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[2026] VSC 29
General information, not legal advice.
Supreme Court of Victoria
2026-02-16
Watson J
Original judgment source is linked above.
NEGLIGENCE - Crown leases granted without compliance with statutory notice requirement - Leases reduced areas where commercial abalone fishers could fish - Any loss suffered by abalone fishers pure economic loss - Whether public servants involved in grant of leases owed plaintiffs a duty of care - Salient features considered - Duty of care owed - Public servants breached duty - Causation of loss established - Damages calculated.
ESTOPPEL - Issue estoppel - Whether defendant precluded from denying fact determined in earlier proceeding - Defendant alleges fact not an ultimate issue in earlier proceeding - Fact not an ultimate issue at first instance but central to appeal - Defendant estopped.
ABUSE OF PROCESS - Whether defendant precluded from denying fact determined in earlier proceeding vis- à-vis plaintiffs who were not parties or privies to earlier proceeding - Risk of inconsistent findings - Contrary to the timely and efficient administration of justice - Defendant precluded from denying fact determined in earlier proceedings.
ESTOPPEL - Anshun estoppel - Whether the plaintiffs precluded from bringing their claims by an Anshun estoppel - Not unreasonable for plaintiffs not to bring negligence claim in earlier proceedings - Plaintiffs not precluded from bringing their claims.
1 The plaintiffs, who are all authorised to fish for abalone in the Eastern Abalone Zone fishery ('Eastern Zone'), sue the State of Victoria in negligence over the invalid grant of two Crown leases ('the leases').
2 On 8 May 2018 a delegate of the relevant Minister ('the Minister')[1] approved a lease of an area of the seabed adjacent to Gabo Island ('the Gabo lease'). On 11 May 2018 the Gabo lease was registered under the Transfer of Land Act 1958 (Vic) ('TLA').
3 On 7 February 2019 a different delegate of the Minister approved the grant of a lease of an area of the seabed adjacent to Tullaberga Island ('the Tullaberga lease'). That lease was registered under the TLA on 13 February 2019.
4 Both leases were granted invalidly. Under s 137 of the Land Act 1958 (Vic) ('Land Act') an applicant for a Crown lease has an obligation to publish a notice regarding the proposed lease in the Government Gazette and in a newspaper circulating in the district in which the land is situated, not less than 14 days before the lease is granted. No such publication occurred in respect of either lease.
5 In this proceeding there are 15 plaintiffs. All of the plaintiffs were and are authorised to fish for abalone in the Eastern Zone. Prior to the grant of the leases, the plaintiffs were permitted to fish for abalone in the areas the subject of those leases ('the lease areas'). Upon registration of each lease under the TLA the lessee, MAPA Pearls Pty Ltd ('MAPA') obtained indefeasible title to exclusive possession of the lease sites in accordance with, and subject to the terms of, the respective leases.
6 As a result of the registration of the leases, the plaintiffs lost the right to fish for abalone in the lease areas. MAPA has, since June 2019, sought to enforce exclusive possession in relation to the lease areas and, with the exception of a relatively brief period where some of the plaintiffs were permitted to resume fishing in the lease areas pending a decision of the Court of Appeal, none of the plaintiffs have been able to fish for abalone in the lease areas since June 2019. The leases are for a period of 21 years with MAPA having a right to renew for a further term of 10 years, subject to certain conditions being satisfied.
7 In these proceedings the plaintiffs allege that three public servants ('the public servants') associated with the grant of the leases were negligent, being the two delegates of the Minister ('the delegates'), and an employee of the Department of Environment, Land, Water and Planning ('the Department') with carriage of issues related to the leases, Mr Daniel Dyson.
(a) each of the public servants owed them a duty of care;
(b) each public servant breached that duty of care and was negligent;
(c) as a result of that negligence the plaintiffs have lost the opportunity to fish for abalone in the lease areas and have suffered loss and damage; and
(d) the State is liable for the negligence of the public servants under s 23 of the Crown Proceedings Act 1958 (Vic) ('Crown Proceedings Act').
(a) none of the three public servants owed the plaintiffs a duty of care;
(b) even if there was a duty of care owed, none of the public servants breached that duty;
(c) both as a matter of law and as a matter of fact, the conduct of the public servants did not cause the plaintiffs' loss; and
(d) if any loss was caused to the plaintiffs, the quantum of that loss was less than the plaintiffs claim.
10 This case is the fourth proceeding arising from the grant of the leases.
11 In 2019 the fifth, tenth, twelfth and fourteenth plaintiffs ('the JR plaintiffs') brought a judicial review proceeding against the Minister, the State, MAPA and the Registrar of Titles ('the First Instance JR proceeding'). The JR plaintiffs sought declarations that the leases were void and an order that they be quashed and deleted from the Register of Titles.
12 In 2022 Justice Cavanough gave his reasons in the First Instance JR proceeding ('First Instance JR reasons')[2] and found that:
(i) the failure to advertise the proposed leases in accordance with s 137 of the Land Act;
(ii) the failure to hear the plaintiffs prior to the grant of the leases; and
(iii) the failure to take into account the interests of the plaintiffs and the wider public, which, together with the failure to advertise and the failure to hear the plaintiffs, gave rise to legal unreasonableness and jurisdictional error; and
(b) the plaintiffs were entitled to 'in personam' relief against MAPA for equitable (or constructive) fraud and entitled to injunctions and/or an order directed to the Registrar of Titles that the registration of the leases be set aside or cancelled.[3]
13 MAPA appealed ('the JR Appeal'). The Minister and the State were respondents to the appeal but broadly supported MAPA's submissions. The Court of Appeal upheld MAPA's appeal.[4] It held that MAPA's conduct in relation to the leases did not amount to equitable fraud and that, as a result, the abalone licence holders who had been the plaintiffs in the proceeding below, did not have in personam rights as against the registered lease titles.
14 The JR plaintiffs sought special leave to appeal the JR Appeal decision to the High Court of Australia. Special leave was refused.
15 I will refer to the First Instance JR proceedings, the JR Appeal and the High Court special leave application as the 'JR proceedings'.
16 In the JR proceedings MAPA relied on evidence from Mr Paul Menke that he had had a conversation in early April 2018 with Mr Dyson in which Mr Dyson had said he would take care of the advertising under s 137 of the Land Act. Justice Cavanough accepted that evidence but as will be seen his finding in that regard was ultimately not central to his conclusion. However, for reasons I will come to, the finding that Mr Dyson had agreed to undertake the s 137 advertising was central to the resolution of the JR Appeal.
17 In the present proceeding, the plaintiffs assert that the State is estopped from denying that Mr Dyson voluntarily assumed responsibility for discharge of the notice requirement under s 137 of the Land Act in relation to the leases or alternatively that it is an abuse of process for the State to contend that Mr Dyson did not assume that responsibility. The State says it is not estopped and that there is no abuse of process, but says that if the plaintiffs make good that proposition, then an Anshun estoppel precludes the plaintiffs from raising the negligence claim in this proceeding.
18 In this proceeding I heard evidence from Mr Dyson in which he denied, at any stage, assuming responsibility for advertising the leases under s 137 of the Land Act. The parties approached the issue of that evidence before me on the basis that if I upheld the plaintiffs' claim regarding estoppel or abuse of process, I should treat that evidence as inadmissible and have no regard to it. If, on the other hand, I found there was no estoppel and no abuse of process, I should admit Mr Dyson's evidence, consider whether I accepted it and resolve the plaintiffs' claims taking into account my view of that evidence.
19 Ultimately, it is my view, for the reasons given below, that the plaintiffs succeed in their claim whether or not Mr Dyson undertook to conduct the advertising under s 137 of the Land Act on MAPA's behalf. As will be seen, however, I am satisfied that properly analysed, the State is precluded from denying that fact. Having reached that conclusion and in light of the way I understand the State to have advanced its position in relation to Anshun estoppel, it seems to me I am first required to deal with the issue of whether the plaintiffs are entitled to bring the proceeding at all.
20 The questions I have to answer in relation to the plaintiffs' claim are as follows:
(a) Are the plaintiffs precluded from bringing their claims by an Anshun estoppel?
(b) Did any of the public servants owe a duty of care to the plaintiffs?
(c) If a relevant duty of care did exist, was it breached by any of the public servants?
(d) In the event a breach of duty is established, have the plaintiffs established loss caused by the breach?
(e) If the plaintiffs have established loss caused by the breach, what is the quantum of that loss?
21 A number of those questions raise subsidiary questions which I set out and deal with below. Because of the way in which the State has articulated its position in relation to the Anshun estoppel question in (a) above, it is appropriate to deal first with the question of whether the State is precluded from denying Mr Dyson assumed responsibility for advertising the leases under s 137 of the Land Act on the basis of an issue estoppel, an Anshun estoppel or an abuse of process.
22 For the reasons that follow the answers to the above questions are:
(a) No.
(b) Yes, all three public servants owed a duty of care to the plaintiffs.
(c) Yes, each of the public servants breached their duty of care.
(d) Yes.
(e) The quantum of the loss suffered by each plaintiff is set out in my reasons below.
The Land Act
23 The leases were granted under the Land Act. Division 9, sub-division 1 of the Land Act deals with leases for non-agricultural purposes. Section 134 of that Act provides the Minister with the power to grant leases of Crown land for non-agricultural purposes at the rent and subject to the conditions, covenants, reservations, restrictions and exceptions which they think fit.
24 Section 135 of the Land Act provides that the Minister may lease land under the sub-division either by offering the right to lease by public auction or public tender or by private negotiation.
25 If a lease is to be offered by public auction or public tender the Minister is responsible for publishing a notice containing relevant particulars of the auction or the tender, the land which is to be leased, and the purpose and term of the proposed lease. That notice is to be published in the Government Gazette and in a newspaper circulating in the district in which the land is situated.
26 Where the proposed lease is offered by private negotiation, s 137 of the Land Act imposes the notification requirement. That section is central to this case. Section 137 provides:
Proposed lessee to give notice of lease arranged privately
Where, under this subdivision, the Minister leases Crown land by private negotiation, the proposed lessee shall, not less than fourteen days before the day on which the lease is to be granted, publish in the Government Gazette and in a newspaper circulating in the district in which the land is situated, a notice specifying -
(a) the particulars of the land which is to be leased;
(b) the purpose and term of the proposed lease; and
(c) the name of the proposed lessee.
28 The State submitted that the purpose of s 137 was not to provide notification of a proposed lease to those whose interests might be affected, but that the section had 'a confused legacy purpose of simple alerting the public that land is being dealt with' as a means of ensuring transparency. In this regard it referred to a decision dealing with an antecedent provision Palalow Pty Ltd v Minister for Property and Services ('Palalow').[5] In that case Marks J said:
It is not difficult to discern that an object of the legislation is to give the widest publicity to any such sale, not only from the point of view of obtaining the highest price, but also to achieve the widest notification to the public whose interest in a practical sense is merged with that of the Crown in right of Victoria.[6]
29 I do not accept that Palalow is in any way inconsistent with the proposition that a purpose of s 137 is to ensure that those whose interests in land might be affected by a grant of a lease should be notified. Palalow was a case where relevant newspaper advertising had occurred but publication in the Government Gazette had not. It was an agreed fact in that case that advertising was more likely to bring matters to the attention of the public than publication in the Government Gazette. Marks J held that publication in the Government Gazette provided a 'different, if not, an additional'[7] purpose than advertisement in newspapers.
30 If s 137 were simply a means of alerting the public of a lease there would be no particular reason why publication would need to occur prior to the grant of a proposed lease as opposed to notice being given after the lease had been granted.
31 I am satisfied a purpose of s 137 advertising is to ensure that those whose interests may be affected by a proposed lease are provided with notification so that they may, if they choose, object to its grant.
32 For some time prior to 2011 the Menke family had been operating a business culturing abalone pearls. That business was conducted at the sites which became the lease areas under aquaculture licences issued under the Fisheries Act 1995 (Vic) ('Fisheries Act').
33 At the time of the application for the leases MAPA had not been incorporated. The MAPA name seems to have been used in relation to the business but the business was conducted by the Menke family which at that time comprised Gerardus (Gerry), his wife Mary and their four children; Paul, Brett, Sara and Anna. In the First Instance JR reasons Cavanough J says:
It is common ground that everything possessed, done, required to be done or omitted to be done, at any time, by any member of the Menke family or by the family business as a whole or by any entity involved in its ownership or control, in relation to the application for a grant under the Land Act 1958 or otherwise in relation to the subject matter of this proceeding, is to be attributed to MAPA Pearls Pty Ltd, and this notwithstanding that some relevant events occurred before the company itself was incorporated and registered in February 2015. Hereafter, I will use the expression 'MAPA' to cover not only the company but also, as far as appropriate, the Menke family, its members, the family business as a whole and those who from time to time have controlled the business.[8]
For ease of reference I will adopt the same convention.
34 At some time in 2011 it appears Mr Gerry Menke became concerned regarding the security of tenure MAPA had in relation to the areas where it operated the aquaculture licences.
35 On 30 November 2011 Mr Timothy Shepherd, a Senior Project Officer, Property Management, Public Land Division of the Department,[9] wrote to Mr Gerry Menke referring to Mr Menke's recent correspondence with the Department regarding the occupation and operation of aquaculture sites adjacent to Tullaberga Island. In that letter Mr Menke was advised to apply for a Crown lease of the land under s 134 of the Land Act and provided with an application form for this purpose. The letter outlined various steps which would need to be undertaken prior to the grant of any lease and in particular, noted the requirements of s 137 of the Land Act that there be publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease.
36 On 12 December 2011 Mr Gerry Menke made an application to use Crown land. In the form Mr Menke filled out, under the heading 'Land Description' there is a space for an applicant to provide particulars of 'the Crown land I wish to licence'. In that section Mr Menke described the land in the following terms:
Two areas of Crown land for aquaculture use, as per aquaculture licence CLA8. One site @ Gabo Island, area 6ha, and one site @ Tullaberga Island, area 3ha.
The reference to aquaculture licence CLA8 is a reference to the existing licence under which the Menke family conducted its business of cultivating abalone pearls.
37 In section C of the form, Mr Gerry Menke was required to provide specific details of his proposal, which he did in the following terms:
CLA8 already possess aquaculture cages of no/minor significance to the natural environment. Further cages are planned for installment. The aquaculture cages utilize and blend with the natural environment. The improvements do not impede commercial or recreational use. The reason for application is through advice from Mr Andrew Clark [a Departmental official], suggesting a lease provides security of use of land to continue a locally funded and run business without fear of a revoke (sic) of use due to circumstance.
The use of this land is needed for future aquaculture use to continue the aquaculture business. This business benefits the local community through employment, promoting local natural products.
38 In the same section of the form the applicant is asked 'Do you propose to have exclusive use of the land? If so, detail the reason for this requirement'. In this section of the form Mr Menke responded:
No not exclusive as it is an area of commercial abalone use.
39 Mr Menke's application was accompanied by two plans of survey which had been prepared for the purposes of an aquaculture licence in March 2002.
40 On 22 October 2012 Mr Shepherd sent an email to Mr Darryl Burns, Ranger in Charge, Far East Gippsland, Parks Victoria, in which he advised Mr Burns that Mr Gerry Menke had applied for leases of the areas adjacent to Gabo Island and Tullaberga Island. The email sought Parks Victoria's advice regarding the proposed leases and any special conditions which should be considered by the Department in Parks Victoria's capacity as the manager of both islands.
41 On 23 November 2012 Mr Burns responded to that email. In his response he stated his in principle support for the application for the purposes of abalone aquaculture, raised certain matters regarding the appropriate boundaries of any lease area, issues relating to access to Tullaberga Island, the need to ensure conditions in the lease requiring the lease holder to maintain the site and adjacent areas free of debris and his preference to avoid the deployment of buoys adjacent to both Tullaberga and Gabo Islands. Of most significance, for present purposes, the last substantive issue in the email is as follows:
Does the Aquaculture Lease give exclusivity of the site to the lease? The waters adjacent to Tullaberga & Gabo are utilised by commercial and recreational fishers and divers. I anticipate issues arising from these groups if this is the case.
42 On 3 December 2012 Mr Shepherd replied to Mr Burns by email. In that email Mr Shepherd noted that site specific conditions could be added to the standard lease document including requirements for debris removal and boundary marking. Mr Shepherd advised that details of the land would be identified in a survey report to ensure that the lease sites did not encroach on the national park or reserved Crown land. The email then deals with the issue of exclusivity:
By definition, a lease is designed to provide exclusive use of Crown land to a tenant. However, the proposed tenant has indicated that exclusive use is not required in this case as the lease sites are utilised by other commercial and recreational divers. Accordingly, DSE will consider a condition in the lease to maintain public access or alternatively a licence to undertake the aquaculture activities on the sites.
DSE will let you know once further information has been obtained.
43 Under the Coastal Management Act 1995 (Vic) ('Coastal Management Act') a person who wished to use or develop coastal Crown land was required to obtain consent from the relevant Minister. On 6 August 2013 Mr Paul Menke, made an application for consent under s 38 of the Coastal Management Act in relation to the proposed leases ('the CMA application'). In the CMA application the proponent is described as Mallacoota Abalone Pearls Australia (MAPA). Mr Gerry Menke is described as the CEO of MAPA and is listed in the application as the key contact.
44 The CMA application contains the two plans of survey dated 12 March 2002 in relation to the areas which are sought to be the subject of the leases. In that document Mr Paul Menke states:
The area is open to public recreational use. The area is very remote with little to no public usage.
45 The application notes that MAPA has had considerable consultation with multiple parties, including Mr Jeremy Neilson and Mr Timothy Shepherd.
46 On 9 May 2014 an employee of the Department of Environment and Primary Industries wrote to Mr Gerry Menke advising him that his application for consent had been granted and enclosing a consent under s 40 of the Coastal Management Act.
47 On 22 May 2014 Mr Shepherd forwarded a draft lease to Mr Andrew Clarke, Manager, Aquaculture in Fisheries Victoria. In the covering email Mr Shepherd notes that he has amended the standard aquaculture lease document for use in this case. The covering email seeks Mr Clarke's advice regarding a number of specific terms of the lease and in particular, seeks advice regarding the following item:
49 Notwithstanding the reference in the 3 December 2012 email to the possibility of a condition in the lease to maintain public access, the draft lease forwarded to Mr Clarke contains no such condition.
50 Tragically, on 17 July 2014, Mr Gerry and Mrs Mary Menke were killed in the MH17 incident where a Malaysian Airlines flight was shot down by Russian separatists whilst it was flying over Ukraine.
52 On 3 March 2015 Mr Phil Collins, a Senior Project Officer, Land Administration, Land Management Policy Division in the Department wrote to lawyers for the executor of Mr Gerry Menke's estate. That letter indicated that the Crown leases could be progressed 'providing that the tenant is an appropriate entity to hold property and is the same entity which holds the licences to undertake aquaculture activities on the sites under the Fisheries Act 1995'. The letter then set out various steps which would need to be undertaken in order for Crown leases to be granted. Relevantly, those steps included preparation of a plan for lease purposes in consultation with the Office of the Surveyor General Victoria ('OSGV') and publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease 'in accordance with sections 135 and 137 of the Land Act 1958'. In relation to this latter aspect, the letter said:
Following the completion of the plan for lease purposes, this office will provide you with the appropriate notice for publication;
53 The First Instance JR reasons set out what happened next:
Mr Collins' letter appears to have gone unanswered, though Paul Menke deposes that, between March 2015 and February 2016, he followed up with [the Department] by phone...
On 1 March 2016, Paul Menke received an email from Mr Collins indicating that Mr Collins had received no response to his email to Clarke Legal of 3 March 2015, and asking Paul Menke to 'please followup (sic) with the solicitors
and advise me as to your intentions'.
According to his affidavit, Paul Menke recalls, and I accept, that, in early March 2016, he called Jeremy Nielson, Acting Program Manager for [the Department], regarding the proposed leases. On 23 March 2016, Paul Menke emailed Mr Neilson asking whether Mr Nielson 'would be able to help the Menke family continue this application and hopefully satisfy all points noted'. Mr Nielson responded on 24 March 2016 by email, stating 'I am happy to discuss and assist where I can when you return to the country'.
Paul Menke deposes that between April 2016 and early January 2017 he had 'follow up telephone discussions with delegates at DELWP regarding the proposed crown leases'. It may be doubted whether Mr Menke was necessarily dealing with appointed 'delegates' on all (or any) of these occasions, but I accept that he was in discussions with Departmental officers.[11]
54 On 13 January 2017 Mr Neilson, emails Mr Dyson in the following terms:
Tracey West has asked that send through everything that Paul Menke has sent to me so that you can follow up what needs to happen next
please give me a call in (sic) you require further background information
55 The 13 January 2017 email contains a number of attachments:
(a) the CMA application;
(b) the 3 March 2015 letter to Mr Clarke, the lawyer for the executors of the Gerry Menke estate; and
(c) an ASIC certificate of incorporation for MAPA.
56 On 17 January 2017 Mr Dyson emailed Mr Paul Menke. The relevant portions of that email are:
I understand that you are keen to progress an application for aquaculture leases at the abovementioned sites.
There are a number of requirements in the leasing process which are yet to be addressed since the original submission in 2012.
These include but are not limited to the following:
...
There are a number of survey requirements which need to be satisfied to enable a Crown lease to be granted.
...
Publication of a notice of intention in the Victorian Government Gazette and a locally circulating newspaper for each Crown lease, in accordance with section 137 of the Land Act 1958.
...
I confirm that [the Department] is willing to progress the proposed Crown leases provided that the tenant is the same entity which holds Fisheries Licence - CLA8. Fisheries Victoria has confirmed that CLA8 is held by Brett Gerard Menke at 5 Howden Crt Mallacoota. Can you please confirm that the lease will be in the name of Brett Gerard Menke?
Once the [OSGV] has clarified survey requirements and you have confirmed the above, I will write to formally progress the matter.
57 Later, on 17 January 2017 Mr Paul Menke responded to Mr Dyson, flagging that it was likely that the aquaculture licence would be changed from being held by Mr Brett Menke to MAPA. Throughout January and February 2017, Mr Dyson and Mr Paul Menke exchanged various emails, including as to the leases being in the name of MAPA.
58 On 23 February 2017,[12] Mr Dyson sent MAPA a letter. In that letter Mr Dyson sets out various matters in relation to the proposed leases. In particular, Mr Dyson advises that because it had been 15 years since the original survey work had been undertaken, it would be necessary for MAPA's surveyor to prepare new lease plans and submit them to the Surveyor-General for registration. The letter contains the following:
Advertising
In accordance with section 137 of the Land Act 1958 and the Leasing Policy for Crown Land in Victoria 2010, MAPA Pearls Pty Ltd is required to advertise its intention to lease, in both the Victorian Government Gazette and a locally circulating newspaper. Copies of the advertisements must be forwarded to this office when published. A sample advertisement containing the relevant details will be provided once the precise lease area is appropriately defined by survey.
The letter concludes by noting that ministerial approval of the lease can be sought once the above processes have been completed.
59 On 27 February 2017 Mr Dyson sent Mr Menke an email in the following terms:
I will soon instruct the Valuer-General Victoria to undertake a market valuation for each lease, and once provided will seek the approval-in-principle of the Minister's delegate to the leases. Any approval-in-principle would be subject to the survey plans being certified by the Surveyor-General and the advertising requirements (gazette/local newspaper) being met. Please keep me updated on progress with your surveyor.
60 On 26 April 2017 Mr Paul Menke forwarded Mr Dyson updated survey plans for the two lease sites. The next day Mr Dyson responded seeking confirmation that the updated plans had been submitted to the OSGV via SPEAR and indicating that he would arrange for a valuation and once a valuation was provided, would arrange for ministerial approval in principle to lease. On 11 May 2017 Mr Paul Menke, on behalf of MAPA, responded to that email regarding the lodgement on SPEAR. That email concludes:
Do we need to Gazette the lease application soon, or is that the last step after the OK from the surveyor general? If so do you have an example that I could use, as I could get this ready.
61 On 11 May 2017 Mr Dyson responded to this email. Relevantly, he said:
The Crown allotment details will need to be confirmed by the Surveyor‑General Victoria before advertising can be undertaken. I will provide you with the relevant information for advertising at the appropriate time.
62 On 28 July 2017 officers of the Valuer-General Victoria assessed the annual rent for the proposed Gabo lease site at $750 per annum, plus GST, and the rent for the Tullaberga lease site at $375 per annum, plus GST.
63 On 9 August 2017 Mr Dyson emailed Mr Paul Menke advising him that the valuation had been provided and that approval in principle to lease would be sought from the Minister. Mr Dyson advised that, subject to that approval, the survey plans would need to be finalised and certified by the OSGV.
64 On 17 August 2017 Mr Will Guthrie, Executive Director Land Management Policy and a delegate of the Minister, provided approval in principle for the grant of the leases. It should be noted that approval in principle is not a statutorily required step under the Land Act. Rather, approval in principle is an administrative process which the Department has adopted as part of its internal procedures prior to the grant of approval of a lease.
65 Mr Dyson prepared the approval in principle document. It was reviewed by Mr Nick Houlihan, Manager Land Administration, on 16 August 2017 and endorsed by Ms Sarah Crute, Director Land Management, on the same day, before being approved by Mr Guthrie the following day, on 17 August. The briefing note which accompanied the approval in principle includes the following:
In applying the principles of the Crown Land Leasing Policy 2010 to this application, Land Administration has considered the following:
66 Below, I consider Mr Dyson's evidence as to why he considered it was 'clear beyond reasonable doubt' that MAPA was the only prospective tenant for the lease sites.
67 The briefing note to Mr Guthrie contained the updated plans of the two lease sites.
68 On 21 August 2017 Mr Dyson prepared a draft advertisement, which featured heavily in the evidence. It is in the following terms:
SECTION 134 LAND ACT LEASE NOTICE
ADVERTISEMENT TO BE PLACED IN A LOCALLY CIRCULATING
"Notice is hereby given that MAPA Pearls Pty Ltd has applied to lease, pursuant to Section 134 of the Land Act 1958 for a term of twenty-one (21) years in respect of allotment 2004, Parish of Wau Wauka, containing 6 hectares (more or less) and allotment 2003, Parish of Gabo, containing 3 hectares (more or less) as sites for "aquaculture".
Contact details for the Victorian Government Gazette:
Website: https://www.eastvicmedia.com.au
69 It is common ground that the draft advertisement was not ever sent to MAPA.
70 Also on 21 August 2017 Mr Dyson emailed the OSGV regarding the examination and certification of the plans for the lease areas. In that communication, Mr Dyson says:
Could you please advise me when the allotments are to be published in the Gov Gazette to complete legislative requirements of the Land Act 1958.? I am hesitant to have details of the Crown allotments advertised prior to certification.
71 On 18 September 2017 Mr Dyson followed up that enquiry and again on 23 October 2017.
72 On 23 October 2017 Mr Dyson emailed Mr Paul Menke. In that email he said that the Surveyor-General had advised that the survey plans would be finalised by 3 November 2017 and enclosed a letter of lease offer outlining the major terms of the proposed leases.
73 On 1 March 2018 the OSGV certified the Gabo Island plan and the following day an officer of the OSGV advised Mr Dyson of that certification and attached a copy of the certified plan.
74 On 4 April 2018 Mr Dyson emailed Mr Paul Menke. The relevant contents of that email are as follows:
As discussed the other day, please find the attached lease and lease plan associated with the proposed aquaculture lease at Gabo Island.
Please print and execute two copies of the lease. The lease should be printed one-sided. The lease plan is to be appended at the back of the lease (Appendix A). Once both copies of the lease are executed, please return the leases to me at the following address:
Level 3, 8 Nicholson Street
EAST MELBOURNE VIC 3002
We will then arrange for the lease to be executed by the Minister's delegate and registered at the Titles Office.
75 In the First Instance JR proceedings, Mr Paul Menke made an affidavit in which he deposed to a conversation with Mr Dyson in early April 2018. The substance of that evidence is discussed in the First Instance JR reasons in the following terms:
Paul Menke deposes that he recalls calling Mr Dyson in early April 2018 to ask about the Crown leases, and telling Mr Dyson that he 'did not know what the Government Gazette was, or what was required to undertake the public notification'. He deposes that Mr Dyson responded with words to the following effect: 'The advertising will be handled on our end'. As a result, Mr Menke deposes, he 'assumed that DELWP took care of the public notification'. Mr Paul Menke was not required for cross-examination, either by the plaintiffs or by the State defendants. No evidence contradicting these statements of Mr Paul Menke was adduced by any party. In particular, there was no evidence from Mr Dyson. The fact that Paul Menke was not cross-examined and that his claim on this point is uncontradicted is not conclusive but, as surprising as the claim may be, I accept it as true. [13]
76 It is the evidence of this conversation and its significance to the conclusions in the First Instance JR proceedings and the JR appeal which forms the basis for the plaintiffs' allegation that the State is estopped from asserting in these proceedings or alternatively, that it would be an abuse of process for State to assert, that Mr Dyson did not undertake to handle the advertising for MAPA under s 137 of the Land Act.
77 On 16 April 2018 Mr Paul Menke and his sister, Ms Sara Menke, signed the lease document on behalf of MAPA and returned signed copies to the department by post.
78 On 8 May 2018 Mr Peter Beaumont, Executive Director, Land Management Policy at the Department and a delegate of the Minister approved the Gabo Island lease and executed and initialled the lease document.
79 The front page of the approval document includes the following:
On 17 August 2017 the Executive Director Land Management Policy provided approval-in-principle, as delegate for the Minister for Energy, Environment and Climate Change, to the grant of a new lease to MAPA Pearls Pty Ltd at Gabo and Tullaberga Island (Attachment 1).
MAPA Pearls has agreed to lease terms and conditions for a lease at the Gabo Island site and has executed the lease document which is now submitted for your execution, as delegate for the Minister (Attachment 2).
□ Approved □ Not approved □ Noted □ Returned for review
□ Approved □ Not approved □ Noted □ Returned for review
80 Mr Beaumont has ticked each of the 'approved' boxes and signed and dated in the space indicated for the 'approver'.
81 The briefing note attached to that approval indicates that it was prepared by Mr Dyson. Under the heading 'Key Information' the briefing note states:
82 Under the heading 'Consultation' the briefing note states that the Department has consulted with Mr Paul Menke, director of MAPA.
83 The Department sent the Gabo lease to the Titles Office for registration. On 11 May 2018 the Gabo lease was registered.
84 For reasons which are not clear, the plan for the Tullaberga lease was not certified by the OSGV until 19 December 2018.
85 On 8 January 2019 Mr Cameron McKenzie, Acting Senior Project Officer, Direct Leasing Unit of the Department, contacted Mr Menke by email and forwarded him a lease with the survey plan for the Tullaberga lease site. On or around 22 January 2019 Paul Menke and his sister, Anna Cowen, executed the Tullaberga lease on behalf of MAPA and returned signed copies to the Department.
86 On 7 February 2019 Ms Anne Volkering, Acting Executive Director, Land Management Policy for the Department and a delegate of the Minister, approved the Tullaberga lease. In fact, Ms Volkering did not tick the box on the coversheet which indicated approval of the terms and conditions of the lease, but she signed and dated the form, and executed and initialled the lease, and in her evidence made clear that the failure to tick approved in the relevant sections of the document provided to her was an oversight.
87 The formal approval form was accompanied by a briefing note which had been prepared by Mr McKenzie. The briefing note was reviewed by Mr Dyson and endorsed by Ms Sarah Crute before being provided to Ms Volkering. Under the heading 'Key Information' that briefing note states:
88 The Department submitted the Tullaberga lease to the Registrar of Titles and it was registered on 13 February 2019.
(a) Specifies the Minister as the landlord and MAPA as the tenant;
(b) Leases approximately 6.0 hectares of seabed adjacent to Gabo Island, being Crown Allotment 2004, Parish of Gabo, shown by the continuous lines on plan OP124346 ('the Gabo lease area');
(c) Commences on 1 May 2018 for a term of 21 years, with a capacity for MAPA, subject to certain conditions, to renew for a further 10 years; and
(d) Sets a rental of $750 per annum, subject to review every three years.
(a) Specifies the Minister as the landlord and MAPA as the tenant;
(b) Leases approximately 3.0 hectares of seabed adjacent to Tullaberga Island, being Crown Allotment 2003, Parish of Wau Wauka, shown by the continuous lines on plan OP124347 ('the Tullaberga lease area');
(c) Commences on 1 February 2019 for a term of 21 years, with a capacity for MAPA, subject to certain conditions, to renew for a further 10 years; and
(d) Sets a rental of $375 per annum, subject to review every three years.
92 Both leases contain a clause 14 which is titled 'Release and Indemnities'. The chapeau of that clause contains the following:
The Tenant acknowledges that it is carrying out the Permitted Use on the Site having regard to its location in Port Phillip Bay and the Port Related Activities and Recreational Bay Activities and, except to the extent of any negligence by the Landlord and to the extent permitted by law and in equity the Tenant...
93 The balance of clause 14 then provides for the tenant to provide various releases and indemnities to the Crown and the Port of Melbourne Corporation.
94 Plainly, MAPA was not conducting any activity under the leases in Port Phillip Bay. I return to clause 14 as one of the matters on which the plaintiffs rely to establish there was a general lack of care by the public servants. It is enough to observe at this stage that its inclusion in the leases is indicative of a failure to conduct even the most basic read through of the terms of the leases prior to their approval.
95 The commercial abalone fishing industry in Victoria has existed since approximately 1965. Initially, divers generally worked under easily obtained and inexpensive fishing licences. The Fisheries Act 1968 (Vic) established a system permitting the harvest of abalone for sale provided a commercial licence was obtained. These commercial licences had greater fees than previous fishing licences, which limited somewhat the number of commercial abalone harvesters in the industry.
96 Amendments to the Fisheries Act 1968 (Vic) made by the Fisheries (Abalone) Act 1987 (Vic) divided Victoria's abalone fishing area into three regulatory zones: Western, Central and Eastern Zones. The Eastern Zone is defined as all of the Victorian waters east of longitude 147° 58' 30" east , which in general terms is the seabed which covers the Victorian coast from Lakes Entrance to Mallacoota.
97 The 1987 amendments also introduced a formalised system of abalone catch quota management whereby a total allowable catch ('TAC') is set annually and represents the quota for abalone which may be taken within a zone. That TAC is then converted into individual quotas within a zone by dividing the TAC by the number of individual quota units.
98 The Fisheries Act provides the foundation for the legal framework for management of Victorian fisheries and is the framework relevant to this proceeding. At the time of the grant of the leases the Fisheries Regulations 2009 (Vic) ('the previous Fisheries Regulations') were in force. Since 1 February 2020 the relevant regulations have been the Fisheries Regulations 2019 (Vic) ('the current Fisheries Regulations').
99 The objectives of the Fisheries Act are in s 3, they are:
(a) to provide for the management, development and use of Victoria's fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner;
(b) to protect and conserve fisheries resources, habitats and ecosystems including the maintenance of aquatic ecological processes and genetic diversity;
(c) to promote sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations;
(d) to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses;
(e) to promote the commercial fishing industry and to facilitate the rationalisation and restructuring of the industry;
(f) to encourage the participation of resource users and the community in fisheries management.
100 Section 3A of the Fisheries Act outlines the consultation principles that apply to decisions made by the Minister, Secretary or Victorian Fisheries Authority ('VFA') under the Act that affect the use and conservation of Victoria's fisheries resources. Section 3A states that the consultation process should be clear, open, timely and transparent and the level of consultation should reflect the likely impact of decisions on persons and fisheries resources. Without limiting the generality of s 3A(1), s 3A(2) outlines a list of decisions that affect the use and conservation of fisheries resources which relevantly includes:
(a) a decision by the Minister to give, revoke or amend a direction on matters relating to the management of fisheries or zones in a fishery under s 61; and
(b) a decision by the Minister to make, revoke or amend a quota order in relation to a fishery under ss 64, 64A, 66C or 66D.
101 Under s 10 of the Fisheries Act, the Crown in right of Victoria is the owner of all wild fish and other fauna and flora found in Victorian waters. Section 10(2)(aa) stipulates that the property in abalone passes to the holder of an abalone quota unit when it is harvested in accordance with an abalone fisheries access licence by the holder of such a licence under an individual quota unit.
102 Section 38 of the Fisheries Act provides that regulations may establish various classes of access licences, specifying the activities that licence holders are authorised to undertake. In addition, the section confers responsibility upon the VFA for issuing access licences and establishing terms relating duration, renewal, suspension and transfer of licences as set out below:
(1) The regulations may create classes of access licences and may specify that the holder of an access licence of a particular class may do one or more of the following -
(ba) possess, process or sell fish of a specified priority species;
(c) use specified commercial fishing or commercial abalone equipment or to use commercial fishing or commercial abalone equipment generally;
(d) possess specified commercial fishing or commercial abalone equipment or to possess commercial fishing or commercial abalone equipment generally;
(e) do anything else relating to the taking of fish or fishing bait specified by the regulations;
(f) use a boat to do anything authorised under paragraph (a), (b), (c), (d) or (e);
(g) engage one or more people to do one or more of the things listed in this subsection.
(1A) An access licence does not authorise the carrying out of any activity specified in subsection (1) in any national park, wilderness park or State park (within the meaning of the National Parks Act 1975) or any reference area (within the meaning of the Reference Areas Act 1978).
(1B) Subsection (1A) does not apply to any access licence in force immediately before 7 March 2005, to the extent of any entitlements under that licence that were in force at that time.
(2) The Victorian Fisheries Authority may issue an access licence of a particular class to a person.
(3) An access licence continues in force for the period specified in the licence by the Victorian Fisheries Authority unless it is sooner cancelled or suspended under this Act
(4) The Victorian Fisheries Authority, for the purposes of subsection (3), may specify -
(a) a period of up to 5 years for an access licence of a specified class of access licence if -
(i) there is an Order in Council declaring that access licences of that specified class may be issued for a period of up to 5 years; or
(ii) a management plan specifies that access licences of that specified class may be issued for a period of up to 5 years; or
(4A) For the purposes of subsection (4), the Governor in Council may, by Order in Council, declare that licences of a class of access licence may be issued for a period of up to 5 years.
(5) An access licence may not be cancelled by the Victorian Fisheries Authority except in accordance with section 58, 61(1)(c) or 148(9).
(6) An access licence is renewable in accordance with section 57.
(7) The following provisions apply to an access licence that is transferable if the holder dies -
(a) despite anything to the contrary in this Act, the benefit of the licence is deemed to be an asset of the estate of the deceased;
(b) the personal representative of the deceased is deemed to be the holder of the licence until it is transferred from the personal representative to an eligible person in accordance with this Act;
(c) subject to paragraph (d), the licence must be transferred to an eligible person in accordance with section 56 within one year of the grant of probate or letters of administration or within 2 years of the date of the death of the deceased, whichever is the earlier;
(d) the Victorian Fisheries Authority, on the recommendation of the Commercial Fisheries Licensing Panel, may grant an application by the personal representative for an extension of the period under paragraph (c) for a further period not exceeding one year.
(8) For the purposes of subsection (7) personal representative has the same meaning as it has in section 5 of the Administration and Probate Act 1958.
103 Under regulation 14(c) of the current Fisheries Regulations (reg 12(c) of the previous Fisheries Regulations) an Abalone Fishery (Eastern Zone) Access Licence is created as a class of access licence for the purposes of s 38 of the Fisheries Act.
104 This access licence authorises the holder to undertake the activities listed in reg 309 of the current Fisheries Regulations (reg 248 of the previous Fisheries Regulations), which include:
(a) the taking of abalone for sale;
(b) the use or possession of commercial abalone equipment;
(c) the packaging of abalone into bins;
(d) the sale of abalone taken under the licence;
(e) the possession of abalone taken under the licence; and
(f) the engagement of one more licence operators and one or more crew members
all of which are permitted to be undertaken on a commercial scale.
105 Section 57 of the Fisheries Act provides for renewal of licences. Section 57(3) provides that, subject to s 57 and provided the licence holder has a record of compliance with the Act, the VFA must renew a licence for a further period.
106 As outlined above, one of the central operating features of the access licence framework is the quota management system. Section 66 of the Fisheries Act makes it an offence for an access licence holder to take any fish in excess of the 'permitted amount' defined in s 66(2) as the amount of fish a person is authorised to take by virtue of the number of individual quota units held in respect of the licence together with any amount of excess or carryover allowed under a relevant quota order.
107 Section 66C of the Fisheries Act provides the Minister with the power to set the number of quota units for each zone, set the number of quota units to be allocated to each Abalone Fishery Access Licence ('AFAL'), set the minimum number of blacklip abalone quota units that must be held by each AFAL holder, and determine the circumstances in which individual quotas could be exceeded or carried over.
108 Under s 66D, the Minister may make further orders setting the TAC for blacklip and greenlip abalone and determine the quantity of fish comprising individual quota units:
(1) The Minister may, by further order published in the Government Gazette -
(a) set the total allowable catch for blacklip abalone and greenlip abalone (by number, volume, weight or value) for a specified period for the abalone quota fishery;
(b) determine the quantity of fish (by number, volume, weight or value) comprising an individual blacklip abalone quota unit and an individual greenlip abalone quota unit in the abalone quota fishery in a specified period.
(2) The Minister may revoke or amend an order at any time by an order published in the Government Gazette.
(3) Without limiting the generality of subsection (2), the Minister may reduce the total allowable catch, or reduce the quantity of fish comprising an individual abalone quota unit before the end of the period to which the total allowable catch or individual abalone quota unit applies.
109 Section 66I permits, subject to certain conditions, the transfer of abalone quota units.
110 Section 66O requires holders of AFALs to hold at least the minimum number of blacklip abalone quota units specified under s 66C.
111 Of particular note is s 64C of the Fisheries Act:
64C No compensation payable for losses resulting from quota orders
No compensation is payable by the Crown to any person for any loss or damage that results from an order made by the Minister under section 64, 64A, 64AB, 66C, 66D or 66E.
112 In this case the State says s 64C is a complete answer to the plaintiffs' claims. It says that the common law duty for which the plaintiffs contend is incoherent with the provisions of s 64C and that, in any event, to the extent that the plaintiffs have suffered any loss that loss arises as a result of an order made under s 66D. For reasons I will come to, I do not accept those propositions.
113 As noted above, the Eastern Zone, is defined as all of the Victorian waters east of longitude 147° 58' 30" east, which in general terms is the seabed which covers the Victorian coast from Lakes Entrance to Mallacoota. In practice the industry is largely centred around Mallacoota.
114 Since quota units were introduced, there have been 23 AFALs in the Eastern Zone with 460 quota units. Initially each licence had 20 quota units and TAC was set at 460 tonnes which meant each quota unit was permitted to catch one tonne of abalone catch in a year. Over time, the transfer of quota units has meant some individuals now hold more than 20 quota units and some less. Also over time, the TAC has reduced.
115 The plaintiffs own 307 of the 460 quota units in the Eastern Zone as follows:
116 In 1999, the Eastern Zone Abalone Industry Association Inc. ('EZAIA') was formed to advocate for the interests of and share information about issues affecting the local abalone industry. Quota unit holders and divers in the Eastern Zone are members of the association, though since the events the subject of these proceedings the Menke family have not been members. EZAIA employs an executive officer. At the time of the grant of the leases the executive officer was Mr Geoffrey Ellis. Shortly after the grant of the leases Mr Ellis ceased as executive officer and was replaced by Ms Helen Burvill. The executive officer publishes a monthly newsletter to all members. Other ad hoc communication occurs via email, sometimes by telephone, between members of the association, the members of the executive and the executive officer on matters affecting the industry in the Eastern Zone.
117 Mallacoota Abalone Ltd ('MAL') is an abalone processor, located as its name suggests in Mallacoota. It was formerly a cooperative established by the abalone fishers and is still sometimes referred to as 'the Co-op'. MAL processes, sells and exports the vast bulk of the abalone caught in the Eastern Zone. Reflecting its history as a cooperative, the main shareholders in MAL are AFAL licence holders or their associates. The MAL factory was destroyed in the East Gippsland bushfires which occurred at the end of 2019 and the start of 2020. A new factory was built and opened on 12 July 2022.
118 Although the ultimate decision regarding at what level the TAC is set rests with the relevant Minister, extensive consultation is undertaken with industry members.
119 Each year in December there is a TAC setting workshop involving members of EZAIA, representatives of the VFA and consultants engaged by the VFA. The TAC setting workshop arrives at a recommendation for the next year's TAC through a bottom up process. The Eastern Zone is divided into seven Spatial Management Units ('SMU'), and each SMU further divided into separate reef codes, with specific optimum catch targets and minimum size requirements for harvest set for each SMU. The combined value of the optimum targets for each of the seven SMUs equates to the recommended TAC set for the fishing year.
120 The meeting considers data regarding the optimum target for each SMU and reef code from the previous year, the actual catch year to date, stock assessments from the VFA contractors which provide long term and short term indicators of reef health, feedback from divers and other scientific evidence. The meeting seeks to achieve a consensus as to the SMU optimum catch targets and the overall TAC and on the evidence this is what happened.
121 The TAC recommendation coming from the TAC setting workshop is then shared with the VFA before a final TAC is recommended to the Minister (or delegate, the Executive Director of the VFA). Once set, the Minister fixes the total allowable catch for each declared zone for the next twelve months by notice published in the Government Gazette. The evidence established that the invariable practice is that the TAC set in the Minister's order was consistent with the TAC recommended by the workshop.
Issue estoppel, Anshun estoppel and abuse of process
122 The question of whether the State is precluded from denying that Mr Dyson assumed responsibility for the s 137 advertising of the leases is relevant to questions of whether there was a duty of care and if so, whether there was a breach of duty. However, because the State's position is that if I find for the plaintiffs on that issue, I should then consider whether the plaintiffs are estopped from bringing this proceeding in its entirety; it is convenient to deal with the plaintiffs' arguments regarding the question of whether Mr Dyson assumed responsibility for advertising at this juncture.
123 For ease of reference, I will refer to the plaintiffs in this proceeding who were not JR plaintiffs as the 'non-JR plaintiffs'.
124 Tomlinson v Ramsey Food Processing Pty Ltd ('Tomlinson')[14] provides a useful summary of the three recognised forms of estoppel:
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction - and none has been suggested - one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.[15]
(a) the same question has been decided in an earlier proceeding;
(b) the question was necessarily resolved as a step in reaching the determination made in the earlier proceeding;
(c) the judicial decision, which is said to create the estoppel, was final; and
(d) the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel was raised or their privies.[16]
126 Here there is no controversy regarding (c). It is necessary to consider (a), (b) and (d).
127 The JR plaintiffs were parties to the JR proceedings and are also parties to this litigation. The evidence establishes that the non-JR plaintiffs contributed funds to the conduct of the JR proceedings. This is not enough however to make them privies.
128 A privy must claim under or through the person of whom they are said to be a privy; the interest of the privy must be a legal interest, an economic or other interest, the outcome of the earlier proceedings is insufficient. Tomlinson establishes that 'a person does not become bound by an estoppel by reason of a party having represented legal interests of that person in an earlier proceeding merely as a consequence of that party having lawfully asserted a claim which, if accepted, would have resulted in a determination enhancing or enforcing a legal entitlement of the person.'[17] That is the situation here so far as the non-JR plaintiffs are concerned. There is no doubt their position would have been enhanced had the JR plaintiffs succeeded and that success of the JR plaintiffs would have seen them able to resume fishing in the lease areas, but the interest of the non-JR plaintiffs in the JR proceedings was not a legal interest. The non-JR plaintiffs did not claim under or through the JR plaintiffs.
129 It might seem obvious that the State was a party to the JR proceedings and is a party to this proceeding, but in closing submissions directed to a different issue (whether the plaintiffs could claim their costs of the JR proceedings), Senior Counsel for the plaintiffs submitted that the State of Victoria is, in effect, a nominal party to these proceedings. He submitted that in this proceeding the 'wrongdoers' were the three public servants and the State was only fixed with liability under the terms of s 23(1)(b) of the Crown Proceedings Act and that, as a result, there was not, so far as the State was concerned, an identity of party between the JR proceedings and this proceeding_._ I reject that submission. Section 23 of the Crown Proceedings Act makes the State vicariously liable for the acts of its servants or agents (in this case the public servants) but it is a party to these proceedings just as it was a party to the JR proceedings.
Issue estoppel between JR Plaintiffs and the State
130 The State says that when regard is had to the way in which the JR proceedings were conducted the relevant finding in relation to Mr Dyson's assumption of responsibility for advertising the prospective leases was not an ultimate issue of fact or law which was necessarily resolved as a step in reaching a determination made in the judgment.
(a) that in the First Instance JR proceeding the JR plaintiffs and the State both took the view that it did not matter who undertook responsibility for the advertising, what mattered was that it was not done and that MAPA was the only party who asserted the question of whether Mr Dyson undertook responsibility was relevant;
(b) Cavanough J held that MAPA's claim in this respect was of little or no moment because what mattered was that the advertising was not in fact done;
(c) that in the JR Appeal the plaintiffs maintained that the question of any undertaking by Mr Dyson did not absolve MAPA from its statutory responsibility to conduct the advertising;
(d) that in the JR appeal the State did not rely on any alleged assumption of responsibility by Mr Dyson except to explain to the Court that the State had no file note of the conversation deposed to by Mr Menke to either confirm or deny the terms in which Mr Menke deposed; and
(e) that the Court of Appeal did not make any independent finding of fact in relation to the assumption of responsibility by Mr Dyson.
132 It may be accepted that the JR plaintiffs, the State and Cavanough J did not regard the question of any assumption of responsibility by Mr Dyson as critical to the outcome of the proceedings but in my view it is plain that the Court of Appeal did.
133 In the JR Appeal the central question was whether the JR plaintiffs could assert an in personam right against MAPA's title by reason of MAPA's unconscientious conduct. In the following passage from the JR Appeal reasons the Court of Appeal said:
However, MAPA's failure to publish the notices and its reliance on the Department to do so is understandable in circumstances ... where, as accepted by the judge, Mr Dyson informed Paul that the Department would publish the notices. It is noteworthy that the judge did not reject Paul's evidence that he had assumed that the Department had published the notices. There would not have been any proper basis for the judge to do so.
The Department knew that, in accordance with s 137, it should not grant the Leases unless there was prior public notice and assumed responsibility for giving such notice but, for reasons unknown, it neglected to give such notice.
In determining the factual findings that should have been made on the evidence in relation to MAPA's conduct, it must be borne in mind that the onus lay on the [JR plaintiffs], as plaintiffs, to prove on the balance of probabilities any matter adverse to MAPA that was relevant to establishing their pleaded case. Having regard to that onus, we set out below the findings that should have been made:
...
(f) MAPA intended to comply with its duty under s 137 of the Land Act to advertise the proposed leases but did not do so because the Department stated that it would undertake the advertising. Prior to the Leases being registered, MAPA did not know that there had not been prior advertising of the Leases, and had assumed that they had been advertised.
In our opinion, on the basis of the above factual findings, MAPA's conduct could not be characterised as unconscientious. The conduct fell well short of the type of conduct that is required to give rise to in personam rights in favour of the [JR plaintiffs] as against MAPA's registered lease titles on the basis of equitable fraud. [18]
134 I am satisfied that the fact that Mr Dyson had said he would undertake the s 137 advertising on behalf of MAPA was an ultimate issue of fact which was necessarily resolved as a step in reaching a determination made in the Court of Appeal's judgment.
135 An issue estoppel arises on this question as between the JR plaintiffs and the State.
136 In light of the conclusion I have reached regarding an issue estoppel between the JR plaintiffs and the State, so far as the question of Mr Dyson's assumption of responsibility for advertising is concerned, it is unnecessary to deal with Anshun estoppel as between those parties. In light of the conclusion I have reached regarding the non-JR plaintiffs not being privies of the JR plaintiffs, no question of Anshun estoppel can arise as between the non-JR plaintiffs and the State regarding assumption of responsibility for advertising.
137 Tomlinson also explains the interaction between abuse of process and estoppel:
[I]t is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[19]
138 Subsequently in UBS AG v Tyne[20] Gageler J said:
Although undoubtedly capable of application in circumstances in which use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute, the doctrine of abuse of process has repeatedly been recognised to be insusceptible of a formulation which would confine it to closed categories. In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham, I think it better in weighing the private and public interests involved to eschew the extremes of private "oppression" and of public "disrepute". The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice.[21]
139 In this case, I do not regard it as unjustifiably oppressive to the non-JR plaintiffs if the State is permitted to contend that Mr Dyson did not say he would undertake the s 137 advertising on MAPA's behalf.
140 However, if the State is permitted to make that contention in these proceedings the Court will be placed in the position of potentially making inconsistent findings as to whether Mr Dyson did say he would undertake the advertising:
(a) as between this case and the JR appeal; and
(b) in this proceeding, as between the JR plaintiffs and non-JR plaintiffs.
141 Because of the way in which the State ran its case in the JR proceedings it is not accurate to describe the State as seeking to advance a position which was determined adversely to it in earlier litigation. As is evident from the above discussion the State was, in effect, in the same interest as MAPA in the JR proceedings and there was no issue as between the JR plaintiffs and the State as to whether the conversation between Mr Dyson and Mr Paul Menke was relevant to the determination of the issues in those proceedings. This case is therefore not, in this respect, on all fours with Reichel v Magrath[22] and Coffey v Secretary, Department of Social Security.[23] Nonetheless, it is my view that the risk of inconsistent findings of fact as between this case and the JR appeal is plainly not desirable. The State actively participated in the JR appeal and by reason of the outcome of that proceeding took the benefit of a finding that Mr Dyson had said he would undertake the s 137 advertising. It now seeks to argue precisely to the contrary in these proceedings. I am inclined to think it would bring the administration of justice into disrepute to allow it to do so.
142 Further, the risk of having inconsistent findings of fact on the same issue in the one proceeding is something which I am comfortably satisfied can appropriately be regarded as bringing the administration of justice into disrepute.
143 At the very least I would regard the risk of inconsistent findings in the two ways I have described as contrary to the timely and efficient administration of justice.
144 In the circumstances, I am satisfied that the State is precluded from contending that Mr Dyson did not say he would undertake the s 137 advertising on MAPA's behalf vis- à-vis the claim of the non-JR plaintiffs.
145 As I have noted above, the State's position is that if I reached the view that it was precluded from asserting that Mr Dyson did not undertake to conduct the s 137 advertising I should then find that the plaintiffs were precluded from advancing their claims in negligence altogether on the basis of an Anshun estoppel.
146 Essentially, this proposition seemed to be advanced on what might colloquially be described as a 'what is sauce for the goose should be sauce for the gander' basis. In other words, if I held that the issue of whether Mr Dyson said the Department would undertake the s 137 advertising was so connected with the subject matter of the JR proceedings as to have made it unreasonable in the context of those proceedings for the State not to have led evidence disputing that fact then equally it was unreasonable for the plaintiffs not to have advanced a case of negligence in the JR proceedings.
148 First, the non-JR plaintiffs were not parties nor privies in the JR proceedings. No Anshun estoppel can arise in relation to their cases.
149 Secondly, the basis upon which I have held that the State is precluded from contending that Mr Dyson did not say the Department would undertake the s 137 advertising is not Anshun estoppel but issue estoppel in the case of the JR plaintiffs and abuse of process in the case of the non-JR plaintiffs. In neither case does the conclusion rest on the unreasonableness of the State not raising an issue in the JR proceedings. It rests on the fact that the very issue was raised and determined in those proceedings, contrary to the manner in which the State seeks now to run its case.
150 Thirdly, in respect of the JR plaintiffs, I do not accept that the claim of negligence was so connected with the subject matter of the JR proceedings as to have made it unreasonable in the context of those proceedings for the claim of negligence not to have been made or the issue not to have been raised in those proceedings.
151 The plaintiffs tended to focus their argument on the reasonableness of them not having alleged negligence in the JR proceedings in relation to the failure of Mr Dyson to undertake the s 137 advertising. They contend that they could not reasonably have been expected to know:
(a) the likely content of Mr Paul Menke's evidence;
(b) that the State would not adduce evidence to contradict the evidence regarding the conversation with Mr Dyson; or
(c) that Justice Cavanough would accept Mr Menke's evidence regarding that conversation.
152 I am not satisfied the matter can be approached just by focussing on Mr Paul Menke's evidence of his conversation with Mr Dyson regarding the s 137 advertising. Whilst on the plaintiffs' case Mr Dyson's alleged failure in this regard is a particular of his negligence, the bringing of a negligence case did not depend on that failure alone. Even accepting the matters set out above, the plaintiffs could still have asserted a case in negligence relating to the approval of the grant of the leases in circumstances where no advertising had occurred.
153 I am satisfied the JR plaintiffs could have raised the issue of negligence in the context of the earlier proceedings but in my view it was not unreasonable for them not to do so for the following reasons:
(a) success in the JR proceedings would have rendered any negligence claim unnecessary;
(b) the addition of a negligence claim in the JR proceedings would have added significantly to the issues in dispute and the trial time for those proceedings. A trial which was conducted on affidavit over three days would have become a trial with significant witness evidence (both lay and expert) conducted over at least 13 days;
(c) if the plaintiffs had brought a claim in negligence a 13 day trial with expert evidence would likely not have been capable of being heard in March 2020. This is likely to have been so in any event but is made more likely having regard to the timing of Mr Paul Menke's evidence. His affidavit was filed on 16 December 2019. If the JR plaintiffs had sought to amend an (assumed) pleading to rely on the asserted conversation as a particular of negligence they would have almost certainly imperilled their March 2020 trial date; and
(d) unlike the State, the JR plaintiffs do not in this proceeding seek to assert any matter of fact or law inconsistent with the matters of fact or law determined in the JR proceedings.
154 Further, in my view, the State suffers no prejudice from allowing the JR plaintiffs to bring their claim in negligence.
155 In terms of the time and expense of these proceedings:
(a) the State would have had to face claims from the non-JR plaintiffs in any event, the additional time and expense associated with the claims of the JR plaintiffs are in the grand scheme of things relatively minor; and
(b) because of the way in which the State has deployed its Anshun estoppel argument it in fact makes no saving of time or expense.
156 For reasons I discuss below, I am not satisfied it makes any difference to the State's defence of this matter vis-à-vis the JR plaintiffs whether it is precluded from denying Mr Dyson took on the responsibility of the s 137 advertising in the conversation he had with Mr Paul Menke.
157 In all the circumstances, I would reject the State's argument that the plaintiffs are precluded by an Anshun estoppel from bringing their claims in negligence.
158 The first element of the tort of negligence which the plaintiffs must establish is that one or other of the public servants owed the plaintiffs a duty of care to take reasonable care not to cause them loss or damage. Here, the existence of a duty is in contest because the loss which the plaintiffs say they suffered is characterised as pure economic loss.
161 Mallonland Pty Ltd v Advanta Seeds Pty Ltd ('Mallonland')[28] establishes that a duty of care to avoid economic loss may well be established if the public servants (or any of them) assumed a responsibility towards the plaintiffs.
162 If there has been no assumption of responsibility, the accepted approach in determining whether a 'novel' duty to avoid pure economic loss arises is the consideration of the 'salient features' of the relationship between the plaintiffs and the putative tortfeasor.[29]
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
164 As his Honour noted, it is not necessary to consider every feature in every case and the list is non-exhaustive.[32]
165 I deal first with those factors which might tend to negate a duty of care and then those which might establish one.
166 In Mallonland the plurality identified two policy reasons underpinning the general rule regarding the absence of a duty to take reasonable care to avoid pure economic loss:
The general rule is also said to reflect policy concerns about the potentially excessive scope of liability for financial loss, referred to by Cardozo CJ as liability "in an indeterminate amount for an indeterminate time to an indeterminate class". Another policy reason said to justify the general rule is a concern to avoid infringing upon the legitimate pursuit of personal advantage.[33]
167 Neither of those identified policy reasons apply here.
168 The postulated duty here does not suffer from the indeterminacy problem identified by Cardozo CJ. The class of persons the subject of a duty is, in my view, those persons who might have had a commercial interest in the leased land, that is persons who might have held fishing or aquaculture licences which allowed them access to the land. That class of persons was readily ascertainable and not large. The time over which loss will be suffered is not indeterminant - it is the period of the lease and any likely renewal period. The potential extent of losses is not indeterminant.
169 The second policy concern arises because, in a society which rests on the notion of competition in pursuit of private profit, the legitimate pursuit of personal advantage will often have as its necessary consequence the infliction of economic harm or detriment on others. The imposition of a duty on the public servants does not give rise to that concern. They were not, in granting the leases, engaged in any pursuit for their own personal advantage. The consequences of a legitimate grant of a lease may have advantaged MAPA's interests at the expense of the plaintiffs, but the lease here was not legitimately granted.
170 Another policy concern arises from the general reluctance of courts to impose common law duties on governments or government officials which involve passing judgement on matters which are, in our system of representative democracy, appropriately left to the political process.[34] Those concerns do not arise here and no party contended they did. A determination of whether the grant of the leases was negligent does not 'involve the judicial resolution of the reasonableness of government conduct involving matters of politics or high or core government policy'.[35]
171 A further issue where the negligent act involves the exercise of a statutory power or discretion, is the extent to which the imposition of a duty of care is consistent with or coherent with the legislative framework.
172 At the outset it is important to observe that there is no inconsistency between the putative duty and the provisions of the Land Act. The postulated duty simply requires a public servant to act conformably with the statutory obligations imposed by s 137 of the Land Act and there is no provision of that Act which is inconsistent with the possibility of compensation for negligent conduct consisting of the invalid grant of a lease where no s 137 advertising has occurred. The State did not contend otherwise.
173 The State submitted that an inconsistency or lack of coherence arose between the proposed duty and the provisions of s 64C of the Fisheries Act. The State's contention in relation to s 64C of the Fisheries Act rests squarely on the notion that the loss and damage in this case arises from a decision following the grant of the leases to reduce the TAC in the Eastern Zone. At times the plaintiffs' submissions appeared to conflate the loss and damage they had suffered with the reduction in the TAC. In my view, this is not an accurate characterisation of what occurred.
174 Suppose that in April of one year a public servant had negligently spilled a chemical on the Tullaberga and Gabo Island reefs such that the abalone had all died and could not regrow for some years and that then in the following February the TAC had been reduced by eight tonnes in recognition of the unavailability of those reefs for harvesting. In those circumstances, it could not be said that the damage sustained by AFAL and quota holders was sustained by reason of a reduction in the TAC, the damage would have been sustained by reason of the negligent chemical spill and its impact on the availability of abalone to harvest. The reduction in TAC would have been a response to that damage which had already occurred.
175 Similarly here, upon the grant of the leases, the plaintiffs' right to fish for abalone was damaged. On the enforcement of exclusive possession, the practical effects of the removal of that right were manifest. Some months later the TAC for the Eastern Zone was reduced. However, that reduction was a recognition of damage which had already occurred. It was an acknowledgement, given effect by Ministerial Order, that the areas available to be fished had been reduced by the grant of the lease and that as a result the sustainable resource which could be exploited by the AFAL holders had also reduced. Even if the TAC had remained at the same level as previously, the removal of the right to fish in the lease areas had happened, the sustainable levels of abalone which could be fished were reduced and an economic impact on the licence and quota holders could be measured. The reduction in TAC was thus a consequence of damage which had already been sustained by the licence and quota holders, it was not the damage which they sustained.
176 In those circumstances, there is no incoherence between the provisions of s 64C of the Fisheries Act and the imposition of a duty on the public servants to avoid pure economic loss to licence and quota holders.
177 Reasonable foreseeability of a particular type of loss is a necessary condition for the existence of a duty of care. The parties' submissions did not address this question. It seemed both the plaintiffs' and the defendant's submissions were predicated on the basis that reasonable foreseeability was established. Nonetheless, for completeness, it is appropriate that I set out my view that the kind of loss suffered by the plaintiffs in this case was reasonably foreseeable:
(a) First, at a level of generality, it is reasonably foreseeable that if a lease is granted without any public notification process, persons who are not the lessee but were previously permitted to use the land the subject of the lease for commercial purposes will likely suffer loss if they are no longer permitted to use the land for those purposes; and
(b) Secondly, in the particular circumstances here it was reasonably foreseeable that if the leases were granted the plaintiffs would suffer loss. For reasons I deal with below, the public servants ought reasonably to have been aware of the interests of the plaintiffs in the lease areas and ought reasonably to have foreseen that granting a lease without public advertising to MAPA would adversely affect those interests and cause economic loss.
178 The actions of the public servants in this case caused damage to property. The property was not tangible property and the damage was not physical damage, but it is, in my view, a matter in favour of the imposition of a duty of care that the damage here was damage to property. In Hill v Van Erp[36] Gaudron J said 'where the interest infringed is a precise legal right, it may sometimes be appropriate to treat the loss as more closely analogous to property damage'.[37]
179 There is an obvious analogy between the rights under the AFAL and a profit à prendre.[38] An owner of land who fundamentally changes the character of its use so as to substantially impact the exercise of rights under a profit à prendre may be liable to the grantee of the profit à prendre in damages. In Peech v Best[39] the plaintiff was granted a profit à prendre in respect of sporting and shooting rights over a farm for 14 years. With four years remaining, the owner of the land (and grantor of the profit à prendre) sold some of the land to a purchaser who immediately proceeded to clear land and build stables for racehorses, effectively denying the exercise of the shooting rights on that portion of the land which had been sold. The Court of Appeal held that whilst the owner could do what was necessary for the proper management of his land, he could not effectively oust the owner of the profit à prendre from exercising those rights over a substantial portion of the land.[40] The plaintiff's right had been infringed and he was entitled to a declaration and damages. The analogy with a profit à prendre shows there is no incoherence with the imposition of a duty of care in this case and the general approach of the common law.
180 I accept, however, that not too much should be made of the analogy with a profit à prendre. Whilst the courts have repeatedly accepted that AFALs and similar licences are a species of property, they have also emphasised the limited nature of the proprietary rights which attach to such licences.[41] In Alcock v Commonwealth,[42] the Full Federal Court dealt with the nature of the AFALs in the following terms:
It is not disputed that the appellant has property in his licence. However, that property is represented by the rights given by the licence from year to year and from time to time. No property comes into existence which is independent of the licence or is free of any conditions or restrictions which apply to the licence. Nor does any immediately apparent fetter exist upon the power of the Victorian Parliament to extinguish or modify the licence, or vary the conditions on which it is held.[43]
181 In Alcock v Commonwealth the creation of marine parks was held not to be an acquisition of property because the rights attaching to the AFALs could be modified by Parliament in the exercise of its own legislative power. That contrasts with this case where the impact on the plaintiffs' property occurs by reason of acts of the delegates in excess of statutory power.
182 At the time the leases were invalidly granted the plaintiffs' statutory rights to fish in the lease areas had been extinguished, the property in the form of the AFALs had been interfered with and, on the view I hold, the plaintiffs had suffered damage. In other words, the interest infringed is a precise legal right, involving intangible property, which may appropriately be treated as analogous to physical damage to tangible property.
183 In the circumstances, the nature of the right infringed is a factor in favour of the existence of a duty of care.
184 Vulnerability and control are distinct features of the salient features analysis but are often two sides of the same coin. Here that is the case and so it is convenient to consider them together.
185 Vulnerability is not established merely because there was a likelihood of the plaintiffs suffering economic loss if reasonable care was not taken:
The relevant vulnerability is the plaintiff's inability to protect him or herself from the economic loss that eventuated as a consequence of a defendant's carelessness, either entirely or in a way that would cast the consequence of loss on the defendant (for example, by contractual stipulations).[44]
186 In that relevant sense, the plaintiffs were vulnerable. Had the s 137 advertising been undertaken the plaintiffs would have had an opportunity to take steps to protect themselves by lobbying the Department to reject the application for the grant of the leases or by requesting that any lease preserve their rights of access (which would have been consistent with the initial lease application). The failure to undertake the s 137 advertising meant the plaintiffs simply had no ability to protect themselves from the consequences of the grant of leases which gave MAPA exclusive possession.
187 The next salient feature relevant to this case is the degree and nature of control able to be exercised by the defendant (or more strictly the public servants) to avoid harm. This factor has been described as being 'of fundamental importance in discerning a common law duty of care' in relation to those exercising statutory functions.[45] However, a duty of care is more readily found where a public official has embarked on the exercise of a power and does so negligently:
First, the feature concerning control of the relevant risk is usually discussed where there has been a failure to exercise a statutory power or an inadequate exercise of that power. What is in essence being said is that because you controlled the risk, you should have done something about it or something more than you did to avoid or minimise it. But where the relevant statutory entity or officer created the risk of harm by the positive exercise of power, to talk of control of risk is a little artificial. The risk was not just controlled. It was in fact brought about by the entity or officer. What is then said, and of course more directly, is that you should not have created the risk or at least had the plaintiff in contemplation when you created the risk.[46]
188 The public servants are 'less likely to be considered to have a "significant and special measure of control" over the risk of harm, such as to warrant the imposition of a duty of care, where control over the risk of harm that eventuated was fragmented, or where there were several intervening levels of decision-making between the conduct of that authority and the harm suffered by the plaintiff', but control need not be exclusive.[47]
189 The inability of the plaintiffs to protect themselves is a pointer to the degree and nature of control which the public servants exercised over the risk of harm which eventuated. It was the public servants, one way or another, who were responsible for granting the leases in breach of statutory requirements. It was not MAPA's fault such a lease was granted and it would not have been even if Mr Dyson had not undertaken the responsibility of ensuring the s 137 advertising would be done. Certainly there was no part played in the grant of the leases by the plaintiffs, they could not have known about them because they were not advertised.
190 The State says however, that control was fragmented. It says that the reduction in TAC is the cause of the harm and that this process involves the plaintiffs and the independent decision of the Minister or delegate under the Fisheries Act. For reasons I have discussed above, I do not accept that characterisation. Upon the grant of the leases, or alternatively upon the enforcement of exclusive possession, both of which precede the reduction in TAC, the plaintiffs suffered loss in the form of a diminution in the value of their right to harvest abalone under the licences or quota units.
191 Further, the State says that the plaintiffs have not established they would have seen any published notice and that, even if they had, they have not established that they would have persuaded a decision-maker not to grant the lease. It says this is not just a causation question but shows the level of decision-making independent of the failure to advertise and that this demonstrates that the grant of the lease itself is not a breach of duty of care. I deal with this question at greater length when it comes to causation but for present purposes, it is enough to say that even if I accepted the factual premise of the State's proposition in this regard I do not accept that it is appropriate to analyse breach by reference to the failure to advertise, the fundamental breach of duty is the grant of the leases when there had been no advertising.
192 Finally, the State says that insofar as the plaintiffs seek to recover their legal expenses in the JR proceedings that was a matter over which they had control. I accept that the plaintiffs had a measure of significant control over that aspect of the damages they claim but I am not satisfied that provides an answer to the existence of a duty of care in circumstances where, as I have said above, they did not have control over the other form of harm being diminution in the value of their right to harvest abalone under the licences or quota units. Nor in the circumstances does the control the plaintiffs had over incurring legal expenses deny the existence of a duty on the part of the State to prevent that harm (though as will be seen I regard those expenses as unrecoverable on other grounds).
193 Overall, I am satisfied that the plaintiffs' vulnerability, together with the State's significant control in relation to the harm they suffered, are significant factors in the context of this case in favour of the existence of a duty of care on the part of the public servants to avoid pure economic loss to the plaintiffs.
195 The evidence in this case does not establish actual knowledge.
196 Each of Mr Beaumont and Ms Volkering had a general awareness of the commercial abalone fishing industry. Mr Beaumont also knew of an abalone industry near Gabo Island because on occasion he issued approvals for abalone fishers to transit through marine national parks. Neither delegate knew at the time they approved the grant of the leases that there were commercial abalone fishers who had access to the areas of the lease; the approval briefs gave the opposite impression and the evidence does not establish that either delegate had independent knowledge of the plaintiffs' prior access to the lease areas.
197 At the time he prepared the approval briefs,[50] Mr Dyson also did not have actual knowledge of the plaintiffs' prior access to the lease areas. The briefs make no mention of any such access and they attach the approval in principle brief which says 'it is clear beyond reasonable doubt that [MAPA] is the only prospective tenant due to it holding a Fisheries Licence to operate at these sites'.
198 In his evidence Mr Dyson was questioned regarding the initial lease application and the email from Messrs Timothy Shepherd to Darryl Burns dated 3 December 2012, both of which would have alerted him to the plaintiffs' access to the lease areas. His evidence was that he had read those documents prior to giving evidence but could not recall ever having read them prior to his preparation of the approval briefs.
199 Mr Dyson was a somewhat unimpressive witness and the plaintiffs invite me to conclude that, contrary to his evidence, he more probably than not at some stage after taking over the file and prior to preparing the brief had read the initial lease application and the 3 December 2012 email. I agree that is what he should have done, but having seen Mr Dyson in the witness box and having regard to the contents of his briefing notes, I am satisfied that it is more likely that Mr Dyson did not at any stage prior to preparation of the approval briefs read the full file and in particular, did not read the initial application or the 3 December 2012 email.
200 On the other hand, I am comfortably satisfied that, had he exercised a basic level of competence, Mr Dyson would have read those two documents when he was tasked with dealing with the lease proposal and that he should have read or re-read the file before he prepared the approval briefs. Mr Dyson was, at the relevant time, dealing with approximately 10 leases and the file in respect of these leases would not at the time Mr Dyson assumed carriage of the lease applications have been very large. Mr Dyson was aware the Department's policy was that a lease should not be granted unless it was clear 'beyond reasonable doubt' that there was no other prospective tenant and he was aware that the grant of the leases would give MAPA exclusive possession. It would not have taken long to read the file and I am satisfied Mr Dyson ought to have done so. At the very least he should have read the initial application.
201 Mr Dyson ought to have known that the lease areas were the subject of commercial abalone fishing and he ought to have briefed the delegates in relation to that fact. As a result, the delegates ought to have known that the lease areas were subject to commercial abalone fishing.
202 I am satisfied that if Mr Dyson had acted competently each of the public servants would have known of the plaintiffs' interests in the lease areas. This is a case where the absence of actual knowledge is not decisive. I am satisfied that the 'gross carelessness' of Mr Dyson (which I discuss below in more detail) and the constructive knowledge of the public servants are sufficient in this case taken together with other salient features to establish a duty of care.
203 Separately and in any event, I have found that had the s 137 advertising been undertaken the plaintiffs and their interests would have come to the attention of the public servants. The s 137 advertising was a mandatory requirement and it ought to have been done. On this basis also the public servants had constructive knowledge of the plaintiffs and their interests.
204 Having regard to the salient features I have discussed above, I am satisfied that the plaintiffs have established that each of the public servants owed the plaintiffs a duty of care to take reasonable care not to cause them loss or damage, notwithstanding the characterisation of that loss as pure economic loss.
205 The circumstances which justify the imposition of such a duty (and take this case out of the general run of cases involving pure economic loss) may be summarised as:
(a) there is no indeterminacy problem;
(b) no issues arise regarding the legitimate pursuit of economic interests by the public servants;
(c) the statutory functions here are not matters of politics or high or core government policy;
(d) there is no incoherence between the imposition of the duty and s 64C of the Fisheries Act;
(e) the grant of the leases infringed an intangible property right;
(f) the plaintiffs were vulnerable in the relevant sense, because the failure to advertise meant they had no way to protect themselves from the grant of the leases;
(g) the State controlled whether they suffered the harm; and
(h) the public servants ought to have known of the existence of the plaintiffs.
206 It will be observed I have reached that conclusion without reference to an assumption of responsibility by Mr Dyson. I deal with that feature below.
207 An assumption of responsibility towards the plaintiffs is a salient feature which will, it seems, generally establish a duty of care to avoid pure economic loss. The plurality in Mallonland put it this way:
Where a defendant has assumed a responsibility towards the plaintiff to take reasonable care to avoid economic loss to the plaintiff, a duty of care may well be established. The term "assumption of responsibility" has been criticised as "imprecise and beguiling but deceptively simple". An assumption of responsibility is best understood as an undertaking (whether express or implied) by a person to take on a task or job for another person or class of persons, from which it can be inferred that the first person accepted that he or she would take reasonable care when engaging in that task or job.[51]
208 It is plain from the separate reasons of Edelman J in Mallonland that if he were given a blank page, devoid as it were of previous authority, assumption of responsibility would be the only basis upon which a duty to avoid pure economic loss would arise.
209 In this case the plaintiffs' primary contention is that Mr Dyson voluntarily assumed responsibility for the s 137 advertising in the conversation between Mr Dyson and Mr Paul Menke in April 2018 (a fact which I have held the State is precluded from denying) and that this gives rise to the requisite duty of care to the plaintiffs.
210 One obvious problem for the plaintiffs in this regard is that Mr Dyson assumed responsibility to MAPA for advertising which was MAPA's responsibility. The plaintiffs say in response that:
(a) the plurality in Mallonland use the phrase 'assumed a responsibility towards the plaintiff';
(b) that language does not imply that the assumption must have been communicated to the plaintiffs or relied upon by them;
(c) all that is required is that the assumption of responsibility is for the plaintiffs' benefit or protection; and
(d) having regard to the purpose of s 137 advertising, the assumption of responsibility to undertake s 137 advertising was for the plaintiffs' benefit or protection.
211 The plaintiffs' reliance on the words 'towards the plaintiff' in Mallonland struck me at first as a somewhat Jesuitical approach to the language of the plurality judgment, but a consideration of the authorities on which the plaintiffs rely, a helpful article referred to in Mallonland and the purpose for which s 137 advertising is undertaken, has led me to conclude it is justified.
212 In their formulation of the assumption of responsibility as the undertaking by a person to take on a job or task for another person or class of persons, the plurality in Mallonland echoes the language of an article by Professor Donal Nolan 'Assumption of Responsibility: Four Questions'.[52] In that article Professor Nolan notes that 'assumption of responsibility' has three possible meanings:
(1) the taking on of a task, including by beginning performance of it ('role' responsibility, and the second sense of 'undertaking'); (2) the acceptance of a legal duty (which is to say, an acceptance of responsibility in the 'legal responsibility' sense); or (3) the giving of a promise or assurance (the first sense of 'undertaking').[53]
213 The article suggests that judges have, from time to time, used all three meanings and sometimes used more than one meaning in the same judgment.[54] Ultimately though, the article concludes that an analysis of the cases suggests the most plausible meaning which results in a legal duty being owed is the first, the taking on of a task for a person.[55] In this context the learned author makes plain that the knowledge or consent of the person for whom the task is undertaken is not a necessary condition of assumption of responsibility in that sense, referring to the example of the doctor who provides medical assistance to an unconscious swimmer at the beach.
214 Interestingly however, Professor Nolan describes the House of Lords decision in White v Jones ('White')[56] as 'arguably the single most illuminating case' on the assumption of responsibility.[57] In White the House of Lords held that an intended beneficiary under a will was entitled to recover damages as a result of the testator's solicitors' negligence but Professor Nolan analyses the speeches in the House of Lords and concludes that this was not a situation where liability was imposed because of an assumption of responsibility (the solicitor having undertaken the task for the testator not the beneficiaries) but an imposition of deemed liability.[58] That analysis has relevance to this case because of the plaintiffs' reliance on the decision of the High Court in Hill v Van Erp.[59]
215 In Hill v Van Erp a solicitor, Mrs Hill, prepared a will on instructions from a client. Those instructions included that the client wished for her house to be devised to her son and her friend and neighbour, Mrs Van Erp. Mrs Hill prepared the will and arranged for its execution. At her request Mr Van Erp attested to the client's signature. Pursuant to the relevant statutory provision applying in Queensland at the time, this made the will null and void to the extent it made provision for Mrs Van Erp. Mrs Van Erp sued Mrs Hill in negligence and succeeded at first instance, this judgment was affirmed by the Court of Appeal and subsequently by the High Court.
216 Five judges of the High Court (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ) held that Mrs Hill owed Mrs Van Erp a duty of care, but their reasons differed. McHugh J dissented.
217 Brennan CJ did not rely on any assumption of responsibility by Mrs Hill to Mrs Van Erp. His Honour held that loss to the beneficiary was foreseeable, the very essence of the solicitor's retainer was to ensure the testator's instructions as to testamentary gifts were given effect. His Honour regarded the imposition on the solicitor of a duty of care in negligence to the intended beneficiary as necessary to enforce the duty owed by the solicitor to the client as otherwise there would be no sanction for Mrs Hill's breach of professional duty.[60]
In my view, the relationship between the solicitor, Mrs Hill, and the intended beneficiary, Mrs Van Erp, was one of proximity which did give rise to a duty of care on the part of Mrs Hill towards Mrs Van Erp. No single factor, such as an assumption of responsibility by the solicitor, leads me to that conclusion. The relevant circumstances are more complex than that.[61]
[I]n cases such as the present one, there is both an assumption of responsibility of a kind, and reliance of a kind, which at least on grounds of policy suggest that a relationship of proximity might be recognised even though neither is in a form which would suffice in cases where those elements are crucial to a relationship of proximity.[62]
219 The relevant circumstances which gave rise to assumption of responsibility 'of a kind' were held to be:[63]
(a) The person to whom a client wishes to make a bequest is the object of the client's intention, that is the very purpose of the solicitor's retainer is to carry out the wishes of the client to confer testamentary benefits on intended beneficiaries.
(b) The position of the solicitor as a professional person exercising specialised skill and knowledge.
(c) The interest of the intended beneficiaries were relevantly the same as the interest of the client.
(d) A 'general reliance' extending beyond clients placed upon solicitors in relation to the execution of wills.
(e) The fact that the solicitor's mistake is not generally discoverable by anyone other than the solicitor during the testator's lifetime and only becomes apparent after the death of the client, at which point the error is irreversible.
220 Gaudron J expressly rejected the notion that the relationship between Mrs Hill and Mrs Van Erp was characterised by either assumption of responsibility or reliance.[64] Her Honour's conclusion rested primarily on two features:
221 Gummow J also rejected the notion that Mrs Hill had assumed responsibility to anyone other than her client and said:
Any such general notion of "assumption of responsibility" by reference to the performance of services and without identification of those to whom or for whose benefit they are performed has attracted criticism, with which I agree. [67]
222 Other than reasonable foreseeability, his Honour held that the existence of a duty of care relied on a complex set of factors:
These matters include the extent to which the engagement of Mrs Hill by the testatrix plainly was designed to enhance the economic position of Mrs Van Erp as a particular individual, the control exercised (as a practical matter) over the realisation by the testatrix of her testamentary intentions towards Mrs Van Erp, and the closeness of the connection between the request by Mrs Hill to Mr Van Erp that he attest the will and the direct legal effect thereof, being the consequent failure of the gifts to Mrs Van Erp by the will. There is also the public interest in the promotion of professional competence and the avoidance of disappointment of the wishes and expectations of testators and beneficiaries by negligent actions of solicitors.[68]
223 Hill v Van Erp is footnoted in the passage of the plurality judgment in Mallonland quoted above. The pinpoint references referred to in that footnote are from the judgments of Brennan CJ, McHugh and Gummow JJ but no reference is made to Dawson J's judgment. As noted above, Brennan CJ did not squarely rest his reasons on a general assumption of responsibility, Gummow J eschewed a general notion of responsibility by reference to the assumption of a task without identification of the persons for whose benefit it was performed and McHugh J held there was no duty because there had been no assumption of responsibility.
224 The upshot, in my view, is that Hill v Van Erp is probably a case best explained as arising from the particular circumstances of the solicitor's duty to their client and the nature of the task of preparing a will which inevitably involves beneficiaries, rather than an assumption of responsibility in the sense of undertaking a task for a person or class of persons. Only the judgment of Dawson J (with whom Toohey J agreed) adopts the language of assumption of responsibility and it is plain that his Honour's use of that language is qualified by the acceptance that there is an assumption of responsibility 'of a kind' which is justified on grounds of policy. Those policy grounds and the distinguishing circumstances on which Dawson J relied do not arise here. Nor are the present circumstances analogous. In particular the task here, being the s 137 advertising, did not inevitably involve the identification of persons with an interest in the lease areas objecting to the grant.
225 If Hill v Van Erp were the only authority on this question I am disinclined to think it would provide much assistance to the plaintiffs.
226 Next, the plaintiffs rely on Bryan v Maloney[69] and Moorabool Shire Council & Anor v Taitapanui ('Moorabool Shire Council').[70] In Bryan v Maloney a builder was held to owe a duty of care to a subsequent purchaser to take reasonable care to avoid pure economic loss in the construction of a house. The High Court has twice subsequently, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd ('Woolcock')[71] and Brookfield Multiplex Ltd v Owners - Strata Plan No 61288 ('Brookfield')[72] distinguished and explained Bryan v Maloney as being dependent on the coextensive nature of the anterior duty to the first owner and the duty found owing to subsequent purchasers, but it is also one of the cases footnoted by the plurality in Mallonland in the passage set out above.
227 In Moorabool Shire Council, a decision which came after Woolcock, the Court of Appeal noted that Bryan v Maloney remained good law and held that in relation to the negligent issue of a building permit for a domestic building, a building surveyor owed a duty of care to avoid pure economic loss to subsequent purchasers of the property. For present purposes, then, it is sufficient to consider Bryan v Maloney and its application to the present facts.
228 In Bryan v Maloney a house had been negligently constructed with inadequate footings under a contract between the builder and the original owner. Mrs Maloney purchased the house unaware of the defects in the footings. They were subsequently discovered and she sued the builder in negligence. At first instance, on appeal in the Tasmanian Supreme Court and in the High Court Mrs Maloney succeeded.
229 At the outset, it is important to note that whilst Mrs Maloney sued in respect of a physical defect her claim was treated as a claim for pure economic loss being the diminution of the value of her house.
In that regard, damage to the fabric of the house could not properly be treated as ordinary physical injury to property by reference to a "complex structure theory" of the kind adverted to by Lord Bridge of Harwich in D. & F. Estates Ltd. v Church Commissioners. At least in a case such as the present where the whole building has been erected by the one builder, "the complex structure theory offers no escape from the conclusion that damage to a house itself which is attributable to a defect in the structure of the house ... represents purely economic loss".[73]
230 Nonetheless, the fact that the economic loss arose from the existence of a physical defect played a part in the majority's holding that a duty of care existed:
Here, the distinction is between ordinary physical damage to a house by some external cause and mere economic loss in the form of diminution in value of a house when the inadequacy of its footings first becomes manifest by consequent damage to its fabric. Obviously, that distinction, which has only recently attained general acceptance, is an essentially technical one.[74]
231 The plurality of Mason CJ, Deane and Gaudron JJ reached their conclusion that a duty of care to avoid pure economic loss was owed by the builder to the first owner, reasoning as follows:
(a) there was no reason in principle why the builder could not owe concurrent duties in contract and tort to the original owner;
(b) the builder owed the original owner a duty in respect of physical damage and (as set out in the quote above) in the instant case the distinction between ordinary physical damage and the particular kind of economic loss was essentially a technical one;
(c) as between the builder and the original owner there was no issue of indeterminacy nor any issue of conflict with the builder's legitimate pursuit of his economic interest;
(d) 'the ordinary relationship between a builder of a house and the first owner with respect to that kind of economic loss is characterized by the kind of assumption of responsibility on the one part (i.e. the builder) and known reliance on the other (i.e. the building owner)';[75] and
(e) it was not suggested that there was any feature of the contract between the builder and the first owner which excluded or modified the posited duty of care.
232 The plurality then considered the existence of a duty of care in relation to the builder and a subsequent purchaser:
(a) a critical factor in favour of a duty was that the house was a permanent structure used indefinitely;
(b) the damage to subsequent purchasers was reasonably foreseeable;
(c) the distinction between property damage and the particular kind of pure economic loss was essentially technical;
(d) there was no question of the pursuit by the builder of his legitimate economic interest;
(e) whilst there was a potential indeterminacy of time there was no indeterminacy of the class to whom the duty would be owed and no greater indeterminacy of the amount of damages that would exist so far as any duty owed to the first owner; and
(f) there was an assumption of responsibility by the builder and a reliance by subsequent owners.
233 It is the last of the above matters on which the plaintiffs place particular reliance. In that regard the plurality said:
Upon analysis, the relationship between builder and subsequent owner with respect to the particular kind of economic loss is, like that between the builder and first owner, marked by the kind of assumption of responsibility and known reliance which is commonly present in the categories of case in which a relationship of proximity exists with respect to pure economic loss. In ordinary circumstances, the builder of a house undertakes the responsibility of erecting a structure on the basis that its footings are adequate to support it for a period during which it is likely that there will be one or more subsequent owners. Such a subsequent owner will ordinarily have no greater, and will often have less, opportunity to inspect and test the footings of the house than the first owner. Such a subsequent owner is likely to be unskilled in building matters and inexperienced in the niceties of real property investment. Any builder should be aware that such a subsequent owner will be likely, if inadequacy of the footings has not become manifest, to assume that the house has been competently built and that the footings are in fact adequate.[76]
234 In his separate reasons joining in the majority Toohey J also found the builder owed a duty of care to Mrs Maloney to avoid the particular form of economic loss because of policy considerations:
...that latent defects will not manifest themselves for a considerable time, often after the property has been sold to an unsuspecting purchaser; that in a mobile society a builder must expect that the house will be sold within a relatively short time; that a subsequent purchaser has little opportunity to inspect and little experience and knowledge about construction; that the builder already owes a duty to the building owner to build in a workmanlike manner; and that confining recovery to the first purchaser might encourage sham first sales as a means of insulating builders from liability.
... I would add to [those considerations] the importance of a house to any buyer, something which is well recognized and would certainly be understood by a builder. Furthermore, there is a very direct relationship between the negligence of the appellant and the loss sustained by the respondent. It is only a matter of timing that the cracks in the wall appeared while the respondent was the owner rather than Mrs. Manion.[77]
235 What then does Bryan v Maloney relevantly establish for the purposes of the plaintiffs' submission regarding the putative assumption of responsibility by Mr Dyson in this case?
(a) Bryan v Maloney is an example of a case in which the Court held that there was an assumption of responsibility by a person to a plaintiff (as a member of a class) in circumstances where that assumption of responsibility had not been communicated to the plaintiff.
(b) In this case there would be no relevant difference between any duty owed to Mr Paul Menke as a result of the assumption that the Department would undertake the s 137 advertising and the duty which will be owed to the plaintiffs by reason of that same assumption of responsibility. In other words, the basis for distinguishing Bryan v Maloney in Woolcock and Brookfield is not a factor here.
(c) The task undertaken in Bryan v Maloney was one where the builder could be assumed to know there would be subsequent purchasers. The task undertaken here was one where, had Mr Dyson read the file, he would have known of the plaintiffs and their interests.
237 There are, of course, very real differences between Bryan v Maloney and this case; most obviously the absence of the permanent nature of the building and the absence of the physical element to the loss. Those matters, however, go to the overall assessment of whether a duty was owed not to the reasoning as to whether there was an assumption of responsibility to persons by reason of undertaking a task.
238 Mr Dyson undertook a task of advertising the leases as required by s 137 of the Land Act. That task was for the benefit of MAPA, it was a necessary statutory precondition to obtaining leases which MAPA had long desired, but the plain purpose of s 137, in my view, is to provide notification of the proposed lease to persons whose interests might be affected. In that sense I am satisfied that, in undertaking the task of advertising on behalf of MAPA, Mr Dyson was undertaking a task on behalf of those whom s 137 advertising was designed to notify, in this case the plaintiffs.
239 On balance then, I am satisfied that the plaintiffs have established that there was an assumption of responsibility by Mr Dyson towards the plaintiffs in the sense that notion is employed by the plurality in Mallonland. This provides a further salient feature on which to base the existence of a duty of care to avoid pure economic loss to the plaintiffs, though as is plain from the above, I find that such a duty would be established even without any assumption of responsibility on Mr Dyson's part.
240 At this point it is appropriate to consider the position if I am wrong regarding the State being precluded from asserting that Mr Dyson did not say to Mr Paul Menke that the Department would arrange the s 137 advertising. In that event, I would not, on the basis of the evidence before me, find that Mr Dyson did say that the Department would undertake the advertising. Having regard to all of the materials, I think it is more likely that Mr Dyson offered to provide assistance in the form of providing a draft notice to MAPA, but not that he said the Department would undertake the advertising. That is consistent with the documentary evidence all of which describes the obligation to undertake the s 137 advertising as being MAPA's obligation. It is consistent with Mr Dyson's own actions in preparing an advertisement (although he never forwarded it to Mr Menke) and it is consistent with Mr Dyson's evidence on this question which, notwithstanding I did not regard him as an impressive witness, on this issue I accept.
241 In their closing submissions the plaintiffs put an alternative position which was that if Mr Dyson had not said the Department would undertake the s 137 advertising but had said that he would prepare a draft notice, provide it to MAPA and provide MAPA with guidance as to how it should be published that could also be characterised as an assumption of responsibility which would found a duty of care. I reject that alternative submission. As the State submitted, it cannot be the case that a public servant who merely offers to help a citizen in relation to the discharge of that citizen's statutory obligations can be rendered liable for the consequences of the failure of the citizen to comply with their statutory obligation because the public servant failed to provide the proffered assistance. In that instance 'the task or job' (if a mere offer of assistance is properly characterised as such) which the public servant undertakes is to assist the citizen. On no view can it sensibly be said that it involves any assumption of responsibility to third parties, that responsibility would remain with the citizen who was offered assistance (in this instance MAPA).
242 At the risk of repetition, even in this alternative scenario, I would find the public servants owed the plaintiffs a duty of care but on the basis of salient factors other than the assumption of responsibility.
243 In considering whether there was negligence on the part of any of the public servants I am required to apply ss 48 and 49 of the Wrongs Act 1958 (Vic) ('Wrongs Act').
244 Section 48 provides:
(1) A person is not negligent in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
245 Section 49 provides:
In a proceeding relating to liability for negligence -
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
246 I turn now to consider the evidence in relation to each of the public servants.
247 Mr Dyson is central to the failures of process in this case. He was the departmental officer with primary carriage of the leases from January 2017 through until their grant and registration, he prepared the approval in principle brief, he prepared a draft advertisement which was never published nor forwarded to MAPA, he prepared the final approval brief for the Gabo Lease and he signed off as Acting Manager Leasing on the final approval brief for the Tullaberga lease, which had been prepared by Mr Cameron McKenzie.
248 In its written closing submissions the State conceded that if the Court were to hold that Mr Dyson had voluntarily assumed responsibility for the s 137 advertising 'it would follow that he did not take reasonable care to ensure that occurred'. I have held that the State is precluded from denying that Mr Dyson had voluntarily assumed responsibility for the s 137 advertising. On that basis, the State has conceded Mr Dyson's breach of duty in that respect.
249 The evidence establishes a number of other material respects in which Mr Dyson failed to exercise reasonable care. In particular, as I discuss in detail below:
(a) as someone with carriage of an application for a Crown lease, Mr Dyson did not read the application for the Crown lease;
(b) Mr Dyson prepared the approval in principle brief without taking any meaningful step to satisfy himself that it was 'clear beyond reasonable doubt' that MAPA was the only prospective tenant and no meaningful step to ascertain whether there were other persons whose interests might be affected by the grant of the proposed leases;
(c) as the person who prepared the brief for final approval of the Gabo lease Mr Dyson failed to check whether the s 137 advertising had been completed and failed to address the question of s 137 advertising at all in that brief notwithstanding it was a mandatory statutory requirement; and
(d) as the person who reviewed the brief for final approval of the Tullaberga lease (and as the person who had had carriage of that lease for most of the period since 2017) failed to ask Mr McKenzie to check whether the s 137 advertising had been completed, failed to check himself whether the s 137 advertising had been completed and failed to ask Mr McKenzie to address that topic in the brief notwithstanding it was a mandatory statutory requirement.
250 The failure to read the application on the file, the failure to take any meaningful step to investigate whether there were others whose interests in the lease area might be affected and the failure to undertake the advertising all contributed to the invalid grant of the leases. However, even without those failures the critical failures in this case were those associated with the briefs for final approval: the fact that no adequate check was made of whether advertising had in fact been conducted and the fact that the brief which was prepared failed to address whether the mandatory statutory requirement had been fulfilled.
251 In terms of the pleaded case I am satisfied Mr Dyson breached his duty of care in:
(a) voluntarily assuming responsibility for the discharge of MAPA's statutory obligations under the Notice Requirement in respect of the proposed granting of the Crown Leases and then failing to ensure that the Notice Requirement was complied with:
(b) failing to make, or instruct any other employee of the State working for the Department to make, any arrangements to comply with the Notice Requirement;
(c) failing to instruct or direct employees of the State working for the Department who were dealing with MAPA's applications for the Crown Leases under the direction and control of Mr Dyson to ensure that the Notice Requirement had been complied with;
(d) failing to make any or any adequate enquiries of employees of the State working for the Department who were dealing with MAPA's applications for the Crown Leases under the direction and control of Mr Dyson to ascertain whether or confirm that, the Notice Requirement had been complied with;
(f) failing to inform or brief the Delegate or any other employee of the State working for the Department who reported to or briefed the Delegate, that the Notice Requirement had not been complied with.
252 For completeness, I note that the matters outlined above are not the only failures to take reasonable care demonstrated by the evidence. It is plain that Mr Dyson simply did not check the Gabo lease before it was executed. Had he done so he would presumably have recognised that it contained provisions regarding Port Phillip Bay which were completely inapposite to the Gabo lease. Ultimately nothing turns on this failure so far as the plaintiffs' claim is concerned but it provides further evidence of the slap-dash approach which Mr Dyson appears to have taken to the entirety of this process.
253 Since 2017 Mr Dyson has had a number of different job titles, but relevantly at all times has had responsibilities for Crown land leasing under the Land Act, the Crown Land (Reserves) Act 1978 (Vic) and the Forests Act 1958 (Vic). Those responsibilities included assessing applications for leases and preparing materials for the approval of leases by the Minister or their delegates. Mr Dyson gave evidence that during 2017 there were some 700 leases being administered by approximately six people. During the relevant period for the purposes of this proceeding, Mr Dyson had personal responsibility for approximately 10 leases.
254 Mr Dyson's evidence was that at the relevant times the Department's file on the lease was predominantly a hard copy file but with some documents saved on a shared G drive.
255 The plaintiffs invite me to find that Mr Dyson must have read the application for the lease completed by Mr Gerry Menke. However, I am satisfied that it is more likely that Mr Dyson did not ever go back to the file and read the application. His evidence on this issue is neatly encapsulated in the following exchange in cross-examination:
If there was a lease application to look at on the file, that's where you'd start correct?---Not necessarily.
What, you'd start half-way through the file, would you, and you wouldn't go back to the lease application, is that the evidence you're giving to the court?---Yes.[78]
256 If Mr Dyson had read the lease application, it is almost inconceivable that he would have taken the steps he in fact took in relation to the leases without first taking steps to ensure that he understood the circumstances of the abalone fishers who had access to the lease sites. He might also have taken much more care than he appears to have in ensuring compliance with the requirements for s 137 advertising.
257 The upshot though is, that on Mr Dyson's evidence, a public servant with the serious responsibility of assessing an application for a lease of Crown land thought it appropriate to make that assessment without actually reading the application. That exhibits a failure to exercise reasonable care.
258 At the time Mr Dyson took over the file in 2017 it would not have been voluminous. In my view it shows a lack of reasonable care not to have read the whole file. This would have drawn to Mr Dyson's attention not just the application for the lease but also the email exchange between Mr Shepherd and Mr Burns in November and December 2012 which flagged the issues which might arise from commercial abalone fishers and divers and that the application had not sought exclusive use of the lease sites. Whether or not Mr Dyson should have read the whole file, I am satisfied he should have read the application for the lease. He did not. His failure to do so was a failure to exercise reasonable care.
259 In giving his evidence regarding the steps undertaken in relation to the preparation of an approval in principle Mr Beaumont said an officer would:
...do things like consider whether there is any other competing land uses or were there any other reasons why you couldn't consider issuing a lease, whether or not there was already a tenant, often the case.[79]
260 Mr Dyson took no meaningful steps to investigate whether any other persons might have had an interest in the lease areas prior to the preparation of the approval in principle brief. In part, this stems from his failure to have read the application for the lease. In addition though, Mr Dyson reached his conclusion that MAPA was the only person who might have an interest in the land on the basis that MAPA had an aquaculture licence.
261 Mr Dyson knew that a lease granted exclusive possession and a licence did not. Plainly the fact that MAPA had an aquaculture licence provided no proper basis for the conclusion 'beyond reasonable doubt' that MAPA was the only prospective lessee and, more broadly, provided no basis for an assumption that there were no other persons whose interests might not have been affected by the grant of a lease. This is in my view another instance of Mr Dyson failing to exercise reasonable care. That said, the approval in principle brief was but a step along the way to the ultimate grant of the leases. His failure to exercise proper care to that point would not have mattered if he had exercised appropriate care at the stage of preparation of the briefs for final approval, unfortunately he did not.
262 Mr Dyson plainly had no real recollection or any sensible explanation of why it was that two leases were approved without s 137 advertising having been completed.
263 He gave evidence that he had helped develop a spreadsheet which the six people in the Crown leasing area maintained to keep track of the status of various necessary steps involved in the grant of a Crown lease. Because of the way that spreadsheet was maintained the State was unable to produce copies of the spreadsheet at the critical times. Two versions were in evidence.
264 One version of the spreadsheet was created in September 2017 and records the latest step taken in mid-November 2017, so presumably dates from about the time of that last recorded step. It contains a separate tab for aquaculture leases. There are 15 entries, one of which is 'Gabo + Tullaberga Island'. The spreadsheet records that the lease is in the Gippsland region, that the applicant is MAPA, that the application is for a new lease under s 134 of the Land Act and that the responsible officer is 'Dan', being Mr Dyson. The spreadsheet records various matters as done including: create file, application form and fees, consultation with the region and 'native title'. Further relevant details for the Gabo and Tullaberga lease entry are as follows:
The spreadsheet also records that lessee execution, ministerial approval, lease registration and finalisation are not complete.
265 Mr Dyson had sent a letter of lease offer to MAPA on 23 October 2017. It appears that as at mid-November 2017 Mr Dyson had not updated the spreadsheet to reflect this.
266 The other version of the spreadsheet was last modified on 26 October 2019. It is in a different form to the earlier version. It does not have a separate tab for aquaculture leases. It has a tab '(Closed) Completed 2018' which curiously does not contain reference to the Gabo lease but under the heading 'status' does provide a link on the G drive to a file referable to the Tullaberga lease but without any additional information. There is no reference to the Gabo lease at all in this spreadsheet.
267 This version of the spreadsheet also contains a tab 'Completed 2019' which has an entry for the lease at Tullaberga. The entries for the Tullaberga lease state that the lease has been sent to titles, that Mr Dyson is the person responsible for the lease, the date on which the lease was last actioned is 8 February 2019 and that all steps other than lease registration (including 'ads placed') are done. In fact, of course:
(a) The lease had been registered on 13 February 2019 and Mr Dyson had advised Mr Menke of this on 15 February 2019; and
(b) No advertising had been undertaken.
268 Mr Dyson gave evidence that a briefing note for final approval of a lease should identify whether advertising had occurred. His briefing note regarding the Gabo lease did not. Mr McKenzie's briefing note regarding the Tullaberga lease, which Mr Dyson checked, did not.
269 As to why the failure to advertise had been missed Mr Dyson could only speculate. He thought it was possible that he had mistaken the advertising for other aquaculture leases in mid-2018 with the advertising for MAPA's proposed lease(s). Even if that were so, it demonstrates a lack of care. All Mr Dyson had to do to check whether advertising had been done was to go to the file and see if there was any evidence of an advertisement or in the case of the Tullaberga lease ask Mr McKenzie to do that.
270 In any event, it is difficult to see how this explanation squares with the circumstances leading up to the preparation of the Gabo lease brief for final approval. That brief was prepared on or before 2 May 2018 which arguably is not mid-2018. The September 2017 version of the spreadsheet does not indicate that Mr Dyson had any responsibility for any aquaculture leases other than the Gabo and Tullaberga leases. More significantly, however, the brief for final approval was prepared less than a month after the telephone conversation with Mr Paul Menke where, whichever version of the conversation is accepted, it is plain that Mr Dyson was aware that advertising had not occurred in relation to the Gabo lease.
271 Mr Dyson further, thought it was possible someone had incorrectly changed the 'ads placed' entry to 'done'. That did occur at some stage prior to 29 March 2019 in relation to the Tullaberga lease, the last date on which the 'Completed 2019' tab in the 2019 spreadsheet was modified. There is no evidence at all of it having occurred in relation to the Gabo lease. Even if it had, there would have been no reasonable basis for Mr Dyson as the person with carriage of that lease to simply rely on the spreadsheet rather than check the file, in circumstances where he ought to have realised that he had not seen nor arranged any advertisement in the period between early April 2018 and the preparation of the brief for final approval.
272 In my view, the likely explanation in relation to the Gabo lease is that in preparing the final brief Mr Dyson simply forgot about the advertising requirement and that he checked neither the file nor the spreadsheet. This is consistent with the fact that the question of advertising is simply not addressed in that brief. Mr Dyson struck me as over-confident in his abilities. He saw his role as being to get the leases approved, he did not see it as necessary to read the lease application or the other documents on the file and in the two examples of the spreadsheet the Court has in evidence, he did not update the spreadsheet in a timely way. I am amply satisfied that in the case of the Gabo lease Mr Dyson simply did not exercise reasonable care before his preparation of the brief for final lease approval and that that lack of care was central to the approval of the leases without compliance with the s 137 advertising requirement.
273 Mr Dyson could not recall for precisely how long he was in the role of Acting Manager Leasing with Mr McKenzie having primary responsibility for the Tullaberga lease. Mr Dyson was sent the Crown Survey Approval on 19 December 2018 and he accepted it was likely he had ceased acting in that role by 15 February 2019 when he advised Mr Paul Menke that the lease had been registered.
274 In his role as Acting Manager Leasing, on 21 January 2019 Mr Dyson approved the brief for final approval which Mr McKenzie had prepared. It is likely that the fact that the brief for final approval of the Tullaberga lease did not address compliance with the s 137 advertising requirement is due to the fact that Mr McKenzie essentially used Mr Dyson's Gabo brief as a precedent. In that sense Mr Dyson's lack of reasonable care in relation to the Gabo lease carried over to the Tullaberga lease. In any event, given Mr Dyson's involvement with the lease I am satisfied that it showed a lack of reasonable care for him to approve a brief which did not address the issue of advertising at all when his approval in principle brief made clear this was an outstanding issue which needed to be addressed prior to final approval.
275 I am not satisfied that either of the possible explanations which Mr Dyson gives as to why the leases were approved without advertising in any way influenced Mr Dyson at the time of approval. Mr Dyson accepted he could not remember whether he had checked the spreadsheet prior to approving Mr McKenzie's brief and his evidence regarding possible confusion with advertising for other leases struck me as a matter of post facto reconstruction. I am satisfied that it is likely that Mr Dyson simply did not turn his mind to the need for advertising when he approved Mr McKenzie's brief. Had he exercised reasonable care he would have. Had he asked Mr McKenzie to check the file or provide a copy of an advertisement, he would have discovered there was none.
276 For completeness, I should note that whilst in the view I take it is unnecessary to determine who it was that altered the spreadsheet entry for the Tullaberga lease (or perhaps the Gabo and Tullaberga leases) for 'ads placed' from 'no' to 'done', I am satisfied that it is most likely it was Mr Dyson as the person with primary responsibility for that lease for most of the time and the person with responsibility for maintaining the spreadsheet entries with respect to that lease. Whilst the possibility that it was another person (in particular Mr McKenzie) cannot be ruled out, I regard it as more likely that Mr Dyson did so some time after the Gabo lease had been issued, based on his memory and without checking the file.
277 I am satisfied that Mr Dyson failed to exercise reasonable care in the approval of Mr McKenzie's brief for final approval of the Tullaberga lease and that that failure was a cause of the approval of the lease without s 137 advertising.
278 I turn now to specifically address the matters in ss 48 and 49 of the Wrongs Act.
279 I have dealt with reasonable foreseeability above in my discussion of whether a duty of care exists. I am satisfied:
(a) It was reasonably foreseeable that if a lease was granted without any public notification process, persons other than the lessee who had previously been permitted to use the land the subject of the lease for commercial purposes would likely suffer loss if they are no longer permitted to use the land for those purposes; and
(b) In the particular circumstances here it was reasonably foreseeable that if the leases were granted the plaintiffs would suffer loss. Had Mr Dyson read the lease application, as he ought to have, he would have been aware of the interests of the plaintiffs in the lease areas and ought reasonably to have foreseen that granting a lease without public advertising to MAPA would adversely affect those interests and cause economic loss.
280 The risk was not insignificant. In particular, whilst it might have been the case that in Mr Dyson's experience no-one had responded to advertising in relation to leases, it was not far-fetched nor fanciful that the grant of a lease without appropriate advertising would affect persons who had a legitimate interest in the use of the leased land. Had Mr Dyson been aware of the interests of the plaintiffs, as he would have been had he read the application for the leases, he would have understood that harm to the plaintiffs' rights to fish was not just a risk but the inevitable consequence of the grant of exclusive possession under the leases.
281 The precautions which Mr Dyson could have taken to avoid the risk of harm in this case are basic. He could have undertaken the advertising he said he would. He could have checked the file for an advertisement before he prepared a brief for final approval on the Gabo lease. He could have asked Mr McKenzie to check the file for an advertisement before approving the brief on Tullaberga lease or could have checked the file himself.
282 Having regard to each of the factors in s 48(3) I am satisfied that those precautions were steps a reasonable person would have taken in the circumstances.
283 Viewed in the abstract the probability of risk of harm might be low, given the Department's experience that generally there was no response to advertising but the potential consequences of a failure to advertise if there were people with interest in the use of the lease land were serious. Viewed in the context of a constructive awareness of the rights of the plaintiffs to fish in the lease areas, the probability of harm was essentially one and the consequences serious.
284 None of the precautions I have indicated would pose any significant burden on Mr Dyson, indeed on one view they might be considered to impose no burden but simply a requirement that he satisfy the basic functions of his position.
285 Whilst there may be a social utility in the capacity to grant Crown leases the concept of social utility would seem to have no application to the notion of leases granted contrary to statute.
286 Mr Dyson breached his duty of care to the plaintiffs.
287 Mr Beaumont now works in his own consulting business but prior to that had for ten years worked in the Royal Australian Navy, followed by 20 years in the Victorian public service. Relevantly for this proceeding, between 2014 and 2019 Mr Beaumont was the Executive Director, Land Management Policy and in that capacity provided final approval for the grant of the Gabo lease as a delegate of the Minister. He was an impressive and careful witness.
288 Mr Beaumont managed approximately 100 people in his division including the Crown leasing section.
289 Mr Beaumont gave evidence in general terms regarding the grant of final approval. He said he would check that the application was consistent with the approval in principle brief, whether anything had changed from the brief, whether there was anything that had been raised either by him or in the approval in principle brief itself which had not been answered, that the leases remained consistent with his delegated powers and that there was nothing which was inconsistent with government policy or relevant legislation.
290 In relation to the approval of the Gabo lease Mr Beaumont gave evidence that:
(a) he was aware of the notice requirement under s 137 of the Land Act;
(b) he looked at the approval in principle document which was attached to the brief but could not recall what he thought of it at the time;
(c) he would have looked at important parts of the lease but not all of it;
(d) he agreed that the fact that the lease contained references to Port Phillip Bay was suggestive that the lease had not been prepared with a high degree of care;
(e) he accepted it was his responsibility to ensure everything required to be done was done before the lease was approved and to direct the employees under his supervision to ensure that there was compliance with requirement for s 137 advertising;
(f) he had failed to make adequate enquiries of those employees to ascertain whether the s 137 advertising had been done;
(g) he had failed to implement or instruct a system or a process for checking that s 137 advertising had been done before leases were granted;
(h) he had failed to require that as part of briefing or reporting, there was confirmation that s 137 advertising had been undertaken; and
(i) he accepted ultimate responsibility for what had occurred.
291 The State said that notwithstanding that evidence I should not find any breach of duty on Mr Beaumont's part. It said that the acceptance of responsibility in administrative or managerial terms was different to the imposition of legal liability. I accept that proposition so far as it goes, but his acceptance of the matters in (g) and (h) above go beyond the mere acceptance of managerial responsibility, they are in my view, an acceptance of factual matters which bear directly on whether there was a failure to exercise reasonable care.
292 The State submitted that it was not negligent for Mr Beaumont to rely on subordinate officers to ensure compliance with clearly articulated administrative and legal requirements. I agree. It was however necessary for Mr Beaumont, as the person with ultimate managerial responsibility for the work of his division, to ensure that it had in place processes and systems which ensured such compliance.
293 In its closing submissions the State contended the evidence showed a well-ordered and well managed process associated with the granting of Crown leases, as follows:
61.1. Policy guidelines directing attention to the statutory requirements as well as providing guidance for the exercise of discretion, of which all of the defendant's witnesses confirmed they were well aware;
61.2. A structured, stable process for handling applications in accordance with that policy, with a dedicated unit of project officers and senior project officers with appropriate academic and practical qualifications and experience, supervised by layers of management;
61.3. Induction and mentoring by diligent, thorough and experienced officers;
61.4. Careful and conscientious attention by the Delegates to the review and approval of briefs;
61.5. A system and process within the Department's land management policy team monitoring the progress of the stages of an application, including checking that a lease applicant had complied with the Notice Requirement before granting the Crown Leases. This included a spreadsheet that was maintained from September 2017 by the Department's leasing team to track lease applications, including recording whether notice had been given pursuant to s 137 of the Land Act.
294 I accept there were policy guidelines and a dedicated unit of project officers supervised by layers of management. The evidence of induction processes was limited and suggested a fairly ad hoc approach in the case of Mr Dyson and a fairly limited approach in the case of Ms Volkering, but in any event the induction process is not really to the point in the case of Mr Beaumont. For reasons I will come to, I am satisfied that in one critical respect Mr Beaumont or Ms Volkering did not exercise sufficiently careful attention in their review of the briefs for final approval. I do not accept that the land management policy team had an adequate process for monitoring whether the s 137 advertising had been completed.
295 Dealing with the latter of these first. The only evidence of anything approaching a system in relation to checking whether s 137 advertising had been done is the spreadsheet. The evidence demonstrates that the spreadsheet was not kept up to date (at least by Mr Dyson). There does not appear to have been any system by which a file was checked prior to the preparation of a final brief to ensure advertising had been conducted, there was no requirement to address that issue in a final brief and no requirement to attach a copy of the advertisement to the brief. Insofar as Mr Beaumont gave evidence that he was responsible for ensuring there was a system for checking that s 137 advertising had occurred, that he had failed to ensure there was a such a system and failed to ensure that the issue of compliance with s 137 was addressed in the briefing material provided for final approval, I accept that evidence and accept that it demonstrates a failure to take reasonable care.
296 The State says Mr Beaumont was entitled to rely on the diligence of the employees under his supervision. I accept that it was not his job to go back to source material for everything in a brief. Nonetheless, the role of the delegate is not just to rubber stamp what has been put before them. Mr Beaumont described the role as including considering any issues which had been flagged in the approval in principle brief. The approval in principle brief specifically averted to the fact that s 137 advertising had not been done at the time of that brief and that it would need to be done. The final approval brief did not address the issue of advertising at all. In those circumstances, I am satisfied that if Mr Beaumont had exercised reasonable care prior to final approval he would have made enquiries of Mr Dyson as to whether the advertising had been completed. He did not.
297 I have largely dealt with the issues arising under ss 48 and 49 of the Wrongs Act in my discussion of Mr Dyson's breach of his duty of care.
298 One obvious precaution which Mr Beaumont might have taken in terms of establishing systems to ensure compliance with s 137 advertising requirements would have been to require that briefs for final approval attach a copy of the advertisement. It appears it was the practice to attach the approval in principle brief and the lease; it seems odd, to say the least, that it was not a requirement to attach a copy of the statutorily required notifications. Such a precaution would have imposed no significant burden on the Department or its officers. Had that precaution been adopted on Mr Beaumont's watch neither the Gabo or Tullaberga lease would have been granted without s 137 advertising having been undertaken.
299 Overall then, the evidence establishes that Mr Beaumont breached his duty of care to the plaintiffs.
300 Between November 2018 and February 2022 Ms Anne Patricia Volkering was Executive Director, Land Management Policy. She was the delegate of the Minister who approved the Tullaberga lease on 7 February 2019.
301 Ms Volkering experienced workplace trauma in 2021 and 2022 and as a result she experiences gaps in memory regarding her time as Executive Director, Land Management Policy. In the role she supervised approximately 70 people, including the five to six people in the direct leasing unit team.
302 Ms Volkering was aware of the difference between a lease and a licence before she took on the role of Executive Director. She received a formal induction when she took on that role which included specific explanation of the terms of the delegation from the Minister and what it meant in terms of roles and responsibilities but she could not recollect whether it included any instruction regarding leasing policies. Ms Volkering did not recall receiving any specific instruction as to what material should be considered prior to approval of a lease.
303 Ms Volkering gave evidence that in considering a brief for final approval she would read the approval in principle brief and that if there were things in that brief which were outstanding she would make sure those had been attended to. She agreed the whole point of the final approval process was to ensure that any loose ends identified in the approval in principle brief had been picked up and addressed prior to the final approval brief. Ms Volkering accepted that this was important because it might affect the legality of the lease.
304 Ms Volkering was aware that the Gabo lease had been approved by Mr Beaumont and that may have given her some comfort that she could be less diligent or less attentive in relation to the Tullaberga lease. Ms Volkering said she had read the approval in principle brief carefully before she gave her approval for the grant of the lease. She accepted that the approval in principle brief specifically identified the need for s 137 advertising and that the final brief did not address that question at all. Despite her earlier evidence that the whole point of the final approval process was to check any loose ends in the approval in principle brief had been addressed, Ms Volkering said she had made no check whether the s 137 advertising requirement had been complied with, that it was 'an administrative thing' she did not need to check and had assumed it had been done.
305 I am satisfied that Ms Volkering did not exercise reasonable care in her approval of the grant of the Tullaberga lease. The s 137 advertising was not just 'an administrative thing' it was a mandatory statutory precondition to the grant of a lease. It had been identified as outstanding in the approval in principle brief and it was not addressed at all in the final approval brief. It was incumbent on Ms Volkering to inquire whether the advertising had been done.
306 For the reasons discussed above in relation to Mr Dyson and Mr Beaumont, I am satisfied that the necessary conditions in s 48(1)(a), (b) and (c) of the Wrongs Act have been established by the plaintiffs.
307 For the reasons I have discussed above, I am satisfied that each of the public servants breached their duty of care to the plaintiffs.
308 Section 51(1) of the Wrongs Act provides as follows:
(1) A determination that negligence caused particular harm comprises the following elements -
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
309 The plaintiffs say both factual causation and the scope of liability, often referred to as 'legal causation', are made out. The State says neither element is satisfied.
310 Both parties approached the issue of factual causation on the basis that it was necessary for me to determine what would have occurred if advertising had been undertaken in accordance with s 137 of the Land Act. I deal with the evidence and submissions in relation to that question below. However, at the outset, it is appropriate to emphasise that the question of what would or would not have happened had the s 137 advertising been undertaken does not, in my view, answer the question of whether factual causation is established in this case.
311 Section 51(1)(a) requires the identification of the relevant relational link between two elements:
(a) the negligence; and
(b) the occurrence of the harm.
312 For example, in a case where a surgeon performs an operation negligently causing injury and has also failed in a duty to give a proper warning, it is not necessary to consider what the plaintiff would have done had they been given a warning. The causal link is established between the negligent performance of the operation and the occurrence of the injury.
313 Whilst I have accepted that the failure to advertise constitutes a negligent failure on the part of Mr Dyson which contributed to the overall circumstance of the leases being granted, I do not regard that as the critical element of negligence which caused loss. In this case, 'the negligence' is the grant of the leases in circumstances where there had been no s 137 advertising. The occurrence of the harm is the grants of leases providing MAPA exclusive possession which have the effect of removing the right of the plaintiffs to fish in the lease areas. The negligent act, the grant of the leases in breach of the Land Act, was a necessary condition for the harm which occurred. If the leases had not been granted the harm would not have occurred.
314 In Henville v Walker[80] the respondents ('the Walker parties') had told the first appellant, Mr Henville, acting on his own behalf and as trustee for the Henville Property Trust, ('the Henville parties') that if the Henville parties built three units on land which they were considering purchasing they would sell between $250,000 and $280,000 each. That information was misleading. Mr Henville had conducted a feasibility study for the project of constructing the units where he had considerably underestimated the overall costs of the project. The Henville parties purchased the land and constructed the three units. The units were sold for considerably less than had been represented and the Henville parties suffered a loss.
315 The High Court considered whether the Walker parties had caused the Henville parties' loss on the project in the context of a claim under s 52 of the Trade Practices Act 1974 (Cth). The High Court found that the misleading conduct of the Walker parties had caused the loss suffered by Mr Henville. The context in which the High Court was considering causation did not require a consideration of s 51(1)(a) of the Wrongs Act, but the substance of the approach was one in which it considered whether the misleading conduct of the Walker parties was a necessary condition of Mr Henville's loss.
316 Relevantly, for present purposes, Hayne J said:
The conclusion that the appellants suffered loss requires comparison between the position in which the appellants found themselves after the project was finished, and the position in which they would have been if, instead of relying on what they were told by the respondents, they had not undertaken the project. It does not invite attention to what would have been their position if an accurate assessment estimate of selling price had been given by the respondents. Moreover, the conclusion that the appellants suffered loss neither requires nor permits consideration of some third or intermediate position in which the appellants undertook some project or transaction other than the one they did. It is, therefore, not relevant to consider what the loss might have been if costs had been estimated properly.[81]
317 Similarly here, the conclusion that the plaintiffs suffered loss, in my view, requires a comparison between the position in which they found themselves after the leases were granted, and the position in which they would have been if, instead of granting leases contrary to the provisions of the Land Act, such leases had not been granted. That conclusion, in my view, neither requires nor permits consideration of some third position of what loss might have been incurred if advertising had been undertaken properly.
318 On this basis, I find that factual causation has been established. In deference however, to the extensive evidence and submissions of the parties in this regard and against the possibility that my conclusion in this respect is wrong, I turn now to deal with what the evidence establishes would likely have occurred if advertising had been undertaken.
319 A number of the witnesses called on behalf of the plaintiffs gave evidence of their reading habits or, in one case, the reading habits of her husband, in order to establish that if an advertisement had been published in accordance with s 137 of the Land Act, it would likely have been seen by one or more of the plaintiffs, or at least, that someone would have drawn it to their attention.
320 The plaintiffs were then asked what they would have done had they seen an advertisement in the form of the draft prepared by Mr Dyson. I deal with the evidence regarding their responses more fully below, but the most common response was that they would have immediately contacted Mr Ellis, who was the Executive Officer of EZAIA. Mr Ellis' evidence was that had he seen such an advertisement or had it been drawn to his attention by any of the members of EZAIA he would have immediately contacted the VFA or the Department, would have engaged lawyers and would have 'moved mountains to see what the dickens was going on'.
321 The State extensively critiques that evidence. It says that the Court should be wary of the evidence because it is given with the benefit of hindsight knowing what actually occurred. I accept that the evidence given in this respect needs to be approached with considerable caution. But I am also satisfied that, with some minor exceptions which I refer to below, those giving evidence on behalf of the plaintiffs were conscientiously describing their newspaper reading habits and, without exaggeration or post facto reconstruction, explaining what they would have done had an advertisement in the form of the Dyson draft come to their attention.
322 The Dyson draft advertisement provides details for the Victorian Government Gazette and under the description 'Local Newspaper' provides the examples of the Snowy River Mail and the East Gippsland News. The State spends some considerable time in its submissions drawing attention to the fact that an advertisement will comply with s 137 of the Land Act if it is published in 'a newspaper circulating in the district in which the land is situated'. It says that I should draw the conclusion that the Menkes were deliberately keeping quiet about their application for the leases and that, as a result, I should not assume that Mr Paul Menke would have published any advertisement in a local newspaper, but rather that he would have chosen a newspaper which would have made the advertisement more inconspicuous in the Mallacoota and Marlo region. I reject that submission.
323 First, having accepted that the State is precluded from denying that Mr Dyson had said he would undertake the s 137 advertising, what Mr Menke would or would not have done becomes irrelevant. There is no reason to believe that Mr Dyson would not have followed his own advice and published in a 'local newspaper'.
324 Secondly, even if the State is not precluded from denying that Mr Dyson said he would undertake the s 137 advertising, it is plain that Mr Paul Menke was reliant on Mr Dyson in relation to the content and form of advertising which was required to be undertaken. In those circumstances, I am satisfied that it is overwhelmingly likely that Mr Paul Menke would have followed Mr Dyson's suggestion in the draft advertisement and published any advertisement in a 'local newspaper'.
325 I am also satisfied, based on the evidence provided by the witnesses that the Snowy River Mail was regarded in the Mallacoota and Marlo region as the 'local newspaper'. On the evidence before me it is not plain there is a local newspaper known as 'East Gippsland News'. None of the witnesses mention it, there were references to the Gippsland Times. Mrs Ingram referred at one point in her evidence to 'the News'. The State submitted and I accept that Mrs Ingram's evidence exhibited a degree of reconstruction. In the context of other witnesses being specifically asked to name local newspapers and none naming the East Gippsland News, and in light of the view I take of Mrs Ingram's evidence, I am not satisfied her reference to 'the News' was a reference to a paper that existed at the time known as East Gippsland News. Even if there was a paper known as East Gippsland News at the relevant times, I am satisfied in light of the evidence that it was not generally regarded as a 'local newspaper'.
326 In all of the circumstances, I am satisfied that it is more likely than not, that:
(a) had Mr Dyson undertaken the s 137 advertising he would have placed an advertisement in the Snowy River Mail; and
(b) alternatively, had Mr Dyson provided his draft advertisement to Mr Paul Menke that Mr Menke would have placed the advertisement in the Snowy River Mail.
327 The evidence before me establishes convincingly that had an advertisement been published in the Snowy River Mail it would likely have been seen by at least Mr Shorland, Mr Ellis and Mr O'Neill. Each of those men gave evidence that they read the Snowy River Mail every week, effectively from cover to cover and, in particular, that they read the classifieds section of the paper. Any s 137 advertisement would have been placed in the classified section of the Snowy River Mail and I am satisfied that had such an advertisement been placed it would have come to the attention of, at least one or more, of Mr Shorland, Mr O'Neill and Mr Ellis.
328 I am also satisfied that an advertisement placed in the Snowy River Mail may well have come to the attention of Mr Reinhard Strauss who would often grab the Snowy River Mail from the service station and read it in a 'pretty detailed' way.
329 Further, I am satisfied that, depending on the time of year, if Mr Joe Ingram had been in Mallacoota, he also would have noticed a s 137 advertisement. Mrs Ingram's evidence was that Joe's practice was to read the Snowy River Mail from cover to cover. Notwithstanding my concerns regarding some aspects of Mrs Ingram's evidence, I have no hesitation in accepting that portion of it. I note that the Ingrams, generally speaking, are in the Northern Territory from the commencement of May until mid-September in any given year. However, on the basis of the relevant timeline, it is likely that an advertisement for the Gabo Island lease would have been placed in March or April 2018, probably more likely April 2018, and an advertisement for the Tullaberga lease in December 2018 or January 2019. In other words, I am satisfied that it is likely that Mr Ingram would have seen an advertisement published in the Snowy River Mail.
330 Mr Graeme Peel would also likely have seen any advertisement in the Snowy River Mail or had it drawn to his attention. He read the paper about half the time, and would read it from front to back. His stepfather also read the paper and would mention items of interest to Mr Peel.
331 In terms of other local papers, Mr Shorland's evidence was that the Snowy River Mail incorporates the Bairnsdale Advertiser, that is, they were the same paper. Mr Ellis' evidence was that he read the Lakes Post from Lakes Entrance. Again, his evidence was that it was not a very large paper and it did not take a lot of time to get through it.
332 Overall, the evidence that an advertisement would have been seen by someone associated with the plaintiffs is weakest in relation to the Gippsland Times. The evidence in relation to that paper is limited to the evidence of Mr Peel, which taken at its highest, would suggest that his stepfather may have read that paper and, on occasion, raised matters of interest with Mr Peel. For the reasons I have indicated, I think it is less likely that Mr Paul Menke would have placed an advertisement in the Gippsland Times. It was not suggested to him by Mr Dyson and the Snowy River Mail, which was suggested to him, is plainly the paper which the members of the Mallacoota and Marlo communities who gave evidence, regard as the local newspaper.
333 Finally, for completeness, I note that if Mr Menke had placed an advertisement in the Weekly Times I am satisfied that it would have come to the attention of Mr Peel and dependent on the same issues in relation to timing as discussed above, to the attention of Mr Joe Ingram.
334 In all of the circumstances therefore, I am satisfied that it is likely that had a s 137 advertisement been placed by Mr Paul Menke it would have been seen by one or more persons associated with the plaintiffs.
335 In his evidence Mr Shorland was taken to the Dyson draft advertisement and asked if he had read that advertisement what he would have done. He said he would have rung the executive of EZAIA and perhaps sought to call an extraordinary general meeting of EZAIA to try and find out what was going on and object to it. When he was asked why he would have objected he indicated that he would have been concerned regarding the bio-security risk of aquaculture at Gabo Island.
336 Accepting the caution with which such hypothetical evidence has to be approached, Mr Shorland's evidence struck me as having a ring of truth. First, it is plain that the abalone fishing community in Mallacoota and Marlo is a close-knit community where members freely communicate with one another on issues of concern to them. EZAIA, its Executive Officer Mr Ellis and its executive committee play an integral role in that community as a conduit for discussion regarding matters of concern to the abalone fishing industry. Further, an outbreak of a herpes like virus, AVG, in the Western abalone fishing zone had, rightly or wrongly, made many members of the Eastern Zone abalone fishing industry suspicious of aquaculture activities, as these were blamed for the outbreak of the AVG virus in the Western Zone. In short, it is not surprising and I accept that Mr Shorland would have been concerned regarding the aquaculture component of the advertisement and that his response to that concern would have been to contact his representatives at EZAIA.
337 The State in its submissions suggested that I should discount Mr Shorland's evidence on the basis that he had given evidence that he had 'no idea' what a Crown lease was. First, that misstates the purport of Mr Shorland's evidence. Mr Shorland said that he had no idea what a Crown lease was, but said that when he heard of a Crown lease it got his attention as he had not heard of one before, that it sounded significant and so he immediately rang Mr Ellis to find out what was going on. This evidence was given in the context of his reaction to finding out about the Crown leases after they had been granted. But insofar as anything can be gleaned from that reaction it suggests that Mr Shorland, having read an advertisement for potential Crown leases, would likely have regarded it as sounding 'fairly significant' and would have rung Mr Ellis to find out what was going on. In any event, I am satisfied that the reference to aquaculture in any advertisement would have been a separate and independent reason for Mr Shorland to be concerned and to have taken the steps he says he would have in his evidence.
338 Mr O'Neill gave evidence that if he had seen an advertisement in the form of the Dyson draft it would have pricked his curiosity because of the reference to the parish of Gabo and MAPA. His evidence, on which he was not cross-examined, was that he would himself have made enquiries of the VFA or the Department and sought to find out what was going on. He said that he would have objected to the granting of a lease. Notwithstanding the absence of any cross-examination regarding this evidence, the State invites me to reject it on the basis that Mr O'Neill seems to have understood that the Menke family already had a 'lease of some sort out at Gabo' and that he conceded that he did not know what the parish of Wau Wauka was. Neither of those propositions withstand scrutiny. Having regard to the totality of Mr O'Neill's evidence in this regard, I am satisfied that if he had seen an advertisement in the form of the Dyson draft he would have made enquiries of the VFA or the Department regarding the advertisement. Those enquiries would likely have clarified both the nature of a Crown lease and the reference to the parish of Wau Wauka, being a reference to a site adjacent to Tullaberga Island. The upshot is that neither of those matters provides a basis for rejecting Mr O'Neill's evidence in this regard. I accept, as does the State, that he was a very careful and honest witness and I accept his evidence in this regard.
339 Mr Daniel is a reader of The Australian, mostly online, and based on the evidence, would not, I think, have initially seen any advertisement published in a local newspaper, but I am satisfied that the way in which the Eastern Zone abalone fishing community works that the hypothetical advertisement having come to the attention of other members of that community, Mr Daniel would have been shown a copy or informed of its contents.
340 Mr Daniel's evidence was that if he had seen such an advertisement it would have been 'a massive red flag' because of the use of the words 'lease' and 'aquaculture'. Mr Daniel gave evidence, which I accept, that he was familiar at the relevant time with the notion of exclusive possession arising from a lease by virtue of his previous work in real estate. Further, like other members of the community, he regarded aquaculture as being responsible for the outbreak of AVG in the Western Zone. Mr Daniel's evidence was that his reaction to seeing such an advertisement would have been to make an immediate phone call to Mr Ellis, to seek a committee meeting of EZAIA and to have approached the VFA in order to obtain more information. Again, accepting the caution which needs to be exercised in relation to evidence of this character, I am satisfied that Mr Daniel's evidence in this regard should be accepted.
341 Mrs Ingram also gave evidence as to how she would have reacted had she seen an advertisement in the form of the Dyson draft. I am not persuaded that I should accept that evidence. In a number of respects it seemed plain that Mrs Ingram's evidence was affected by hindsight and by her knowledge of the events which had actually transpired. In particular, in examination-in-chief, when asked how from the advertisement she might have known that it was proposed to take land from the abalone fishing area, Mrs Ingram referred to word of mouth from Mr Paul Menke, which only occurred after the leases were granted. In addition, Mrs Ingram initially gave evidence in cross-examination that the draft notice referred to Tullaberga. When it was pointed out to her that it did not, her explanation as to why she would have assumed the reference to 'parish of Wau Wauka' was a reference to Tullaberga was not convincing.
342 Mr Minehan gave evidence that if an advertisement in the form of the Dyson draft had been drawn to his attention he would have recognised that the reference to MAPA was a reference to the Menke family company and would have been concerned regarding the references to aquaculture. He also gave evidence that, at the time any advertising would have occurred, he was aware that there were Crown leases in Port Phillip Bay which granted exclusive possession to the lease holders and where others were not permitted entry and so the reference to a Crown lease would have caused him concern. He said he would have been confused by the reference to the parish of Wau Wauka. Asked what he would have done having read such an advertisement, he said he probably would have contacted Mr Ellis immediately to find out what was going on and what should be done. I accept this evidence.
343 Mr Strauss gave evidence that had an advertisement in the form of the Dyson draft been drawn to his attention he would immediately have rung Mr Ellis. That evidence was not challenged in cross-examination and I accept it.
344 Mr Ellis gave evidence regarding his likely reaction had he seen an advertisement in the form of the Dyson draft or had such an advertisement been brought to his attention by one of the members of EZAIA. He said that such an advertisement would have set off 'alarm bells'. When asked why alarm bells would have gone off, Mr Ellis said that because there had not been advertisements like that previously, because the advertisement mentioned MAPA and mentioned aquaculture and MAPA's aquaculture activities had been a controversial topic. Mr Ellis said that he would have had a number of questions and would have immediately contacted the Department, would have engaged lawyers and 'would have moved mountains to see what the dickens was going on'. Mr Ellis also gave evidence that having seen such an advertisement he would probably have rung MAPA and spoken with the Menkes to find out what was going on.
345 The State says I should reject this evidence on the basis of what actually occurred when Mr Ellis found out about the grant of the leases. For the reasons which are set out below, I do not accept the State's submission in this regard and I do accept that had Mr Ellis had an advertisement in the form of the Dyson draft drawn to his attention he would have promptly (if not immediately) taken steps to contact the Department and the VFA in order to find out what was going on and would have taken steps on behalf of EZAIA to raise concerns regarding the prospects of any exclusivity of use in relation to the lease areas.
346 Some time in late May 2019 MAPA made a Facebook post. The precise date of the Facebook post does not appear from the materials and is not material in terms of a consideration of subsequent events. In the Facebook post MAPA made a number of criticisms of the VFA and the then relevant Minister. The post includes the following:
Unfortunately it is operations like us that are trying to do the right thing, whilst the Wild Abalone Public Resource is being overfished, that get denied the right due to the state of politics at the time. MAPA have an aquaculture licence, and an exclusive Crown land lease (not currently being acknowledged by VFA), and a permit to move broodstock to a land based farm (The VFA research facility), but the 2 delegates of VFA will not approve a permit to move juveniles back to our ocean based site to grow for meat and pearls. The VFA have openly stepped away from their own guidelines, own protocols and own expert advice to deny this permit.
347 Apparently a number of members of EZAIA forwarded the Facebook post to Mr Ellis. On 31 May 2019 at 11:24am Mr Ellis forwarded a copy of the Facebook post in an email without comment to members of EZAIA. This seems to have prompted a flurry of email commentary from the members of EZAIA regarding the MAPA post.
348 On 5 June 2019 at 7:22pm Mr Paul Menke then responded by circulating a long email in defence of MAPA's position and attached a long letter which set out further matters. The email and attachment were circulated to members of EZAIA and Mr Ellis. The email mentions the Crown land lease without any significant elaboration and involves an extensive critique of the conduct of Mr Ellis, accuses Mr Daniel of bullying and describes Mr Shorland's email as deplorable and cringeworthy. The attached letter is several pages long. It refers to two separate permits, the first being a reissue of the 'pearling permit' and the second being to sustainably culture abalone. The letter offers a detailed defence from MAPA's perspective of its activities in relation to those permits, but particularly focussing on the question of the licence or permit to culture abalone. The letter spends approximately four pages dealing with that issue and various criticisms of Mr Ellis and other members of EZAIA whom Mr Menke regards as having acted contrary to MAPA's interests. On the fifth page of the letter Mr Menke describes his view that EZAIA had caused his father heartache by conspiring to have his father's aquaculture licence terminated and then says:
This is the primary reason for Dads Lease application years later as a form of asset protection from those within EZAIA.
...
MAPA has continued with the lease application and has been granted an exclusive crown land lease from DELWP totalling 9 hectare, 3 hectare at Tulleberga Island, and 6 hectare at Gabo Island. The lease is exclusively for aquaculture use only. To access this site beyond the permitted use is considered trespass. This lease equates to 0.07% of usable harvestable area of the total of the eastern zone. The VFA are not acknowledging nor enforcing this lease at current, but this will soon be rectified.
There can be co use of this site if MAPA Pearls and DELWP agree.
(emphasis in original)
349 What happened next is a matter of contest. Mr Ellis' evidence is that following the email of 5 June 2019 he contacted Mr Dallas D'Silva of the VFA asking what was going on. The State invites me to reject that evidence. It says Mr Ellis' recollection of the conversations he had with Mr D'Silva and their timing was vague and inconsistent with contemporaneous documents and the evidence of Mr Daniel and Mr Minehan. I accept that aspects of Mr Ellis' evidence in this regard were somewhat vague as to timing. This is not surprising. Mr Ellis gave evidence of events more than six years ago in circumstances where he had not had the benefit of refreshing his memory by reference to any documents.
350 Nonetheless, on balance, I do accept that it is likely that shortly after the Facebook post or the 5 June 2019 email Mr Ellis made contact with Mr D'Silva to find out what was going on. Mr Ellis was adamant in cross-examination that such contact had occurred. Mr Ellis took the step of circulating the Facebook post to the EZAIA membership on 31 May 2019. On 5 June 2019 he and others received what can fairly be described as a long, angry and detailed response to the circulation of the Facebook post in the form of the email from Mr Paul Menke and the attached letter. The State's submission invites me to conclude that having circulated the Facebook post and having received the angry response from Mr Menke, Mr Ellis then chose to do nothing until 17 June 2019. Having heard Mr Ellis' evidence and observed his demeanour in the witness box, I do not regard that as likely. In the circumstances, it seems more likely that Mr Ellis would have taken prompt steps to find out what was going on with Mr D'Silva.
351 The 'inconsistencies' with contemporaneous documents on which the State relies are, in truth, not inconsistencies at all. The State particularly relies on a letter dated 17 June 2019 from Mr D'Silva on behalf of the VFA to Mr Ellis. In that letter Mr D'Silva confirms the description and existence of the two leases. Mr D'Silva says that he is writing following a request from MAPA. That letter does not refer to any prior conversations between Mr Ellis and Mr D'Silva. It is clear from the materials that, separate to any contact between Mr Ellis and Mr D'Silva, Mr Menke had been agitating for some time for the VFA to write to EZAIA and its members regarding the leases. In that context, the specific reference in the letter of 17 June 2019 to the request from MAPA is explicable and plainly not, in terms, inconsistent with there having been prior contact from Mr Ellis seeking clarification regarding the leases.
352 Further, the State, in this regard, also relies on Mr Ellis' email response to Mr D'Silva the next day as indicating an inconsistency with the suggestion that there had been any prior contact between Mr Ellis and Mr D'Silva regarding the leases. In his 18 June email to Mr D'Silva, Mr Ellis thanked him for the correspondence and says 'I presume, that this lease co-exists with wild catch entitlements to fish within the co-ordinates?' Again, there is nothing, in my view, inconsistent with that email and the suggestion that Mr Ellis had on occasions prior to 17 June 2019 tried to clarify the status of the leases. All it shows is that by 18 June 2019 Mr Ellis had still not obtained clarification as to whether the abalone licence holders would still be permitted to fish in the lease areas.
353 The State also relies on Mr Minehan's evidence in re-examination that no one told him about the Crown leases 'in between that period'. It says that is inconsistent with Mr Ellis having taken any action to contact Mr D'Silva prior to 17 June 2019. First, it is not entirely clear to what period Mr Minehan is referring to and, in any event, even if that answer refers to the period between 5 June 2019 and 17 June 2019 there is no actual inconsistency between Mr Minahan's evidence and the evidence of Mr Ellis.
354 There is an inconsistency between the recollection of Mr Daniel that no action was taken between the 5 June 2019 email and the receipt of the 17 June 2019 letter and the evidence of Mr Ellis. That evidence from Mr Daniel was a recollection, so far as he was aware. In the circumstances, I do not see that evidence as compelling a rejection of Mr Ellis' firm evidence that he had contacted Mr D'Silva after the Facebook post and prior to 17 June 2019.
355 Ultimately, then I am persuaded that it is more likely that Mr Ellis made contact with Mr D'Silva from the VFA at some stage between 5 June 2019 and 17 June 2019 in an endeavour to find out what was going on with the leases. However, in the end I am satisfied that whether or not Mr Ellis made contact with Mr D'Silva in this period, I should still accept his evidence that had he seen or been shown an advertisement in the form of the Dyson draft he would have taken prompt steps to ascertain with the VFA or the Department what was going on and made known EZAIA's concerns that no exclusivity over the lease areas should be granted. In coming to this conclusion, I have had particular regard to the steps which Mr Ellis and other EZAIA members in fact took after the 17 June 2019 letter and so it is appropriate to set out those in more detail:
(a) Mr D'Silva sent his letter on 17 June 2019 at 1:54pm under cover of an email;
(b) As noted above, at 7:42am on 18 June 2019 Mr Ellis responded with an email to Mr D'Silva asking about coexistence of entitlements to catch fish and the lease areas;
(c) At some time between 7:42am and 8:33am on 18 June 2019 Mr Ellis had a conversation with Mr D'Silva in which Mr D'Silva suggested that Mr Ellis contact Mr Cameron McKenzie from DELWP and gave Mr Ellis Mr McKenzie's email address;
(d) At 8:33am on 18 June 2019 Mr Ellis emailed Mr McKenzie in the following terms:
Dallas suggested I get in touch with you regarding the below coexistence.
Can you please confirm?
(e) Not having received a response to that email Mr Ellis sent a follow up email requesting an answer at 5:27pm on 18 June 2019;
(f) The following morning at 6:58am Mr Ellis sent Mr McKenzie a further follow up in the following terms:
At a time convenient to your goodself, a meeting with you and a couple of our association members would be great. We are most anxious to address you on various matters.
In the meantime, if you could fill us in on the co-existence issue. Also maps would be invaluable, along with details as to life of the lease etc.
(g) On 20 June 2019 apparently still having received no response from Mr McKenzie, Mr Ellis sent a further email at 11:42am in the following terms:
This is really escalating. We need a response, a meeting, and an audience with the Minister please as a matter of urgency. Ideally tomorrow or Thursday or Friday of next week.
(h) On 20 June 2019 Mr McKenzie responded to Mr Ellis by email at 4:48pm in the following terms:
Thank you for your emails concerning the VFA letter dated 17 June 2019. We are aware of the concerns raised by yourself and the members of the Easter Zone Abalone Industry Association as a result of receiving this letter.
To assist with your enquiry, I have attached copies of the surveyed original plans (OP) for the two areas. Both of these leases have been granted for a term of 21 years commencing 1 February 2019 (Tullaberga) and 1 May 2018 (Gabo).
We will be meeting with Dallas D'Silva from VFA tomorrow to further discuss this matter and will be in a better position to assist you and your members following this meeting.
(i) On 21 June 2019 Mr McKenzie sent Mr Ellis a further email at 2:19pm suggesting a meeting in East Melbourne the following week;
(j) At 9:28pm on Friday 21 June 2019 Mr Ellis suggested a meeting the following Thursday 27 June. This date was confirmed by Mr McKenzie on 24 June 2019, who asked for 'a few dot points or key items you would like to discuss';
(k) On 24 June 2019 Mr Ellis emailed Mr McKenzie expressing his hope that the Minister might attend the meeting, confirming that he and Mr Daniel would attend on the part of EZAIA and stating:
As for dot points, I suspect you know of the injustice but key points.
- history.
- past joint usage.
- our entitlements.
- our way forward
- our members, save Menkes, are determined to regain legitimate entitlements.
(l) The meeting on 27 June 2019 went ahead. Ms Sarah Crute, Mr Cameron McKenzie, Mr Ellis and Mr Daniel were in attendance, along with others. Mr Daniel gave evidence that at that meeting the representatives of EZAIA indicated their concern regarding the leases and they wished to get rid of them;
(m) Very shortly after the meeting of 27 June 2019 representatives of EZAIA sought and obtained legal advice from HWL Ebsworth. That firm identified a conflict of interest; and
(n) Shortly after that, representatives of EZAIA sought legal advice from Strongman and Crouch. That advice led to the initiation of the judicial review proceedings.
356 That sequence of events aptly demonstrates that once Mr Ellis and the members of EZAIA received official notification of the leases they took immediate action to make their concerns known to the VFA and the Department and when those concerns could not be mollified, took immediate steps to vindicate their legal rights. In considering what might have been the hypothetical response of Mr Ellis and the members of EZAIA to a formal notification via a s 137 advertisement of MAPA's intention to obtain grants of leases, I am satisfied that the immediate and prompt reaction to the letter of 17 June 2019 provides a better guide and closer analogy than the reaction to the posting on Facebook and the subsequent email (both of which it must be remembered said that the VFA was not acknowledging the leases) even if, contrary to the view I hold, Mr Ellis did not take steps to contact Mr D'Silva after the Facebook post and 5 June 2019 email.
357 For completeness, I should also note that even if I had rejected Mr Ellis' evidence as to what he would have done having seen an advertisement in the form of the Dyson draft, I am satisfied that Mr O'Neill and also likely Mr Daniel would have taken independent action to make their objection known to the VFA and the Department in any event.
358 The State says that even if I am satisfied that:
(a) an advertisement would have come to the attention of a member of EZAIA and Mr Ellis; and
(b) members of EZAIA and Mr Ellis would have taken prompt steps to make their objection to the leases known to the Department;
it is nonetheless the case that there is no basis to conclude that the leases would not, in any event, have been granted over the objection of EZAIA and its members.
359 Each of the public servants were questioned about this.
360 Mr Beaumont gave evidence that had he been aware of the objections of members of EZAIA and the fact that the original application had not sought exclusive possession he may have considered introducing conditions, covenants or restrictions to protect the rights of the abalone licence holders. He agreed that another thing he might have done would be not to sign the lease but to refer it back for further investigation and consultation with other government instrumentalities like the VFA.
361 Mr Beaumont was taken to the Leasing Policy for Crown land in Victoria 2010 ('the leasing policy') and to various aspects of that policy. He agreed he was aware of the leasing policy and was aware of its general contents, though he would not normally have referred to it. Having been taken to various aspects of that policy Mr Beaumont was asked whether the lease application was inconsistent with the leasing policy. He answered that 'it could seem that way'. He was then asked whether that was as far as he was going to put it, and said:
There could be other things, I guess, that were in play at the time that I don't recall.
362 I understand Mr Beaumont's caution in giving evidence in that way, but as I discuss below, I am satisfied that the application for the lease was inconsistent with the government policy that existed at the time and that, as a result, it is more likely than not that the application for the lease would not have been granted had the objections of the EZAIA members been made known to the Department.
363 Ms Volkering's evidence was that had objections to the grant of the Tullaberga lease been made known to her she could not say whether it would have been granted or not, but she accepted that she would have:
(a) considered the option of conditions or exceptions in the lease to permit the use of the lease areas by the objectors;
(b) considered replacing the proposed lease with a licence; and
(c) in considering those options, would have taken into account the advice of the VFA and if that advice had been well-reasoned would more than likely have accepted that advice.
364 The leasing policy provided that the leasing process must be 'fair, open and impartial, whether the lease is allocated through a competitive selection process or through direct negotiations'. It went on to state:
Generally, a competitive selection process will apply to the leasing of Crown land, although in special circumstances direct negotiations will be permitted.
365 Under the heading 'Allocating leases in a fair and equitable manner' the leasing policy provides:
New Leases
A competitive selection process will apply to the leasing of Crown land. This may be conducted through a formal lease tender process, expression of interest process or other means approved by the Minister.
The selection of tenants through a competitive selection process is particularly relevant to commercial leasing. A competitive process improves probity, and is better able to address conflicts of interest (real or perceived) and transparency in the decision-making process. It also provides an opportunity for interested parties to compete for a lease (the closed nature of direct negotiations creates a perception that private interests could influence or be seen to influence the outcome of a selection process).
There are special circumstances where it may be impractical to use a competitive process and direct negotiations are an acceptable way to achieve an outcome which serves the community interest (see below).
...
Regardless of whether a competitive or direct negotiation lease allocation process is used, it must be fair, open and impartial.
366 The leasing policy then lists a range of circumstances which may justify direct negotiation consistent with the approach adopted in the approval in principle. The only one of those circumstances relied upon in relation to the proposed leases was that 'it is clear beyond reasonable doubt that there is only one prospective tenant for a particular property asset'.
367 In the hypothetical circumstance where an advertisement had been placed and the members of EZAIA had made known their objections to the grant of the proposed leases, I am satisfied that acting consistently with the leasing policy the delegates would have been required to reject the proposed leases on the basis that there was a reasonable doubt that there was only one prospective tenant for the particular property asset and that, unless the interests of the abalone licence holders could otherwise be accommodated, it is likely the public servants would have felt constrained to conduct a competitive process in determining whether to grant a lease of the relevant areas.
369 The State further contends that factual causation cannot be demonstrated because it says any losses did not occur on the grant of the Crown leases, but rather as a result of the decision to reduce the TAC. I have dealt with this submission above in the context of my discussion of whether a duty of care arises. I do not accept the State's characterisation of when loss occurred. The plaintiffs' loss occurred at the time the leases were granted, not when the TAC was reduced.
370 For the reasons I have set out above, the plaintiffs have demonstrated factual causation in accordance with s 51(1)(a) of the Wrongs Act.
371 The State contends that even if factual causation is established, as I have held it has been, that it is not appropriate for the State's liability to extend to the harm suffered by the plaintiffs. The State relies on three matters in this regard, none are persuasive.
372 First, the State says that the leases granted were for an authorised and proper purpose and conducive to promotion of an innovative business in a regional centre, supporting its diversification and growth. The imposition of liability on the State for a negligently and invalidly granted lease has no impact on the State's capacity more broadly to follow a proper process and grant leases to innovative businesses in regional centres supporting diversification and growth.
373 Nor will the imposition of liability on the State in this case have any adverse impact on MAPA. The imposition of liability does not impact on MAPA's rights to use the leases areas and to the extent that MAPA conducts an innovative business in a regional centre that business will be unaffected by the imposition of liability on the State.
374 However, the imposition of liability on the State will provide compensation to persons who were adversely affected by the negligent acts of public servants who permitted an unlawful process to occur.
375 Secondly, the State says that the imposition of tort liability with respect to the grant of the leases might stymie the willingness of the Crown to grant leases in circumstances where other interest holders may have an interest in the lease sites. There is nothing in this proposition. The imposition of liability in the circumstances of this case will not stymie the Crown in the grant of leases in circumstances where it ensures proper s 137 advertising has occurred whether or not there are multiple interest holders in potential lease sites.
376 Thirdly and finally, the State contends that the decision of the VFA delegate to reduce the TAC was based on a recommendation of EZAIA, including the plaintiffs. The State says the Court should limit the scope of any liability so that it does not extend to loss resulting from the reduced TAC that was implemented at the request of the plaintiffs. At the risk of repetition, I have held that the loss the plaintiffs suffered does not result from the reduced TAC. The reduced TAC was a result of the loss which had occurred on the grant of the lease, not the loss itself. In any event, the State, through the relevant Minister, ultimately determined the TAC in the exercise of a discretion. The State's scope of liability should not be reduced because it chose to exercise its discretion in a particular way, whether or not that exercise was on the recommendation or otherwise of the plaintiffs.
377 I am satisfied that there is no basis in the evidence to deny legal causation. I am satisfied, in the circumstances, that it is appropriate for the scope of the State's liability to extend to the harm it has caused.
378 The plaintiffs contend for two primary categories of loss:
(a) amounts to compensate for the inability to fish for abalone in the lease areas; and
(b) amounts expended on the costs of the JR proceedings.
379 In their submissions the plaintiffs' characterised their loss arising from the inability to fish the lease areas as a loss of opportunity. In Talacko v Talacko ('Talacko')[82] the High Court noted the existence of two categories:
But the language of loss of a chance or loss of an opportunity does not always distinguish between two categories: (i) instances where a defendant's tortious act deprives a plaintiff of an opportunity or chance to which the plaintiff was not entitled but where such deprivation constitutes an immediate loss; and (ii) instances where a defendant's tortious act reduces or extinguishes the value of a plaintiff's existing right, where the value might be quantified by reference to the likelihood of future events.
In both categories, once the lost opportunity or diminution in value of a right is proved, a separate and sometimes difficult issue is the quantification of the value of the lost opportunity or the extent of the diminution of value of the right. In both categories, these issues of quantification can depend upon "estimating the significance of events which are, or may be, yet to come". But the existence of a loss is often more easily identified in the second category where the plaintiff has an existing right, although it must be shown that there has been a permanent impairment of the value of the plaintiff's existing right.
In the second category, the existence of a loss is sufficiently shown by proving that the tort caused a permanent impairment of the value of the plaintiff's existing right. It is enough that the right is "something of value" and that its value is diminished or lost. ...Damages are assessed as the amount by which the value of the right has diminished from the value it would have had if the acts comprising the tort had not been committed. This quantification of loss, by reference to events which did not happen, has been said to have "nothing to do with loss of chance as such. It is simply the judge making a realistic and reasoned assessment of a variety of circumstances in order to determine what the level of loss has been."[83]
380 The loss which the plaintiffs have suffered in this case falls within the second category identified in Talacko, that is the loss is a loss arising from the impairment of their right to fish in the lease areas where the value of that impairment is to be assessed by reference to the likelihood of future events.
381 The general principles I am required to apply in assessing the plaintiffs' loss are not controversial:
(a) events which have or have not occurred are taken into account on an all or nothing basis;[84]
(b) future or hypothetical events must be assessed by reference to the probability that those events may occur;[85] and
(c) damages for deprivation of a commercial opportunity should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued, as a matter of informed estimation.[86]
382 For reasons which are discussed below, calculating the economic value of the loss of the right to fish in the lease areas requires a consideration of the following:
(a) What was the amount of abalone which was caught in the 2018/2019 abalone season (that is before exclusive possession was enforced) referable to the lease areas? This figure is then used as a base for the calculation of losses in subsequent years.
(b) What is the loss to date having regard to:
(i) the estimated reduction in the amount of abalone able to be caught because the lease areas could not be fished;
(ii) the estimated prices which would have been obtained for that extra abalone catch;
(iii) any discount for the contingency that in the hypothetical situation where the leases were not invalidly granted the losses would not have been suffered; and
(iv) any interest payable.
(c) What is the loss for the balance of the term of the leases (and the period of the option to extend) having regard to:
(i) the estimated reduction in the amount of abalone able to be caught because the lease areas cannot be fished;
(ii) the estimated prices which might be obtained for that extra abalone catch;
(iii) appropriate discounts for the time value of money and uncertainty associated with those future losses; and
(iv) any interest payable.
383 The plaintiffs approached the calculation of loss on the basis that each plaintiff's individual loss was the total loss attributable to any reduction in catch or available catch across the Eastern Zone adjusted for their proportionate share of total Eastern Zone quota units. The State did not critique this aspect of the plaintiffs' approach to loss calculation. In light of the evidence regarding the way in which the Eastern Zone is fished, with no set reefs for any particular quota unit holder and the entirety of the zone, in effect, a shared resource for all quota unit holders, I accept that that approach is the appropriate way to calculate the quantum of individual plaintiff losses.
384 Four experts gave evidence regarding loss quantification:
(a) one expert for the plaintiffs, Mr Phillip Simpson, and one for the defendant, Ms Sevaly Sen, on issues relating to historical and forecast prices for abalone catch, the likely TAC for the Eastern Zone in future years and future risks to the Eastern Zone abalone industry (collectively, 'the industry experts'); and
(b) one expert for the plaintiffs, Mr Campbell Jaski, and one expert for the defendants, Ms Christine Oliver, who calculated the loss of profits for the plaintiffs based on assumptions derived from the industry experts, evidence regarding variable costs and the application of a discount rate (collectively, 'the accounting experts').
385 I deal with that expert evidence as necessary below but note the following:
(a) Broadly, I prefer the evidence of Ms Sen to Mr Simpson. In its closing submissions the plaintiffs in effect abandoned any reliance upon Mr Simpson's estimate of future prices. On the key issue of estimates of future catch, I am satisfied that Ms Sen's general approach should be preferred. On the issue of future prices, for reasons I discuss below, I adopt significant elements of Ms Sen's approach including a decline in prices in the near term and a stabilisation of prices in the long term but with some modifications.
(b) The most significant point of difference between Mr Jaski and Ms Oliver is the appropriate discount rate. On that issue, I have determined the appropriate discount rate should be higher than Mr Jaski favoured but lower than the rate which Ms Oliver adopted.
(c) Both accounting experts adopted the approach of discounting all losses to 2019 values and then adjusting the total loss for interest to 2025. I have not adopted that approach. In respect of past losses there seems to me to be an artificiality in discounting those losses to a 2019 present value on the basis of risk and time value of money. Subject to one issue, the adjustment of past losses for risk sits at odds with the fact that those losses have now been incurred or not. There is no warrant in my view for assessing loss as at the date of the grant of the leases on a forward looking basis and not taking into account the fact that for the 2019/2020 and 2020/2021 quota years there was in fact no loss. Similarly, there is in my view no warrant for discounting losses from the 2022/2023 and subsequent years to date in relation to risks which have not in fact occurred. The adjustment of past losses for the time value of money on the hypothetical assumption that the loss is being paid out in 2019 is also not warranted in circumstances where there was in fact no payment of those amounts at that time. Having adopted that approach in relation to past losses, the approach I adopt in relation to future losses is to discount those back to the present.
(d) I note that I have used expressions like 'past losses', 'future losses' and 'to date' in this context somewhat loosely. For ease of calculation and to avoid splitting the 2025/2026 quota year, I have calculated 'past losses' to the end of the 2025/2026 quota year on 31 March 2026 and 'future losses' from that date.
(e) For consistency and ease of calculation, I have applied interest until 31 March 2026. Orders I make will give the State until that date to pay any damages.
386 The parties provided me with a 'live' spreadsheet utilised by their respective accounting experts to quantify losses resulting from the loss of the right to fish. The parties did so for the purpose of giving me the opportunity to modify the assumptions and inputs of the experts in order to quantify losses on the basis of different assumptions and inputs.
387 As will be seen from the discussion below, I have not accepted the entirety of any one expert's views as to assumptions, inputs or even the appropriate methodology for calculation of losses. In those circumstances, I have taken up the opportunity to make use of one of the live spreadsheets. For that purpose, I have utilised Mr Jaski's spreadsheet and modified it to take account of the differences from his approach which I regard as appropriate and discuss below. I have utilised Mr Jaski's spreadsheet not because there is any problem with Ms Oliver's but because the various choices I have made meant Mr Jaski's spreadsheet required less modification than Ms Oliver's spreadsheet. Together with the provision of these reasons I will provide the parties with a copy of my spreadsheet (being Mr Jaski's spreadsheet with modifications) so that they may check that it appropriately reflects the matters set out below and calculates the damages accordingly. The amounts which are set out below in various tables as to the plaintiffs' damages are subject to any revision which might be necessary if any party identifies any problem with my spreadsheet calculations.
388 The plaintiffs submit that the baseline for the reduction in the amount of abalone harvestable in the Eastern Zone referable to the two lease areas is a total of eight tonnes, comprising three tonnes associated with the Gabo lease area and five tonnes associated with the Tullaberga lease area. The State says the plaintiffs have not shown this is the true figure and that the plaintiffs landed upon this figure in order to persuade the State to take action on the Crown leases.
389 I am satisfied that the eight tonne figure represents a genuine and reliable estimate of the reduction in available catch as a result of exclusion of quota holders from the lease areas.
390 The State rests its submission asserting the failure of the plaintiffs to establish the eight tonne figure on a number of matters:
(a) that the figure was arrived at as a result of an EZAIA committee meeting some time around 19 July 2019;
(b) that at that meeting the committee had not received a copy of the leases and did not know the precise ambit of the lease locations;
(c) the eight tonne estimate has never been validated by scientists or experts;
(d) in an email to EZAIA members dated 5 September 2019 Mr Menke put the loss at approximately 600kg to 800kg; and
(e) the adoption of the eight tonne reduction in TAC at the 27 November 2019 TAC workshop was 'industry initiated and related to access entitlements only, not as a result of the stock assessment summary, fishery independent or dependent data or diver observations'.
391 The email from Mr Menke is in evidence only for non-hearsay purposes. That email cannot be relied upon for the truth of what is asserted.
392 I accept that the evidence establishes that the figure of an eight tonne reduction was first adopted at an EZAIA committee meeting around 19 July 2019. I observe in passing that this serves to emphasise that the loss was not something which arose as a result of the reduction in the TAC but something which arose because of the enforcement of exclusive possession in the leases areas.
393 Mr Daniel in cross-examination conceded that at the time of the July 2019 EZAIA committee meeting the committee had not received a copy of the leases. In my view, little turns on this. The committee had access to a letter from Mr Dallas D'Silva of the VFA to Mr Ellis dated 17 June 2019 which provided detailed co-ordinates in the form of 'eastings' and 'northings' for the lease areas. I accept these would have provided a basis for persons familiar with the reef areas, such as some of the members of the committee, to have made an assessment of the level of catch associated with the lease areas.
394 In any event, what is clear is that that estimate went to the full TAC workshop after the lease areas were precisely known and was adopted by that workshop which comprised a broad group of industry participants many of whom had direct knowledge of the lease areas and the amount of abalone which might be taken from those areas.
395 The minutes of the TAC setting meeting of 27 November 2019 contain the following executive summary:
The meeting agreed on a recommendation for the 2020/21 total allowable commercial catch (TACC) for the Eastern Zone (EZ) through stakeholder participation and constructive debate, based on scientific advice, diver observations and catch management considerations within the zone. The
recommendation was arrived at by agreeing an optimal target catch for each spatial management unit (SMU), under a process facilitated by an Independent Chair.
A total of optimum catch targets at SMU level, based on scientific data, diver observations and an industry initiated response to reduced access in two distinct areas resulted in a recommended TACC of 337.5 tonnes of blacklip abalone.
It is noted that the blacklip 2020/21 TACC recommendation of the workshop represents an 8.0 tonne decrease from the TACC set for 2019/20 (345.5 tonnes), based on the aforementioned access complexity only.
The VFA is also required to consider the information received during the consultation process, before recommending a final TACC to the Minister's delegate, the Chief Executive Officer, VFA.
396 Then under the heading summary and recommendations the minutes record:
The recommended 2020/21 TACC for consultation is 337.5 tonnes. This represents a change from last year of 8 tonnes.
The catch target has been reduced (-5.0 tonne) at the Airport SMU due to an inability to access a proportion of the Tullaberga Island reef code (24.15).
The catch target has been reduced (-3.0 tonne) at the Mallacoota East SMU due to an inability to access a proportion of the Gabo Island reef code (24.17).
397 It should be noted that the reference to the eight tonne reduction not being as a result of 'diver observations' in the passage of the minutes referred to above is not entirely accurate. In Attachment 1 to the minutes under the heading 'Diver comments/Observations' the following appears:
Chair: Lost productive ground − should reduce by tonnage as advised by industry − Principle agreed and rationale recorded.
Chair guided the formation of a consensus. Majority supported reducing by 5t − some support for spreading the 5t across the other reefs (4 participants). Majority decision to go to 85t in the Airport due to current circumstances (5t reduction on 24.15)
Diver survey (17 responses) - suggesting things are similar to previous years
398 It is true that the eight tonne figure has not been validated by scientists or experts, other than industry participants. I do not accept that this fundamentally undermines its validity. The industry participants, many of whom are or have been divers, have a knowledge and expertise regarding the reefs and level of catch from those reefs which is relied upon as an input into the TAC setting process. They also had no economic self-interest in overestimating the level of catch reduction consequent upon the grant of the lease areas in the TAC setting meeting. In this respect I unequivocally reject the State's suggestion that the eight tonne figure was, in effect, a device to get the State to take action on the leases. There is no evidence to support that proposition. Only Mr Daniel was cross-examined to that effect and I accept his evidence that the figure of eight tonnes was a genuine estimate based on the experience of industry participants. There is no doubt that members of EZAIA wanted the State to take action on the leases. That was entirely understandable in the circumstances, but that fact does not, in the absence of any other cogent evidence, lead to the conclusion that the eight tonne figure was not a genuine and reliable estimate.
399 After the TAC workshop the VFA recommended the eight tonne reduction to the relevant Minister and the relevant Minister accepted that recommendation. I am satisfied that neither of those events would have occurred had the VFA had doubts regarding the genuineness and reliability of the eight tonne reduction as an estimate of the loss of available catch due to the grant of the leases.
400 Overall then I accept that the eight tonne figure represents a genuine and reliable estimate of the reduction in available annual catch as a result of the exclusion of quota holders from lease areas for the period from about June 2019 when exclusive possession was enforced. This figure is an appropriate reference point for the calculation of losses in subsequent years to date and for the calculation of future losses.
401 Calculating loss to date involves the following inputs with the following relationships:
V= volume of catch reduction (kilograms)
P = price received per kilogram of abalone sold
R= revenue = V x P
E = expenses
ULP = unadjusted lost profits = R - E
D = discount factor
I = interest
LP = lost profits = (ULP x D) + I
402 In determining the reduction in past catch referable to the leases I need to consider the impact of:
(a) the fact that the MAL factory burnt down on New Years Eve 2019/New Years Day 2020 and, as a result of the reduced capacity to process abalone, the Eastern Zone abalone quota holders caught 23.5 tonnes less than the allowable catch in the 2019/2020 year;
(b) a carryover order made 5 May 2020 permitting Eastern Zone quota holders to take an additional 23.5 tonnes of abalone in the 2020/2021 year ('the first carryover order');
(c) the fact that in the 2020/2021 year ongoing market factors from the Covid-19 pandemic and the MAL factory having been burnt down meant that 78.4 tonnes less than the allowable abalone catch was caught in the Eastern Zone in that year; and
(d) a carryover order made on 24 December 2021 which permitted one third of the total number of quota units not taken in 2020/2021 to be taken in each of the three successive years in addition to the quota set as the annual TAC for those years ('the second carryover order'). The second carryover order operated until October 2022.
(a) in the 2019/2020 year the loss of the ability to fish the lease areas in fact caused no loss to the plaintiffs;
(b) it is likely that on 5 May 2020 had the leases not been granted the first carryover order would have been for 31.5 tonnes;
(c) in the 2020/2021 year:
(i) the ongoing market factors would have meant that 86.4 tonnes less than the allowable abalone catch was caught in the Eastern Zone; and
(ii) the loss of the ability to fish the lease areas in fact caused no loss to the plaintiffs; and
(d) it is likely that the second carryover order would have permitted one third of 86.4 tonnes, being 28.8 tonnes, to be taken in each of the three successive years, but would still have ceased to operate in October 2022. This means that if the leases had not been granted the additional available catch under the second carryover order in the 2021/2022 year would have been approximately 2.7 tonnes and that in the 2022/2023 and 2023/2024 quota years there would have been no carryover component.
404 Below is a table of TAC figures (excluding carryover amounts) for the quota years 2019/2020 through until 2025/2026 together with the lost catch figures used for past loss calculations. As I have held above, there was in fact no lost catch in the 2019/2020 and 2020/2021 quota years. In the case of the 2021/2022 year the total loss of available catch is eight tonnes plus an allowance of 2.7 tonnes for the increased catch under the second carryover order, giving a total figure for the reduction in catch in that year of 10.7 tonnes. For subsequent years to date there have been reductions in TAC beyond the eight tonne reduction. In final submissions the parties agreed that for those years, the Court should adopt the methodology employed by Ms Sen, and adjust the eight tonne base figure such that the reduction in available catch is calculated as 2.37%[87] of the TAC. I accept that is appropriate. All figures for the total catch reduction then need to be adjusted for the proportion of total Eastern Zone quota units held by the plaintiffs, being 66.7%.
405 In his first report Mr Simpson provided historical average beach prices for canned and live abalone. Those figures were not disputed by the State. In his report the figures provided for the 2024/2025 quota year were only until the end of January 2025. For present purposes, the relevant figures are:
406 The State relied on a spreadsheet ('the FY24 price spreadsheet') containing a set of price data. The January 2025 average canned price in that spreadsheet is $16.03 which is considerably lower than Mr Simpson's figure at the end of January of $24.00. Mr Simpson's end of January figure though is slightly less than the average price for February 2025 of $24.94. Properly analysed then that data does not cast doubt on Mr Simpson's endpoint figure for January 2025. Mr Simpson accepted in cross-examination that the average canned price across the financial year from June 2024 to June 2025 was $20.90. That is of course a different time period to the quota year. The individual components of the average figure were not put to Mr Simpson, but for the purposes of the analysis below I will adopt the figure in the FY24 price spreadsheet of $18.54 for March 2025 as the endpoint figure for that quota year.
407 Mr Simpson was not cross-examined on the veracity of his $37.00 figure as the average price for live abalone for the period April 2024 to January 2025. The FY24 spreadsheet provides average live abalone prices obtained by the plaintiffs across the balance of that quota year as $31.72 for February 2025 and $29.09 for March 2025. Combining these figures with Mr Simpson's figure for the first 10 months of the quota year produces an average live price of approximately $35.90 which I will utilise in calculating the plaintiffs' losses.
408 In his report Mr Simpson has provided average price figures for live abalone, but seems, in effect, to have utilised the endpoint figure for each quota year in his calculations. Ms Sen has adopted Mr Simpson's figures in her analysis. I am not satisfied it makes sense to just use an end of year figure for canned abalone prices, particularly where there is evidence of significant price movements in the course of a year and where the figure for the live abalone price is an average.
409 Doing the best I can with the available data I estimate past losses using the simple average figure of start and endpoint values for each year for the canned abalone prices and Mr Simpson's average figures for live prices, except in 2024/2025 where for the reasons discussed above, I have modified Mr Simpson's figure to the end of January and used an average figure to 31 March 2025 of $35.90. This gives the following amounts:
410 I do not have price data for the whole of 2025/2026 quota year. I have prices for the months of April, May and June 2025 and point in time price data for 1 August 2025. The approach of both Ms Sen and Mr Simpson in estimating prices beyond the 2024/2025 quota year was to utilise an average price derived from five years of previous data. Whilst I accept that course is appropriate when it comes to estimating longer term price trends, I am concerned that utilising that approach is likely to result in an overestimate for the 2025/2026 year when regard is had to the price data which is in evidence for the first part of the 2025/2026 quota year. In those circumstances, I propose to use the average prices for the financial year 2025/2026 for the quota year 2025/2026, being $20.90 for canned abalone and $27.37 for live abalone.
411 Mr Simpson estimated an overall average abalone price by combining average figures for canned and live abalone on an assumption that the relevant split was 90% canned abalone and 10% live abalone.
412 Mr Jaski utilised the plaintiffs' prior catch data to calculate an individualised figure for the reduction in canned and live abalone catch for each plaintiff and applied the canned price and the live price separately to those figures. I accept that the utilisation of those figures provides a more accurate calculation of each plaintiff's loss and properly accounts for the variation in the proportion of live and canned abalone that the plaintiffs caught. Mr Jaski's approach requires one modification for the 2021/2022 quota year where no live abalone was sold because of the impact of the Covid-19 virus. In that year, all abalone that was sold was sold at the canned price.
413 In terms of expenses accruing to each plaintiff, I am satisfied that the figures used by Mr Jaski in his reply report should be used to calculate lost profits. Those figures were based on the plaintiffs' business records and ultimately were not contested in any material way by Ms Oliver.
414 In two instances, Seyah Pty Ltd and Subblue Pty Ltd, the plaintiffs' expenses for the 2025/2026 quota year exceed my calculation of their lost catch revenue, by some hundreds of dollars. In other words in the hypothetical I am considering, those plaintiffs would have made no profit had they fished for the extra abalone. In those instances I have assumed that those plaintiffs behaving in an economically rational fashion would not have fished for that extra abalone in that year. The upshot is that in the damages calculation for those plaintiffs for that quota year I have assumed that there is no loss of profit, but I have not treated the difference between my estimated revenue and costs figures as a benefit which reduces damages. In the case of Subblue Pty Ltd a similar situation arises in relation to future losses for the quota years 2027/2028 through until 2032/2033 (though its effect is immaterial). I adopt the same approach in relations to the calculation of Subblue Pty Ltd's future losses.
415 The quantification of past losses assumes a hypothetical state of affairs, that if the leases had not been granted that there would have been the extra abalone available to the plaintiffs to catch. I accept that in those circumstances it is necessary for me to consider whether and to what extent it is appropriate to discount the above figures for the possibility that some other factor or factors would mean that the plaintiffs did not catch the extra abalone.
416 In light of the evidence and the approach I have taken it is unnecessary to discount for many factors which may need to be taken into account. In the above calculation I have already taken into account reductions in TAC, price declines and the possibility of intervening events, such as the MAL fire and impacts of the Covid-19 virus, impacting on the capacity to harvest and process the abalone. In this context then the only matter which, in my view, might require a discount on the above amounts is the possibility that at some point between June 2019 and now MAPA would have obtained exclusive possession of the lease areas.
417 For the reasons I have explained in the analysis of causation, I am satisfied that it was more likely than not that the leases would not have been granted had the public servants not breached their duties of care to the plaintiffs. However, for this purpose I need to consider a different question which is what is the probability that at a later point in time MAPA may have been validly granted leases which excluded the plaintiffs from the lease areas.
418 Assigning a value for the probability that exclusive possession would have been granted to MAPA is, in light of the evidence, difficult.
419 I have determined that had the lease applications been advertised there would have been objections from the plaintiffs. In light of the evidence of the two delegates and the terms of the leasing policy, I am of the view that the overwhelming likelihood is that had the Department been required to consider a lease application in those circumstances:
(a) the VFA would have sought to reconcile the competing interests of MAPA and the Eastern Zone quota holders by giving MAPA the security of tenure it sought in the form of a 21 year lease with the option of extension but, as Mr Shepherd had suggested in 2012, with conditions which allowed the quota holders to continue to access the lease areas to fish. It seems to me that this would have been the path of least resistance for the VFA providing both MAPA and the plaintiffs with the essential features of what they wanted; and
(b) the Department would have followed the VFA's advice.
420 I regard the next most likely occurrence as MAPA's application for leases being rejected and it simply being granted a continuation of an aquaculture licence.
421 I regard the least likely outcome by some considerable margin as being a grant of exclusive possession to MAPA.
422 I would assign the probability of a grant of exclusive possession to MAPA, once the interests and objections of the plaintiffs had been made known, as no more than 10%.
423 In the circumstances, I would reduce the amount of past losses by 10%.
424 I have an inherent equitable jurisdiction to award damages in the nature of interest as well as statutory powers under ss 58, 59 and 60 of the Supreme Court At 1986 (Vic). Of the statutory powers only s 60 is relevant. Under that provision I must, unless good cause is shown to the contrary, award interest at a rate 'not exceeding the rate fixed for the time being under s 2 of the Penalty Interest Rates Act 1983 (Vic)' for a period not exceeding the time between the commencement of the proceeding and the date of judgment.
425 The State says that if I award interest it should be under s 60 at the 10% rate fixed by the Penalty Interest Rates Act 1983 (Vic) from commencement of the proceeding being, 26 March 2024. The plaintiffs say that under the inherent equitable jurisdiction, I should award compound interest also at the rate of 10% from the date damage accrued in order to properly compensate them for the loss of the use of the money.
426 I favour an approach which calculates interest from the date damages are accrued rather than the date of commencement of the proceeding. I am satisfied that this better ensures the plaintiffs are compensated and made whole for the wrong which has been done to them.
427 I am not satisfied it is appropriate to award compound interest in these circumstances. In Talacko v Talacko[88] Kyrou J said:
Although the Court's equitable power to award compound interest is not confined to particular classes of case and may be exercised when appropriate in the interests of justice, the power is not at large. There must be features in each case which justify a departure from the normal rule that simple interest is awarded. All of the cases to which Mr Howells referred have involved interest being awarded as part of a claim for restitution in respect of an actual or assumed gain made by a fiduciary at the expense of a beneficiary. Furthermore, where a gain has been assumed, there has been some evidentiary foundation for the assumption. For example, in Wallersteiner v Moir (No 2), the defendant was a financier and this fact enabled the Court to presume that he used the relevant funds as working capital in his business.
In the present case, there is neither evidence of an actual gain made by the defendant nor an evidentiary foundation upon which any gain may be assumed.[89]
428 Similarly in this case, I do not have any evidentiary foundation of an actual gain by the State or any basis upon which one may be assumed. In those circumstances, it is appropriate to award simple interest at the prescribed rate.[90]
429 Combining the various elements of past loss produces the following:
430 Calculating future losses essentially relies on the same integers and the same relationships as I have detailed above in relation to past losses. The main differences being that:
(a) instead of a discount factor being applied to a global sum, a discount rate is used to calculate the net present value of the future losses, after which I am required to consider whether any further discount for contingency is required; and
(b) because amounts are being discounted to the present, no amount is allowable for interest.
431 The Eastern Zone abalone biomass has shown a long term decline. In estimating future losses the question is: do stocks of available abalone as represented by the TAC continue to decline, hold steady or increase or some mix of those? Before answering that question it is appropriate to consider the historical decline and the reasons for it.
432 The 2018/2019 stock assessment report describes a long term trend of declining catch:
The Eastern Zone catch was relatively stable from 1992 to 2002, ranging from 431 to 445 t per quota year before increasing to 480 t in 2003. Catch was maintained at this level until 2008 and has slowly declined thereafter. The 2018/19 catch of 346.5 t was the lowest recorded from the dataset assessed in this report (1992-2019). Since 2012, there have been sequential reductions in the total catch harvested from the Eastern Zone.
433 As will be seen in recent years that trend has continued and accelerated.
434 In the 2016/2017 stock assessment report the authors note that spawning biomass had declined by 50% in the period 2003 to 2015, over the same period the numbers of abalone greater than 120mm (recruits) and between 80mm and 120mm (pre-recruits) had declined by 59% and 46% respectively. The report's overall assessment was:
These observations indicate that fishing pressure is the primary reason for the depleting stock, although ecological and environmental factors have also played a role. The most noteworthy among these non-fishing factors is increased proliferation of sea urchins that alter the habitat making it less suitable for abalone. Increasing urchin densities have for the most part been in deeper water (>10 m) and it is possible that continued fishing in affected areas has exacerbated the problem.
435 The stock assessment report from 2017/2018 made the following overall assessment:
The evidence presented in this report is consistent with the hypothesis that the relatively high catches taken by the fishery from 2002/03 up to 2009/10, coupled with the loss of habitat associated with the expanding populations of sea urchins, have resulted in a depleted breeding stock of abalone populations. The depletion has been across sufficient reefs to cause a decline in average recruitment levels, but not to the extent that recruitment has become impaired. The fishery does not appear to be in any immediate crisis and there is no compelling need for further zone-wide large reductions in catch. ... Despite the generally encouraging signs, the urchin problem persists, and unfavourable environmental conditions are likely to worsen as a consequence of climatic change. This means that it may still be necessary to make further TACC reductions for rebuilding abalone biomass to levels where recruitment can recover to the extent that productivity and yield to the fishery will increase, within the limitations imposed by future environmental and habitat conditions.
436 The note of caution sounded in that report regarding the potential need for further reductions in TAC proved to be prescient.
437 In the Status of Australian Fish Stocks Assessment published in 2021, but using data up to 2019, the Eastern Zone was described as a 'depleting stock'.
438 There has been a consistent decline in TAC since 2008 and a relatively steep decline in TAC since the 2022/2023 quota year. The figure below is reproduced from Ms Sen's first report and commences in 2010/2011. It shows the long term trend of reducing TAC.
439 In the period from 2010/2011 through until 2025/2026 the average annual reduction is 5.6%. However, that longer term average is significantly impacted by the last three years where the TAC has nearly halved. The average reduction in the period from 2010/2011 to 2022/2023 is 2.1%. What has caused the steep decline in TAC since 2023?
440 The stock assessment reports are prepared in November or December of each year as an input into the quota setting for the following quota year; the assessment is of the previous quota year. So, for example, the 2018/2019 stock assessment report is an analysis of data up to the end of the 2018/2019 quota year, produced in the middle of the 2019/2020 quota year and used as an input in TAC setting for the 2020/2021 quota year. The difficulties inherent in this approach were described in the 2021/2022 report (produced in November 2022):
In summary, the assessment and TACC setting process for abalone is complex. With the uncertainty in CPUE and FIS measures, it is currently very difficult to provide an accurate assessment of the status of stocks at the SMU or Zone scale. The future TACC is set using data that lags by two years from the time the future quota year begins, and TACCs are not adjusted within season. Therefore, future TACC decisions need to consider both the recent and current information where possible.
441 The 2021/2022 stock assessment report concluded:
Last year's report identified increased concerns with uncertainty in the available biomass measures and suggested a precautionary approach to TACC setting given the decline in CPUE between years that suggested stocks were not as well placed as they appeared in 2019/20. However, the TACC for 2022/23 was set at 331 t, which was higher than the average catch of 318 t over the previous three years. The recommendation from two years ago that increasing CPUE and stabilising FIS measures may be able to sustain stable catches no longer applies. This is exacerbated substantially by a shift in the distribution of catches that resulted from management changes to SMU OTs late in the 2021/22 season. The available evidence indicates that the TACC should be reduced in the short-term to prevent further stock decline, at least until reliable measures of biomass are developed.
442 The 2022 TAC setting workshop responded and 'based on scientific advice, diver observations and catch management considerations', recommended a reduction in TAC for 2023/2024 from 331 tonnes to 284.6 tonnes. That recommendation was accepted and the TAC was set at that level.
443 Things had not improved the following year. The stock assessment report said that '[t]he available data for the weight of evidence assessment look pessimistic for the fishery' and recommended further precautionary reductions in TAC. Industry participants responded to the report, concerns regarding urchin incursions and the impact of 'extreme environmental conditions including bushfires and back-to-back major floods' and at the TAC setting workshop in December 2023 a recommendation was made for a very substantial reduction for the following year TAC from 284.6 tonnes to 208.5 tonnes.
444 The 2023/2024 stock assessment report, produced in December 2024, commended EZAIA and the VFA for its decision to reduce the 2023/2024 TACC to 208.5 tonnes but said it was too soon to determine whether the reductions in TAC were sufficient to slow the decline in biomass. It suggested that the TAC should remain stable, unless diver observations suggested further reductions were required. Increases should not be considered 'until clear evidence of stock recovery over several years is apparent'.
445 In the December 2024 TAC setting workshop the industry agreed to recommend a further reduction in TAC to 182.55 tonnes. A large portion of this reduction was because of ongoing concerns regarding environmental impacts around Marlo.
446 As noted above, by final submissions both parties agreed that the putative reduction in catch as a result of the grant of the leases should be estimated by reference to a fixed proportion of the projected TAC.
447 Ms Sen in her report said that based on the above history she thought an appropriate way to approach the estimate of future TAC was to:
(a) hold TAC constant at 182.55 tonnes until 2032/2033 (i.e. seven more years) to allow for stock recovery;
(b) apply 5% annual TAC growth as stocks rebuild for the period 2033/2034 -2037/2038; and
(c) revert to a 10 year mean (for the period 2015/2016 until 2025/2026) of 319.5 tonnes from 2038/2039 onward.
448 In his reply report Mr Simpson agreed that 15 years, from 2023, would be a reasonable timeframe to allow for stock recovery to the point which would allow a TAC set at 319.5 tonnes, but thought it was possible the decisive action taken to reduce quotas might reduce that period by as much as five years.
449 In their final submissions the plaintiffs said that Ms Sen's 'pessimism' should be moderated and that a more reasonable approach would be to hold TAC at current levels till 2029/2030 and assume a 10% increase per annum through until 2032/2033 and then assume TAC constant at 320 tonnes (presumably Ms Sen's 319.5 tonnes rounded up) from 2033/2034 until 2049/2050.
450 The plaintiffs said I should prefer Mr Simpson's experience based view to Ms Sen's noting that Ms Sen had acknowledged she was not an abalone scientist. I disagree. Ms Sen's approach should be preferred.
451 First, whilst Ms Sen is not an abalone scientist, she is an economist with 30 years experience working in the fisheries and aquaculture sector, she has published extensively on issues related to fisheries management and economics and amongst many advisory roles was a member between 2015 and 2018 of the South Australian Abalone Harvest Strategy Working Group.
452 Secondly, Ms Sen's opinion is based on an assessment of the historical performance of the Eastern Zone fishery and an understanding of the time it takes for abalone to grow to maturity and for fish stocks to recover.
453 Thirdly, in his reply report Mr Simpson did not say that 10 years from 2023 was more likely than 15 years to reach a 320 tonne TAC, he said it was possible and he said that 15 years was a reasonable estimate.
454 Fourthly, in his oral evidence Mr Simpson did say he thought a 10 year recovery was more likely than a 15 year recovery, in this regard Mr Simpson's opinion seemed to be based on an experience in Tasmania where he said a reef had taken 15 years to recover and a view that EZAIA's proactive reductions in TAC might bring that timeframe forward.
455 Fifthly, in their final submissions the plaintiffs acknowledged that Mr Simpson did not offer specific views on the progress to recovery of a 320 tonne TAC.
456 Sixthly, having regard to the history of long term decline in abalone stocks in the Eastern Zone and the recognition that previous signs of recovery have proved illusory, estimating a longer period (which Mr Simpson still accepts is reasonable) rather than a shorter period for recovery of stocks seems the plainly better approach to estimating future losses.
457 The alternative would be to adopt a less conservative approach to the estimates of available catch and a higher discount rate for losses to reflect the greater uncertainty associated with that estimate. This alternative approach is likely to lead to a broadly similar result in calculated future losses.
458 In calculating a future catch reduction I will use Ms Sen's estimates of future TAC and adjust that by 2.37% to give the overall reduction in catch referable to the lease areas.
459 In estimating future prices both Ms Sen and Mr Simpson used as a starting point the average figures using price data for the previous five years.[91] The State submitted that I should use the price data from the financial year 1 July 2024 to 30 June 2025, which as it happened were the lowest prices for 25 years, and apply a price of $20.64 per kilogram. In light of the volatility of the data regarding prices, it seems sensible to utilise the same approach as the experts and use an average price figure.
460 Both Ms Sen and Mr Simpson used a figure representing a weighted price for both canned and live sales. As I have indicated above, I prefer Mr Jaski's approach of calculating individual losses by reference to actual individual proportions of live and canned catch which necessitates the use of separate price figures for canned and live sales. Using the same data as was used to calculate past losses, the five year average canned price is $25.43 per kilogram and the four year average for live abalone is $37.07. By way of comparison, using the canned and live prices I have adopted and the 90% canned and 10% live split which Mr Simpson and Ms Sen used, produces a figure of $26.59, which is less than the $31.25 used by the experts but greater than the $20.64 which the State submitted should be used.
461 It is then necessary to consider what might be the trend in real (that is adjusted for inflation) prices over 25 years. That is an exercise which is necessarily fraught with uncertainty.
462 In his first report Mr Simpson estimated nominal growth in abalone beach prices at 4.4% per annum. Mr Jaski translated this figure to a real growth in prices of 1.85% per annum. There were significant problems with the way in which Mr Simpson's estimate had been derived. By final submissions the plaintiffs had abandoned any reliance upon it. Nonetheless, the plaintiffs said I should find that the evidence supported a finding that there would be a 'trend of gradual and moderate real beach price increase' through until 2050. I accept that there is a plausible scenario under which there is gradual price appreciation (as I discuss below in my discussion of Ms Sen's approach) but I do not accept that the evidence establishes that that scenario is more likely than the scenario of ongoing price decline or a scenario where real prices are essentially stable in the long term.
463 Ms Sen looked at historical prices for her estimate of future prices. She calculated a decline in real prices paid by MAL for the period 1999 to 2024 of 3.8% per annum. Ms Sen then applied a cross-check utilising data from the Australian Bureau of Agriculture and Resource Economics and Sciences ('ABARES'). The ABARES data applied to all wild caught Victorian abalone and yielded, according to Ms Sen's calculation, a mean annual reduction in price of 3.2%. Both data sets exhibited considerable price volatility with relatively high standard deviation for the percentage movement in annual real prices. Below are two figures from Ms Sen's reports, the first, figure 8, showing the long term trends of MAL price data and the second, figure 9, showing the long term trends in prices derived from the ABARES data.
464 Utilising these calculations and by reference to factors which I will discuss below, Ms Sen then assumed that real prices would:
(a) fall by 5% per annum for the three years to 2027/2028;
(b) fall by 3.5% per annum for the period 2028/2029 to 2033/2034; and
(c) stay constant at 2033/2034 levels through to 2050.
465 Ms Sen justified her estimate of declines in prices in the near term as being greater than historical averages primarily by reference to four factors:
(a) continued increases in global supply of farmed product from China competing in the same markets as Eastern Zone canned abalone;
(b) a predicted reduction in GDP growth in China and Singapore reducing demand;
(c) the impact of threats of increased US tariffs and retaliatory non-US tariffs on the global economy combined with geopolitical tensions; and
(d) an expected appreciation of the AU dollar against the US dollar.
466 I am not satisfied that each of those factors have the consequence for which Ms Sen contends, at least in the short term.
467 First, there is no specific evidence of likely increases in farmed product from China over the near term and in any event, the evidence does not suggest a direct inverse link between MAL prices and increased Chinese farmed abalone production. In the period from 2016/2017 to 2020/2021 the supply of farmed product from China increased from 139,697 tonnes to 217,431 tonnes, an increase of approximately 55.6%. However, in that period real MAL abalone prices increased significantly. Mr Simpson suggested that this might have been because of successful marketing attempts to differentiate wild caught abalone from farmed. Ms Sen accepted that product differentiation of that kind might create a better price for wild as opposed to farmed abalone. Whatever the reason, I am satisfied that the evidence does not establish the direct inverse link on which Ms Sen relies.
468 Secondly, Ms Sen suggests that 'predicted' reductions in GDP growth in China and Singapore may lead to reducing demand for abalone. The May 2025 Reserve Bank of Australia ('RBA') Statement on Monetary Policy, which Ms Sen appends to her first report, states that the Chinese authorities have announced a GDP growth target of 5%, unchanged from 2024, and the RBA itself forecasts GDP growth for 2025 of 4.8% and for 2026 of 4.4%. A reduction in a rate of growth does not imply a reduction in demand. Ms Sen cites a press release from the Singapore government in which it revised its estimates of growth in the Singapore economy for 2025 from 1.0% to 3.0% to 0.0% to 2.0%. Again, a reduction in a rate of growth does not imply a reduction in demand and there is no evidence of predicted growth rates for 2026 and 2027.
469 Thirdly, the May 2025 Statement on Monetary Policy emphasises that the impact of US tariffs and retaliatory tariffs on Australian trade is uncertain and for exports likely to be relatively small (though it does say the effect is more likely to be on prices than volumes of trade).
470 For her proposition regarding the likely appreciation of the Australian dollar against the US dollar Ms Sen cites ABARES in its Australian Fisheries and Aquaculture Outlook to 2028-29, published in March 2024. However, in its May 2025 Monetary Policy Outlook the Reserve Bank notes that the response to US tariff policy has been a downgrade in global growth estimates and an increase in risk aversion and states:
Typically, the Australian dollar depreciates in response to a downgrade in global growth or increased global risk aversion, playing an important role as a 'shock absorber'.
471 In light of the RBA's statement, Ms Sen agreed in her evidence that it was a reasonable assumption that in the near term the appreciation of the Australian dollar against the US dollar may not be a negative factor impacting on abalone prices.
472 Based on the factors identified by Ms Sen above, I do not accept that there is a basis for assuming that real prices in the near term will decline at a greater rate than the historical average for the next three years. In so finding, I am conscious that the data shows relatively steep declines in prices for both canned and live abalone in the last five years and that in particular prices for the 2024/2025 year were below the five year average. It is possible those declines will continue but as Ms Sen's data shows, just as happened in 2003, 2009 and 2016, it is also possible those steep declines will be arrested or even reversed in the near term.
473 Overall, I think in the near term it is more likely that real prices will decline. The price values I have utilised for the 2025/2026 quota year already embody a greater decline than Ms Sen's 5% real decline from the previous five year average. For the next two years I regard the more appropriate course is to assume long term average decline in real prices at 3.5% per annum for the period 2026/2027 through until 2027/2028, utilising Ms Sen's figure for the average rate of decline derived from the MAL data and the ABARES data. Current inflation is over 3%. If inflation stays at or around that level, my assumption in relation to real prices is equivalent to nominal price declines in excess of 6%.
474 Ms Sen summarises her conclusions regarding the medium and long term price trend as follows:
Medium Term (2028-2034) Price predictions become more uncertain. Continued growth in farmed aquaculture could further depress wild-caught abalone prices, potentially making the industry unprofitable. However, there is a potential for price recovery if the EAZ fishery can successfully differentiate its wild-caught product as a luxury item. This would require significant investment in branding, distribution, as well as sustainability improvements which will take some lead time. In my opinion, applying a 3.5% annual price decrease (the mid-point between annual price growth of the Mallacoota Abalone Cooperative and ABAREs price data) is a plausible assumption.
Long Term (2035-2050) Two possible scenarios emerge: either successful market bifurcation where wild-caught abalone commands premium luxury prices while farmed product serves mass markets, or continued price decline as abalone becomes democratized from luxury to mass-market product. Given these uncertainties, in my opinion, maintaining the 2034 price forecast through to 2050 is a plausible assumption.
475 What is evident from that summary and from the substantive section of the report which deals with this aspect of Ms Sen's opinions is that in each of her medium and long term scenarios she envisages the possibility of further price decline as well as the possibility of a price recovery if wild caught abalone is successfully differentiated as premium product. Neither in her report nor in her oral evidence did Ms Sen give a particularly compelling explanation as to why, given the similarity of the two scenarios, one warranted compounding decreases in prices and the other warranted the maintenance of the real price (without decrease or increase).
476 It also perhaps goes without saying that a long term trend of price decline does not necessarily continue, as Ms Sen herself recognised in the scenario she adopted where she assumed prices stabilised from 2034 onwards. Secondly, it is noteworthy that the long term rate of decline depends very much on the period which is selected. The bulk of the decline in Ms Sen's figure 8 occurs in the years 1999 to 2008. For the 15 years from 2009 the average annual price decline is 1.8% and for the 10 years from 2015 approximately 2.25%. It is not at all apparent that the factors driving price decline between 1999 and 2008 will be operative in 2034.
477 The evidence from the plaintiffs' witnesses confirms that MAL is pursuing a strategy of marketing its wild caught abalone as a premium product and seeking to expand the proportion of live as opposed to canned sales, both things which on the evidence would tend to make real price increases or at the very least real price maintenance more likely.
478 It is plain that there are plausible scenarios in the medium and longer term in which:
(a) prices continue their long term trajectory of decline;
(b) real prices are stable; or
(c) prices recover and increase in real terms as a result of successful product differentiation and an increased proportion of live abalone sales.
479 Ms Sen's scenario is a mix of (a) and (b) above, but she effectively discounts the probability of scenario (c) to zero. The plaintiffs urge scenario (c), effectively discounting the probability of (a) and (b) to zero. In my view, neither of those approaches is appropriate; Ms Sen accepts there is some possibility of real price increases in both the medium and long term and conversely, the evidence plainly establishes there are risks of ongoing declines in real prices in both the medium and long term. I asked the accounting experts how to deal with this sort of situation. They agreed one possible approach is to probability weight different scenarios. The difficulty with adopting that approach is that there is no evidence which would permit a probability weighting. The other approach which the accounting experts agreed was open and which I favour, is to adopt a neutral (that is neither conservative nor optimistic) approach to the movement of medium and long term prices and then select a discount rate on the basis that it takes into account future down-side risks. In light of the evidence, I am satisfied that in the medium to long term a neutral approach which is neither unduly conservative nor optimistic is to assume stable real prices and to account for the risk of price declines in the selection of a discount rate.
480 For the purpose of estimating the plaintiffs expenses I have adopted the approach used by Mr Jaski in his reply report. The figures in that report were based on the plaintiffs' business records and ultimately were not contested in any material way by Ms Oliver.
481 It is necessary to discount estimates of future loss of profits for the time value of money and the risks associated with the estimates that forecast future cash flows. Both accounting experts provided opinions regarding appropriate discount rates for this purpose.
482 In his initial report Mr Jaski adopted discount rates as follows:
(a) 9.00% for the period 1 July 2019 to 30 June 2024;
(b) 9.50% for the period 1 July 2024 to 30 June 2025; and
(c) 10.00% for the period 1 July 2025 to 30 June 2050.
(a) determined that using an implied discount rate from a Capital Asset Pricing Model ('CAPM') would likely overstate the appropriate discount rate;
(b) noted the absence of sufficient and verifiable data on recent abalone licence transactions;
(c) said he was aware of historical transactions which implied a discount rate of 14%; and
(d) took the view that a variety of factors meant a lower discount rate than 14% was appropriate.
484 In his reply report Mr Jaski considered an alternative approach which involved using the finance costs of equity. Under this method Mr Jaski said the base cost of equity was 5.89% to which should be added a small private company discount rate of 6.5% giving a rate of 12.39% which should be adjusted downwards because of the lower risks of abalone licences. In his oral evidence Mr Jaski accepted this approach needed to be modified to take account of tax and inflation effects. The upshot of that evidence was that his alternative approach would give a discount rate of 16% which he would modify downwards because of his view that abalone licence businesses generally have lower risk.
485 The risks which Mr Jaski said he had taken into account in reaching his conclusions regarding an appropriate discount rate included:
(a) regulatory changes (including changes to the Crown lease and additional tariffs);
(b) capital expenditure related to replacement of assets such as boats;
(c) volatility in the market price of abalone; and
(d) the potentially greater impact on the plaintiffs' businesses of the loss of key personnel.
486 The factors which Mr Jaski relied upon for his view regarding lower risk for abalone licence businesses were:
iv. there is a low risk in terms of operating and capital costs given that these can be matched and optimised against constant production volumes.
487 Ms Oliver, in her first report, adopted a discount rate of 19.48% for past losses and 21.48% for future losses. Those rates were said to account for the effects of the time value of money and 'the normal business risks and vicissitudes that face businesses similar to the plaintiffs' [businesses]'. Her discount rates were based on a trading multiple for Rare Foods Australia Limited (formerly known as Ocean Grown Abalone) ('Rare Foods') for the 2019 financial year, giving an implied discount rate of 16.5%. She then added a 5% premium for the small size and other specific risks of the plaintiffs' businesses (and a 2% reduction for past losses).
488 In a supplementary report Ms Oliver revised her discount rate to 21.1% for past losses and 23.1% for future losses. That revision was based on:
(a) views expressed by Ms Sen as to the comparability of Rare Foods given that it uses an artificial reef which meant Ms Oliver no longer considered it comparable to the plaintiffs' businesses;
(b) reliance on trading multiples of two other companies, being Camanchaca S.A. and Sea Harvest Group Limited which gave an implied discount rate of 16.6%; and
(c) a specific company discount of 6.5%.
489 In his reply report Mr Jaski said that neither Camanchaca S.A. nor Sea Harvest Group Limited were comparable to the plaintiffs' businesses, being 'large, international, diversified, and integrated, fishing, aquaculture and processing businesses that turn over hundreds of millions of dollars every year and have significant onshore and offshore infrastructure' with less than 5% of their revenues derived from abalone fishing. I agree.
490 I am also not persuaded that the Rare Foods business is less comparable to the plaintiffs' businesses than Camanchaca S.A. and Sea Harvest Group Limited just because it utilises artificial reefs. In her report Ms Sen noted that many of the key risks affecting fishing from artificial reefs and natural reefs were the same. She described a key risk difference between fishing from artificial reefs and natural reefs as being the reliance of artificial reefs on reliable and cost effective sources of juveniles and the survival rate of those juveniles, given that, compared to wild abalone, they are known to respond differently to natural stressors. Another key difference was said to be increased capital costs of artificial reefs. Accepting those differences does not, in my view, lead to the conclusion that Rare Foods ceases to be a relevant comparable to the plaintiffs' businesses and certainly does not make that business less comparable than the two on which Ms Oliver relied in her second report. On the face of each of the factors to which Ms Sen points suggests greater risks associated with businesses reliant on artificial reefs as opposed to natural reefs.
491 In her first report Ms Oliver provides the following table:
Table 15: Trading Multiples and Implied Discount Rates for Rare Foods Australia
492 As noted above, Ms Oliver uses only the 2019 financial year figure utilising the Sen Growth assumptions in her first report. Using the Sen growth assumptions, but averaging the discount rates over the four years for which data is provided gives a discount rate of 15.5%.
493 Ultimately, because of the approach I have taken, I am only concerned with a discount rate for future losses. The selection of an appropriate discount rate is made difficult by the lack of data regarding comparable businesses. As is evident from the above discussion, each of the experts sought to use the limited available information they had and arrived at quite different results.
494 Notwithstanding those differences, I take some comfort from the fact that Mr Jaski's historical transactions involving similar businesses yielded an implied discount rate of 14%, Ms Oliver's table shows that Rare Foods had an average implied discount rate averaged over four financial years of 15.5% and for the 2019 financial year of 16.5%. The discount rate derived from Camanchaca S.A. and Sea Harvest Group Limited (even though in my view not particularly comparable) is 16.6%. In the circumstances, it seems to me an appropriate starting point is a discount rate of 15.5%, being between the Jaski figures and the figure which Ms Oliver used in her reports and, as it happens, the average implied discount rate for Rare Foods.
495 The question then arises as to whether that figure should be reduced as Mr Jaski contends because the plaintiffs' businesses are less risky or increased as Ms Oliver contends because the plaintiffs' businesses are small and have a range of specific risks. I am inclined to do neither. First, I note both experts regard the application of a small company premium as a matter of controversy amongst valuation professionals. In her evidence Ms Oliver said once you stripped out specific causes of risk, for example, financial sophistication of management (or lack thereof), the small company premium goes away, so that it is not really size that is determinative of risk but other factors. Secondly, whilst I accept Mr Jaski's views as to the factors which make the abalone businesses less risky, particularly the low level of operational complexity, I am not satisfied that this should result in further significant reductions in the discount rate from comparable businesses. Nor though, in my view, do the matters to which Ms Oliver refers for her company specific premium warrant the increase in the discount rate for which she contends. Ms Oliver in her first report identified a range of matters which might warrant a company specific premium without identifying which (other than size) she regarded as applying to the plaintiffs' businesses. In her supplementary report she justified the increase in the premium she had applied because Camanchaca S.A. and Sea Harvest Group Limited were larger and more diverse. I have already indicated I am disinclined to apply a small company risk premium per se. I accept that Camanchaca S.A. and Sea Harvest Group Limited are more diverse than the plaintiffs' businesses but they are also more complex and less comparable.
496 Taking into account the evidence of both experts, I am satisfied that it is appropriate to utilise a discount rate of 15.5% for future profits.
497 Is any further 'Sellars' discount required for the possibility that the right to fish might have otherwise been impaired or extinguished? In my view, no. The discount rates adopted by the experts take account of all risks to cash flows, including regulatory changes such as changes in TAC, the possibility of a future grant of exclusive possession over the lease areas and price uncertainty. In other words, those discount rates take account of the possibility that the right to fish will otherwise be impaired or extinguished at some point in the future. In those circumstances, a further discount for those factors would involve double counting. I have also considered whether a further discount should be applied for the possibility that MAPA does not extend its lease beyond 21 years. The non-renewal of the leases would be a change to the leases, which is a factor taken into account in the discount rate. I am satisfied no further reduction of the damages I have assessed is required for this possibility.
498 Overall, on the basis of the matters set out above, the plaintiffs' future losses are as follows:
499 Combining past and future losses referable to the loss of the ability to fish the lease areas gives the following:
500 The plaintiffs seek to recover costs expended on the JR proceedings as sums spent by them in mitigation of their loss. The State says those amounts are not recoverable.
501 The total amount claimed by the plaintiffs is $1,027,638.79 comprising:
(a) $705,055 paid by the plaintiffs in respect of amounts paid by the JR plaintiffs for costs of the JR proceedings;
(b) $461,869.50 paid by the plaintiffs in respect of amounts paid by the JR plaintiffs to MAPA in settlement of costs orders made in the JR proceedings;
(c) Less $139,285.71 recovered by the JR plaintiffs from the State in the JR proceedings.
502 In Talacko the High Court held that 'as a matter of principle, costs of litigation that are reasonably incurred in an attempt to reduce losses caused by wrongdoing are a head of loss'.[92] For that proposition the Court footnotes Gray v Sirtex Medical Ltd ('Gray')[93] a decision of the Full Court of the Federal Court quoting Berry v British Transport Commission ('Berry').[94] The relevant passages from Berry quoted by the Full Court are:
It follows that if as the result of a breach of contract ... or a tort ... a person brings unsuccessfully an action against a third party or loses an action brought by a third party, he may recover against the wrongdoer who has broken his contract or committed the tort the costs of the suit; and he will get all the costs he has reasonably expended. The wrongdoer may not argue that the plaintiff is entitled only to party and party costs, notwithstanding that that is all he could or would have got from the third party if he had been successful.
I find it difficult to see why the law should not now recognise one standard of costs as between litigants and another when those costs form a legitimate item of damage in a separate cause of action flowing from a different and additional wrong. ... The stringent standards that prevail in a taxation of party and party costs can be justified on the same sort of ground ... It helps to keep down extravagance in litigation and that is a benefit to all those who have to resort to the law. But the last person who ought to be able to share in that benefit is the man who ex hypothesi is abusing the legal process for his own malicious ends. In cases of malicious process Mansfield C.J.'s rule ... has not always been applied.[95]
503 Gray though does not assist the JR plaintiffs, earlier in the judgment the Court says:
Neither may a successful plaintiff or defendant recover the difference between the legal costs awarded in its favour, or withheld, as the case may be, in one civil proceeding and the legal costs it actually incurred in that proceeding, as damages in a subsequent civil action against the same opponent: Anderson v Bowles [1951] HCA 61; (1951) 84 CLR 310 at 323.4-8, 324.2; Quartz Hill Consolidated Gold Mining Company v Eyre (1883) 11 QBD 674 at 690.4-5; Barnett v Eccles Corporation [1900] 2 QB 423 at 427.8, 428.5; Ritchie v British Insulated Callender's Cables (Aust) Pty Ltd (1959) 77 WN (NSW) 299 at 300.4-10 (RHC); Berry v British Transport Commission [1962] 1 QB 306 at 317.1, 319.2-4, 320.9-321.4, 322.1, 329.6, 329.7-330.1, 336.4, 336.7-9; Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489 at 1497G-H, 1505G-H, 1510D-F; Penn v Bristol & West Building Society [1997] EWCA Civ 1416; [1997] 1 WLR 1356 at 1364H; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 36G-37C; Queanbeyan Leagues Club at [45], [46]; Grainger v Williams [2009] WASCA 60 at [104], [203]. Whether and to what extent a party is entitled to recover its costs from the opponent is regarded as having been finally determined in the first proceeding. Otherwise, most successful plaintiffs could bring a second action against the defendant to recover the costs they failed to obtain upon taxation as damages flowing from the original wrong: Berry at 323.5-6, 328.2.[96]
(a) notwithstanding Gray the proposition stated by the High Court in Talacko was unqualified; and
(b) in any event, these proceedings are against the State only by reason of the Crown Proceedings Act and that the wrongdoing alleged is of three persons who were not parties to the JR proceedings.
505 The High Court in Talacko was dealing with the case before it, the unqualified way in which the proposition regarding recovery of legal costs incurred is expressed in that judgment is reflective of that fact. The separate proceedings there were for a different breach, against different persons in relation to a different subject matter. The Court was not overruling the general principle regarding the non-recoverability of costs as between the same parties in subsequent proceedings. Indeed that principle has subsequently been referred to with apparent approval in Hunt Leather Pty Ltd v Transport for NSW ('Hunt Leather').[97] Nor, as I have held above, do I accept that for present purposes there is anything other than an identity of parties between these proceedings and the JR proceedings so far as the JR plaintiffs and the State are concerned.
506 For this reason, I am satisfied that as a matter of long established principle the JR plaintiffs cannot recover any amounts they expended in relation to the costs of the JR proceedings as damages in these proceedings.
507 This leaves the question of whether the non-JR plaintiffs may recover the amounts they contributed to the costs of the JR proceedings. On balance, I think not. First, the amounts expended by the non-JR plaintiffs were not amounts expended by them bringing an action against a third party, but rather contributions by them to a proceeding brought by others. To that extent the principle articulated in Berry would seem not to apply and the facts in Talacko are distinguishable. I accept that it may have been reasonably foreseeable that the non-JR plaintiffs would contribute to the costs of proceedings by (other) representative plaintiffs challenging the validity of the leases. The facts of this case are plainly different to those in Hunt Leather. Nonetheless, that case appears to establish the proposition that different damages should not be payable for the same wrong dependent on litigation funding arrangements. Allowing recovery by the non-JR plaintiffs for the costs they contributed to the JR proceedings would have precisely that effect. In the circumstances, I am not satisfied the non-JR plaintiffs are entitled to recover the amounts they contributed to the JR proceedings.
508 By reason of the foregoing, I am satisfied that the public servants each owed a duty of care to the plaintiffs, that they breached that duty of care and caused loss. The quantum of loss for which the State is liable to each plaintiff is, subject to any corrections which may be necessary upon the parties' review of my spreadsheet, set out in the following table:
[1] Hon. Lily D'Ambrosio MP, the then Minister for Energy, Environment and Climate Change.
[2] Haliotis Fisheries Pty Ltd & Ors v D'Ambrosio, Minister for Energy, Environment and Climate Change & Ors [2022] VSC 517 ('First Instance JR reasons').
[4] MAPA Pearls Pty Ltd v Haliotis Fisheries Pty Ltd [2023] VSCA 108; (2023) 71 VR 581 ('JR Appeal reasons').
[5] (1988) V ConvR 54-322 (reported decision); [1988] VicSC 310 (23 June 1988) (unreported decision which includes a description of the agreed facts).
[9] Then known as the Department of Sustainability and Environment.
[10] First Instance JR reasons [54].
[11] First Instance JR reasons [65]-[68] (citations omitted).
[12] The letter is incorrectly dated 23 February 2016.
[13] First Instance JR reasons [87] (citations omitted).
[14] [2015] HCA 28; (2015) 256 CLR 507 ('Tomlinson').
[15] Ibid 517-518 [22]-[23] (French CJ, Bell, Gageler and Keane JJ) (citations omitted).
[16] Ibid; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 373 [21] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Gemcan Constructions Pty Ltd v Westbourne Grammar School (Enforcement of Arbitral Award) [2022] VSC 6, [46].
[18] _JR Appeal reason_s 626-628, [169], [171], [173]-[174].
[19] Tomlinson 518-519 [24]-[26] (citations omitted).
[21] Ibid 104 [72] (citations omitted).
[24] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956, 965 [30] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) ('Mallonland').
[25] Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529, 544−5, 552, 558−9, 569, 584−5, 598; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 268 [244] (Kirby J), 299 [328] (Hayne J) ('Perre').
[29] Ibid 966 [36]; Pabai v Commonwealth of Australia (No 2) [2025] FCA 796, [90] ('Pabai').
[33] Mallonland 965 [31] (citations omitted).
[34] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 553−4 [6] (Gleeson CJ) ('Ryan'); Minister for the Environment v Sharma [2022] FCAFC 35; (2022) 291 FCR 311, 389−391, [234]−[238] (Allsop CJ) ('Sharma'); Pabai [106]−[136].
[38] Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314, 325 (Mason CJ, Deane and Gaudron JJ), 335 (Brennan J) ('Harper').
[40] Ibid 14−5 (Scrutton LJ), 17−9 (Greer LJ), 23−24 (Slesser LJ).
[41] Harper 325 (Mason CJ, Deane and Gaudron JJ); Alcock v Commonwealth [2013] FCAFC 36; (2013) 210 FCR 454, 469 [47]; Port Phillip Scallops Pty Ltd v Minister for Agriculture [2018] VSC 589, [96]; Tasmanian Seafoods Pty Ltd v Peters [1999] QSC 144, [28]; Kelly v Kelly (1990) 64 ALJR 234; Pennington v McGovern (1987) 45 SASR 27; Austell Pty Ltd v Commissioner of State Taxation (WA) (1989) 20 ATR 1139; Fitti v Minister for Primary Industries and Energy (1993) 40 FCR 286.
[45] Ryan 598 [150] (Gummow and Hayne JJ).
[50] Being the approval in principle brief and each of the final approval briefs.
[51] Mallonland 966 [33] (citations omitted).
[52] (2019) 72 Current Legal Problems 123 ('Nolan').
[69] (1995) 182 CLR 609 ('Bryan v Maloney').
[73] Bryan v Maloney 617 (Mason CJ, Deane and Gaudron JJ) (citations omitted).
[78] Transcript of Proceedings 743/3−7.
[81] Ibid 509 [162] (citations omitted).
[82] [2021] HCA 15; (2021) 272 CLR 478 ('Talacko').
[83] Ibid 495−6 [40], [41], [43] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) (citations omitted).
[84] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643 (Deane, Gaudron and McHugh JJ).
[86] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332, 355 (Mason CJ, Dawson , Toohey and Gaudron JJ); Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151, 174-5 [36] (Bell, Keane and Nettle JJ).
[87] Being the percentage the eight tonne reduction in available catch represents of the TAC figure set in December 2019 for the 2020/2021 quota year of 337.5 tonnes.
[89] Ibid [25]-[26] (citations omitted).
[90] Ibid [29]-[30]; Fico v O'Leary [2004] WASC 215, [280].
[91] Data limitations meant the average live abalone price was in fact calculated over the previous three years.
[93] [2011] FCAFC 40; (2011) 193 FCR 1 ('Gray').
[97] [2025] HCA 53, 66-7 [170] (Gordon and Edelman JJ).
Shorland Fisheries Pty Ltd & Ors
State of Victoria [2026] VSC 29
(1951) 84 CLR 310
(1998) 44 NSWLR 1
(2023) 71 VR 581
(2015) 256 CLR 507
(2004) 220 CLR 363
(2018) 265 CLR 77
(1999) 86 FCR 434
(2024) 98 ALJR 956
(1976) 136 CLR 529
(1999) 198 CLR 180
(2009) 75 NSWLR 649
(2002) 211 CLR 540
(2022) 291 FCR 311
(1997) 188 CLR 159
(1989) 168 CLR 314
(2013) 210 FCR 454
(1990) 64 ALJR 234
(1987) 45 SASR 27
(1993) 40 FCR 286
(1995) 182 CLR 609
(2006) 14 VR 55
(2004) 216 CLR 515
(2014) 254 CLR 185
(2001) 206 CLR 459
(2021) 272 CLR 478
(1990) 169 CLR 638
(1994) 179 CLR 332
(2020) 271 CLR 151
(2011) 193 FCR 1