EDWARDS v OLSEN & ORS; MURPHY v STEVENS & ANOR No. SCGRG-86-2556, SCGRG-87-742 [2000] SASC 438 - SASC 2000 case summary — Zoe

SASASC

EDWARDS v OLSEN & ORS; MURPHY v STEVENS & ANOR No. SCGRG-86-2556, SCGRG-87-742 [2000] SASC 438

[2000] SASC 438

Supreme Court of SA|2000-12-21|Before: Smoothpool Nominees P, Ors Lander J, Perry J

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At a glance

Source facts

Court

Supreme Court of SA

Decision date

2000-12-21

Before

Smoothpool Nominees P, Ors Lander J, Perry J

Source

Original judgment source is linked above.

Judgment (1365 paragraphs)

[1]

EDWARDS v OLSEN & ORS; MURPHY v STEVENS & ANOR No. SCGRG-86-2556, SCGRG-87-742 [2000] SASC 438 (21 December 2000)

[2]

27/10/2000, 02/11/2000, 07/11/2000, 15/11/2000, 08/12/2000, 11/12/2000.

[3]

TORTS - MISFEASANCE IN PUBLIC OFFICE The plaintiffs, former professional fishermen, alleged that the defendants, who successively held public office as Directors of Fisheries, were guilty of maladministration of the Fisheries Acts 1917 and 1971 causing them financial loss in the carrying on of their businesses as abalone divers - consideration of the elements of the tort of misfeasance in public office. NEGLIGENCE - NEGLIGENT MIS-STATEMENT The plaintiffs alleged in the alternative that various representations and directions made by the defendants while holding office as Directors of Fisheries constituted negligent mis-statements - consideration of the question as to the circumstances in which an action in negligence is available where the plaintiff fails on the same facts in an action for misfeasance in public office - discussion of test of `vulnerability' as opposed to `proximity' and `reliance' - consideration of question whether action in negligence available, having regard to terms of the statutory provisions. PRACTICE AND PROCEDURE - EVIDENCE - CREDIT Consideration of approach to findings as to credit. LIMITATION OF ACTIONS - ASCERTAINMENT OF MATERIAL FACTS Consideration of approach to be adopted to an application for extension of time by plaintiffs guilty of long delay in instituting proceedings and inexcusable delays in prosecuting the proceedings once instituted. PRACTICE AND PROCEDURE - AVAILABILITY OF PLEA OF LACHES WITH RESPECT TO COMMON LAW CLAIM Discussion of principles involved in defence of laches raised in the context of delay in commencing proceedings based on causes of action at common law and delay in prosecuting them.

[324]

"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. (2) Except as provided for by subregulation (3) of this regulation no authorisation pursuant to subregulation (1) of this regulation shall be valid unless it is obtained in advance of the period for which the authorisation is required. (3) In the event that it is impractical for the holder of an abalone authority to obtain an authorisation pursuant to subregulation (1) of this regulation in advance of the period of authorisation it shall be sufficient for the holder of the abalone authority to obtain prior authorisation by telephone from the Director or his delegate and to present the abalone authority for endorsement by the Director or his delegate within 48 hours of receiving any such telephone authorisation. (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. (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."

[921]

"WESTERN AUSTRALIAN ABALONE FISHERY Many letters are being received in Western Australia by both the Department of Fisheries and Fauna and members of the fishing industry regarding the opportunities available for experienced and equipped abalone fishermen from other States. Most of these letters are from abalone fishermen of Victoria and South Australia where restrictions upon the industry have prompted them to look further afield to perhaps less restrictive or more lucrative areas. Not only are these letters of enquiry arriving - in some cases fishermen themselves turn up fully expecting to find a well established industry ready to offer them prospects. This is far from the truth and several fishermen - sorrier but wiser - have already returned to their home state after finding out that the trip West was to no avail. This Department finds it difficult and time consuming to answer individually all the letters and questions about the abalone industry in this State. It feels that the publication of the facts regarding this fishery might prevent disappointment and expense for abalone fishermen considering transferring their operations to Western Australia. The industry in Western Australia is based on a different and smaller species to that fished in South Australia and Victoria - in fact it can hardly be defined as an industry when the total stockpiled catch for the 1967/68 season was only in the vicinity of 25,000 lb. .......... The Eastern states' method of catching by using boats and Hooker units and by diving in up to 50 feet of water is not applicable to Western Australia. Here the bulk of the catch is collected within a depth of about 6 feet and usually in surf conditions which can only be worked on calm, flat days. It is, therefore, a part time industry which relies on weather conditions and so does not provide regular or guaranteed employment. With collecting conditions as they are the absolute maximum daily catch rate is in the vicinity of 150 lbs (shucked) per day - and this possibly over a ten hour or longer collecting period. At 23 cents per pound this does not make for a very profitable day, out of which must come time and travelling expenses to the more inaccessible places by four-wheel drive. At present only one company is buying shucked abalone which is stockpiled for future distribution or marketing. The economics of operating outside the 30 mile range from Perth, coupled with the uncertainty of future marketing appear to make the industry hardly worthwhile for the individual - particularly if it involves the selling of existing assets and equipment in the Eastern States and a trip to the West. But what of the areas east of Albany? True, the species here is the same as in South Australia and would require the same catching techniques and equipment but again other factors are against it. Firstly there is still only one market available which is in Perth. The company concerned would probably pay 30 cents per pound (shucked) but delivered in Perth which is some 250-300 miles from the catching grounds. Secondly the seas in the Albany region are rough for a considerable part of the year. Many may disclaim this but a check with the Weather Bureau will support this with a large number of days when the wind and sea condition would make collecting almost impossible. And lastly, not enough is known of the stocks and sizes of the population existing in the region.' If you are prepared to create your own markets and methods of distribution, gamble on the weather, collect specimens (M roei) which do not reach much more than 4" (with a 3" minimum size imposed) and work under adverse conditions then do so - but remember we are advising against the risk of success."

[950]

"13A ........ (4) In support of the allegation that the first defendant acted wrongfully, the first plaintiff relies on the following facts:- I. The first defendant did not consider or deal with the said application dated 18 March 1974 as required by Section 17 of the Fisheries Act 1971, and/or regulation 11 of the Managed Fisheries Regulations 1971. II. The first defendant referred the said application to the Minister of Fisheries who was not empowered to deal with it. II(I) Insofar as the first defendant's action was a delegation to the Minister of his decision making powers or functions in respect of the application referred to in paragraph 13A(4)I herein: (a) the action was known by the first defendant to be unlawful by virtue of advice received by the first defendant from time to time, and noted as accepted by him, that it was his responsibility sole, and not the Minister's to determine an application for the issue of a prawn authority; and (b) the first defendant knew that in the absence of a written delegation as required by Section 7 of the Fisheries Act 1971, the power and function to deal the said application remained vested in himself sole: (c) deleted III. The said Minister referred the said application to the Prawn Fishing Industry Advisory Committee which was not empowered to deal with it. IV. The said Committee wrongfully and unlawfully recommended that the first defendant, or alternatively, the Minister of Fisheries (hereinafter the "Minister") refuse the said application, or in the alternative, refused the application itself and rejected it. DETAILS 1. The Committee was not lawfully delegated, and could not lawfully be delegated any power or function of the first defendant (or the Minister as the case may be) to deal with or determine the first plaintiff's application, or to bind the first defendant (or the Minister as the case may be) in any valid dealings they had with the application. ................... 7. On 1 August 1974, the Committee unlawfully selected the seven successful prawn authority applicants, determined there would be no appeal of its decision, and unlawfully rejected the first plaintiff's application dated 18 March 1971. ................"

[1146]

"A form is enclosed for you to request the issue of a fishing licence/abalone authority for the 1980/81 licensing period. The endorsements on the licence and the schedule(s) of conditions attached are based on the Government announcements on the 23rd April, 1980 in respect of the marine scale fishery, and the results of negotiations which have taken place with AFIC and the Abalone Divers' Association of SA Inc; please note that Section 34 of the Fisheries Act provides the means whereby conditions can be reviewed. PLEASE SIGN THE FORM IN THE PLACE PROVIDED AND RETURN IT TO THIS OFFICE WITH THE TOTAL AMOUNT SHOWN. DO NOT MARK OR DETACH THE LICENCE FORM OR ENDORSEMENT(S) OR THE SCHEDULE(S) OR CONDITIONS IN ANY WAY. Consultation with AFIC has resulted in a new licence fee of $50.00 and a licence to employ fee of $15.00 (for each employee). The fees for the abalone authority for 1980/81 are as indicated in my circular dated 28th August, 1980. Although an employee sheller may not dive from the authorized vessel to take fish for sale he is nevertheless involved in the taking of fish for sale under the provisions of the Fisheries Act and must be covered under a licence to employ. My previous advice to you in this matter is to be disregarded. Please note that you as the licence holder have been noted as the owner of the vessel in both the abalone authority and certificate of vessel registration. You have been requested to nominate a vessel which will become the authorized vessel for the 1980/81 licensing year. For ease of identification of gear the registration number allocated to this vessel must be marked on your gear - the number will become your licence number and will be retained by you for as long as you hold a current fishing licence. Following discussions at the Abalone Management Liaison Committee on 2nd October, 1980 it was agreed that before an authorized vessel can be replaced, the Department must be advised three months in advance of the proposed replacement. Any application to replace a vessel due to accidental loss must be made to the Director of Fisheries. When the face of the fishing licence has been receipted with the cash register imprint, it will be returned to you with the Endorsements and the Schedule(s) of conditions in booklet form, enclosed in a plastic bag. This will then be your Fishing Licence for 1980/81.