that they were disallowed. On occasions the learned trial Judge took over the questioning in a fair and helpful manner.

379 I think the complaint about the conduct of the learned Trial Judge during the early part of the cross-examination is entirely misconceived and is based upon calculating the number of pages of transcript, of questions disallowed, of objections and of questions asked. Such an approach is meaningless. It is necessary to read the transcript to obtain an accurate appreciation of what occurred. There is no indication of bias at this stage of the evidence of the respondent Stevens.

380 The first topic was absentee ownership. It is plain from perusal of the transcript that the learned Trial Judge provided assistance to the appellant Edwards by asking questions of the witness and by giving a brief explanation of why some questions were disallowed. In my view the decisions and intervention for the learned Trial Judge during the cross-examination on the concept of absentee-ownership were entirely appropriate.

381 The appellant Edwards then moved to the topic of the factual basis of the Case Stated. Stevens said that he could not remember authorising the statement. When asked if he stood by the contents of the document, the question was disallowed after objection by Mr Bell. The learned Trial Judge did not overrule the line of questioning for the Case Stated. The respondent Stevens said that he did not recall giving instructions. The learned Trial Judge then took over the questioning for a brief time. Some of the questions were leading questions. He put to the witness that the Case Stated was purely a lawyer's document and the witness agreed. There is no basis for complaint. He was then asked about the policies set out in the Case Stated. The respondent Stevens answered the questions by stating the relevant policy as he understood it. The cross-examination continued with interruption or intervention from the learned Trial Judge from time to time when the clarification of his evidence was desirable. Some objections to questions asked by the appellant Edwards were disallowed. Some questions were objectionable because the evidence would have been inadmissible, they were repetitious or they were inappropriately expressed. He was cross‑examined about the context of part of the Case Stated and other matters without intervention except where necessary to enable the evidence to be elicited. The respondent Stevens was then taken to the admissions of the respondent directors in the Case Stated. In my view nothing had occurred during the cross-examination of the respondent Stevens until this stage which indicates error or bias on the part of the learned Trial Judge.

382 The learned Trial Judge disallowed a question, without objection, seeking information as to what had been discussed by the respondent Stevens and a solicitor in the Crown Solicitor's Office regarding an abalone permit or authority being held by persons in partnership on the ground that the information was privileged. The appellant Edwards then asked if the respondent Stevens claimed the privilege and that question was also disallowed on the ground that it was an attempt to trap the witness in his going into a topic about which he was not obliged to give evidence. The following then occurred:

"Mr Edwards: He can choose to answer if he chooses to.

His Honour: He won't choose to answer it; I have ruled against the question. What's the next question."

383 I think this incident was unfortunate. Assuming that the topic was covered by legal professional privilege, it was the privilege of the respondent Stevens and for him to claim. He had not done so and his counsel Mr Bell had not objected to the question. The learned Trial Judge was correct to intervene quickly before the witness answered the question so that it was not answered before a claim of privilege could be made. However, thereafter it was for the witnesses to claim the privilege and he should have been given him the opportunity to take legal advice and consider the matter even though he was under cross-examination. Furthermore, the learned Trial Judge should not have made a final ruling without hearing submissions from the appellant Edwards, and possibly the appellant Murphy, and Mr Bell. There was no suggestion that any other type of privilege existed.

384 Even though the learned Trial Judge, in my opinion, erred in peremptorily ruling against the appellant Edwards, that error does not establish bias on his part against the appellant Edwards.

385 The appellant Edwards attempted to cross-examine the respondent Stevens about the admissions in the Case Stated. When they were put to him, Mr Bell objected to the question and the learned Trial Judge intervened. He said to the witness that it had obviously been said on his behalf and asked if it held true. He replied that he did not recall ever using the words "trust" or "partnership" but he did remember using "corporate ownership".

386 The cross-examination continued with the appellant Edwards asking what the respondent meant by "corporate ownership". Despite objections, the topic was allowed. The learned Trial Judge intervened as a question was clumsy and he ascertained in a non-leading manner that the witness meant a company set up with articles and shareholders. He said that a company could not have owned an abalone authority. Further cross-examination on this and related topics continued. Some questions were disallowed but for good reason. At times the learned Trial Judge intervened by taking over the questioning briefly so that the evidence of the witness could be received.

387 The appellant Edwards then took the witness to the admissions in paragraph 7.1 of the Case Stated. He asked if the admissions were dealing with three different things and the question was disallowed after objection. I do not know why the question was disallowed. The appellant Edwards asked the learned Trial Judge how he could ask the question. The learned Trial Judge took over the questioning. He put to the witness that because he had said that he did not understand the meaning of the word "trust" it followed that he was unable to agree that he made any representation to the appellant Edwards about trusts. He said that he thought that he used the expression "company ownership" to the appellant Edwards not a body corporate. He agreed that he would not have issued an abalone permit or authority in the names of more than one person whether or not they were in partnership.

388 The appellant Edwards resumed the questioning and the respondent Stevens again said that the Department was not concerned with the distribution of the proceeds for the sale of the fish and he accepted that a partner did not have to be a wife. The appellant Edwards then asked if what was admitted in paragraph 7.2 of the Case Stated was true regardless of whether he gave any instructions to the solicitors for the preparation of the Case Stated. Mr Bell objected and the question was disallowed. The learned Trial Judge said that time was being wasted and there were ways in which the question could be asked. He took over the questioning and covered the subject matter of the disallowed question fairly and accurately. The witness said that he could not remember making the representation to the Edwards appellants between June and November 1980. The learned Trial Judge then asked if it was his view in the 1980s that the position was as set out in paragraph 7.2. The respondent Stevens said that I could not recollect doing so.

389 I cannot see any basis for criticism of the learned Trial Judge. His question assisted the Edwards appellants and the answers were favourable to them.

390 The respondent Stevens also acknowledged that the admissions set out in paragraph 7.3 were true except that the person transferring the abalone authority did not have to surrender his class A fishing licence if the transferee already had such a licence and also that it was lawful for him to consider the amount of the consideration for the transfer of the abalone authority.

391 The complaint is that the learned Trial Judge wrongly took the view that the evidence of the respondent Stevens was clear which in some way impeded the cross-examination by the appellant Edwards. I reject that contention. The evidence was clear and, as I have said, was in important respects favourable to the appellant Edwards. There is no basis for an apprehension of bias.

392 The appellant Edwards cross-examined the respondent Stevens about transfer of an abalone authority. Various questions were disallowed without objection but for good reason as they were imprecise, repetitive, unfair or irrelevant. At one stage the learned Trial Judge disallowed a question, correctly in my view, and said that he would not allow "that sort of manipulation". Complaint is made about that remark. The question was objectionable because the witness was asked if something, outside his knowledge, was possible. The learned Trial Judge expressed the view that if the witness said that it was possible the appellant Edwards would suggest that the answer was positive evidence that the incident occurred. That is what he meant by manipulation.

393 I think this is an example of turning up everything said by the learned Trial Judge with which the Edwards appellants do not agree and then attempting to elevate the matters to indicators of bias. The learned Trial Judge was correct in his ruling and his observation was appropriate.

394 Near the end of the Case Stated it is recorded that it is stated with the concurrence of the parties pursuant to rules of court and the Supreme Court Act. The appellant Edwards asked a question about those words which the learned Trial Judge disallowed. He explained to the appellant Edwards why he had disallowed the question. I need not set out that explanation. I do not think the learned Trial Judge erred in his ruling or explanation and it is a matter of no consequence.

395 The cross-examination then proceeded to answers given by the respondent Stevens to interrogatories and on other topics, including the Defence and the 1971 Act. I need not set out the rulings and interventions made by the learned Trial Judge. They were all appropriate and correct.

396 Before turning to the cross-examination of the respondent Stevens about trusts, it is appropriate to make observations about the cross-examination to that stage. There were many questions disallowed and some without objection. There were occasions when the learned Trial Judge disallowed a question because of its form and then asked a question or a series of questions appropriately phrased so as to assist in obtaining the evidence sought by the appellant Edwards. On some occasions this assistance was in the form of leading questions but I do not think they were unfair or obtained evidence which would not otherwise be given.

397 On the occasions when the learned Trial Judge disallowed questions without objection, the intervention enabled a proper question to be asked, or prevented repetition or inadmissible evidence being given. I do not think the learned Trial Judge erred on these occasions except in the respect which I have mentioned in relation to privilege and the complaints could not possibly establish apprehended bias on his part.

398 I next mention the complaint about interventions by the learned Trial Judge in the cross-examination about trusts which towards the end were extensive. The respondent Stevens said that he did not know what was meant by "capable of being impressed with a trust". He went on to say that he did not understand what a trust was and he still did not understand what a trust is. He also said that the Act and Regulations did not contemplate the licence being utilized in that way. He explained that an authority could only be held in the name of a natural person. In answer to the learned Trial Judge he said that whether or not an authority could be held with a trust he assumed that the expression impressed with a trust meant some form of indirect holding which was not something that would have been contemplated. The learned Trial Judge did not intervene for some time and allowed the to continue.

399 It was submitted by Mr Borick that during this part of the cross-examination the meaning of the owner/operator policy was unclear. I reject that submission. The respondent Stevens said on many occasions during his evidence that the owner of the authority had to be a natural person and the authority had to be operated by the owner as the diver. Once the abalone were sold he was not concerned with to whom the proceeds of the sale were disbursed. The witness expressed no uncertainty about the policy or what it meant.

400 He said that he understood that the owner/operator policy meant that "trusts" or "corporations" could not hold an abalone authority. The learned Trial Judge made the following ruling:

"Mr Edwards: Could you pose a question? I want to tie it down absolutely.

His Honour: It is tied down absolutely. He said again and again one of the effects of the operation of the owner/operator policy was to exclude indirect holdings or interests. He said that in a variety of ways under cross-examination extending over quite a long period and I won't allow further questions on it, right?"

401 That ruling was appropriate in the circumstances.

402 The learned Trial Judge disallowed some questions relating to the Defence on appropriate grounds. He explained why allegations are made in pleadings. He disallowed questions relating to a Defence filed in another action, in another fishery and relating to other fishermen. As I understand the position, no complaint is made about those rulings.

403 A little later the learned Trial Judge said that he disallowed questions about whether an abalone authority could be held pursuant to a leasing arrangement on the ground of relevance as that matter had not been raised on the pleadings which had been amended on many occasions.

404 It is submitted that an indication of bias is that having made that ruling the learned Trial Judge said in his reasons for judgment:

"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."

The full text of what the learned Trial Judge said was:

"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."

405 I do not see any inconsistency between the ruling and these observations in the reasons for judgment. Pleadings have a purpose. Amongst other things, they determine the issues and enable decisions to be made as to what evidence is relevant and admissible. When the learned Trial Judge made the ruling, the appellant Edwards was cross-examining the last of the respondent directors to be called. The appellants had long ago completed their cases. The matter of leasing arrangements had never been raised during the trial or on the pleadings. The ruling of the learned Trial Judge was correct because any evidence adduced in cross-examination would have been irrelevant to a matter in issue. The observation in the reasons for judgment was also correct because a legitimate claim is not to be defeated because of a point of pleading: see R 46.04(4) of the Supreme Court Rules 1987. This complaint is without merit and does not even suggest bias.

406 The cross-examination continued on various topics other than trusts. Questions were correctly disallowed on the grounds of relevance and the learned Trial Judge provided assistance to the appellant Edwards by putting questions in an unobjectionable manner. Also, I mention that throughout this long cross-examination on a number of occasions the learned Trial Judge overruled objections and allowed the appellant Edwards to proceed.

407 Later in the cross-examination the appellant Edwards put to the respondent Stevens that he well knew about trusts which he again denied and said he was not aware of what was a trust. He was shown a letter from the appellant Edwards to the Director of Fisheries dated 4th September 1980 in which "Partnership/Trust/Company operations by abalone operators" were alleged to have been common in the past and accepted by the Government and the Taxation Department.

408 The respondent Stevens acknowledged that he may have seen the letter but he had no recollection of doing so but said that he did not know what was meant by trusts and that he did not know what was contemplated in the letter about trusts. It was a long letter and mentioned "Partnership/Trust/Company operations" on one occasion without any description whatsoever of what type of trust. The letter addressed other issues. He accepted that in the letter the appellant Edwards was indicating that he wanted to try and have a position in the abalone fishery where they could own a licence without being the actual diver which was in breach of the owner/operator policy.

409 Much later in the cross-examination the learned Trial Judge disallowed questions about trusts on the ground that the respondent Stevens had said that he did not know what was a trust. Thereafter, the learned Trial Judge disallowed questions about trusts which were repetitive and contrary to his ruling. Nevertheless, the appellant Edwards continued to go over ground which he had covered before. On many occasions his questions were disallowed but not on every occasion. Perusal of the transcript reveals that on occasions the learned Trial Judge extended latitude to him.

410 I reject the assertion that the number of occasions when questions were disallowed, including without objection, indicates bias. It is necessary to consider each occasion. When doing so the learned Trial Judge was correct in the rulings which he made. One of the difficulties facing the learned Trial Judge was that the appellant Edwards put to the witness the concepts of a trust, and beneficial ownership, in general terms. The witness had said a number of times that he was not concerned with how the proceeds of the sale of abalone were disbursed. It was essential that the particular type of trust should be put to the witness for the evidence to be of value. Any trust arrangement could not involve absentee ownership or be otherwise contrary to the owner/operator policy. I reject the submission that the learned Trial Judge was unfair to the appellant Edwards or that he was biased against him.

411 The appellant Edwards argued that there were two types of trusts referred to in the correspondence. The learned Trial Judge said that this assertion was a recent invention designed to assist his case and bore no resemblance to what was expressed in the correspondence. After submissions, the learned Trial Judge asked the respondent Stevens questions about whether he had ever considered absentee ownership. He answered that new Regulations had been passed shortly before the correspondence which did not permit absentee ownership but he was willing to keep an open mind and discuss.

412 The complaint is that the learned Trial Judge should not have prevented the appellant Edwards from continuing with this topic in cross-examination. As has been mentioned, the appellant Edwards had a copy of the transcript of the evidence given to the respondent Stevens at the trial of Edmunds v Pickering which was relevant as to whether the evidence of the respondent Stevens that he did not know what was a trust was truthful. I have mentioned this matter. Although, as I have said, the learned Trial Judge erred by preventing further cross-examination, there is no reason to suppose that the error was due to bias.

413 Having considered all of the complaints about the interventions of the learned Trial Judge during the cross-examination of the respondent Stevens by the appellant Edwards, I see no reason to attribute the interventions to bias.

414 It was submitted that the learned Trial Judge took control of the cross-examination of the appellant Edwards from the outset. An example of this conduct is said to be at the stage of the cross-examination when Mr Bell was asking him about financial contributions made to him by various persons, it being suggested, but denied, that the money was paid to him to assist in his case. The trial was adjourned for lunch. Upon resumption the learned Trial Judge questioned the appellant Edwards at length about a letter which he wrote on 29th August 1980, the day after the regulations amending the Managed Fisheries Regulations 1971 were proclaimed. It is to be remembered that these Regulations substituted abalone authorities for permits and permitted transferability: Reg 35. The appellant Edwards had earlier been cross-examined by Mr Bell about the letter.

415 The learned trial Judge questioned the appellant Edwards at length about the letter and its contents. The purpose of the questioning is not relevant for present purposes. The questioning occupied six pages of transcript.

416 It is submitted that by taking over the cross-examination the learned trial Judge was biased in favour of the respondents.

417 It is simply not true to say that the learned Trial Judge took over the cross-examination from the outset or at all. The appellant Edwards commenced his evidence-in-chief on 10th April 2000 which continued until the end of 12th April 2000. He was greatly assisted by the learned Trial Judge who led him through his evidence. Cross-examination commenced at the beginning of 18th April 2000. The learned Trial Judge did not ask one question of the appellant Edwards for the whole of the morning. He asked one question early in the afternoon and thereafter only occasionally asked individual, or a few, questions during the rest of the day. On the next day the same situation continued with very few questions being asked by the learned Trial Judge. The transcript indicates that the learned Trial Judge asked a number of questions shortly before the morning adjournment but I think it is likely that they were asked by Mr Bell as it appears they were based upon instructions and in that respect the transcript is incorrect. At times the learned Trial Judge did ask a series of questions to clarify certain evidence but he did not do so in the nature of cross-examination.

419 The Edwards appellants complain that the learned Trial Judge erred in accepting some of the evidence of Dr Shepherd and that his many interventions during cross-examination of Dr Shepherd by the appellant Edwards demonstrates bias.

420 It is submitted that the learned Trial Judge was obliged to test Dr Shepherd's scientific credibility before he admitted evidence based upon data that was of little or no value. No authority was cited for this proposition. Dr Shepherd's evidence as to his training, qualifications and experience clearly established that he was qualified as an expert in relation to the matters about which he expressed opinions. I have earlier referred to the complaint about the bases of his opinions about abalone resources. Also, I have briefly referred to the evidence of Dr Prince that the surveys by Dr Shepherd as to abalone stocks were well regarded.

421 Having considered his evidence I do not think there is any ground for complaint about receiving Dr Shepherd's evidence about abalone resources. There was no objection to the evidence. Dr Shepherd clearly had considerable knowledge of the abalone fishery in South Australia. No contrary expert evidence was called. Dr Shepherd was qualified to express the opinion which he gave and the learned Trial Judge was not required to do more than be satisfied that he was duly qualified to a subject matter which admitted of expert evidence. Even if the learned Trial Judge was wrong in findings of fact, which has not been demonstrated, errors of that nature obviously do not necessarily establish bias.

422 It was submitted that the interventions by the learned Trial Judge during the cross-examination of Dr Shepherd demonstrate bias. There can be no suggestion of any error on the part of the learned Trial Judge by his interventions during the early part of the cross-examination of Dr Shepherd by the appellant Edwards. He did take over the questioning at times and, on occasions, extensively, but it is clear that he was seeking information or clarification about topics raised by the appellant Edwards.

423 There then occurred a number of interventions. The learned Trial Judge disallowed questions for good reason, but the cross-examination continued. The learned Trial Judge disallowed a line of questioning which he said was vexatious. The questioning was repetitious about a subject matter which the witness could not recall. The learned Trial Judge was correct in disallowing further questions on that topic. I can see no reason to apprehend bias on the part of the learned Trial Judge by reason of any of these interventions.

424 The next complaint is that Dr Shepherd in 1970 recommended "the provisions of an employee permit allowing the boat owner to employ a diver for the purpose of taking abalone in addition to the present permit system" which, he said, would make for more stability in the industry. His recommendation was to tie the permit to a particular boat. In 1973 he wrote that divers working in pairs was a matter of safety. The Edwards appellants appear to complain that this evidence is not referred to in the reasons for judgment. I do not understand why that complaint is made. The learned Trial Judge was obliged to set out in his reasons for judgment the matters which were relevant to his decision. There was no suggestion that a two diver policy was ever allowed by the Department at relevant times and the evidence was not relevant to any decision made by the learned Trial Judge.

425 Dr Shepherd said that commercial abalone divers had never dived in pairs in South Australia. He was asked if the reason was that they chose not to do so. The learned Trial Judge told the witness that he need not answer the question if he did not know the reason. He said he did not know. The complaint is that the learned Trial Judge not only intervened but also supplied the witness with the answer and effectively blocked off an important line of cross-examination. There is no substance in this complaint. The learned Trial Judge's intervention was entirely appropriate. I think to suggest that he supplied the answer to Dr Shepherd is not only incorrect but is offensive to an expert witness of his standing. The line of cross-examination was not blocked.

426 The next complaint is that the learned Trial Judge upheld an objection to a question without giving the appellant Edwards the opportunity to submit an argument. The question was plainly objectionable as the witness could not give reasons for the views of others. The subject matter included the views of a person whom Mr Borick, in his written submission, observes is a relative of the learned Trial Judge. I do not know why that submission was made. It appears to imply that the learned Trial Judge closed the cross-examination on that subject matter for that reason. Such a suggestion would be offensive. I can think of no other reason to mention it. Nothing could be further from the truth. The subject matter was not closed. The cross-examination continued and the relative was mentioned in a context and manner which was as unremarkable as it was irrelevant.

427 Dr Shepherd told the learned Trial Judge that he had never heard of quotas in an overseas abalone fishery being introduced before 1985. At that time he regarded the concept is innovative. There was extensive cross-examination about this topic with intervention. The learned Trial Judge then upheld an objection to a question which, if answered, would have required the witness to express views outside his expertise. It was submitted that in upholding the objection the appellant Edwards was prevented from pursuing an important line of cross-examination. There is no basis for that submission. The appellant Edwards did change topics but he was not directed to do so. He was not prevented from making submissions. It appears that he accepted what the learned Trial Judge said to him and decided not to proceed with the same topic.

428 The next matter also relates to the abalone stocks in South Australian waters. In cross-examination Dr Shepherd gave evidence about abalone stocks in various places in South Australia. He told the learned Trial Judge that he would know what abalone beds existed in each area. He also said that he did not think that it was likely that there would be any abalone stocks in areas unknown to him. One way in which he gathered knowledge was to question the divers and he said that it would be highly improbable that there would be any areas that he did not know about. He rejected the contrary position. He said he had the confidence of all of the divers and they told him about, and showed him, their private spots. He said he knew of the location of abalone in both deep and shallow water.

429 The learned Trial Judge accepted this evidence and found that there were no substantial untapped stocks of abalone in deep water, all known populations of abalone off the South Australian coast are, and were in the time when the appellant Edwards was a diver, regularly fished. He said in his reasons for judgment:

"The suggestion by Mr Edwards, made throughout the case, that there were substantial untapped abalone stocks in deep water is a deliberate fiction created by him in an endeavour to explain away the damaging comments in the catch returns, and to bolster his claim for damages."

Later in these reasons I mention the catch returns of the appellant Edwards in the context of why he left the abalone fishery.

430 These findings are challenged. Mr Borick submitted that in 1980 Dr Shepherd was barely qualified to express an expert opinion. His opinion was based upon catch data that was of little value. His data came in part from conversations with abalone divers which was clearly unscientific. He could mention the name of only one diver. How the catch data was recorded was unclear and there was no data available for abalone stocks in waters deeper than 25 metres.

431 In my view these criticisms overlook the totality of the evidence of Dr Shepherd. His considerable experience and knowledge was accepted. He was duly qualified to express the opinions. There was no expert evidence to the contrary. He stated the sources of his information. Indeed there was some support for his evidence in the evidence of Dr Prince. The criticisms of the Edwards appellants are, to a significant extent, expressions of personal opinion.

432 However, even if the learned Trial Judge was wrong in accepting the opinions of Dr Shepherd such an error does not indicate bias.

433 The next complaint is that the learned Trial Judge intervened in the cross-examination of Dr Shepherd by the appellant Edwards on four particular occasions. In my view this complaint is another example of identifying interventions and ipso facto asserting bias. The first intervention was simply to confirm what the witness had said on the previous day. The second intervention occurred when the learned Trial Judge disallowed a question asked by the appellant Edwards as to what was in his own mind when he spoke to the Minister. The question was obviously objectionable. The third intervention was to disallow a question as to whether the witness had read an opinion of the Crown Solicitor. The question appears to have been disallowed on the ground of relevance. The fourth intervention was to rule on an objection to a question which suggested that divers "encroached" on fisheries legislation. It was plainly objectionable on the ground of relevance and probably for other reasons. In my view the learned Trial Judge was correct in his intervention and there can be no indication of bias.

434 The learned Trial Judge, after hearing argument from the appellant Edwards, refused to allow cross-examination on a document relating to aquaculture on the ground of relevance. That ruling was correct. I reject the submission that the learned Trial Judge prevented relevant cross-examination. There is no indication of bias.

435 The next complaint is that the learned Trial Judge intervened by asking an impermissible question of Dr Shepherd. The appellant Edwards had asked a plainly objectionable question to the effect that if a diver did not want the Taxation Department to know his real earnings it was highly probable, or at the lowest quite possible, that his catch returns would not be accurate. As the learned Trial Judge said he could make his own judgment about that matter. In my view it did not admit of expert evidence. The learned Trial Judge then put to Dr Shepherd that he had been at his work for 30 years or more and he must have a feel for the reliability of the data he had been using. He was asked if he believed that his estimates of abalone stock were reasonably accurate. The witness replied in the affirmative and said that he had a high degree of confidence in the approximate accuracy of the available information. He said that even with an error rate of 10 per cent, the information was a very good indication of the productivity of the stocks.

436 It was submitted that there was no relevant or reliable data for at least the first 20 years of the period of 30 years. As I understand the submission the learned Trial Judge's question indicates bias on his part. I reject the submission. The question was appropriate in the circumstances. Dr Shepherd had been involved in extensive research for a long period of time, about 30 years or so, and even if there was no relevant or reliable data for the first 20 years, the question remained appropriate. The period of years related to his experience not to the collection of data. There is no indication of bias.

437 The next complaint is that the learned Trial Judge recognised the necessity of an audit to verify catch returns but he made no criticism of the failure of Dr Shepherd or the Department to carry out an audit. This complaint is based upon a misunderstanding of Dr Shepherd's evidence. He was asked if checks were made from time to time by the Department of the accuracy of the catch returns against sales or purchase information. He said that this matter was beyond his area of responsibility, but he understood that there were audit checks made by compliance personnel. There could be no basis for criticism of Dr Shepherd or the Department as such checks were made.

438 A little later in the cross-examination, the appellant Edwards asked another question which was made up of many questions. It was correctly disallowed for that reason. The learned Trial Judge took over the questioning on the same topic which was the extent of poaching in the abalone fishing. In the course of answering the questions Dr Shepherd said that the extent of poaching was 10 per cent to 20 per cent of the catch. The appellant Edwards changed the topic. It was submitted that the intervention effectively prevented relevant cross-examination on that estimate. There is simply no basis for this submission. The transcript does not reveal that the appellant Edwards was prevented from cross-examination. There is no indication of bias.

439 The Edwards appellants complained about another two interventions by the learned Trial Judge soon after during the cross-examination. The first of them was a ruling following an objection to questions about abalone divers fishing in both Commonwealth and State waters. The learned Trial Judge disallowed further questions on the ground that the witness had already answered questions on the same topic in "half a dozen" different ways. It submitted that ruling blocked cross-examination on the issue of fish stocks. In my view the learned Trial Judge was correct in his ruling and it did not prevent further cross-examination as to fish stocks. Indeed cross-examination on that topic did proceed.

440 The second intervention was a question by the learned Trial Judge seeking clarification from Dr Shepherd of a matter regarding estimates of fish stocks. Dr Shepherd had described in some detail his method of estimating stocks by survey swims. This technique, repeated annually, along with other information gave what he said were "good and reliable trends of abundance".

441 It was submitted that Dr Shepherd had been forced to admit that this method was "scientifically absurd". No such admission was ever made. As I have said Dr Shepherd's evidence was to the contrary. The appellant Edwards had used the expression "absolutely ridiculous" in a question which was not answered when the intervention occurred. A little earlier in his evidence Dr Shepherd had said that there was a scientific problem because it was extraordinarily difficult to estimate the abundance of adult abalone on the sea bed, but he then went on to describe his method and its reliability as I have mentioned. Late in his evidence Dr Shepherd said that over 20 years the information in catch returns "generally supported the general accuracy of [his] surveys". I can see no error on the part of the learned Trial Judge and those interventions were appropriate in the circumstances and there is no indication of bias.

442 The next complaint is regarding a question asked by the learned Trial Judge as to whether it would be expected that over a period of 20 years there would be some sort of correlation between survey results and information from catch returns. It was submitted that since survey results were scientifically invalid and the catch returns useless there could be no scientific value in the correlations of which the learned Trial Judge must have been aware. There is simply no evidential basis for this submission. The evidence of Dr Shepherd was that there was scientific value. Obviously the appellant Edwards has a different view but it is not supported by expert evidence let alone established as being correct. The learned Trial Judge asked a similar question a little earlier and the same complaint is made. I reject those submissions. It seems that the appellants have misunderstood the evidence or have used parts of it selectively.

443 Next, it was submitted that intervention by the learned Trial Judge stopped cross-examination as to an issue of a catch of abalone related to time and effort. Given the issues at the trial which essentially were what representations were made by the respondent directors to the appellant Edwards and the appellant Murphy and whether in making them, they were guilty of misfeasance in public office or negligence, it is difficult to see how this issue could be relevant. I expect the learned Trial Judge allowed the cross-examination in order to see if relevance could be established. Cross-examination proceeded as to using catch by hours per person as the unit of effort. He was then questioned about "input control" as opposed to "output control" the meaning of which although obvious need not be mentioned for present purposes. The learned Trial Judge disallowed a question as to whether Dr Shepherd preferred input control apparently on the ground that the witness was not in a management role but was a scientist. The witness said that it was for the Department to make use of the data.

444 It is possible that further cross-examination could have established if Dr Shepherd had a view which differed from the respondent directors, others in the Department and the Government. Relevance would have been doubtful. However, there is no reason to suppose that the learned Trial Judge stopped cross-examination on the topic. After his intervention the appellant Edwards proceeded to another topic. It was submitted that Dr Shepherd had denied that his research perspective was intricately relevant to management. What Dr Shepherd said was that he attended meetings of the Abalone Management Liaison Committee. I understand that this committee was comprised of representatives of the Department and the Abalone Divers' Association and its function was to provide assistance to the Director and the Department. Dr Shepherd's evidence upon which the submission is based is as follows:

"A. I was present at those meetings to present a research perspective on the fisheries, and it was intimately relevant to the management, and so I participated fully in the liaison committee."

He went on to say that he did give advice on matters which strictly may be regarded as management issues. There is no basis for a conclusion that he was involved in management of fisheries or that the contribution of his research perspective to the committee associated him in some way with management of the abalone fishery which is implied by the submission. The appellant Edwards conducted a lengthy cross‑examination without interruption as to the extent and location of the surveys. It is submitted that Dr Shepherd admitted that his surveys were superficial and explanatory rather than systematic. That is not what he said. When describing what he did in relation to black lip abalone, he said that he and others never set out to survey black lip abundances at any site because their time was fully occupied with green lip abalone and

"...the black lip surveys were more in the nature of exploratory surveys rather than systematic surveys recording abundances and changes in abundance over time."

445 Later the witness was cross-examined about the weed factor being taken into account in the formula used for estimating the abundance of abalone. Dr Shepherd explained the formula in a general way. He said:

"A I had a formula which took account of the weed factor. First, we estimated a coefficient, for example, of the amount of cover; 10 - there was no weed cover, and 2 - there was maximum weed cover, and that factor went into the formula to estimate the distance covered by the diver -

Q What other factors were there in that formula.

1. We also estimated the amount of swell and we also estimated the efficiency of a diver. A diver - some divers swam fast but they had lower efficiency; that is, they missed more abalone. Other divers swam more slowly and searched more meticulously, so they swam a lesser distance, but their efficiency was higher; 'efficiency' referring to the proportion of total population within a strip one metre wide that they were searching."

It was submitted that the learned Trial Judge accepted the formula without any real query as to how it worked. That submission is untenable. The explanation was obviously sufficient for the purpose of the case.

446 The next complaint is that when the learned Trial Judge intervened about an aspect of the surveys of abalone stocks and that he asked a question, the answer to which was inadmissible:

"Q What I'm looking for is any indication that there is any reason to challenge the outcome of your 20 or 30 years of survey of these areas. Has any substantial reason to do so emerged within the scientific discussions that took place when you delivered papers.

1. In - the technique has been accepted, has never been challenged, up until the last few years when newer and possibly better techniques are beginning to emerge. I've been pioneering another kind of technique in the last four or five years, but even so, biologists are still using the same techniques, and they still argue that it's the only practical way of measuring abundance."

The question was not only appropriate and the answer admissible, but it enabled the learned Trial Judge to understand the relevance and reliability of the survey. The criticism is misplaced.

447 Later, Dr Shepherd was cross-examined about trusts. He had stated in his statement of 16th January 1998 that in the early 1980s divers began to set up trusts under which the diver was the nominal owner but control of the licence was held by another, usually the former owner/operator who wished to retain control of the licence but no longer wished to dive and profits were shared. He said that in the early 1980s he interviewed divers from time to time in accordance with his practice and at times a diver would tell him that he was operating under some trust arrangement with someone else. He said he did not enquire further because his purpose in talking to divers was to ascertain the state of stocks, not their financial arrangements. When asked if he reported this matter to the Director, he said that the respondent Stevens was the Director at the time and he had very little contact with him. He said that he doubted that he would ever have referred the matter to him. He also said that he must have concluded that it was not something with which the Department should be involved. Another reason, he said was the information was in the nature of hearsay and would have been given to him in confidence. Also, he said that he could not recall any instance about a diver telling him about a fishery arrangement or trust in which he was involved. The learned Trial Judge then asked questions in answer to which the witness said this hearsay information was not central to his role and that he was not inclined to just spread gossip and breach the confidence of the divers with whom he was dealing. The complaint is that this information went from hearsay to gossip to secrets which is precisely what was the information about catch data.

448 I do not understand this submission or its purpose. The learned Trial Judge simply summarised the evidence which Dr Shepherd had given. Catch data was not gossip or secret.

449 None of these matters suggest any bias on the part of the learned Trial Judge. Perusal of the transcript reveals that the appellant Edwards was given considerable latitude in cross-examination about these matters, despite their doubtful relevance.

450 A little later the learned Trial Judge disallowed a question asked by the appellant Edwards as to what might have occurred if management had managed the abalone fishery in accordance with views expressed by the witness by using a different method of managing the abalone fishing between 1971 and 1974 as to the size of the fish which could be taken. The topic was too speculative to be relevant to any fact in issue and the learned Trial Judge was correct in his ruling. A little later in his evidence, Dr Shepherd was asked about doubling the effort of diving. He said that a diver could have doubled the amount of time he spent in searching and taking abalone. The appellant Edwards asked him if he was referring to the operator or an employee. The learned Trial Judge asked:

"Q I think you are talking about a net effect of combined doubling.

451 The appellant Edwards continued the cross-examination on this matter and it is plain that the witness, when acceding to "doubling" meant combining with an employee to double the total amount for the licence. The complaint is that the expression used by the learned Trial Judge, "net effect of combined doubling" is incomprehensive.

452 The expression had a clear meaning in the context of the evidence and the complaint is without justification.

453 The next complaint is also without merit. The learned Trial Judge disallowed a question on the ground that "it is stating the obvious". The question was about an effect of substantially increasing the catch of abalone. The learned Trial Judge cut off the question by his intervention. He said that the witness was at the trial to speak about scientific matters, not to be used as a sounding board for other theories. The complaints seem to be that the learned Trial Judge did not allow the question to be completed and it was therefore meaningless and also that the issue of the expression "scientific matters" by the learned Trial Judge "begs the question". I think the appellant Edwards should have been allowed to finish the question but the reason for disallowing the question was probably correct. As I have said considerable latitude was given to the appellant Edwards during his cross-examination of Dr Shepherd. The learned Trial Judge anticipated that the question was to be of no assistance. There is no reason to apprehend bias by reason of this incident.

454 The Edwards appellants also complain about four other interventions which occurred at about the same stage of the cross-examination of Dr Shepherd. He had told the learned Trial Judge that the appellant Edwards was assuming that there were abalone stocks at a depth of 50 metres. He said he disagreed and that he was only aware of one place in Southern Australia where abalone had been reported at that depth. The learned Trial Judge then told the witness that the Edwards appellants case had been presented in simplistic terms along the lines that there was a pot of gold of abalone stock in deep waters which could have been reached if two divers were working together. Dr Shepherd said that none of his scientific research supported that view. He said that he believed that divers were exploiting all depths but the best concentration of abalone rarely went beyond 25 metres. The appellant Edwards then asked whether as catches dropped would virgin stocks in deep water have been larger. The learned Trial Judge intervened again by saying that the question assumed that there were stocks in deeper water.

455 We were not informed of the basis of the complaint about these interventions but there was no error. The evidence of the witness about the topic was clear and had already been given. There is no indication of bias.

456 The next complaint is that the learned Trial Judge disallowed a question, without objection, that there were some divers who wanted to dive with another diver. No reasons for disallowing the question were given, but I expect that the reason was that the answer would be irrelevant and therefore be inadmissible given the issues at the trial. A little later the learned Trial Judge disallowed another question without objection. The appellant Edwards asked if the majority of divers had not been assigned to the central and western zones but some of them could have worked in the south-east. The learned Trial Judge said that topic was purely speculative which is undoubtedly correct but it was also irrelevant. The next intervention which is the subject of complaint is that the learned Trial Judge disallowed a question without objection. He was asked if talk by the Minister in 1983 about introducing more abalone authorities would have had an effect on the thinking of the witness or divers. The learned Trial Judge correctly ruled that the witness did not know what the divers may have been thinking. These interventions were not an indication of bias.

457 After the cross-examination had proceeded further the learned Trial Judge intervened again. The witness was asked about a symposium in South Africa and whether a particular diver had presented a paper and if it was in rebuttal of a paper he had presented. The question was disallowed after objection. The learned Trial Judge asked the appellant Edwards how such evidence could help him. He said he did not know the purpose of the cross-examination and said that the appellant Edwards was trying to prove that there was a huge amount of abalone stock available and if employed divers had been permitted the appellant Edwards would have reaped a huge reward. He pointed out that the evidence of the witness was not supporting that view.

458 The complaint is that what the learned Trial Judge said was not responsive to the question, it was bullying and did not represent what the appellant Edwards was putting to the witness. This submission misses the point. The cross‑examination had been proceeding for a considerable period of time and the learned Trial Judge was entitled to know its purpose. Perusal of the transcript reveals that the observations of the learned Trial Judge were correct. He did not bully the appellant Edwards. To the contrary, as I have said, he extended considerable latitude. There is no basis for complaint. It was nothing to the point that the learned Trial Judge did not restrict his enquiry to the matter which was the subject of the question.

459 The next complaint is that the learned Trial Judge disallowed a question, without objection, in which the appellant Edwards asserted that Dr Shepherd had said in the 1970s that the abundance of abalone stocks was based on the catch rate which he now believed was erroneous. The learned Trial Judge said that the witness had not said that at all. He had said that his principal method of estimating stocks was by his estimates. The appellant Edwards replied "That's the "transect surveys". The factual assertion in the question was wrong. As has been mentioned the witness said that he undertook many surveys and he compared his findings with catch reports. Also he received information from divers. The learned Trial Judge did not put all of these matters to the appellant Edwards who remembered one of them, namely the surveys. The intervention was appropriate and the learned Trial Judge was correct in disallowing the question. It was also submitted that the principal method referred to by the learned Trial Judge was not scientific. The evidence of the witness was clear and need not be repeated. Clearly the witness who qualified as an expert considered that his methods were "scientific" and there was no expert evidence to the contrary. There is no ground for criticism of the learned Trial Judge.

460 The appellant Edwards also complains that later in the cross-examination the learned Trial Judge bullied him and misrepresented the evidence of Dr Shepherd. The cross-examination had continued about abalone stocks despite the earlier enquiry and intervention of the learned Trial Judge which I have mentioned. The learned Trial Judge then disallowed a series of questions which were plainly objectionable. He then said to the appellant Edwards:

"It is pretty obvious if two divers go down you can get more abalone. These are very very simplistic points that are taking a long while to tell me in a convoluted way. What is the point of the question?"

461 The appellant Edwards made the submission that if the Department used two divers for research he wanted to know why that did not flow over to fishermen. The learned Trial Judge correctly pointed out that there may be all sorts of reasons. Further objectionable questions were disallowed and the learned Trial Judge attempted to ascertain what the appellant Edwards was attempting to achieve. He told him that almost all of the evidence of Dr Shepherd related to abalone stocks and that he could not use the witness as a vehicle or sounding board to test comments by other witnesses or officers of the Department. Also he could not use the witness to comment on the appropriateness of the policy of the Department as to employee divers. He asked further questions to which the appellant Edwards responded. He advised him that he could damage his case by repetitive questioning and a "scattergun approach". The learned Trial Judge was both courteous and helpful to the appellant Edwards.

462 A little earlier, shortly before the adjournment for lunch the learned Trial Judge had asked the appellant Edwards how much longer he would be in cross-examination and he responded by saying the whole of the afternoon. This enquiry was made in the context of the next witness, the respondent Olsen having been waiting all morning to commence his evidence. The learned Trial Judge then said that the appellant Edwards would take as long as he gave him and he would not take the rest of the afternoon if he was reaching areas which were irrelevant. Nevertheless he announced that the respondent Olsen need not wait at Court during the rest of the day. The learned Trial Judge explained that he would consider the questions to be asked and determine relevance. Later, after lunch, the learned Trial Judge gave further advice and said that he had a duty to try and guide the appellant Edwards.

463 Mr Borick's submission is that the learned Trial Judge was bullying the appellant Edwards. I can see no basis for such a surprising submission. The learned Trial Judge gave appropriate and helpful advice. Whilst he did say that the appellant Edwards would have as much time as the learned Trial Judge allowed, he made that statement in the context of the advice and assistance he was giving. I do not understand how anyone reading the transcript could discern even a hint of bullying and I reject the submission. I mention that the cross-examination continued for most of the rest of the afternoon. In all it had occupied two days.

464 The other complaint about what the learned Trial Judge said was that he misrepresented the evidence of Dr Shepherd when he said that he had "given perfectly straightforward evidence about the extent of the abalone stock".

465 This complaint is also unjustified. Consideration of all of the evidence of Dr Shepherd establishes that his evidence was straightforward and, I add, consistent about abalone stocks in South Australian waters.

466 Later the learned Trial Judge again gave advice to the appellant Edwards. I need not repeat that advice for present purposes. It was extensive. It is sufficient to say that the learned Trial Judge was attempting to bring into focus the relevant and significance of abalone stocks in the context of the issues at the trial. In this context, he said the issue was whether the Department would have countenanced additional divers or extra effort given the advice it was receiving. In the course of this advice the learned Trial Judge said:

"The question of, in absolute terms, what the abalone stocks were is not one that I will be venturing into. It's impossible to work that out. Neither is it raised on the pleadings. There is no issue in this case that turns on the question of what the stocks were and who was right or wrong in the various assertions that were made by divers and so on, as to whether the place was being worked out or not."

What has been lifted from these observations in the submission of the Edwards appellants is only that the learned Trial Judge decided "it would be impossible to determine what the extent of abalone stocks were". It was submitted that whether Dr Shepherd was right or wrong, or the Department was right or wrong about abalone stocks is of no effect.

467 Of course the extent of abalone stocks in precise terms could not be ascertained, but as Dr Shepherd said their extent could be estimated. I am inclined to the view that the extent of abalone stocks is irrelevant to matters in issue at the trial as raised on the pleadings unless an extreme reflected the true position, either little or no stocks at all, or an over-abundance which could not be fished out. The matter of relevance was whether the stocks as reasonably estimated needed to be protected by appropriate management of the abalone fishery. According to Dr Shepherd appropriate management was essential.

468 Criticism is made of the learned Trial Judge's finding that the appellant Edwards lied about the extent of abalone stocks in deep waters. I have earlier mentioned that finding. The evidence supported the finding.

469 It was further submitted that as long as the respondents could say that no matter how misguided or wrong they were and no matter how badly they managed the fishery, so long as they believed they were right at the time, the appellants were bound to lose. If that is so, the submission continues, and an assessment of the stocks was impossible, it was utterly unjustifiable for the learned Trial Judge to attack the credibility of the appellant Edwards.

470 Upon the assumption that I understand the submission, I reject it. In my view the evidence of Dr Shepherd was clear. Abalone stocks needed to be managed and protected. There was no contrary expert evidence, yet this opinion was clearly supported by Dr Copes and Dr Prince. There was no evidence to establish abundance of abalone in deep water. Dr Shepherd's evidence to the contrary was also clear.

471 None of these matters shows bias on the part of the learned Trial Judge.

472 Later, the appellant Edwards was cross-examining Dr Shepherd about aspects of diver safety by using employee divers. The learned Trial Judge allowed this line of questioning over objection. As the cross-examination continued the learned Trial Judge upheld various objections to questions for good reason. The learned Trial Judge told the appellant Edwards that he would disallow any question which related only to safety or health issues. Our attention was drawn to this ruling but no submission was made about it. I expect that the point which the Edwards appellants want to make is that the learned Trial Judge erred in disallowing questions about those matters and his error was due to bias.

473 It appears that the learned Trial Judge took the view that this topic of evidence was irrelevant to any matter in issue. Broadly speaking, the case was not about the reason for the owner/operator policy and the policy against employee divers but whether any directions or advice given by the respondent directors to the appellants or any decisions made by them which affected the appellants or any of them amounted to misfeasance in public office or negligence. On the hearing of the appeal it was submitted that these policies were made by the respondent directors inappropriately and unreasonably. It does not appear that diver safety or health issues had any bearing upon the policies. An owner/operator could dive as was appropriate for him or her, and if unable to dive due to temporary illness or incapacity, a relief diver could be permitted.

474 My impression upon reading the transcript, and unassisted by argument, is that the cross-examination was not relevant to any matter in issue and the learned Trial Judge correctly brought it to an end.

476 I have mentioned the admissions made by the respondent directors in the Case Stated and the evidence which each of them gave about the admissions. The oral evidence at the trial was completed on 25th September 2000. The trial was adjourned until 27th September 2000. There was discussion about further documentary evidence. Some documents were admitted into evidence and others were rejected. That process continued on 28th September 2000.

477 Mr Bell tendered various affidavits of solicitors and others relating to the preparation of the Case Stated. After extensive interchange between the learned Trial Judge and Mr Bell the affidavits were admitted. The appellant Murphy objected on the ground that the contents of the affidavits did not support the respondent Stevens. He claimed that the respondent Stevens had said in evidence that he had seen the Case Stated but the appellant Murphy was mistaken. The learned Trial Judge said that he did not know how valuable the evidence about the Case Stated was and that too much had been made of it. He said that this comment stemmed from his appreciation of the circumstances in which questions are sometimes drawn, which he said was often on "a scatter-gun" basis. The appellant Edwards was not invited to indicate an attitude. Neither the appellant Edwards nor the appellant Murphy was invited to make submissions and neither did so.

478 It was submitted to the learned Trial Judge by Mr Bell that the admissions in the Case Stated had been made by solicitors by mistake. The learned Trial Judge observed that if solicitors are drawing up a document with the care that one might expect them to have used and if they make admissions it would be surprising if those admissions were made "out of thin air". It was submitted that the "scatter-gun" remark indicates bias on the part of the learned Trial Judge because Mr Bell immediately recognised there was a problem looming if the key component of the appellant's case was written off by the learned Trial Judge on the basis of his own personal "appreciation" of circumstances in which Case Stated documents are prepared.

479 What Mr Bell said was that he accepted the observation of the learned Trial Judge but the appellants were unrepresented. The learned Trial Judge observed that the respondents cannot resile from the admissions having been made.

480 Mr Bell informed the learned Trial Judge that initially the Case Stated contained the expression "for the purposes of the special case" and the admissions followed. Those words were deleted before the Case Stated was approved and referred to the Full Court.

481 In his reasons for judgment the learned Trial Judge said at para 307:

"There were no less than sixteen questions formulated for the consideration of the Full Court by way of the special case. Given that at that stage the only identification of factual issues was in the pleadings, to the extent that answers given were predicated upon assumptions based upon factual assertions in the pleadings, the answers cannot bind me where I have, as trial judge, reached different conclusions of fact."

482 The Edwards appellants submitted that these observations are not easy to reconcile with what the learned Trial Judge said when the affidavits were tendered and received. They contend that they have always argued that the Full Court answered the question in the Case Stated on the basis of the submissions and that these submissions did not come out of thin air as the learned Trial Judge recognised. It was submitted that the failure of the learned Trial Judge to refer to what he said at the trial in his reasons for judgment is indicative of bias.

483 I reject this submission. There is no indication of bias. At the trial the learned Trial Judge was indicating what was passing through his mind at that time. Having considered all of the evidence and submissions he reached the conclusion which he expressed in his reasons for judgment, namely that the answers given by the Full Court could not bind him where he reached different conclusions of fact. That approach is obviously correct. The factual basis for the Case Stated was prepared well before the trial. No evidence had been given or tested. This matter is not an uncommon feature of the Case Stated procedure. At all events the answers given by the Full Court did not depend upon whether the respondent directors had made the admissions and if they had been correctly made. The Full Court answered questions of law and the admissions and the assertions and responses in the pleadings was the context for those questions.

484 The learned Trial Judge limited his observations in his reasons for judgment to the factual assertions in the pleadings. He did not say anything about the admissions in the Case Stated. However, as has been seen, he made it clear time and time again during the Defence case that he did not regard those admissions as binding on the respondents.

485 It is necessary to also consider whether the reception of the affidavits at such a late stage of the trial caused unfairness to the appellants.

486 In his affidavit Mr Ahern, a legal practitioner employed by the Crown Solicitor at relevant times deposed that he had no recollection of preparing the Case Stated but he did remember discussing with Mr Lines, another legal practitioner employed by the Crown Solicitor that his view was that the Case Stated should focus on legal questions and that it should not be necessary to deal with factual matters. He also deposed that he did not need any instructions from the respondent directors. Mr Lines deposed in his affidavit that he asked Mr Ahern to draft the Case Stated. He had no involvement and he did not obtain instructions from the respondent directors.

487 Mr White, a legal practitioner, deposed in his affidavit that he had the conduct of the case on behalf of the respondent directors. He recalled a Case Stated but did not recall seeking instructions from the respondent directors. Mr Penhale is a legal practitioner who was employed by the Crown Solicitor and at relevant times had the conduct of the matter for the respondents. He deposed that he could not locate any working papers relating to, or drafts of, the Case Stated. He has perused the correspondence files of the Crown Solicitor's Office for 1994 and 1995 and has not located any communication between that office and any of the respondent directors or any indication that the Case Stated was sent to any of them.

488 As has been mentioned the learned Trial Judge did not inform the appellant Edwards and the appellant Murphy that they could make submissions contrary to the affidavits being admitted into evidence or that, if they were admitted they could apply to cross-examine the deponents. He did not inform them that they could object to the evidence being given by affidavit. Also the question arises as to whether the remarks of the learned Trial Judge when the affidavits were tendered may have led the appellant Edwards and the appellant Murphy to assume that the admissions in the Case Stated would be binding up the respondents.

489 The learned Trial Judge should have informed the appellant Edwards and the appellant Murphy of the matters I have mentioned because they were unrepresented. However, I do not think his failure to do so is a matter of significance in the circumstances. It seems obvious that Mr Bell adduced this evidence to avoid any adverse comment and the application of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 namely that the unexplained failure to call the legal practitioners may have led to an inference that, if called, they would not have assisted the Defence case. So, the evidence was relevant and any objection to its reception would have almost certainly been overruled.

490 The next question is whether the legal practitioners should have been called. Their evidence was only within their own knowledge and was consistent with the evidence of the respondent directors. It is unlikely that cross-examination would have weakened or destroyed their evidence or that their presence in the witness box would have caused the learned Trial Judge to doubt their evidence.

491 I do not think the timing of the reception of the evidence was unfair to the appellants.

492 The significance, if any, of the admissions in the Case Stated was a live issue throughout the whole of the trial and came into sharp focus during the evidence of each of the respondent directors.

493 For those reasons there was no unfairness to the appellants.

494 I have mentioned the owner/operator policy and its purpose in the context of the abalone fishery.

495 The appellants submitted that the meaning of the policy was never made clear and that throughout the trial various propositions as to its meaning were advanced. It was submitted the learned Trial Judge became exasperated with, and irritated by, the appellant Edwards because the meaning of the owner/operator policy had not been identified and crystallised at an early stage of the trial. If that had occurred much of the debate would have been avoided. As I understand the submissions, the consequence was unfairness to the appellant Edwards which is an indication of bias.

496 It must be said immediately that as long as the appellants advocated a meaning of the policy the learned Trial Judge had to keep an open mind about the matter and not foreclose argument at the end of the evidence.

497 I do not think there was any doubt about the meaning of the policy and it had the meaning which I have earlier mentioned. Much of the debate at the trial occurred because of the contentions of the appellant Edwards as to factual circumstances to which the policy applied and is particular to employee divers and trusts. There can be no criticisms of the learned Trial Judge for allowing the appellants to develop their cases as they saw fit about the permissible application of the policy.

498 The respondent directors all understood the policy as described earlier in these reasons. Those who were asked all said that once the abalone were taken and sold by the owner/operator, who had to be the diver, the Department had no interest in the legal arrangements the diver had in place for distributing any profit.

499 Much of the debate centred around whether someone other than the diver could be the owner/operator within the policy. I return to these matters later when considering what I have called the substantive appeal.

500 At this stage I merely say that I think the learned Trial Judge approached the matter appropriately. The transcript reveals that there were some occasions during this very long trial when the learned Trial Judge appears to have become exasperated or irritated but, as far as can be determined, from reading the transcript, no criticism may be made for his reacting as he did to considerable repetition by the appellant Edwards.

Further observations about the reasons for judgment

502 The Edwards appellants also contend that when the reasons for judgment are considered in their entirety and without recourse to evidence a fair-minded observer would conclude that the learned Trial Judge was biased.

503 The first matter is that the learned Trial Judge towards the beginning of his reasons for judgment said that both the appellant Edwards and the appellant Murphy "clearly had claims which were arguable and which they were entitled to present to the Court". Towards the end of the reasons for judgment he said that they had received a handsome income from their abalone businesses and not inconsiderable sale prices being fair market value when they left the fishery. He went on to say:

"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."

504 It was submitted that a fair-minded reader would be puzzled by these observations which are said to be contradictory. I reject that submission. There is nothing contradictory about an arguable case which after a trial upon evidence is found, in the circumstances, to be misconceived and baseless.

505 The next observation is that an observant reader would be puzzled by the reference in the reasons for judgment to the Case Stated, the apparent admissions by the respondent directors and the conclusion of the Full Court that, in the broad sense, trusts were legal in the abalone industry. It was submitted that the main complaint of the appellants is that they were unlawfully denied the right to use trusts which right was upheld by the Full Court when answering the Case Stated. The fair-minded reader would have found the conclusions of the learned Trial Judge to be aberrant.

506 This submission proceeds on a false premise. The Edwards appellants' case was that they wanted a trust, controlled by the appellant Edwards, to be the owner of the abalone authority and to employ a diver or divers to take the fish. The appellant Edwards although having control could be absent from the fishing operation. The appellant Murphy's case is that he wanted to have an arrangement where he transferred his authority to a person chosen by him which he would hold in his name and all of the privileges, rights and renewals associated with the authority and all of the benefits upon trust absolutely for him and to carry on the business of taking abalone and all other incidental matters pursuant to the authority as trustee for him and for his benefit absolutely.

507 As has been seen the Full Court acknowledged that prima facie the regulation under the 1917 Act and the 1971 Act appeared to contemplate that authorities and permits were to be held by natural persons particularly in the case of abalone permits because they imposed obligations which could only be discharged by a natural person. However, the Court acknowledged that there was no reason why an abalone permit or authority could not be held by several persons in partnership: Edwards v Olsen at 281-2 op cit.

508 It seems clear that none of the members of the Full Court envisaged the type of trust management which the appellant Edwards says he intended or even the type of arrangement proposed by the appellant Murphy. Whilst it may be said that the decision of the Full Court accepted that trusts could be used in the abalone industry, it is clear that the owner and operator of the authority had to be a natural person. It is also clear that the trust arrangements which the appellants submit they wanted to arrange would have been contrary to the owner/operator policy.

510 None of these matters suggests that the learned Trial Judge approached the issues at the trial inappropriately or incorrectly. There is no suggestion that he had any bias.

511 It was submitted that there was no evidence which supported the adverse view which the learned Trial Judge reached about the credibility of the appellant Edwards. Later I mention the appeal against those findings, but it is sufficient at this stage to say that there was a considerable body of oral and documentary evidence which supported the findings made by the learned Trial Judge and I find the submission surprising. I reject this submission.

512 The next matter is the observation of the learned Trial Judge, which I have already mentioned, that he could not properly intervene in the cross-examination by the appellant Edwards and the appellant Murphy of witnesses called by the respondents except when he found it necessary to assist them in the way he mentioned. It is submitted that this observation is wrong. I accept that it may be regarded as wrong in one sense. If the reason for intervention is restricted to putting questions in a proper form the observation is correct. If consideration is given to all of the different reasons for intervention the observation is wrong. As has been seen there were many interventions by the learned Trial Judge for other reasons including to disallow questions, give advice, and give rulings. I have mentioned the context and reason for most of the interventions which, with some exceptions, were appropriate. Perusal of the transcript shows that extensive interventions occurred with only some witnesses and for particular reasons, such as repetition, non-observance of rulings and inept questions.

513 It is submitted that the learned Trial Judge treated the appellant Edwards, the appellant Murphy and their witnesses in a very different manner to how he treated the respondent directors, their counsel and their witnesses. No particulars are advanced for this assertion. However, I think it may readily be said that there was a difference in treatment and for obvious reasons. The respondents were represented by counsel who were aware of correct procedure and court craft. The evidence of the respondents' witnesses was led in an orderly, logical manner with observance of the rules of evidence. The same may not be said about the appellants.

514 Also it was submitted that rulings by the learned Trial Judge were made almost always in favour of respondents and were often inconsistent with other rulings. The first matter is correct and understandable as the appellant Edwards and the appellant Murphy were not represented and needed considerable assistance in order to present their cases. There were no particulars of the second matter. Perusal of the transcript indicates general consistency on the part of the learned Trial Judge.

515 Some other matters were mentioned in submissions which have already been mentioned. The last submission of a general nature as to the reasons for judgment is that there was a great deal of relevant evidence that was not referred to in the reasons for judgment. We were not given any particulars of all of this evidence. Of course much of the evidence was not mentioned specifically in the reasons. It is surprising that there should be criticism of the learned Trial Judge for that reason. His lengthy reasons set out the bases of his conclusions. I am not aware of any relevant evidence which should have been mentioned for that purpose and was not mentioned. Of course there was a vast body of evidence addressed by the appellant Edwards which was not mentioned by the learned Trial Judge. It consisted of criticisms of the Department and the respondent directors as to the management of the various fisheries and the policies developed and implemented by them and the Ministers.

516 It was submitted that for all of these reasons the findings which were central to the failure of the appellants' cases, were the product of bias and cannot be maintained. As I have said none of them considered individually can suggest bias. The combined force of them is no different.

517 We were then referred to a large number of specific matters. I mention only those which have not already been considered. The submission that the learned Trial Judge erred in concluding that with the benefit of wide-ranging evidence presented at the trial it had become clear that, by and large, control of the abalone fishing industry had been successful and a somewhat fragile natural resource had been preserved. This conclusion was open to the learned Trial Judge on the evidence.

518 The next complaint is about the admitting into evidence and acting upon certain opinions of Mr Wishart. He is a practicing accountant. He expressed opinions that a very small proportion of people are prepared to seriously pursue and make the financial sacrifices necessary, to generate wealth substantially in excess of normal living requirements. He expressed "serious doubt" that the appellant Edwards would have pursued entry into fisheries as he claimed if his first venture had been successful. He said that it is natural that if a person seeking to exploit a business opportunity is thwarted, a second opportunity will be pursued. It is much less likely that a second opportunity will be pursued if the first opportunity is secured and exploited.

519 I do not think this evidence was admissible. Mr Wishart was expressing opinions which are only admissible if they relate to a subject matter which is not, or not wholly, within the knowledge of ordinary persons: Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486. In my view Mr Wishart's opinions were largely about matters within the knowledge of ordinary persons and in particular the learned Trial Judge. If I am wrong about that matter, to be admissible it must be shown that the subject matter "forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court": The Queen v Bonython (1984) 38 SASR 45 per King CJ at 47. It was not established that the opinions of Mr Wishart related to such a body of knowledge. It appears that his opinions were based upon his understanding of the claims of the appellant Edwards, his doubts about those claims and his belief about how persons might act in certain circumstances. If relevant, these were all matters for the learned Trial Judge.

520 Mr Wishart expressed further opinions including that the business activities of the appellant Edwards since leaving the abalone fishery did not show him to be a successful businessman. I do not think that is a subject matter which, in the circumstances, admitted of expert evidence, as it could easily be understood by the learned Trial Judge. Mr Wishart also expressed the opinion that it was unlikely that the various fishing licences and authorities would have been granted to the appellant Edwards to enable him to create the business empire which he said he proposed. That evidence was also inadmissible. It did not relate to any organised and reliable body of knowledge and, in any event, was outside the actual knowledge and experience of the witness.

521 The evidence was accepted by the learned Trial Judge. This was an error but it does not indicate bias. The learned Trial Judge was entitled to reach the same conclusions based upon admissible evidence. Given the evidence of the appellant Edwards as to his business activities after he left the abalone fishery, the learned Trial Judge could reach his own conclusions about his business acumen and ability without the opinions of Mr Wishart.

522 The complaints about the findings and conclusions of the learned Trial Judge as to whether the respondent directors made representation to the appellants about trusts and about trusts in the context of the abalone fishery are discussed later.

523 The learned Trial Judge found that the evidence of the respondent Olsen to the effect that he was aware of a policy of the Minister that abalone permits, and later authorities, were not to be the subject of a trust as unreliable given the totality of his evidence. He said that he was mistaken in his evidence. He said that he was mistaken in his memory or did not understand the question. There was no document referring to any such policy. The respondent Olsen was being cross-examined by the appellant Edwards about the surrender and re-issue of abalone permits. In answer to a question from the learned Trial Judge, he said that an abalone permit could only be issued to a natural person for his own use or benefit. He was asked if he was aware of the policy set out in the Case Stated which continued as follows:

"...... the policy of the Minister of Fisheries was that an abalone authority should not be cancelled or re-issued except pursuant to regulations 17 and 35AA of the Managed Fisheries Regulations 1971, and except to a natural person for his own exclusive use and benefit, and except upon the additional surrender of a current 'A' class fishing licence and licence to employ; and as a matter of law and/or policy of the Minister that abalone permits and authorities were not to be the subject of a trust or to be held by a corporation, or by a partnership; that as a matter of law transfer of a permit or authorisation certificate (including an abalone authority) was not permitted; and that the defendants believed an authorisation certificate was not capable of being impressed with a trust binding the holder thereof, or of being held by or on behalf of or transfer to a body corporate or two or more persons natural or otherwise in partnership."

He said that he was aware of that policy because the appellant Edwards had showed it to him. His evidence continued:

"A ......... When I had that meeting in Port Lincoln there were a whole lot of recommendations from the meeting that night, to look at the situation, and one of the recommendations which I put to the minister was the vessel owner or operator was the one that had to be issued with the permit or authority.

1. That is all you thought this reference to 'trust' meant.
2. Yes.
3. 'Or to be held by a corporation'. You wouldn't let abalone permits be held by a corporation.
4. Certainly not, because it was the diver unit."

524 I do not regard that evidence in the same way as did the learned Trial Judge. I do not think his evidence was that he was aware of such a policy of the Minister relating to trusts. Obviously the appellant Edwards could not have shown the Case Stated until the cross-examination and it did not exist at any time when the respondent Olsen held office. I understood the respondent Olsen to be saying that he had applied his mind to trusts when he held office. Earlier in his evidence he had said that the Department was not outside the province with income sharing arrangements such as partnerships. The individual person had to hold the licence and the authority. He said that he could not remember if the appellant Edwards had ever raised with him a suggestion that an abalone permit could be held in trust. I do not regard this finding as indicating bias on the part of the learned Trial Judge.

525 The next complaint is that the learned Trial Judge erred in deciding that the admissions of the respondent directors in the Case Stated were not significant in view of the evidence as to the circumstances in which they were made. I have already dealt with this submission which I reject. The evidence justified the decision and there is no indication of bias.

526 The Edwards appellants contests the finding that the appellant Edwards left the abalone industry because he believed it was fished out and there was no future in remaining in it. I refer later in these reasons to the evidence upon which the learned Trial Judge based that conclusion. I mention at this stage that it was submitted that this finding is "an almost classical example of inconsistency and bias" on the part of the learned Trial Judge. The background is the evidence of Mr Bascomb who was a sheller in the abalone fishing industry and worked with his brother-in-law, Mr Newton. On occasions during the period from about 1971 to 1975, Mr Newton was diving in a particular area at Angas Bay on the West Coast. The effect of his evidence is that Mr Newton fished and caught abalone in a particular area on one day. On the next day he saw the appellant Edwards dive in the area and take some abalone. He said that he and Mr Newton did not go back to the same area because "we considered that we had taken certainly most of the legal abalone in that area". The appellant Edwards objected to this evidence on the ground that the witness had not been in the water and would not know the extent of the abalone which was left. The learned Trial Judge ruled that the reason for the objection was a matter for cross-examination. I need not consider whether this evidence was admissible for any particular purpose because the learned Trial Judge did not permit further examination of the witness about this subject matter to show low stocks of abalone. Later, in cross-examination by the appellant Edwards, evidence was of conversations between the appellant Edwards and other divers was the subject of objection but it was not excluded by the learned Trial Judge.

527 I confess to not understanding the point of this submission. There was no inconsistency on the part of the learned Trial Judge. The evidence given by Mr Bascombe on this matter was not accepted by the learned Trial Judge as evidence of the state of the stocks of abalone in the area. There is no indication of bias.

528 It was submitted that the learned Trial Judge showed bias because he failed to intervene during the opening of Mr Bell. I do not think it is necessary to repeat the detail of this submission. There was no reason why the learned Trial Judge should intervene. Mr Bell was making some points with emphasis. The case was to be decided upon the evidence.

529 It is submitted that there are differences between what Mr Bell opened and what the learned Trial Judge found as having been proved. Mr Bell had opened that the aspect of the claim relating to employee divers was a small part of the overall claim.

530 In his reasons for judgment the learned Trial Judge said that additional divers would have led to the collapse of the abalone industry. It was submitted that it defies logic to suggest that measures could not have been taken to protect the industry if employee divers had been permitted. There was bias in the over-emphasis given to this aspect of the case and in the assessment of the credibility of the appellant Edwards. I can see no basis for this submission. The learned Trial Judge was obliged to make his findings based upon the evidence which he found acceptable and if his findings differed from the opening of Mr Bell and resolved matters in issue, it was appropriate for him to say so. There can be no suggestion of bias.

Observations of the learned Trial Judge as to lawyers

531 The Edwards appellants point to observations made by the learned Trial Judge at various times about lawyers involved in the action assisting the respondents and submit that these observations were not only inappropriate but indicate bias on his part in favour of the respondents. We were taken to passages of the transcript as examples.

532 I have mentioned the issue about the admissions of the respondent directors in the Case Stated and the attitude and rulings of the learned Trial Judge about them. One of the examples is that when the appellant Murphy was cross-examining the respondent Stevens he mentioned the admissions and denials in the Defence. The learned Trial Judge observed that normally persons bringing an action cannot necessarily rely upon matters being admitted. He went on to say "Lawyers have a habit of denying everything important". As mentioned previously, on another occasion he said that lawyers preparing documents could sometimes do so on a "scattergun basis". Also he said that when preparing important documents lawyers "hedge their bets".

533 Mr Borick submitted that such conduct on the part of lawyers would be contrary to rules of professional conduct and practice which express standards of conduct expected of lawyers.

534 It was submitted that these observations of the learned Trial Judge, in view of these obligations of lawyers described in those Rules, indicates bias on the part of the learned Trial Judge. I need not mention particular rules. The Rules provide for honest and proper dealing by lawyers and as to their obligations to the court. I reject that submission. It appears to me from perusal of the transcript that in making those observations the learned Trial Judge was explaining in a simplistic and somewhat humorous way what sometimes occurs when the legal draughtsperson approaches a pleading. I can see no basis for apprehending bias. The learned Trial Judge in making the observations was speaking to non-lawyers and chose to express himself in such an informal manner.

535 As has been seen, I have considered the various submissions upon which the allegation of bias have been made. I have rejected each of them when considered separately. It is necessary to stand back and consider whether consideration of all of those individual matters together leads to the conclusion that the learned Trial Judge was actually biased towards the Edwards appellants or that there is an apprehension of bias in the relevant sense. As has been seen, some of the allegations are of actual bias. They are rejected. There is simply no basis for such a serious allegation. Also, the allegation of reasonable apprehension of bias must be rejected.

536 I add that Mr Bell's contention that at various stages before, and during, the trial the learned Trial Judge assisted the appellants must be accepted. I need not set out the details of this assistance but mention that it included extensions of time which had been fixed for the appellants to take various steps in the action, assistance with the finalising of pleadings and the presentation of evidence, relief from the obligation to respond to a notice to admit documents, allowing amendment to pleadings which were inexpertly drawn, allowing access to the learned Trial Judge's copy of the transcript to avoid expense, favourable responses to requests for assistance during the trial and the extension of time to lodge written submissions.

537 These matters cannot be decisive as to the allegation of bias but they are relevant to that question. They tend to show that the learned Trial Judge was not actually biased and that there can be no reasonable apprehension of bias.

538 In my view, none of the proposed grounds of appeal have merit and the application for leave to amend the grounds of appeal should be dismissed.

539 As has been seen, I reject the allegations of bias on the ground of interventions by the learned Trial Judge. I have considered each of the allegations separately and although I have concluded that the learned Trial Judge erred in the respects I have mentioned, these errors do not suggest, let alone establish, bias.

540 I have considered the combined effect of all of the interventions. At various stages of the presentation of the defence case, there were many interventions but they do not amount to actual or to a reasonable apprehension of bias. When the reason for them is examined and the conduct of the trial as a whole is considered, actual or apprehended bias is not established and, in my view, there is no basis for the submission. Perusal of the transcript shows that during most of this lengthy trial, the learned Trial Judge allowed the evidence to flow. To single out those parts of the trial when there were frequent interventions is misleading.

541 Having reached that conclusion, it is necessary to consider whether, in the circumstances, the appellants had a fair trial because of the interventions: see Yuill v Yuill and Jones v National Coal Board. There can be no suggestion that the Edwards appellants could not present their cases adequately. Their ability to do so overall was enhanced by the assistance given to them by the learned Trial Judge and his interventions, although many, were mainly appropriate. The issues in the trial were fully ventilated and there can be no suggestion that the appellants did not receive a fair trial.

542 The appellant Murphy adopted the proposed grounds of appeal of the Edwards appellants and the submissions of Mr Borick so far as they could relate to his case. In addition he raised the following complaints particular to him which I have paraphrased:

1 The errors of judgment and conduct of the learned Trial Judge which are the subject of complaint in this appeal were so numerous and glaring that they must be due to bias.

2 The learned Trial Judge allowed [I think he means refused] an amendment to his proceedings to include the respondent Kirkegaard as a defendant in his action and a claim for damages against him on the basis of evidence which was damaging to the respondent Kirkegaard which was later deleted from the transcript and not mentioned in his reasons for judgment.

3 The learned Trial Judge deleted sections of transcript of evidence which were damaging to the respondents Olsen, Stevens, Kirkegaard and the witness Mr Chatterton.

4 The learned Trial Judge fabricated evidence to conceal "the extortion" that broke the back of the appellant Murphy and caused him to sell out of the fishing industry.

5 The learned Trial Judge ignored the definition of the appellant Murphy of the word "regime" and substituted a definition favourable to the argument presented by the respondents' concerned.

6 The learned Trial Judge assumed that the appellant Murphy would have utilised a trust arrangement identical to that used by a Mr Edmunds and a Mr Pickering.

7 The learned Trial Judge protected the respondent Stevens by disallowing a question asked by the appellant Murphy regarding a hypothetical transfer application with substituted details of his own company and a proposed diver for no consideration at the time of his exit from the fishing industry in 1983.

543 Particulars of these grounds were also provided in the written submissions of the appellant Murphy.

544 The first proposed ground of appeal must be considered after conclusions have been reached as to all grounds of appeal and proposed grounds of appeal and I return to this ground at the end of these reasons.

545 The second ground of appeal is based upon an alleged recollection of the appellant Murphy that evidence of the respondent Kirkegaard has been deleted from the transcript. The proposed ground of appeal relates to what the learned Trial Judge described as the appellant Murphy's "two boat claim". The learned Trial Judge described the claim as the appellant Murphy being denied a right to hold, simultaneously, "boat authorisation certificates" with respect to more than one boat. The learned Trial Judge said:

"I have not so far referred to a claim made by Mr Murphy that he was wrongfully denied a right to hold, simultaneously, 'boat authorisation certificates' with respect to more than one boat.

He maintained in evidence that there was a practice for abalone divers to be permitted to operate from two boats, commonly a smaller "tinny" and a larger, heavier fibreglass boat. He said that this enabled a choice to be made as to which was more manoeuvrable in the particular sea conditions which might be prevailing, with the result that fishing efficiency was enhanced.

There was little support in the evidence given by other divers for that suggestion. I am unable to find that it was a widespread or widely understood practice."

The appellant Murphy commenced his brief cross-examination of the respondent Kirkegaard by putting to him the minutes of the meeting of the Abalone Divers' Association held on 8th January 1980 which contained a passage that abalone divers were restricted to one boat which could be transferred. He was cross-examined about whether there could be a restriction as to the number of boats an abalone fisherman could use. The respondent Kirkegaard maintained that only one boat could be registered at the one time. The appellant put to him that abalone divers regularly operated two boats at the same time. The witness said that they could not have two boats registered at the same time. There was discussion between counsel, the appellant Murphy and the learned Trial Judge during which the appellant Murphy asserted that two boats could be registered at the same time. Other witnesses gave evidence about abalone fishermen having two boats. Mr Garnaut, a former abalone diver, said that two boats were permissible but could not be used at the same time. The transcript shows that no further evidence was given.

546 The appellant Murphy asserts that the following evidence was given:

"Q Did you, without consulting the divers, demand as a condition of transferability that the licence holder be restricted to the use of one boat instead of the traditional two as then utilized by the majority.

1. Yes.
2. Did you realize that your demand was dangerous to boat operators.
3. I didn't know.

Murphy immediately addressed Perry J with: 'This has to be negligence.' to which no reply was forthcoming."

In making this assertion, the appellant Murphy said that he is relying upon his memory. No such passage of evidence appears in the transcript.

547 At the commencement of the hearing on the next morning, the appellant Murphy told the learned Trial Judge that he wanted to make an application to amend his proceedings to sue the respondent Kirkegaard for negligence on the basis that he had required the fishermen to give up using two boats. The negligence was asserted to be that the respondent Kirkegaard did not know two boats were being used and he should have known. Having established that it was not proposed to call any further evidence on this matter, the learned Trial Judge said he would deal with the application to amend during final addresses rather than delay the calling of further witnesses. The respondent Kirkegaard was not a defendant in the action brought by the appellant Murphy. The application to amend was stood over to be considered during final addresses.

548 The learned Trial Judge heard argument during the addresses and made a ruling refusing the amendment. There is no appeal against that ruling.

549 There is no reason to conclude that the learned Trial Judge was actually biased against the appellant Murphy by reason of any of those matters and there is no reason to suppose that an independent observer would have an apprehension of bias on his part. The assertion that a passage of the transcript was deleted as alleged is without foundation. If it is put forward as a particular of actual or apprehended bias on the part of the learned Trial Judge, it would have to be established that he caused the passage to be deleted. Such a suggestion would be outrageous. The learned Trial Judge received the transcript from the court reporters as did the respondents. It was available to the appellants. No reason can be advanced as to why the transcript would be altered.

550 There was no need for the learned Trial Judge to address this matter in his reasons for judgment because he had disallowed the amendment.

551 There is no substance in this proposed ground of appeal.

552 The proposed third ground of appeal is also without merit.

553 There is another section of transcript which the appellant Murphy claimed had been deleted because it was damaging to the respondents Olsen, Stevens and Kirkegaard and Mr Chatterton. They were alleged to have occurred during the evidence of Mr Chatterton and the respondent Stevens.

554 During cross-examination by the appellant Murphy of Mr Chatterton, the transcript records the following:

"Q Did you give a thought for those who had purchased licences, and were already suffering under a heavy burden of debt.

Question disallowed.

HIS HONOUR: It is not allowed. That is far too personal an attack."

The appellant Murphy asserts that the question was answered as follows:

"A Yes, I was aware of that, and I didn't grant any because of new entrants like you."

The topic of the cross-examination was a press release by Mr Chatterton on 30th October 1982 shortly before he became the Minister of Fisheries that "An ALP Government would investigate the possibility of granting more authorities". Abalone divers felt threatened by the possibility of new authorities being issued and additional competition.

555 There is no foundation for any allegation that the transcript was altered by the learned trial Judge or at his directions which could be a basis for alleging bias on his part. As I have said, any suggestion that a judge would tamper with a transcript for any purpose is outrageous.

556 I suppose it is possible that Mr Chatterton did say what is alleged and did so as the question was disallowed so that the court reporter did not hear what was said or did not see any reason to record the answer but there is no information before us to reach such a conclusion.

557 The appellant Murphy complains that there was no basis for the learned Trial Judge to disallow the question and make the comment which he made. In my view, the question was objectionable because Mr Chatterton was not a defendant. No claim had been made against him but it was not a matter of much significance. I do not think there can be any valid criticism of the learned trial Judge because he regarded the question as a personal attack on the witness. That is how he saw it in the context of all of the evidence and even if he was wrong, it is a matter of no significance.

558 It is now the case of the appellant Murphy that the respondent directors, or some of them, were guilty of extortion in some way against abalone divers. Although there was no basis for such an allegation based upon the evidence, the complaint about the evidence being deleted from the transcript has no bearing upon that matter.

559 When the appellant Murphy cross-examined the respondent Stevens, the following occurred:

"Q Would you agree that after a man, like myself, who had, for $100,000, purchased licence property that you had no right to contemplate the granting of additional licences which would have had the effect of diluting the earning capacity of my property.

1. In answer to your question, yes, I believe when transferability did come in that that probably ended the opportunity for any additional permits to be issued. I recall that I believe that that was recognition by the government, in particular, that there wasn't the possibility of more licences being issued."

It was submitted by the appellant Murphy that the evidence which he claims Mr Chatterton actually gave, which I have mentioned, concurs with this evidence of the respondent Stevens and so it is likely that Mr Chatterton did give the answer as alleged.

560 It was submitted that Mr Chatterton and the respondents Olsen, Kirkegaard and Stevens all adhered to the theory of Dr Copes, that the Government drew revenue from divers as a "resource rent" and Mr Chatterton and those respondent directors were aware of the risks to divers of bone necrosis and bends and that they increased substantially as the number of divers competing for the resource increased. Consequently, the threat to issue additional authorities amounted to extortion.

561 The appellant Murphy submitted that the learned Trial Judge altered the transcript of the evidence in order to remove evidence of extortion.

562 It is very difficult to follow this submission and I am unable to understand how there could be any suggestion of "extortion" by any of the respondent directors in the sense that this word is usually understood, or at all. However the submission is to be understood, there is simply no basis for the outrageous suggestion that the learned Trial Judge had altered the transcript to protect some of the respondents. There is simply no basis for a finding of actual or apprehended bias on the part of the learned Trial Judge and this proposed ground has no substance.

563 The proposed fourth ground of appeal is relevant to the evidence as to why the appellant Murphy left the abalone fishing industry. He acquired a class A fishing licence and an abalone authority on 15th December 1980. He suffered an injury to his back and he left the industry in May 1983. Later in these reasons I mention the findings of the learned Trial Judge as to his reasons for selling the licence and authority. For present purposes, I briefly summarise those findings as the appellant Murphy being concerned about new abalone authorities being issued and thereby diminishing the value of his fishing licence and authority and the condition of his back which he had injured in January 1983.

564 In his reasons for judgment, the learned Trial Judge said that the appellant Murphy first advertised his abalone authority for sale in October 1982. The appellant Murphy tendered copies of three newspaper advertisements published on 20th November 1982. He submitted that the learned Trial Judge had fabricated the date October 1982 so that the threat to issue more licences disclosed in a publication of the Australian Labour Party by name of Rural Politics, which was discussed by the committee of the Abalone Divers' Association of South Australia on 12th January 1982, would be seen as the cause of his leaving the industry rather than a threat made by the respondent Stevens made in February 1981. He submitted that the learned Trial Judge had selected the article as a cause because it was more difficult to identify the author.

565 He advances other reasons in support of his submission that the learned Trial Judge erred in making these findings.

566 On 30th October 1982 an article was published in the Sunday Mail Newspaper quoting Mr Chatterton as saying that a Labor Government would investigate the possibility of granting more authorities "decided against the published statement of 30 October 1982 because it identified Mr Chatterton and was more easily recognisable as an inconsistent show that barely disguised the threat necessary for extortion". Whilst this submission is difficult to understand, it is factually untrue. The learned Trial Judge referred to the Rural Politics publication and the article in the Sunday Mail. He quoted parts of the evidence of the appellant Murphy which are later mentioned and which fully justified the findings which he made. There was no fabrication by the learned Trial Judge, although it is possible that he erred in saying that the appellant Murphy first advertised for sale the licence and authority in October 1982 instead of November 1982. Furthermore, there is no basis in the evidence which the learned Trial Judge found to be acceptable which could ever suggest extortion by Mr Chatterton or any of the respondent directors.

567 There is no merit in this proposed ground of appeal and no basis whatsoever for concluding that the learned Trial Judge was biased in any way against the appellant Murphy or that there is a basis for an apprehension of such bias.

568 The proposed fifth ground of appeal complains that the learned Trial Judge erred by saying in his reasons for judgment that the appellant Murphy had said "they (the divers) knew that the new regime (the new Labor Government) had no company ownership coming". What the appellant Murphy said at this stage of his evidence, which was in cross-examination, was:

"Q It was a matter of concern, wasn't it, for the Abalone Divers' Association, that here is a new regime for fishing coming in, we want to have some say in it, and we want to know what is in store for us. Wasn't that the attitude of the ADA.

1. Yes, but we knew there was no company ownership coming."

569 The appellant Murphy contended that through his evidence, at this stage and others, he used the word "regime" as a reference to a new Fisheries Act not to the new Labor Government and the learned Trial Judge erred in understanding the appellant Murphy to have meant the new Government. At other stages of his evidence the appellant Murphy used the word "regime" when referring to the legislation. Others, including the learned Trial Judge, also used "regime" in this way at times.

570 It was submitted that the learned Trial Judge used the word with the wrong meaning only in relation to the appellant Murphy and, as I understand the submission, this matter shows that he was biased towards him.

571 I think it is likely that the learned Trial Judge did misunderstand what the appellant was referring to when he gave his answer to the question which I have mentioned. However, in my view, it is a matter of no significance and could not possibly be an indication of bias.

572 The proposed sixth ground of appeal in the context of the allegation of bias relates to an aspect of the evidence about abalone divers using trusts. As will be seen, the respondent directors enforced the owner/operator policy. The appellants contended that they suffered substantial losses because of this policy. As has been mentioned, they claimed that they were prevented from establishing trust arrangements which could be used by them in a manner which would prolong their involvement in the industry with considerable financial rewards. There was a considerable body of evidence about trusts and as to different ways in which trusts could be used for the benefit of divers. It was alleged that respondent directors wrongly refused to permit the divers to utilise trusts for their benefit.

573 I have mentioned Edmunds & Ors v Pickering & Ors (1999) 75 SASR 407 which was heard before the trial in the present case commenced. In Edmunds v Pickering the Court was concerned with particular trust arrangements involving an abalone diver. The learned Trial Judge found that if the appellant Murphy had considered entering into any trust arrangement when he sold out of the industry, it would have been an arrangement whereby the trustee retained an unacceptable level of control which would have been contrary to the 1971 Act. He said that the appellant Murphy would not have been prepared to relinquish control of the operation of the abalone business pursuant to a trust arrangement. He further found that the appellant Murphy would not have entered into a trust arrangement after he became aware of the problems experienced by Mr Edmunds.

574 The complaint of the appellant Murphy is that he put the deed of trust in Edmunds v Pickering to the respondent Stevens in cross-examination substituting his company as the trustee and another diver as the owner of the abalone authority and asked whether he would have allowed the appellant Murphy to enter into a similar arrangement with some variations which do not matter for present purposes. Mr Bell objected and the question was not allowed.

575 The learned Trial Judge took over the questioning of the witness in an attempt to put to the witness what the appellant Murphy was attempting to put to him. The appellant Murphy complained that the question asked by the learned Trial Judge differed from his question. Whilst that is literally correct, the substance was much the same. The respondent Stevens answered the question by saying that if the provisions of the deed conformed with the requirements of the Fisheries Act and regulations and the appellant Murphy was the sheller on the boat, the diver who owned the authority would be entitled to apply for the appellant Murphy to be endorsed as an employee on the authority.

576 The learned Trial Judge then concluded that the witness was being asked to express an opinion about a matter of law, namely the legality of the arrangements considered in Edmunds v Pickering. Mr Bell had foreshadowed that he would put argument to the learned Trial Judge that the decision in that case should not be followed. The learned Trial Judge told the appellant Murphy that he could address legal argument on the matter in due course. In my view, the learned Trial Judge was correct in the conclusion which he expressed. It was for him to decide if the proposal which the appellant Murphy was putting accorded with the Act and the regulations. It was not a matter about which the witness could express an opinion and consequently any evidence which he gave about the matter would not assist the learned Trial Judge.

577 The submission to this Court by the appellant Murphy was that the learned Trial Judge was biased towards him because he knew in advance that he would hold that such an arrangement was unlawful and he fitted the appellant Murphy into such an arrangement contrary to the evidence. This allegation is completely unjustified. It is absurd to attribute such conduct to the learned Trial Judge and the transcript shows that the learned Trial Judge did no more than make a ruling which was correct.

578 These matters do not reveal any possibility of bias on the part of the learned Trial Judge. The proposed ground would fail if allowed.

579 The next proposed ground of appeal is also based upon the disallowance of the question which I have just mentioned. The appellant Murphy submitted that the learned Trial Judge was biased against him because he was aware of evidence given by the respondent Stevens in Edmunds v Pickering and therefore knew that if required to answer the question the respondent Stevens would have had to acknowledge that he would have allowed such a trust arrangement.

580 As has been mentioned, a copy of the transcript of the evidence given by the respondent Stevens in Edmunds v Pickering was admitted into evidence in the present case when he was recalled. It was admitted on the basis that all parties could make such use of the transcript as was appropriate. It follows that the transcript was admitted as an accurate record of the evidence given by the respondent Stevens in the earlier case.

581 It was submitted, in support of the allegation by the respondent Murphy that the learned Trial Judge was biased towards him that the learned Trial Judge would have studied the transcript of the evidence of the respondent Stevens and that he was protecting him in disallowing the question.

582 There is simply no basis for such an allegation. There was no evidence that the learned Trial Judge was aware of the contents of the transcript before it was admitted into evidence well after the evidence of the respondent Stevens at the trial had been completed, except for his brief evidence when he was recalled. It is an outrageous assertion that the learned trial Judge would have had regard to evidence before it was placed before him and acted upon it without informing all parties and to the detriment of the appellant Murphy.

584 Lastly, in relation to the application by the appellant Murphy to amend his grounds of appeal to allege bias, I mention a matter which was not covered by any of his proposed grounds of appeal but in respect of which he made submissions. In Cole v Ellis (1992) 60 SASR 481 a former abalone diver made a claim for damages for injuries sustained and loss suffered in a road accident. Expert evidence was accepted as to aspects of decompression illness commonly known as "the bends". The appellant Murphy obtained a report from a general surgeon in November 1990 which he believed differed in some respects for the medial opinions accepted in Cole v Ellis. He asserted that he had little confidence in medical practitioners, but he wished to rely upon the accepted expert evidence in Cole v Ellis to establish matters relating to his own back condition.

585 The evidence accepted in Cole v Ellis cannot be used for that purpose and there was no basis for the introduction of fresh evidence about the back condition of the appellant Murphy on the hearing of this appeal. There is no aspect of these matters which could indicate that the learned Trial Judge erred in his treatment of the evidence given by the appellant Murphy as to his back condition and there can be no suggestion of bias on the part of the learned Trial Judge towards him arising out of any of these matters.

586 None of the proposed grounds of appeal advanced by the appellant Murphy as to bias could succeed. The cumulative effect of them leads to the same conclusion. As has been mentioned, I have reached the same conclusion about the proposed grounds of appeal advanced by the Edwards appellants. Reliance upon them by the appellant Murphy does not assist him.

587 The application of the appellant Murphy to add grounds of appeal should be rejected.

588 I now turn to what I have described as the substantive appeal of each of the Edwards appellants and the appellant Murphy. It is not appropriate to refer to each and every ground of appeal and submissions in these reasons. To do so would render them of unnecessary and inordinate length, more so than is perhaps already the case. I have considered all of the grounds of appeal. Those advanced by the Edwards appellants before they were legally represented remain for consideration and I have done so.

589 I approach the not inconsiderable task of resolving the issues on these appeals by following much the same order of matters in issue as was adopted by the learned Trial Judge and reaching my own conclusions about the issues raised by the appeals.

590 Before turning to the various findings and conclusions reached by the learned Trial Judge and the complaints of the appellants about them, I mention some matters which the appellants submit affect, directly or indirectly, all of those findings and conclusions, or at least that is my understanding of their submissions.

591 The Edwards appellants complain that the interventions by the learned Trial Judge in disallowing questions, including, without objection, was not only an indication of bias but a reason to set aside the judgments against them, presumably because they had not been given a fair trial.

592 I have discussed these complaints when considering the application to amend the grounds of appeal to allege bias. It is unnecessary to go over that ground again. I summarise the position by saying that on most occasions the question was disallowed because of the form of the question or because the answer would have been inadmissible for one or more of a variety of reasons, including interpretation of documents written by others or regulations, repetition, speculation, personal opinions about subjects not admitting of expert evidence, including interpretation of the law, the use of concepts in the question rendered it meaningless, documents did not contain the statements which were asserted in the questions and, on many occasions, lack of relevance. Some questions were disallowed because they contained inaccurate assertions of fact, some questions were not permitted because they were not fair to the witness or others, probably because they were prolix in the sense of incorporating too many concepts and because the subject matter was not within the knowledge of the witness. On most occasions the questions were objectionable because of the lack of knowledge of the appellant Edwards as to the rules of evidence but almost invariably he was provided with the necessary assistance and was able to elicit in the cross-examination of these respondents admissible evidence about the matters which were the subject of his enquiry. On some occasions the learned Trial Judge took over the questioning and elicited the evidence in a manner which was not objectionable.

593 I have mentioned the occasion when the learned Trial Judge prevented the appellant Edwards from asking questions of the respondent Stevens as to what he had discussed with a solicitor at the Crown Solicitor's Office on the ground of legal professional privilege.

594 I have read all of the passages of evidence where questions were disallowed and which are the subject of complaint as well as other evidence to understand the context where appropriate. This aspect of the appeal must be rejected. I am satisfied that the disallowing of questions did not prevent the appellants from placing relevant evidence before the Court, except in relation to the respondent Stevens, which evidence was subsequently admitted.

595 On occasions the appellant Edwards asked questions with a view to eliciting what had happened when other fishermen obtained or sold fishing licences. He was not permitted to investigate those matters on the grounds that they were collateral matters. No doubt, the appellant Edwards wanted to challenge the existence of policies said to apply to him by showing that they had not been applied to others. If the questioning was capable of adducing relevant evidence of that nature, it may have been admissible to show that a particular policy did not in fact exist. However, the questions as asked were objectionable for a number of reasons. It was not established that the respondent Stevens had knowledge of the matters which could have been related by him in an admissible way. What happened with respect to another fisherman, if relevant, could have been established by evidence of the fishermen, or by proof of any relevant documents. None of the fishermen were called by the appellants and no such documents were introduced into evidence. Also, what happened with respect to another person could not establish that a particular policy did not exist. At all events, the appellant Edwards was not prevented from pursuing, and did pursue, the knowledge of the respondent witness as to the relevant policies.

596 Although the learned Trial Judge was incorrect in disallowing some questions, as I have mentioned, there has been no prejudice or disadvantage to the appellants because the subject matters to which they were directed were fully covered in other evidence.

597 In my view, this ground of appeal must be rejected.

598 At the trial the learned Trial Judge gave directions fixing the time within which written and oral submissions, following the completion of the hearing of the evidence, might be made. The appellants purported to appeal against those directions and also sought leave to appeal. The learned Trial Judge ruled that both the appeal and the application for leave to appeal were incompetent because those directions were in the nature of incidental rulings given in the course of the trial: see Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 per King CJ at 127.

599 The appellant Edwards complains that the learned Trial Judge erred in categorising the decisions of the Full Court on the Case Stated as incidental rulings. The appellant Murphy adopted this part of the appeal in the Edwards proceedings. The appellant Edwards and the appellant Murphy have confused the proposed appeal against the decisions of the learned Trial Judge with the Case Stated to the Full Court. They contend that the decisions of the Full Court were not incidental rulings.

600 The learned Trial Judge, in his ruling about the competency of the appeal and the application for leave to appeal, was not referring to the Case Stated to the Full Court.

601 The next ground of appeal relating to the conduct of the trial is that the learned Trial Judge erred in refusing the appellant Edwards leave to call evidence in rebuttal. He wanted to call Messrs Jones, Ward, Bator and McDonald who are former employees of the Department of Fisheries. He explained that they had, in various ways, been involved in the preparation or sending of documents which could bear upon the knowledge of the respondent Stevens as to trusts. As has been mentioned, this is an issue which occupied considerable time at the trial. The appellant Edwards told the learned Trial Judge that he did not know what these witnesses could say but he wanted to know if they could give any relevant evidence and he had to call them to find out whether that was so. Leave was refused.

602 The respondent Edwards also wanted to call Mr Corigliano who, it was alleged, was a member of the Prawn Fishing Industry Advisory Committee between 1974 and 1976. It was submitted that he might be able to give evidence about the circumstances in which the appellant Edwards' application for a prawn fishing licence was rejected. He said that he had spoken to Mr Corigliano when he was presenting his own case and had decided not to call him. It is unnecessary to set out the precise nature of the evidence which Mr Corigliano could have given if called except that it related to a peripheral matter which could have been relevant to the credibility of the respondent Olsen. The appellant Edwards said that it was after the respondent Olsen had given evidence that he became aware that Mr Corigliano could give contrary evidence. The learned Trial Judge granted leave to call Mr Corigliano in rebuttal and said that he would not have done so if the appellant Edwards had been legally represented.

603 I am not aware of the precise reasons for these rulings, however it seems that the learned Trial Judge was correct in his decisions. The attempt to call the former employees of the Department was so the appellant Edwards could embark upon a fishing expedition in the hope that one or more of them might say something which could assist his case. That is not the proper function of evidence in rebuttal.

604 I can see no error in the learned Trial Judge refusing leave to call any of the witnesses in rebuttal.

605 I now set out matters of background which are necessary to understand the issues on this appeal and how they should be resolved. The findings made by the learned Trial Judge as to those matters are largely not in issue. Those that are in issue are, in my view, fully justified on the evidence which the learned Trial Judge found acceptable. In some instances, I have mentioned contentions of the appellants to the contrary.

606 At the time of trial the appellant Edwards was aged 55 years. He was educated as a school teacher but did not complete training to pursue that occupation as after the end of 1967 he commenced diving for abalone on a commercial basis. He had been diving on a recreational basis for about four years and obtained a permit in early 1968. He commenced business as an abalone fisherman and was diving on the West Coast. He acquired his own boat and the necessary plant and equipment. He married in 1969 and carried on the diving business in partnership with his wife.

607 The main area of the abalone business of the appellant Edwards continued to be on the West Coast but at various locations. However, he also worked in the South East and at Kangaroo Island on occasions. In 1968 he went to Western Australia for one or two weeks and again in 1969 for about three or four months. He explored the coast between Esperance and Cape Leeuwin and obtained an appropriate licence or permit from the Western Australian Fisheries Department to take abalone on a commercial basis. He sold small amounts of the fish during that time.

608 From 1971 the appellant Edwards held a class A fishing licence in South Australia and an abalone permit which were issued each year. He and his wife purchased a prawn trawler in Queensland in 1971 or 1972. He said in evidence that he intended to operate the vessel in South Australia but wanted first to obtain experience. He employed a licenced skipper in Queensland and operated the boat for about six months. The boat was sold in about 1975.

609 His main source of income continued to be the sale of abalone. His evidence was that he sold the prawn boat because he could not obtain an authority for prawn fishing in South Australia when seven additional authorities were issued.

610 Following a shark attack on an abalone diver in February 1974, the appellant Edwards decided to consider alternative ventures. He moved to Adelaide with his family and operated a restaurant in partnership with his wife but continued his abalone business on the West Coast acting as the diver. The learned Trial Judge was not satisfied that the restaurant business was profitable. The business was sold and the appellant Edwards' explanation for the sale was that the operation of the business involved long hours, they only broke even and he and his wife were away from their children.

611 In 1975 the appellant Edwards was involved in the development of a shark cage which he claimed to have invented with another man. He worked on the project for about nine months. The learned Trial Judge found that in 1974, when the appellant Edwards was working in the restaurant, and in 1975, whilst working on the shark cage, he did very little abalone diving. However, he returned to diving when the cage was completed and used it in that work.

612 The appellant Edwards was involved in other businesses at various times. He and his wife operated a fresh fruit juice round in Port Lincoln in the late 1970's. She did the deliveries and he continued to dive for abalone. He prospected for opal in the mid-1970's at Andamooka three or four times a year for about a week at a time. In 1979 he established a travelling exhibit of a white pointer shark and a giant squid in a long van. Other exhibits were included in the exhibition. The learned Trial Judge was not satisfied that any of these businesses were profitable.

613 On 28th October 1980 the appellant Edwards sold his abalone permit and surrendered his class A fishing licence. The purchase price was $115,000, and was said to be made up as $60,000 for the authority, $12,500 for his boat and $42,500 for the fishing gear. He went fossicking for gold in Victoria with a Mr Thorpe who gave evidence at the trial. The learned Trial Judge accepted his evidence that a small amount of gold was recovered.

614 By this time the appellant Edwards and his wife had separated and he was living with a woman whom he married in 1985. In February 1982 he acquired a wine bar business at Sandy Bay in Hobart, known as Nickleby's Wine Bar which they operated as a bar and bistro for about eighteen months. The learned Trial Judge was not satisfied that this business was profitable. Upon selling that business in 1983, the appellant Edwards and his wife returned to Adelaide. He had purchased some Huon pine off-cuts in Tasmania which he proposed to impress with nautical designs. He acquired some equipment for that purpose but the business did not commence.

615 In late 1989 the appellant Edwards was working in a foundry in Portland, Victoria, when he suffered a fractured wrist and was paid worker's compensation in the form of weekly payments. At about this time, he and his wife went to live in Hamilton, Victoria. The learned Trial Judge found that it was likely that after these payments ceased, the appellant Edwards subsisted on Social Security payments.

616 Towards the mid-1990's he established a fisheries consultancy business known as Moonraker Research Group. Part of the work of the business was to assist fishermen in liaising with solicitors to take action against governments. In his evidence he said that the Moonraker Research Group would act as a bridge between interested parties in preparing relevant documents and that there was a particular niche market in the South Australian fishing industry in respect of liaison between fisherman and government and fishermen and solicitors. He denied that he was an expert in suing the South Australian Government.

617 The learned Trial Judge found that the appellant Edwards had not made adequate discovery of the records, including financial records, of the various businesses and that he had been selective in the discovery process in that he made discovery only of documents which suited him, nevertheless he was able to make findings regarding the employment and business history of the appellant which are adequate for present purposes.

618 At the time of the trial the appellant Murphy was aged 57 years. He undertook tertiary education but did not complete two subjects of a diploma of mechanical engineering. He worked as a contract draftsman in Melbourne until he was aged 27 years. He then went to live in Port Lincoln and began working with his brother, an abalone diver, as a shucker. He purchased a cray fishing boat in 1971 which was skippered by another person. He was a deck-hand. During the off season he worked with his brother and also as a relief diver. He first worked as a diver and shucker in 1972 and continued for some years, including with other divers. He sold the cray boat in 1976.

619 He unsuccessfully applied for an abalone permit in 1976. He worked as a relief diver on a full-time basis in 1980. As has been mentioned, he acquired a class A fishing licence with an abalone authority on 15th December 1980. He paid $115,000 of which sum $10,000 was attributed to a boat and plant and equipment.

620 The appellant Murphy operated the authority rarely using a relief diver. He claimed to have suffered an injury when diving at depth and thereafter confined himself to shallower water and black lip abalone which, although not as valuable as green lip abalone, are found in shallower water.

621 In 1981 he formed a family trust with a corporate trustee. At this time abalone divers were lobbying the Department to enable such trusts to own an authority. He claimed that he hoped to continue operating an authority until he reached the age of 50 years and thereafter with himself acting as the shucker.

622 He suffered a further injury in January 1983 while handling a boat trailer. He was able to return to diving with a fibreglass splint. By February 1983 he was trying to sell his abalone permit and eventually did so to his relief diver in May 1983 at a substantial capital profit. After discharging debts, he acquired land at Byron Bay in New South Wales and four blocks of land in Adelaide. He sold his home at Port Lincoln and moved to Adelaide in 1984. He pursued other occupations without success.

623 In January 1986 the appellant Murphy purchased a fishing boat with the intention of fishing off Ulladulla in New South Wales. That year he sold the boat and the business which he had operated in partnership with another man. He returned to shucking abalone in July 1988. A few years later he considered the purchase of an abalone permit in the Central Zone for $900,000 jointly with another man, but did not proceed as that person withdrew.

624 In 1999 he purchased a property of 20 acres in the Adelaide Hills with his mother.

The claims of the appellants Edwards and Deep Sea Ark

625 It was common ground at the trial that at all relevant times the Department and the personal respondents when holding office administered the abalone fishing industry, and other managed fisheries, in accordance with the "owner/operator" policy. It was the case of the appellant Edwards that the respondent directors holding office at the time made representations that the holder of the permit had to be a natural person and furthermore could not hold the permit upon trust for the benefit of someone else.

626 The learned Trial Judge summarised the claims of the Edwards appellants as follows:

"(a) The director defendants acted wrongfully in refusing to allow persons employed under a licence to employ to dive for abalone, and in refusing to allow abalone authorities to be held in trust for another person, or by other means pursuant to which Mr Edwards or his company might have secured the benefit of the operation of abalone authorities by others.

(b) The dismissal of his application for a prawn boat authority in South Australia in 1974 was wrongful.

(c) Mr Edwards' surrender of his A-class fishing licence when he left the fishing industry in 1980 was mandated by wrongful policies adopted by and applied by the Department, and he should have been entitled to retain his A-class fishing licence.

(d) If he had done so, he would have entered the tuna fishing industry, more particularly he would have fished for sashimi quality tuna in Commonwealth waters, his belief being that a prerequisite for that was the holding of a South Australian A-class fishing licence as well as the necessary Commonwealth licence.

(e) The refusal by the Fisheries Department to countenance the issue of an abalone authority in the name of a corporation was wrongful and prevented his company, Deep Sea Ark, from owning and operating an abalone authority for his benefit.

(f) His failure to renew his Western Australian fishing licence was in response to wrongful assertions by the director defendants that he could not hold such a licence and at the same time retain his South Australian abalone authority."

627 As has been mentioned, the Edwards appellants claimed that, but for these matters, he would have remained in the industry and held abalone permits or authorities indirectly through trusts using Deep Sea Ark and in more than one of the abalone fishing zones. Also, he would have held directly, or indirectly, fishing licences in Western Australia at the same time which would have enabled him to conduct a parallel abalone fishing business in that State. Furthermore, he would have had the benefit of operating a prawn authority in South Australia and conducting a tuna fishing business in this State.

628 It is the case of the Edwards appellants that the directions, representations and other conduct of the respondent directors when holding office relevant to the basis of the claims constituted misfeasance in public office or, alternatively, their various statements or those of other officers of the Department acting on behalf of the respondent directors and at their direction, amounted to negligent misstatements. The claim was quantified at about $46 million, including capital losses due to the "premature" relinquishment of the class A fishing licence and the abalone permit on the basis that but for the conduct of the respondent directors, these appellants would have embarked upon all of the fishing activities which have been mentioned and would have maintained them.

629 The learned Trial Judge accepted as the case of the appellant Murphy developed at the trial, that his claim was made substantially on the same basis as the claims of the other appellants but was limited to the period after 1983 when he left the industry. He claimed that by reason of the policies formulated and applied by the respondent directors, he was deprived of the opportunity of maintaining his abalone fishing business by either employing someone to undertake the diving on his behalf, or sharing the diving with him or using a trust or some other arrangement by which his permit could be held by another for his benefit. He also alleged misfeasance in public office by the respondent Stevens or, in the alternative, that he had made negligent misstatements.

630 He formulated his claim on the basis of loss of income which he claimed he would have received from when he sold his permit until trial and the difference between the capital value of the permit at that time and at the time of trial. His claim for loss of income was quantified at $3 million.

631 The existence and enforcement of the owner/operator policy was acknowledged by the respondents and also that the appellants Edwards and Murphy could not have employed divers by reason of that policy. The respondent directors pleaded that in implementing the policy they acted bona fide and in accordance with discretions given to them under the legislation and adopted from time to time by the Government of the day and the Minister of the Crown to whom the administration of the relevant legislation from time to time had been committed. Also, they pleaded that they honestly and reasonably believed that as a matter of law the permit to employ did not authorise the employee to dive and take abalone. They pleaded that they did not know and, or, could not recall particular occasions upon which alleged representations were made with respect to the owner/operator policy and asserted that if they were made, they were not made in circumstances which exposed them to liability in misfeasance in public office or negligence.

632 They asserted that it was the policy of the Government of the day and of the Minister that, subject to the relief diver provisions, only the abalone permit or authority holder could dive for abalone or engage directly in the taking of abalone. The abalone permit or authority holder should not hold simultaneously boat authorisation certificates in relation to more than one boat and abalone authorities should not be impressed with a trust, held by or transferred to a body corporate or a partnership, transferred or assigned or charged. Joint interests should not be created in abalone authorities. Also such authorities should not be cancelled and reissued except upon an application being made pursuant to Reg 17 and 35AA of the Managed Fisheries Regulations 1971 and except upon contemporaneous surrender of the class A fishing licence and licence to employ held by the authority holder. Further, and in the alternative, the respondent directors asserted that as a matter of law these policies had to be implemented.

633 Each respondent director denied that he owed a duty of care to the appellants as he had acted in his official capacity in accordance with his understanding of the legislation and in accordance with the policy of the Minister. Each respondent director denied that he offered, or purported to offer, legal advice to any of the appellants. Each of them claimed that any representations made by him were true or honestly and reasonably believed by him to be true. Also, each of them denied that he was under any statutory duty to the appellants. I need not, for the moment, mention the other matters pleaded by the respondent directors.

634 The respondent directors denied that a corporation might have lawfully held an abalone permit or authority during the period relevant to the claim of the appellant Edwards. They denied that his application for an authority was assessed other than in accordance with proper procedures. They also denied that any representations made by the respondent director holding office at the time could have induced the appellant Edwards to surrender his class A fishing licence. The respondents asserted that the appellants Edwards and Murphy left the abalone fishing industry for reasons unconnected with any conduct on the part of any of them.

635 It is convenient to consider at this stage the principles of law relevant to the respective claims of the appellants. There was no appeal against the decision of the learned Trial Judge as to the principles which he applied. For present purposes, it is necessary to mention only the relevant leading cases.

636 The requirements of this tort were discussed in Northern Territory of Australia & Ors v Mengel & Ors (1994-1995) 185 CLR 307. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ held, as stated in the headnote, that the tort of misfeasance in public office is committed where damage is suffered as the result of an act done by a public officer with the intention of causing harm to the plaintiff or which he knows, or ought to know, is beyond power and which involves foreseeable risk of harm: see 345-347. They said at 347:

"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."

"A number of elements must combine to make a purported exercise of administrative power wrongful. The first is that the purported exercise of power must be invalid, either because there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action. There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss - or even an intended loss - but, if the exercise of the power is valid, the other's loss is authorised by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects. However, a purported exercise of power is not necessarily wrongful because it is ultra vires. The history of the tort shows that a public officer whose action has caused loss and who has acted without power is not liable for the loss merely by reason of an error in appreciating the power available. Something further is required to render wrongful an act done in purported exercise of power when the act is ultra vires.

The further requirement relates to the state of mind of the public officer when the relevant act is done or the omission is made."

638 He went on to say that what is required is malice, in the sense of an intention to injure (Farrington v Thomson [1959] VicRp 49; [1959] VR 286 at 293) or actual knowledge that there is no power to engage in the conduct (Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 740, 777). And at 357:

"I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury.

...........

Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete."

639 In the course of his reasons for judgment, the learned Trial Judge cited the following passages from the judgment of Brennan J in Northern Territory v Mengel at 358:

"The plaintiffs submit that the requisite elements of the cause of action are satisfied by 'constructive knowledge' of the absence of power to engage in particular conduct and foreseeability of the injury suffered by the plaintiff. This submission carries concepts familiar in the law of negligence into the tort of misfeasance in public office to which, in my opinion, those concepts are foreign. A public officer is appointed to his or her office in order to perform functions in the public interest. If liability were imposed upon public officers who, though honestly assuming the availability of powers to perform their functions, were found to fall short of curial standards of reasonable care in ascertaining the existence of those powers, there would be a chilling effect on the performance of their functions by public officers. The avoidance of damage to persons who might be affected by the exercise of the authority or powers of the office rather than the advancing of the public interest would be the focus of concern. Foreseeability of damage to another by one's own conduct is the factor which warrants the imposition of a duty of care to the other when engaging in the conduct. But the tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterised as an abuse of office and with the results of that conduct."

Brennan J referred to the following passage of the judgment of Diplock J in O'Connor v Isaacs [1956] 2 QB 288 at 313:

"If A, acting in perfectly good faith, orders B to do something, which order both A and B erroneously think A is entitled to give, and B does it, I know of no principle which makes A liable for any damage suffered by B as a result of doing it. It seems to me that it is damnum absque injuria. If a policeman, who has a limited authority, orders me to cross the road in circumstances where he has no right to do so, and I do so, and as a result of that I suffer damage, both of us erroneously thinking that he is entitled to give such an order to me, I cannot see any principle on which I should be entitled to recover from the policeman the damage which I have suffered as a result of our mutual mistake of law. Now, if A does it maliciously, then it may well be that an action will lie, whether or not he has not the authority to give the order, although in Gelen v Hall [1857] EngR 543; (1857) 2 H & N 379 [157 ER 157] the court left open the question whether an action would lie."

Deane J stated the elements of the tort as follows at 370-371:

"As Lord Diplock observed, in delivering the judgment of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172, the tort of misfeasance in public office is 'well-established'. Its elements are:

(i) an invalid or unauthorised act;

(ii) done maliciously;

(iii) by a public officer;

(iv) in the purported discharge of his or her public duties;

(v) which causes loss or harm to the plaintiff.

That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.

In the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff (See Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716 at 776-777). Such malice will exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness (cf Owen v Homan [1853] EngR 883; (1853) 4 HLC 997 at 1035 [10 ER 752 at 767], per Lord Cranworth LC: 'wilful ignorance') to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied."

640 The tort of misfeasance in public office was recently considered by the House of Lords in Three Rivers District Council & Ors v Bank of England [2000] UKHL 33; [2000] 3 All ER 1. Lord Steyn, with whom Lord Hope agreed, said in regard to misfeasance in public office, at 7:

"The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes."

As to the mental element, he said that there were two forms of liability, first targeted malice by a public officer which is conduct specifically intended to injure a person or persons and secondly where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. He said, "It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful": see 8.

641 Lord Hutton considered that dishonesty is a necessary ingredient of the tort and in this context meant acting in bad faith. He said at 42:

".... that it is sufficient for the plaintiff to prove that the public officer foresaw that his action would probably injure the plaintiff; to require foresight of certainty of harm would be unrealistic and, being very difficult to prove, would give inadequate protection against abuse of power.

I further consider that if the public officer knows that his unlawful conduct will probably injure another person, or is reckless as to that consequence, the plaintiff does not need to show, before liability can arise, some other link or relationship between him and the officer. The requirement of foresight of probable harm to the plaintiff, or recklessness as to such harm, is sufficient to ensure that the tort is confined within reasonable bounds."

642 Lord Hobhouse accepted that if the holder of public office acts honestly, there is no liability to a third party indirectly affected by something the public officer does, even if it turns out to have been unlawful, and that the tort applies to the holder of public office who does not honestly believe that what he or she is doing is lawful. He said that "bad faith or abuse of power is at the heart of this tort": 43. He said at 44-45:

"First, there is what has been called 'targeted malice'. Here the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable. This limb does not call for explanation. The specific purpose of causing loss to a particular person is extremely likely to be consistent only with the official not having an honest belief that he was exercising the relevant power lawfully. If the loss is inflicted intentionally, there is no problem in allowing a remedy to the person so injured.

Secondly, there is what is sometimes called 'untargeted malice'. Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences. (See Garrett v A-G [1997] 2 NZLR 332 at 349-350).

Thirdly, there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involved in the intended act. His recklessness arises because he chooses wilfully to disregard that risk."

643 Lord Millett agreed with Lord Steyn and Lord Hutton but in his own observations noted that the tort is an intentional tort and cannot be committed negligently or inadvertently. The core concept is abuse of power which involves other concepts such as dishonesty, bad faith and improper purpose which are all subjective states of mind: 48. As to the required mental element, he said at 49:

"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.'"

The judgments in these two cases are not inconsistent and provide the necessary guidance for the resolution of issues on this appeal.

644 There can be no doubt that each of the respondent directors were public officers at the time they held the office of Director of Fisheries and in the case of the respondent Olsen, the office of Chief Inspector of Fisheries. In Mengel Brennan J, at 355, cited with approval the observation of Best CJ in Henly v Mayor of Lyme [1834] EngR 882; (1828) 5 Bing 91 at 107-108:

"Then, what constitutes a public officer? In my opinion, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the crown or otherwise, is constituted a public officer.

...

It seems to me that all these cases establish the principle, that if a man takes a reward, - whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, - for the discharge of a public duty, that instant he becomes a public officer ........"

645 The same approach was taken in a different context in R v Whitaker [1914] UKLawRpKQB 173; [1914] 3 KB 1283 in a case involving bribery of an army officer. The Court of Criminal Appeal held at 1296:

"A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer."

The learned Trial Judge applied this approach and concluded, correctly in my view, that each of the respondent directors, when in office, were public officers. There was no contention to the contrary.

646 Also, it was accepted by the respondents that in formulating and publishing directives and policies with respect to the abalone fishery and in their dealings with the appellants when administering the Fisheries Acts and Regulations, they did so as public officers.

647 The learned Trial Judge concluded that the tort of misfeasance cannot be established unless the act of the public officer constituting the exercise of power is shown to be invalid in the sense that either there is no power to be exercised or the exercise of the power has miscarried in a way which would warrant judicial review and the setting aside of the administrative action. He referred to the observation of Brennan J in Mengel at 356, which I have mentioned, that there can be no tortious liability for an act or omission which is done or made in valid exercise of a power.

648 Later I consider the validity of each of the acts of the respondent directors which are the subject of complaint and whether the requisite state of mind was established. However, I mention at this stage that Mr Borick contended that the state of mind of each of the respondent directors was of reckless indifference as to the availability of the power to support the impugned conduct or deliberate blindness rather than actual malice or a specific intention to injure.

649 The appellants brought a claim for damages in the alternative basis of negligence. They claim that each of the respondent directors owed a duty to them by reason of holding the office of Director of Fisheries, they were authorised to make or hold themselves out to persons, such as the appellants, holding or applying for legal or beneficial interests in licences, permits, certificates or authorities as being authorised to make, or as responsible for making, binding statements of policy and representations of the kind which are the subject of those proceedings.

650 They allege that it was well known to the respondent directors that representations made by them as to Departmental policies were habitually relied upon by persons such as the appellants and that the respondent directors knew and intended that their actions would be relied upon by persons such as the appellants. It is further alleged that the respective positions of the appellant Edwards and the appellant Murphy and the respondent directors, as officers responsible for the administration of the 1917 Act, the 1971 Act and Regulations as the case may be, and the matters previously mentioned, establish the existence of a duty of care. Also, the respondent directors knew, or ought to have known, that their actions would be regarded by persons such as the appellants as lawfully binding upon them, or as serious matters affecting their welfare and safety and/or would form the basis of action, or inaction, by them in circumstances in which it was reasonable for them to act, or not act, as the case may be, on the information or advice contained in the actions of the respondent directors. These matters, it is said, also establish the existence of a duty of care. Furthermore, it is claimed that the respondent directors encouraged and invited persons such as the appellants to seek and rely upon information and advice concerning matters affecting the conduct of the business of abalone fishing in South Australia. These matters included the statutory duties of fishermen to register boats and the dealing by the respondent directors with applications for fishing licences, permits and authorities and licences to employ and to transfer of an authorised boat and to deal with other applications on their individual merits according to law also establish a duty of care.

651 It is alleged that various directions and representations given and made by the respondent directors were unlawful and were given, made and formulated or done negligently by them without caring whether they were wrong or unlawful in the circumstances when by the exercise of reasonable diligence they could have ascertained that they were wrong and unlawful. Some of the claims made are that the relevant respondent director acted negligently in the discharge of his duty. The claim by the Edwards appellants regarding the failure to grant a prawn fishing licence is an attempt of that type of claim. Otherwise it may be said that the allegations against the respondent directors amount to negligent misrepresentation in that they gave directions or information which was wrong and they did so negligently.

652 It is accepted that subject to a statutory provision to the contrary, 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 position is set out in Caledonian Collieries Limited v Speirs [1957] HCA 14; (1956-1957) 97 CLR 202 at 220:

".... the well settled principle applies 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: Great Central Railway Co v Hewlett (1916) 2 AC 511, at p519; East Suffolk Rivers Catchment Board v Kent [1940] UKHL 3; (1941) AC 74, at p85; Cox Bros (Australia) Ltd v Commissioner of Waterworks [1933] HCA 50; (1933) 50 CLR 108, at pp119, 121."

Mason J in The Council of the Shire of Sutherland v Heyman & Anor [1985] HCA 41; (1984-1985) 157 CLR 424 said at 458-459:

"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."

Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, in their joint judgment, in Northern Territory v Mengel, accepted that governments and public officers are liable in negligence according to the same general principles that apply to individuals.

653 The learned Trial Judge referred to two decisions also referred to by Brennan J in Mengel. The first is Rowling v Takaro Properties Ltd [1987] UKPC 2; [1988] 1 AC 473 which has particular significance for the present case. Their Lordships declined to embark upon a discussion as to the circumstances in which a public officer owed a duty of care and, if so, the scope of the duty because those matters had not been fully argued, but as to breach of duty said at pp511-512:

"But what emerges from the evidence is a picture of a minister (whose evidence was accepted by the judge as having been honestly given) acting in accordance with what he conceived to be his duty under the relevant legislation, and acting moreover, at all times, on the advice of the relevant cabinet committee, upon which departmental officers were in attendance. The Court of Appeal considered that he had in fact exceeded his powers; but, in reaching that conclusion, they proceeded on a somewhat different view from that acted upon by Wild CJ in reaching the same conclusion on a matter which, in the respectful opinion of their Lordships, must in any event have been open to serious argument. As a matter of sheer common sense, it must be unlikely that the minister should, in such circumstances, have been guilty of negligence; and their Lordships are satisfied, for the reasons given by Quilliam J in his very careful judgment, that he was not, and that there were no grounds upon which the Court of Appeal could properly interfere with the decision of Quilliam J."

The second case is Calveley v Chief Constable of the Merseyside Police [1989] 1 AC 1228. Lord Bridge of Harwich, with whom the other members of the House of Lords agreed, rejected the contention that in the context of the tort of negligence a police officer carrying out an investigation owed a duty to the persons under investigation.

654 The learned Trial Judge discussed at some length cases and principles bearing upon the question of whether the respondent directors owed a duty of care to the appellants having characterised the nature of the claim as negligent misstatement. He concluded that it is doubtful that negligence would be established if the conduct in question did not amount to misfeasance in public office. I do not think the learned Trial Judge expressed that view in the context of any conduct by a person holding a public office, as there may be circumstances where the required mental element for misfeasance in public office is missing and the officer acted genuinely but was negligent in acting as he or she did act.

655 The learned Trial Judge went on to say that if he was wrong in his conclusion, it would be necessary to consider whether the respondent directors owed a duty of care to the appellants. He concluded that the provisions of the 1917 Act and the 1971 Act indicate an intention to exclude a duty of care. However, he did acknowledge that a duty of care could not be excluded in all circumstances and the legislation did not give a "blanket immunity" to all conduct of the respondent directors.

656 In order to resolve this aspect of the appeal, I have not found it necessary to consider the question of whether the director respondents owed a duty of care to the appellants when discharging their duties in the various situations canvassed in the evidence. I have been prepared to proceed on the basis that a duty of care did exist. However, it has been unnecessary to consider the scope of that duty when providing advice or information or in discharging functions of their office because I am satisfied that even on the most generous view of the cases of the appellants, the respondent directors were not in breach of any duty which they owed to the appellants.

657 As will be seen, the learned Trial Judge found that each of the respondent directors acted in relation to the appellants genuinely in the application of policies determined and applied by successive Ministers. They did so in the belief that the policies were justified by the 1917 Act and the 1971 Act, as the case may be, and the Regulations. Those Regulations had been drawn by the Crown Solicitor who regarded them as within power. They had not been disallowed by Parliament. There was no basis for any of them to have questioned the validity of the Regulations or the policies. They were obliged to carry out government policy unless it conflicted with the Acts or Regulations or, for some other reason, with the proper exercise of discretion. As will be seen, none of them had any reason to consider whether the policies were in such conflict and they all believed that they were valid policies required to preserve, or conserve, the relevant fisheries. The position of each of them is not dissimilar to the position of the Minister in Rowling v Takaro Properties (op cit).

658 Furthermore, as the learned Trial Judge observed, none of the respondent directors held themselves out as lawyers and he found that they never purported to give legal advice. He said:

"On the contrary, they simply administered the Acts and Regulations in accordance with their honest belief as to the legal effect of the Act and Regulations."

He found that each of the respondent directors acted reasonably at all times.

659 These conclusions are challenged on this appeal but I agree with the conclusions of the learned Trial Judge. None of the conduct of any of the respondent directors could amount to a breach of any duty of care, should such a duty exist.

660 I make a further observation about the case of the appellants. As has been mentioned, the Full Court, in answering the questions in the Case Stated, held that the owner/operator policy was not a valid administrative policy of the Minister and also that an abalone authority and that a fishing licence, permit, authority and licence to employ could be held in trust for some other person or body corporate. Of course, those decisions were given in September 1996 well after all of the respondent directors had left office. On the assumption that they are correct decisions, the views that are expressed by them were contrary to the actual policy of successive governments at relevant times and to the state of knowledge of the respondent directors. If a genuinely held belief by a public officer, in accordance with Government policy, is later shown to be wrong in law, it does not follow that the implementation of that policy by the public officer amounts to misfeasance in public office or negligence. It seems to have been assumed by the appellants that the decision of the Full Court was correct and should be applied regardless of the type of arrangements which the appellant Edwards and the appellant Murphy say they had in mind and that the respondents were consequentially guilty of the torts. That approach is plainly untenable.

661 The learned Trial Judge did not accept the appellant Edwards as a credible witness. He said:

"I do not accept him as a witness of truth. I believe that he has manipulated and orchestrated both his own action and the other actions which he has promoted. Throughout the proceedings he has been motivated by a single-minded determination to attack the Fisheries Department and the Directors of Fisheries on every possible basis which he could perceive or invent with a view to maximising what he hoped to be a substantial return by way of damages."

662 This adverse finding is challenged on this appeal. The first submission is that the credibility of the appellant Edwards was not relevant to any issue at the trial. The admissions in the Case Stated establish that the relevant representations were made by the respondent directors. Consequently, the issue of credibility did not arise. That submission is plainly untenable. Even if the learned Trial Judge had decided that the claimed representations had been made, the appellants had to establish that they were made in misfeasance of public office or negligently and that they were causative of any loss sustained by the appellants. In order to dispose of this submission, it is enough to mention one matter, namely that the appellant Edwards' and the appellant Murphy's evidence as to why they left the abalone fishery had he been accepted if their actions were to succeed. The learned Trial Judge said he had based his conclusion upon his impression of the appellant Edwards during the course of his evidence over a period of 23 days and a substantial body of documentary and other evidence which he said confirmed that conclusion. In his reasons for judgment the learned Trial Judge sets out his reasons in some detail which I shall attempt to briefly summarise.

663 Earlier I mentioned that the learned Trial Judge found that the evidence established a course of conduct on the part of the appellant Edwards, including through the agency of his second wife, of obtaining or attempting to obtain by dishonest and deceptive means information from the Department which he thought might assist his case and the other cases he was promoting. At one stage of his evidence he denied that he had ever involved his wife in his business. Later in his evidence he said that the Department refused to disclose papers when his wife wrote to the Department saying that she was researching a book and wanted access to archives. He agreed that it would have been useful for him to have the same access. He said that he had discussed the letter with her and that for the most part his wife did not act in his business. He said that it was good business and clever not to show his hand. He rejected that this conduct was deceptive or that he was trying to trap the Department.

664 An example is a letter written by his wife, using her maiden name, to the Department indicating that she was considering purchasing an interest in an abalone fishery in the Western Australian abalone fishery. She posed a question seeking advice about a matter which was an issue between the appellant Edwards and the Department. The learned Trial Judge found that there was no proposed transaction and the letter did not constitute a genuine enquiry but was an attempt to trap the Department.

665 On another occasion the appellant Edwards' wife wrote to the Department seeking records for the purpose of writing a book. He acknowledged that it was mainly his idea that the letter be written and that neither he nor his wife ever had any intention of writing a book as described in the correspondence. He admitted that it was a pretence.

666 The appellant Edwards wrote to the Department in Western Australia seeking information which would have been relevant to the present case, saying that it would be useful for a thesis on abalone for the 1988 Bi-Centenary Celebrations. He agreed in evidence that he was not writing such a thesis and that he wrote the letter as he did because he otherwise might not have received the information.

667 Also, the appellant Edwards' wife wrote other letters to the Minister and the Director of Fisheries and the editor of a magazine after these proceedings had been instituted. A letter was written to the Director of Fisheries by the appellant Edwards under the name of Deep Sea Ark. Mr Edwards used the address of his father. This letter enquired as to whether a proposal to purchase an abalone permit in the West Coast Zone would meet with the approval of the Director and whether there was any regulation precluding a body corporate from engaging in such an agreement. Approval was sought so that negotiations could continue. He admitted in evidence that there were no such negotiations or any proposal to purchase a licence. The learned Trial Judge found that the letter was a ploy to try to obtain damaging admissions from the Department.

668 The learned Trial Judge also found that the appellant Edwards made untrue statements about the state of the abalone fishery when giving evidence. In his opening and in evidence, the appellant Edwards said that abalone fishing in the Western Zone afforded "incredible opportunities" and that he was optimistic about the fishery at the time he sold his abalone permit. The learned Trial Judge found those statements to be totally inconsistent with what the appellant Edwards told a number of witnesses. He accepted the evidence of those witnesses. According to four of them, the appellant Edwards told them that the fishery was "knackered", "stuffed" or "buggered" and he attempted to persuade others not to buy into the industry because stocks had dwindled. The learned Trial Judge found that in his catch return of September 1978, the appellant Edwards had described the fishery as "critically overfished" and that he repeated that statement on a further eight occasions. He found that the appellant Edwards had lied in evidence when he said that the Western Zone was in fact viable, looked "rosy" and there was a fortune to be made if he had been allowed to expand his operation in that zone.

669 In October 1978 he had written that "The abalone industry zone A, B and C will be destroyed in six months". In evidence he said that he did not believe this statement when he wrote it. He said it was not dishonest because he was trying to shake "people into realisation, at the Fisheries" because they were unlawfully denying his right to employ divers and he was running the risk of drowning every day and they did not care. Also, the learned Trial Judge found that he was plainly dishonest when he attempted to explain away the effect of the catch returns by suggesting that he was only referring to shallow water or was trying to build up a case to support his application to move to the Central Zone. He found other acceptable evidence in the case contrary to the evidence of the appellant Edwards. That evidence was that there were no untapped stocks of abalone in deep water. All known populations of abalone were regularly fished.

670 At the trial the appellant Edwards maintained that he was in good health and that the only claim he had ever made relating to his health was the claim for Worker's Compensation which has been mentioned. He said that he had suffered the bends once or twice but it had never stopped him diving. He said he had never suffered bone necrosis and although he had received treatment for some back injuries, he had not suffered any bone deterioration or degeneration and had never been diagnosed as having rheumatism, memory loss or repetitive strain injury. In the appellant Edwards' amended Statement of Claim filed on 29th October 1987 he pleaded:

"....... in consequence of diving alone he [the appellant Edwards] sustained back injury, decompression sickness, bone deterioration and degeneration, rheumatism and memory loss and repetitive strain injury."

The claim for personal injury was subsequently withdrawn.

671 The learned Trial Judge found that the appellant Edwards assisted five other plaintiffs who amended their Statements of Claim to plead a claim for damages with respect to personal injuries in almost identical terms. These amendments were also withdrawn. The learned Trial Judge found that the appellant Edwards gave evasive and unconvincing answers in cross-examination when asked to explain these matters.

672 The next matter which the learned Trial Judge regarded as adverse to the credit of the appellant Edwards was that he, in effect, made a business out of litigation. He found that he encouraged other abalone divers to bring proceedings against the respondent directors similar to those brought by him, that he purported to assist them with the proceedings and received substantial sums of money from them, part of which he kept for himself with the balance being paid into a fund from which lawyers' fees were paid. There were thirteen former abalone divers who brought such proceedings.

673 The appellant Edwards submitted that the learned Trial Judge overlooked evidence in relation to payments by one fisherman, a Mr Southwick, to the appellant Edwards. In his reasons for judgment the learned Trial Judge set out passages of the evidence of the appellant Edwards about this matter. He said the money was received to pay his own bills as Mr Southwick was a friend. Mr Southwick was a litigant. The appellant Edwards said that he paid him $20,000 to $25,000 which was, in effect, a gift. The learned Trial Judge found that the bank statements of Mr Edwards showed that Mr and Mrs Southwick, or their companies, paid to him in excess of $50,000 between November 1997 and April 2000 and that proceedings by or on behalf of Mr Southwick were instituted on 22nd October 1998. The learned Trial Judge rejected that the payments were a gift.

674 It was the submission of the appellant Edwards that $25,000 was paid by a company through Mr Southwick in error instead of $2,500 and it was returned promptly and further sums of $20,000 to $25,000 were given to him for his own living expenses. That was also the effect of his evidence. The appellant Edwards contends that the learned Trial Judge's finding that he received in excess of $50,000 from Mr Southwick is contrary to the evidence and the learned Trial Judge did not have regard to the repayment to the company.

675 The learned Trial Judge did not discuss this evidence of the appellant Edwards in his reasons for judgment but I do not think that is a matter of any significance. A bank statement was introduced into evidence which shows that $24,900 was paid into his account on 19th October 1998 and $19,307.85 was paid out a few days later. There was no evidence apart from the evidence of the appellant Edwards that the payments related to Mr Southwick. However, even if the repayment had been made, that is a matter which could not affect the general finding of the learned Trial Judge as to the credit of the appellant Edwards, in view of all of the other evidence.

676 The learned Trial Judge took an adverse view of the appellant Edwards because he encouraged others to bring proceedings and assisted them. I do not think it necessary to set out in detail the findings as to particular transactions made by the learned Trial Judge. A brief summary will suffice. The appellant Edwards entered into an agreement with one of the plaintiffs who went to trial but settled his action with the respondents. It was agreed that upon his assisting that plaintiff, by undertaking "certain works", he was to receive $5,000 immediately and a further $405,000 if that plaintiff received not less than $1.5m. If that plaintiff received more than $2.5m, an additional amount of $206,000 was payable, together with interest. There were other arrangements if the amount recovered was less than $1.5m. That plaintiff also had entered into an arrangement with the appellant Edwards' wife.

677 There were arrangements with other plaintiffs whereby the appellant Edwards would have benefited substantially if they were successful in the proceedings brought by them.

678 The appellant Edwards was not forthcoming when asked to explain these transactions. It is plain from that evidence that he was evasive as to the purpose of the proposed payments. With respect to some, he said they were gifts. The learned Trial Judge found that the appellant Edwards did open a bank account in the name of "Abalone Divers Action Group". The appellant Edwards said that the plaintiffs he was assisting paid money into that account and he denied withdrawing any of that money for his own purposes.

679 Having found that the appellant Edwards had conducted a business out of conducting litigation and assisting others to conduct it, the learned Trial Judge said:

"He said on several occasions during the course of giving evidence that he was 'hungry for money'. That he was candid enough to make that admission does not, of course, bear on his credit. But the efforts to which he has gone to make money out of the litigation, that is, both his own proceedings and the proceedings instituted by the others in the group, confirm the impression I have reached independently from other items of evidence that he is prepared to say or do anything in order to advance his claims.

The manner in which he has by various means promoted a tangled web of litigation, and the fact that he has such a vested interest in the outcome beyond the ordinary desire of any litigant to win, coupled with his concealment of the full nature and extent of his involvement with the other plaintiffs, must be accepted as one of the many matters which together destroy his credibility."

680 I do not think that providing assistance to other claimants even on the basis of receiving financial benefit in itself is necessarily destructive of the credit of the appellant Edwards and I do not understand that the learned Trial Judge reached that conclusion. However, having a vested interest in other cases was undoubtedly a matter to be considered when assessing credibility. The other matters mentioned by the learned Trial Judge in this passage of his reasons for judgment were also significant.

681 Finally, the learned Trial Judge found that there were many instances during the course of the evidence where the appellant Edwards admitted to having made dishonest statements of one kind or another or it was proved that he had done so. He made a false declaration as to the values attributed to the abalone authority and the vessel which he sold in October 1980. His evidence as to the condition of the boat and what he stated to the Director of the Department of Fisheries at the time are clearly inconsistent. There were other misrepresentations about the boat and plant and equipment.

682 When the Edwards appellant left the abalone fishery the authority was sold to Mr Haagmans. The learned Trial Judge found that the documentation relating to the transaction and given to the Department contained a number of dishonest statements which reflected adversely on the appellant Edwards' credibility. Earlier I have mentioned statements made by the appellant Edwards in his application to the Department to sell his authorised abalone vessel and that he set the proposed sale price at $115,000 which was itemised as, authority $60,000, boat $12,500 and gear $42,500. The application is signed by the appellant Edwards and dated 28th October 1980. These values were supported by a statutory declaration made and signed by the appellant Edwards.

683 Mr Haagmans said in evidence that he did not receive any of the gear on the boat. There was another agreement which dealt with the equipment separately. It was not to be part of the sale. He said it was Mr Edwards' idea to structure the transaction in this way. The effect of the agreements was that the value of the abalone authority was $115,000 and not $60,000 as asserted in the application and in the Statement of Claim of the Edwards appellants. The appellant Edwards in cross-examination agreed that the price for the authority was $115,000.

684 The gear included a motor vehicle. The appellant Edwards at first said that he delivered the vehicle to Mr Haagmans.

685 This matter occupied considerable time at the trial but for the purpose of this appeal it may be considered briefly. The learned Trial Judge was correct in concluding that the application and the statutory declaration contained statements made by the appellant Edwards which were false. That is a matter which reflected upon the credibility of the appellant Edwards and the learned Trial Judge was correct in reaching that conclusion.

686 The appellant Edwards made untrue statements in 1974 about the boat which he was intending to use if granted a prawn fishing licence.

687 Earlier in these reasons I mentioned the findings of the learned Trial Judge that the appellant Edwards had made false statements to NEIS which provides grants to persons attempting to establish a business. The learned Trial Judge described the application, which was made in November 1994 as a "highly misleading document" containing what the appellant Edwards must have known were half-truths or deliberate untruths. He mentioned that part of the application which asserted that the appellant Edwards owned abalone business interests in Western Australia contemporaneously with an abalone fishing business in 1968 based at Port Lincoln. He found that the appellant Edwards had never owned such a business in Western Australia and he observed that such an assertion was extraordinary as his case at trial was that the respondent directors had wrongly prevented him from having abalone businesses in Western Australia and South Australia contemporaneously.

688 Later in these reasons I mention the claim made by the Edwards appellants in relation to representations alleged to have been made to him by the respondent Olsen about not being able to hold licences or permits in two States at the same time. As will be seen the appellant Edwards did hold a licence or permit to fish for abalone from 17th October 1969 to 31st December 1969 and from 19th October 1970 to 31st December 1970. The learned Trial Judge accepted that his catch returns suggest that he was in Western Australia from 23rd March 1968 until 10th December 1968 and from late September 1969 until January 1970.

689 In the application to NEIS the appellant Edwards stated that he was "the owner/operator of an abalone licence and business in South Australia from the 1960s into the 1980s. He similarly owned an abalone fishing business in Western Australia and a prawn trawling business in Queensland concurrent to his South Australian fishing activities" (my emphasis).

690 The learned Trial Judge was not correct when he said that the appellant Edwards had never owned an abalone business in Western Australia if holding a permit and taking some abalone during two relatively brief periods could be described as a business. However, it was clear that the appellant Edwards did not conduct a business as an abalone diver in the usual sense. Mr Penn was the Director of Fisheries in Western Australia for twelve years before the trial and had worked in the department in that State since 1967. He told the learned Trial Judge that he knew all of the abalone divers in Western Australia as he was interviewing them. Ultimately there were 14 divers and he knew them well. He said he did not recall even meeting the appellant Edwards or seeing any catch returns from him. The learned Trial Judge was justified in concluding that the appellant Edwards did not carry on the business of abalone diving in Western Australia and that the statement to that effect in the application to NEIS was false.

691 In the application the appellant Edwards described his operation of the Red Garter Restaurant and Nickleby's Wine Bar as a successful business which the learned Trial Judge found to be untrue. He said that he was not satisfied that the restaurant business was profitable and he referred to the appellant Edwards saying in evidence that he had "no idea" as to the net profits from the business. In fact he said:

1. Yes.
2. What sort of money did you make.
3. Nothing like fishing. It's hard won money, made out of a restaurant. It's hard work, long hours.
4. Can you give us a rough idea what your net profits for that year of operation were.
5. I'd have no idea. If it was a lot of big dollars I'd remember it. It would have been hardly more than break even, maybe a few dollars.
6. You and your wife could not have maintained yourself and your family out of it.
7. We did, we certainly did.
8. There was nothing left.
9. Well, it was mixed in with the fact that I was going back diving and, in fact, I was getting returns from my diving that made the restaurant aspect look penny ante alongside the diving returns. We were happy to sell it."

This finding was clearly justified by the appellant Edwards' own evidence.

692 According to the appellant Edwards he and his then partner, whom he married in 1985, acquired the business known as Nickleby's Wine Bar in February 1982, well after he left the abalone fishery. They carried on the business for 1 year 3 months. He said it was "quite profitable". He said he paid $83,348 for the business and sold it for $95,000. In cross-examination he said that he recalled making a profit but he could not remember. Taxation returns show a net loss of $6,472 up to 30th June 1982 and a loss of $2,930 for the following year.

693 The learned Trial Judge said that he was not satisfied that this business was profitable. Clearly it was not.

694 In my view the learned Trial Judge was justified in making these findings.

695 I now turn to the complaint about the findings concerning Mr Vater. The learned Trial Judge found that the application to NEIS conveys the impression that Mr Vater, who conducted a land-based aquaculture business at Robe, West Beach and interstate, and his companies were major clients of the appellant Edwards and had approached him for advice and assistance. The learned Trial Judge said that in his evidence Mr Vater said that he could not recall his companies were ever clients of the appellant Edwards' company Moonraker Research Group which was alleged to carry on a fisheries consultancy and that the suggestion that he ever used Moonraker Research Group as a fisheries consultancy was "news to me".

696 Mr Vater gave that evidence during cross-examination. In re-examination he said that he did recall an occasion when he discussed with the appellant Edwards his intention to commence legal proceedings against the government and his disappointment at how his companies had been treated. He said that he told the appellant Edwards that if he was in a position to take up the case he was prepared to give it "to anyone who wanted to run with it".

697 The learned Trial Judge did not refer to this evidence of Mr Vater given in re-examination. Taken at face value it cannot establish that Mr Vater and his companies were major clients of the appellant Edwards and had approached him for advice and assistance. It does not undermine his conclusion reached about the credibility of the appellant.

698 The ground of appeal challenging the findings of the learned Trial Judge in relation to the application to NEIS is rejected.

699 The appellant Edwards made lengthy submissions on this appeal about all of these findings as to credit. He submitted that they are all contrary to the evidence. The effect of his submissions is that the learned Trial Judge should have accepted evidence which he rejected or did not regard as relevant to a particular issue. It would take a very long time indeed to set out all of these submissions and deal with each of them in these reasons. What they overlook is that the learned Trial Judge made findings as to credit based upon his observations of the witnesses, including the appellant Edwards and that evidence which he found acceptable. There is simply no basis upon which the findings as to credit of the appellant Edwards, or any witness, should be overturned on this appeal.

700 Even if it could be said that the learned Trial Judge misunderstood or overlooked evidence of some witnesses, and I do not say that such is the case, his doing so would not be a basis for impeaching his findings about the credit of the appellant Edwards. We were informed that his final submissions to the learned Trial Judge, as presented in writing, occupied some 1200 pages. It could not be expected that he would address each and every one of those submissions in his reasons for judgment, although it is to be expected that he considered them all.

701 In my view, the learned Trial Judge had ample reason to reach his conclusion about the credibility of the appellant Edwards. He did not base that conclusion merely upon his observation of the appellant Edwards in the witness box. He had regard to that matter but also to all of the other matters which I have summarised. He gave careful and detailed reasons for his conclusion and there is no apparent error in his approach or conclusion.

702 The learned Trial Judge accepted the appellant Murphy as "basically an honest witness" and found that he was telling the truth. He made the following finding:

"This does not mean that I accept all of his evidence as accurate. To a degree it was coloured by his feelings of antagonism towards the Department and the director defendants and what he believes to have been the poor treatment he received as an abalone diver at the hands of the Department.

There was also, in large measure, a degree of unconscious 'shaping' of his evidence to fit the case which, many years after the relevant events occurred, he now wishes to pursue.

Likewise, I am satisfied that, perhaps unconsciously, he has allowed himself to be influenced by Mr Edwards, given the latter's position as 'ringleader' of the group of plaintiffs, and has adopted as his own many of Mr Edwards' assertions against the defendants. In other words, there may have been an unconscious merger, to a degree, of both cases."

703 The appellant Murphy challenged this conclusion and pointed to material which he claimed established that in 1994 he had been excluded from the group of litigants led by the appellant Edwards and had conducted his own case. I have not regarded it as necessary to set out all of the submissions made by the appellant Murphy. The learned Trial Judge regarded him as an honest witness and if there was any unconscious shaping of his case, it had no bearing upon the result.

704 The appellant Murphy complained about, and took exception to, the conclusions of the learned Trial Judge that he admitted in cross-examination to "some extreme and in some respects eccentric views" as to political and social issues relevant to his attitude to the Department and its management of the fisheries. He does have particular views which he holds strongly about various matters and about which he addressed us at some length. These views may differ from the views of many in the community but I would not regard them as extreme or eccentric any more so than many strongly held opinions of other members of the community of various political or religious persuasions. It is unfortunate that the appellant Murphy has regarded these observations of the learned Trial Judge in the way that he has, but they are not of significance on this appeal in view of the favourable finding as to his credit which was made.

705 Consequently, it is not necessary to set out the many submissions which he made about this matter.

706 The learned Trial Judge noted that some of the respondent directors were elderly when they gave evidence and their recollections were eroded by the passage of time. An example is the respondent Olsen who was aged 82 years when he gave evidence. The learned Trial Judge said that generally speaking he accepted their evidence. Where he did not was not due to dishonesty but to a fading and imperfect recollection. He formed the impression that the respondent Olsen would have been careful of "the proprieties of his office". He found that he administered a very difficult industry effectively and with particular regard to the value of liaising with fishermen. He also expressed the following finding:

"He was capable of the occasional unguarded, outspoken comment, which might have been regarded as offensive, but this does not detract from his veracity as a witness. In particular, the expression which he used on one occasion in which he described abalone divers as a 'disorganised rabble of beach bums' does not deflect me from the view which I take as to his credit with respect to his evidence relevant to the issues in these proceedings. I note that he used that expression at a meeting of AFIC (SA Branch) on 17th January 1969, when there were over 100 abalone permits on issue."

707 The learned Trial Judge found that the respondent Olsen and some of the other respondent directors were at times confused as to the owner/operator policy but he thought that was due to the policy never being clearly recorded in detail and the differences in its application between various controlled fisheries not being clearly defined. He also found that most of the respondent directors acknowledged a lack of complete understanding of the legal ramification of trusts and other legal concepts. However, these matters did not reflect upon their credit. I can see no reason to depart from those findings on this appeal, except that I think each of the respondent directors did have a clear understanding of the owner/operator policy which they described in their evidence and which description accorded with the description given at an early stage of these reasons.

708 I have mentioned Dr Shepherd, Dr Copes and Dr Prince. The learned Trial Judge accepted the evidence of Dr Shepherd and Dr Copes and it is obvious that he regarded them as competent, honest and reliable witnesses. As I have said, he did not mention Dr Prince in his reasons for judgment.

709 Mr Brian Jeffries is the President of the Tuna Boat Owners' Association of Australia since 1988 and a former chairman of the Australian Seafood Industry Council. He was called by the respondents. The learned Trial Judge found that he had an intimate knowledge of the tuna fishing industry and he preferred his evidence to that of the appellant Edwards as to the state of that industry at relevant times and as to the possibility of a commercial tuna operation of the kind which the appellant Edwards said he wanted to develop.

710 Mr Jones has qualifications in zoology and considerable experience as a research officer in the marine scale fishery of South Australia. He is a researcher at the South Australian Aquatic Science Centre. Since 1977 he has been the chief researcher in South Australia concerned with the biological assessment of species taken in the scale fishery in this State. He was called by the respondents and gave evidence as to the state of the scale fishery in this State. The learned Trial Judge accepted his evidence.

711 The appellants called two accountants, Mr Irving and Mr Staker and, as I have mentioned, the respondents called Mr Wishart. The learned Trial Judge accepted the evidence given by them but found that Mr Irving and Mr Staker were not invited to bring any critical judgment to bear upon the feasibility of the business operations they were asked to assume would have been conducted by the appellant Edwards and the appellant Murphy. Their evidence was of no assistance in view of the findings of fact which the learned Trial Judge made as to those matters. He accepted the evidence of Mr Wishart without qualification.

712 Mr Aschberger and Mr Morris gave evidence of valuation, the former was called by the appellant Edwards and the latter by the respondents. The learned Trial Judge preferred the evidence of Mr Morris where there was a conflict but the differences in their evidence is of no consequence on this appeal as all parties acknowledge that if the appeals are allowed and liability found against the respondents, the actions would have to be remitted for assessment of damages.

713 The appellant Edwards' case is that at all material times he carried on the business of taking fish, including abalone, in South Australia for sale and selling it. He held fishing licences and abalone permits (dated 2nd December 1968, 9th January 1970 and 26th January 1971) pursuant to the 1917 Act and the Preservation of Abalone Resources Regulations 1968, class A fishing licences pursuant to Reg 7 of the Fisheries (General) Regulations 1971 made under the 1971 Act, for the years 1971 to 1980 inclusive, licences to employ a person to take abalone, limited to shucking, under his direction and control, abalone permits under the Managed Fisheries Regulations 1971 for the years 1971 to 1980 inclusive, an authorisation certificate with respect to the boat "Moonraker" granted between September 1980 to November 1980 pursuant to the Managed Fisheries Regulations and boat registration certificates pursuant to the 1971 Act. He was a director and the sole beneficial shareholder of Deep Sea Ark.

714 In essence, the case is that the Edwards appellants were wrongly directed by the respondent directors and fisheries officers from time to time not to employ a person to take abalone for sale. Furthermore he was directed that if he did not comply with those directions, his licences, permits, authorizations and registrations would be cancelled or not renewed, his boat and gear would be confiscated and the abalone fishery would be made an "open entry" fishery thereby diminishing the value of his licences and the like. He claimed that he followed those directions even though they had no basis in the Acts and Regulations and consequently suffered loss.

715 I have mentioned the owner/operator policy which the respondent directors implemented.

716 The case of the appellant Edwards is that if he had not been required to obey directions by the respondent directors in implementing the owner/operator policy, he would have utilised a trust or corporate entity which would have obtained the appropriate permits and licences and employed divers and thereby increased his profitability and enabled him to continue in the business indefinitely.

717 The case of the appellant Murphy also included much the same claim with respect to employee divers. As has been seen, he commenced his abalone fishing business after he acquired a class A fishing licence and an abalone authority on 15th December 1980 after the introduction of s 32(5) and (6) of the 1971 Act which enabled conditions to be specified in a licence for employee divers, including conditions specifying the circumstances in which an employee might take fish.

718 The learned Trial Judge found that during the whole of the period that the appellant Murphy operated as a diver and took abalone, his licences were endorsed with conditions which prevented him from using employees to dive. These conditions were valid because of the provision of the Fisheries Act (Amendment) Act 1980 which came into operation on 27th June 1980 well before the appellant Murphy entered the abalone fishing industry. The learned Trial Judge found no case to answer with respect to this part of the appellant Murphy's claim. This finding was not challenged on this appeal.

719 As has been seen, the Full Court in the Case Stated held that under the 1917 Act and the 1971 Act and the Regulations under those Acts the policy preventing employees from driving and taking abalone for sale were invalid. It follows that the directions given in accordance with that policy were not lawful.

720 Two of the elements of misfeasance in public office were established: invalid acts and by public officers. However, as has been seen in the passages of the judgments in Mengel and Three Rivers more is required. The required mental element must also be established.

721 The learned Trial Judge found that all of the respondent directors held the view at the material times that an employee engaged under a licence could not dive to take abalone and was confined to above-water tasks. He further found that these views were made plain to abalone divers in various ways including by the giving of directions by the fisheries inspectors who dealt with the divers. The evidence of each of the respondent directors justifies that finding.

722 I have mentioned the decision of the Full Court as to the holding of a fishing licence, permit, licence to employ and certificate of authorisation or registration being capable of being transferred or alienated at law or in equity or otherwise held in trust or by a body corporate and/or by a partnership.

723 As has been seen, the appellant Edwards and the appellant Murphy claimed that they wished to organise their affairs in a manner which would allow them, or a company or a trust which each of them controlled, to employ divers to take abalone which could be sold by them personally or through a company or a trust ultimately for their benefit. They would control, either personally or through a company or trust, the divers and other fishermen. As has been mentioned, they would therefore remain in the industry well beyond the time when they ceased to be capable to work personally as a diver or a fisherman.

The reasons for the appellants leaving the industry

724 The learned Trial Judge found that the appellant Edwards left the abalone fishing industry because he believed that the abalone fisheries were fished out and there was no future in remaining in the industry. Also, he found that the appellant Edwards was influenced by transferability of the authorities having been introduced and with a substantial increase in the price of abalone having recently occurred. It appeared to be a good time to sell. He concluded that the appellant Edwards was, and remained, essentially of a restless disposition and felt that the time had come to try his hand at something else. He added:

"I do not believe that he would have contemplated someone else holding his authority for him in trust, or the perpetuation of his abalone diving operation by use of employee divers, even if those options had appeared to be open at that time, as neither of those options would have returned to him the value of the authority. As was the case with a number of abalone divers, selling the authority meant that he could cash in on the very substantial value which it represented at that time. It opened up opportunities for investment for him, and it helped to secure his position vis a vis his ex-wife."

725 These conclusions were very much in issue on this appeal and it is necessary to examine the reasons for them.

726 The appellant Edwards sold his interests in October 1980. The contract of sale is dated 28th October 1980. It was his case that he sold his interests principally because he thought it was unsafe to continue diving with only one person in the water. If he had been able to employ divers on a continuing basis, rather than merely as relief divers, he would have remained in the industry by employing divers and building up his business by means of trusts and companies holding authorities. His evidence was that he was happy to cease being a diver but he wanted to remain in the industry. The learned Trial Judge concluded:

"Clearly, it was the introduction of the regulations permitting transferability which was the trigger which prompted Mr Edwards, and for that matter a number of others, to leave the industry at that stage. The alacrity with which Mr Edwards sold out once transferability provisions were introduced makes it plain that he was keen, indeed anxious, to leave when he did. I am not satisfied that he has been frank with the Court as to the underlying reason.

I accept that he did entertain a degree of fear in diving. But I do not think that it was the hazards proposed by diving on his own, but rather the fear of a shark attack, even though he was using a shark cage. He continued to speak to a number of others of his fear of sharks even after he had taken to using the shark cage.

Contrary to his evidence, I find that his predominant motive in quitting the industry was his belief that the abalone fishery in South Australia was fished out, and that there was no future in it."

727 The learned Trial Judge also concluded that the evidence that the appellant Edwards believed that the abalone fishery was fished out was overwhelming. His catch returns in late 1978 included statements to that effect, such as "badly overfished" and "critically overfished". In his return for October 1978 he added the expression "the abalone industry zone A, B and C will be destroyed in six months - critical". He complained about four new authorities being issued in 1978. He suggested that catches in the Central Zone were better than those in the Western Zone and suggested that one or more divers should be transferred to the Central Zone. The learned Trial Judge said that he accepted the evidence from a large number of witnesses that the appellant Edwards made statements at various times, particularly towards the time when he sold out of the industry, to the effect that the industry was no longer viable. The learned Trial Judge specifically referred to evidence to that effect by Mr Carroll, the skipper of the appellant Edwards' prawn boat, Mr Thorpe, an abalone shucker employed by the appellant Edwards between 1977 and the time when he sold his licence, Mr Bichard, Mr Craig, Mr Newton and Mr Ford.

728 According to Mr Thorpe, the appellant Edwards "was always wanting to have transferability and get out, all he ever waited for was transferability to get out". According to Mr Ford, who negotiated to buy an abalone authority, the appellant Edwards told him "that the industry was just about stuffed and I'd be silly to buy a licence". Mr Craig had experienced a long association with the appellant Edwards since the late 1960's. They often fished and had gone to Western Australia together. His evidence was that at about the time the appellant Edwards sold his abalone authority, he said that the fishery was going downhill, that he had animosity towards the Abalone Divers' Association and divers in general for not agreeing to push the cause of transferability, and also because of having ownership in the name of a company. Also, Mr Ford said that the appellant Edwards told him to get out of the fishery because he did not think there was the recuperative power of the stocks there and he believed it was collapsing quickly.

729 The learned Trial Judge accepted the evidence of Mr Wishart that during the last year the appellant Edwards operated his authority, the price for the fish increased by 56 per cent, which increase would have had a significant effect on the value of the licence.

730 Towards the end of his reasons for judgment, the learned Trial Judge said that the appellants had received fair market value when selling out of the abalone industry. The appellant Edwards challenged that finding as being inconsistent with the evidence. He relied upon evidence of an actuarial basis of calculating the current day value of future profits. Such a consideration is irrelevant to the value of the abalone authority at the time of the sale. An actuarial calculation could be relevant in assessing damages, but did not undermine the observations of the learned Trial Judge.

731 By their grounds of appeal, the Edwards appellants complain about these findings, or most of them. I interpret the notice of appeal as a contention that the learned Trial Judge erred in making these findings. I reject such a contention. The evidence justified the conclusions reached by the learned Trial Judge.

732 The learned Trial Judge found that the reasons of the appellant Murphy for leaving the industry were different from those of the appellant Edwards. The appellant Murphy was active in the industry as a diver on his own account for a much shorter time than the appellant Edwards. As has been mentioned, he did not acquire a class A fishing licence with an abalone authority until 15th December 1980 and he sold them in May 1983.

733 It was found by the learned Trial Judge that an article appeared in Rural Politics, a publication of the Labor Party Rural Affairs Committee published in South Australia in late 1981 or early 1982 which criticised consequences of the policy of the Liberal Government permitting transferability, including perceived dramatic escalation in the market price of abalone authorities. The appellant Murphy said, in evidence, that the article "scared the hell out of me". According to him, it was shown to the meeting of the committee of the Abalone Divers' Association on 12th January 1982 at which he was an observer. He regarded the article as slating the abalone industry. It appears from his evidence that one reason for his concern was that there may have been an attempt by Government to curtail the increase in the value of abalone licences.

734 During the State election campaign in late 1982, an article appeared in the Sunday Mail Newspaper on 30th October 1982 in which Mr Chatterton was reported as saying that "huge increases in the cost of fishing licences had prevented many young people from entering the industry" and that an "ALP government would investigate the possibility of granting more authorities". It was reported that Mr Chatterton had said that the price of an abalone authority had increased from $20,000 three years earlier to $150,000 at the time the article was published. The appellant Murphy said in evidence that he was concerned that more divers would be licensed which would affect the value of abalone authorities. The Abalone Divers' Association of South Australia published an advertisement in The Advertiser newspaper on 4th November 1982, supporting the government policies of the previous three years. The learned Trial Judge found that whilst the appellant Murphy did not appear to have shared the gloomy outlook of the appellant Edwards as to the future of the industry, he regarded the issuing of more permits as a threat to his livelihood and to the value of his abalone authority which he had worked so hard to obtain and pay off. His evidence proceeded:

"My attitude at the time of advertising was that Chatterton had come on with this threat of the new licences, granting new licences. I wanted to feel the market to see which way I should jump, should he decide to do that. I was panicking, working hard, sore back, and, like I said before, I'd pretty well blamed the Fisheries Department for breaking my back because I just - they demoralized me with all of this sort of talk.".

735 The appellant Murphy challenged the finding of the learned Trial Judge that a predominant consideration for his leaving the industry was his fear that the value of his licence would diminish upon more licences being issued by a new government. He contended that he did not have such a reason. I have set out a passage of the evidence of the appellant Murphy. In my view, the finding of the learned Trial Judge was justified.

736 The learned Trial Judge found that the appellant Murphy had suffered back soreness due to diving which was disabling and in January 1983 he suffered a definitive back injury. Shellers and relief divers had been employed by him at different times and they were aware that the appellant Murphy wanted to sell his authority after he injured his back. At that time he was prepared to sell and decided to do so to one of them for that reason. He had earlier made it known that his authority was on the market and had advertised it for sale. He acknowledged in his evidence that he could have reduced the amount of his diving and still have made a good living but that was not the only consideration. He said:

"The other factor in my decision was the political, behind the scenes threats, or not behind the scenes, open threats of putting in more licences, and reducing the value of my property. At that stage I hadn't - I had no right to have an employee diver anyway, I thought. Even though I had just discovered a massive hit of abalone, which is proven in the figures, I was so scared of the pollies, that I bailed out.

..........

Another reason was I was still in debt. I knew that the tax man was going to catch up with me. It wasn't as if I was putting all this money in my pocket."

Also, the appellant Murphy told the learned Trial Judge that he believed that the new Labor government would not permit corporate ownership of an abalone authority.

737 The learned Trial Judge found that the appellant Murphy had reached the age of about 40 in 1983 and was aware that many divers did not feel up to maintaining a career beyond that age. His brother had been diagnosed as suffering with necrosis and he did not know if he had a genetic pre-disposition to the same condition. This finding does not take account of all of the evidence of the appellant Murphy on this subject matter. He made it plain that if he had been permitted to do so he would have remained in the industry until the age of 50 years operating with an employee diver sharing the diving equally but he could not have done so once he injured his back. Later in his evidence he said that if the respondent Stevens had not made an "illegal threat", which I assume was to issue more licences or to cancel his licence if he used a trust, he would have put his licence and authority in a trust. This evidence was not accepted by the learned Trial Judge in view of the findings which he made and was, at least by implication, refuted by the respondent Stevens.

738 The conclusion of the learned Trial Judge was that the appellant Murphy left the industry for a combination of reasons, predominant amongst them being a fear that the value of his authority would be diminished by an incoming Labor government issuing more licences and his back condition.

739 In his submissions on this appeal, the appellant Murphy contended that the learned Trial Judge erred when he said that the genesis of his decision to sell out of the industry was the article in Rural Politics. The learned Trial Judge did not make any such observation. What he said was that as the evidence of the appellant Murphy unfolded, it became increasingly clear that his decision to sell out of the industry was more likely due to factors other than the injury to his back. The respondent Murphy contended that the attitude of the Department and some of the respondent directors was the reason but no basis has been shown to overturn any of the findings of the learned Trial Judge. He told the learned Trial Judge that he did not know anything about trusts before June 1982.

740 These findings about why the appellant Edwards and the appellant Murphy left the industry are of crucial importance. They were clearly open on the evidence and cannot be successfully challenged on this appeal. Once they are accepted, the cases of the appellants must fail because it cannot be established that it was representations of the respondent directors which caused them to leave the abalone fishing industry. Consequently, even if the respondent directors had made the alleged representations to them, those representations were not the cause of their leaving the fishery.

741 I have mentioned the decision of the Full Court on the Case Stated that the abalone permit system as established by the Preservation of Abalone Resources Regulations 1968 and the Preservation of Abalone Resources Regulations made on 15th July 1971 was invalid and that the owner/operator policy propounded by the Department was, at all times, beyond power and in so far as it may have been implemented was not a valid administrative policy approved by the Minister or otherwise a lawful policy.

742 The learned Trial Judge held that the imposition of conditions limiting the circumstances in which an employee might take fish was a valid exercise of power conferred under the Fisheries Act Amendment Act 1980 which came into force on 27th June 1980. As has been seen, the appellant Murphy acquired his class A fishing licence and abalone authority on 15th December 1980. During the whole of the time he operated as a diver, his licences were endorsed with conditions which prevented him from employing divers. The learned Trial Judge held that the validity of those conditions necessarily had the consequence that his claim with respect to employee divers must fail. There is no appeal against the conclusion of the learned Trial Judge that following the 1980 amendment the restrictive conditions were valid and it is unnecessary to further consider that aspect of the appellant Murphy's claim.

743 I turn to the claim of the Edwards appellants in this respect.

744 The appellant Edwards' case was that he was denied the right to employ divers to take abalone by reason of various directions given from time to time by the respondent directors and various inspectors of fisheries between 1968 and 1980.

745 I have mentioned the evidence of Dr Shepherd, Dr Copes, Dr Prince and Mr Chatterton as to this matter. As I have mentioned, Dr Shepherd, Dr Copes and Dr Prince regarded the owner/operator policy as a sound policy in the interests of protecting the fishery. Mr Chatterton regarded it as the policy of his Government and substantiated by the regulations. The learned Trial Judge found that the respondent Olsen believed that the prohibition was a consequence of the terms upon which the abalone permits were issued. His evidence was that the statutory and regulatory scheme was that the permit to take abalone was personal to the holder and that all diving, except in relief situations, had to be by the permit holder.

746 It may be seen from the evidence of Mr Chatterton and the respondent directors, all of which was accepted by the learned Trial Judge, that there was a firm policy since, at the latest, 1971, that only divers with permits, and later authorities, could operate in the abalone fishery with the exception of relief divers for limited periods and for specified reasons. This policy, the owner/operator policy, was clear Government policy at all relevant times, formulated upon expert advice for the sole purpose of protecting the fishery and the owner/operators who worked within it. It was a policy that was made known to the industry and was supported by it. Each of the respondent directors was aware of the policy and that it was government policy. They supported and implemented it and believed that it was in the best interests of the fishery and the fishermen. Those views were shared by widely renowned experts such as Dr Shepherd and Dr Copes. At no time was there any suggestion to Mr Chatterton, or any of the respondent directors, that the policy lacked validity or was in any way contrary to the Act or the Regulations. None of the respondent directors bore any ill will or malice to the appellant Edwards or the appellant Murphy. The implementation of the policy was beneficial to the fishery and the industry.

747 The learned Trial Judge made the following specific findings:

"(a) In various communications to abalone divers in general and Mr Edwards in particular, the director defendants made statements and gave directions to the effect that employee divers could not dive for and take abalone.

(b) The director defendants honestly believed either that the statements and directions were lawful as the expression of administrative policies authorised by the Minister and the Government of the day, or that they were justified on a proper construction of the Acts and Regulations.

(c) No question was ever raised, whether by abalone divers or others, as to the lawfulness of the directions at the time when they were given.

(d) All of the director defendants believed that to allow employee divers to dive and take abalone would result in a substantial increase in diving effort which would, in turn, be likely to lead to a collapse of the fishery.

(e) The view that it would be likely to lead to a collapse of the fishery was correct.

(f) If any question had been raised as to the lawfulness of the directions, the director defendants would have sought legal advice and taken measures to ensure that diving effort was not increased, whether by refraining from issuing licences to employ, by closure of the fishery, by imposition of a quota, or by such other means under the existing legislation as might have been available, or as a last resort by seeking amendments to the legislation."

748 All of the findings are fully justified by the evidence which the learned Trial Judge found acceptable.

749 I would add to this list some further matters which are plain on the evidence which the learned Trial Judge found to be acceptable. The owner/operator policy was not only a sound policy in the interests of the abalone fishery, supported by the majority of divers and widely publicised, but it was the intention that it be reflected in the Regulations and was accepted by the respondent directors that it had been so reflected. The Regulations had been drafted by a solicitor in the office of the Crown Solicitor and certified to be valid, approved and adopted by the Minister and the Cabinet, made by the Governor and laid before both Houses of Parliament. There was never any suggestion by anyone at relevant times that any of the Regulations lacked validity, including those relating to the owner/operator policy.

750 As has been seen, the owner/operator policy was never considered to be invalid prior to the decision of the Full Court on the Case Stated.

751 The basis of the appeal by the Edwards appellants is simply that the owner/operator policy was invalid. There was no justification to be found for it in the 1917 Act, the 1971 Act or any of the Regulations. Consequently, the representations made by the respondent directors had no validity. In effect, the submission was that the owner/operator policy and the prevention of employee divers was created by the respondent directors. I reject that submission. It is contrary to the evidence. Extensive submissions were made by the appellant Edwards, but they are really repetition of his case at trial. They do not address the findings of the genuineness of the respondent directors' belief and the sound basis of the policy, even though it was found by the Full Court not to have any legislative validity. The Edwards appellants assert in their submission that the respondent directors did not hold a genuine belief in the validity of the owner/operator policy and the evidence does not justify a finding that they did hold such a belief. There is no foundation for that assertion. There is nothing in those submissions which could lead to the rejection of any of the findings and conclusions of the learned Trial Judge.

752 As has been seen, in order to establish misfeasance in public office, it is not enough that the public officer has engaged in the impugned conduct when there was no valid power to do so.

753 Consequently the decision of the Full Court on the Case Stated cannot be decisive. It must also be established that there has been the relevant state of mind on the part of the respondent director under consideration as discussed in Mengel and Three Rivers, namely an intention to injure, some other type of malice, or actual knowledge that there is no power to engage in the conduct or the type of reckless indifference which has been discussed. The implementation of a well known policy of the Minister and, indeed, the Government could not amount to misfeasance in public office.

754 The evidence accepted by the learned Trial Judge could not justify such a finding of misfeasance in public office against any of the respondent directors in relation to the implementation of the owner/operator policy with respect to the appellant Edwards or the appellant Murphy and the learned Trial Judge was plainly correct in reaching that conclusion and in rejecting those claims.

755 Furthermore, no action in negligence could succeed. The respondent directors carried out Ministerial policy in good faith and were obliged to do so. They were entitled to accept that the owner/operator policy was valid and should be implemented.

756 The grounds of appeal challenging the findings and conclusions of the learned Trial Judge about this aspect of the case must be rejected. In my view, all of the findings were fully justified by the evidence which the learned Trial Judge found acceptable and his conclusions were correct.

757 The claim of the Edwards appellants, as characterised in the Statement of Claim and expressed by the learned Trial Judge, is that on 15th September 1980 they made an application to the respondent Stevens for a class A fishing licence by way of renewal, an abalone authority in place of the existing abalone permit, a licence to employ a person to take fish by way of renewal and a boat registration certificate by way of renewal to be issued to the appellant Edwards as trustee for Deep Sea Ark. They alleged that the respondent Stevens failed to consider and determine the application according to law and in breach of his statutory duty to determine the application properly. They assert that his failure to do so was by reason of a policy which he knew was not authorised by, and was inconsistent with, the 1971 Act and the Regulations thereunder, that policy being in part a policy to refuse to countenance the transfer, assignment, creation of a joint interest in, and charging of abalone permits and class A fishing licences.

758 The learned Trial Judge noted that the claim is not made in the specific context of trusts but embraces trusts because the Edwards appellants assert that the class A fishing licence, including the endorsed abalone authority, the boat and the boat authorisation and registration certificates and the benefit of the profits of exploitation, were all alienable at law, capable of being impressed with an enforceable trust by the appellant Edwards in favour of Deep Sea Ark, capable of being charged at law and in equity with the payment of debts and capable of being held jointly, by persons in partnership and capable of being beneficially owned by either or both of the Edwards appellants whether in partnership with another or otherwise and when neither of the Edwards appellants was the namesake holder. Other similar claims were made which need not be discussed because they stand or fall with the claims which have been mentioned.

759 It is alleged that because of the conduct and policy of the appellant Stevens, the Edwards appellants were deprived of their rights, inter alia, to exploit with or without employees, buy or sell, mortgage or otherwise charge, create or grant, or otherwise alienate interests, at law or in equity, in the licences, permits, certificates, boats and the authority. Earlier I have mentioned the type of trust which the appellant Edwards submitted he wanted to employ.

760 The appellant Murphy claimed that between 1980 and 1983 the respondent Stevens and fisheries officers under his directions and control represented orally and in writing that a class A fishing licence and abalone authority and authorisation certificate issued with respect to his boat were not capable of being impressed with a trust.

761 At the trial the appellant Edwards expanded his case to include the respondent Olsen and the respondent Kirkegaard. He gave evidence that he was told by them that permits and fishing licences could not be the subject of a trust. He went on to say that he was told throughout his career by all of the respondent directors that whoever caught the fish had to do so for his own exclusive benefit and not for the benefit of another. There could be no trusts over licences or the profit streams from them.

762 Earlier in his evidence, the appellant Edwards said that from the early 1970's he had wanted the right to transfer his permit to take abalone to someone else to hold it on trust for his benefit so that he and another diver, or divers, could dive together in safety. In 1979 he wanted to be able to hold his abalone authority for Deep Sea Ark. He said that he might have chosen to stop diving and to transfer the authority to a trustee to hold for his benefit or that of Deep Sea Ark and to have acquired another authority, presumably in his name, in order to have a safe operation by using two divers. He added that he would have preferred to stay on shore and for someone else to do the diving and that in 1973 the respondent Olsen had written to him indicating that the owner of a licence and permit, or authority, as the case may be, for prawns, crayfish and abalone, had to be the operator.