Alesios v Stockdale [1998] VSC 95 (30 September 1998)

Last Updated: 10 November 1998

SUPREME COURT OF VICTORIA
CAUSES JURISDICTION	Do not Send for Reporting
	Not Restricted

No. 6197 of 1997

MICHAEL ALESIOS & ORS	Plaintiffs
v
THE HON ALAN STOCKDALE & ANOR	Defendants

FURTHER JUDGMENT

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JUDGE:	Cummins, J.
WHERE HELD:	Melbourne
DATE OF FURTHER JUDGMENT:	30 September 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 95

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Tort - statutory duty - negligence - Ministers of Crown - no private cause of action - principles applicable - Fisheries Act 1995 s. 153B - Fisheries (Amendment) Act 1996 s. 3 - no breach.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Gillard QC with Mr J. Hammond	Higgins Teale
For the Defendants	Mr W.F. Lally QC with Mr T.J. Ginnane	Victorian Government Solicitor

HIS HONOUR:

1. By a news release on 11 March 1996 from the offices of the Premier and the Minister for Conservation and Environment, during an election campaign, the Premier stated:

"The government has pledged to end scallop dredging in the Bay by repurchasing all existing licences by the end of next year, at an estimated cost of $10 million."

2. On 14 November 1996 the honourable Minister moved in the Legislative Assembly that the Fisheries (Amendment) Bill 1996 be read for the second time. The Minister stated (in relevant part):

"Prior to the election earlier this year, the government made a commitment to close down commercial dredging for scallops in Port Phillip Bay. The judgment made was that this was in the best interests of the bay as a whole and its varied users. Provision has therefore been made in the Bill to give effect to that decision. All Port Phillip Bay scallop licences and the Port Phillip Bay component of other Victorian scallop licences will be cancelled and the fishery closed on a day to be determined, but no later than 31 December 1997. Licence holders will receive a payment for the cancellation of the licence of an amount to be determined by the Treasurer and Minister for Agriculture-and Resources." (Assembly Hansard no. 5, 14 November 1996, p.1252)

3. The Bill passed the Assembly on 5 December 1996, the Council on 10 December 1996 and received Assent on 17 December 1996. It came into operation on 31 March 1997. The Fisheries (Amendment) Act 1996 states (in relevant part):

"1. The purpose of this Act is to close the Port Phillip Bay scallop dredge fishery. ... 3. After section 153 of the Fisheries Act 1995 insert -

'153A. Cancellation of scallop licences

(1) In s.14 of the Fisheries Act 1968 -

(a) for sub-section (1)(b) substitute - "(b) for dredging for or taking scallops for sale (other than in or from the waters of Port Phillip Bay);";

(b) in sub-section (3), after "take scallop for sale" insert "in or from any waters other than the waters of Port Phillip Bay".

(2) Any licence issued under section 14 of the Fisheries Act 1968 that licences a registered fishing boat for dredging for or taking scallops for sale in all Victorian waters or in the waters of Port Phillip Bay is, by virtue of this section, cancelled. (3) If a licence that is cancelled by this section included an entitlement to dredge for or take scallops in waters other than the waters of Port Phillip Bay, the Secretary must immediately issue a new licence that licences the registered fishing boat described in the cancelled licence for dredging for or taking scallops for sale in those other waters. (4) The Secretary must issue the new licence under sub-section (3) at no additional cost to the person who held the cancelled licence. (5) Subject to sub-section (3), any right or privilege acquired or accrued against the State of Victoria in respect of a licence cancelled by this section is extinguished, despite anything to the contrary in section 14(2) of the Interpretation of Legislation Act 1984. 153B. Acquisition of scallop licences (1) The registered owner of a boat that has its licence cancelled under section 153A is entitled to be paid an amount determined by the Treasurer and the Minister. (2) Despite any act or law to the contrary, the State of Victoria is not liable in any other way for any loss, damage or injury whatsoever resulting from the cancellation of a licence under section 153A. (3) Any amount determined by the Treasurer and the Minister under this section must be paid out of the Consolidated Fund (which is, by this sub-section, appropriated to the necessary extent)." 4. Consequential amendments

(1) For section 15(1)(h) of the Fisheries Act 1968 substitute -

"(h) for a scallop licence permitting the dredging or taking of scallop in all Victorian waters (other than the waters of Port Phillip Bay) -

$1680 or such greater amount as is prescribed from time to time;".

(2) After section 17(1B) of the Fisheries Act 1968 insert -

"(1C) A person must not dredge for scallops, or take scallops for sale, in the waters of Port Phillip Bay. Penalty: 100 penalty units or imprisonment for 6 months."

4. On 11 and 25 March 1997 and (after receiving extensive written submissions from the plaintiffs' solicitors) again on 12 June 1997 the Treasurer and Minister determined that the amount of $120,000 be paid to the registered owner of each boat that had its Port Phillip Bay scallops dredging licence cancelled according to s.153A(2) of the Act. That amount has been paid or proffered to each licence holder. Forty licence holders on 9 July 1997 filed proceedings in this Court in order to obtain payment substantially above the $120,000 and assessed individually. Each plaintiff sought a declaration that each $120,000 determination is invalid, void and of no effect; a declaration that each plaintiff is entitled to be compensated for any loss, damage or injury sustained as a result of the cancellation of the licence; a declaration that each plaintiff is entitled to be heard individually by the defendants; mandamus; damages and other orders.
5. The 40 plaintiffs are professional scallop fishermen and women. Most hold All Victorian Waters licences and also Commonwealth fishing permits; two hold Port Phillip Bay licences only. Each held the relevant licence for the period 1 April 1996 to 31 March 1997, having paid the substantial fee for such licence. Each, by reason of the passage into law of the Fisheries (Amendment) Act 1996, has had the Port Phillip Bay licence cancelled. It will not be renewed. Each has been proffered by cheque the sum of $120,000 by the defendants. The plaintiffs claimed that, pursuant to the provisions of the 1996 Act and the general law, each of them should have had audience to articulate their true loss, but instead were dealt with on a standard and not individual basis and as a class and by reference to the division of a predetermined global sum, namely $10,080,000 (which was divided by 84, being the number of licence holders). The plaintiffs claimed that the new licences (denuded of the Port Phillip Bay capability) would be less valuable than that previously held, that many would be forced to sell out as the remaining scallop fisheries could not support them all, and that the cost of relocating fishing from the Bay would be substantial, given the vastly different sea and weather conditions, including large swells and long distances. They claimed that the market value of a Port Phillip Bay licence was about $145,000 and the market value of scallop fishing boats ranged between $100,000 and $500,000 which had decreased by an average of 40 per cent by reason of the closure of the Bay. They also claimed the loss of value of other equipment and loss of profits. The plaintiffs further claimed that they were not given a reasonable hearing by the defendants or the Port Phillip Bay Scallop Licence Buy-back Working Group which was established by the defendants to assist the defendants in their determination. The plaintiffs further claimed that the defendants were under a statutory duty imposed upon them to make a determination, in accordance with s.153B, that would properly and adequately compensate each plaintiff for loss consequent upon cancellation of the Port Phillip Bay licence and that the defendants breached that duty. The plaintiffs further claimed that the defendants were under a duty to each plaintiff to exercise all reasonable care, skill, diligence and competence to make a determination in accordance with s. 153B so as properly and adequately to compensate each plaintiff for loss consequent upon cancellation of the Port Phillip Bay licence and that the defendants breached that duty.
6. The defendants maintained that the determination and payment of $120,000 fulfilled the requirements of the Fisheries (Amendment) Act 1996 and the general law, that the plaintiffs were given full opportunity to present their case, and that there was no statutory or other breach by them.
7. I heard the matter over 17 days between 5 March 1998 and 1 April 1998. Responsibly, during the hearing counsel sought to delimit the issues to those which were essential to the proper determination of the matter. In particular, the claim of breach of statutory duty was referred to but briefly, and the claim of negligence was not pursued. The matter of quantum was not addressed (except sufficiently to establish that $120,000 was on its face insufficient to comprehend consequential loss) as that matter had on 10 February 1998 been ordered by Byrne J to be tried separately and later. The critical question, which emerged with greater singularity as the hearing progressed, was: was it a fundamental error for the defendants to make the s. 153B determinations on a standard (non-individual) basis and in relation to the licence only, rather than also comprehending consequential loss?
8. I gave judgment on 15 April 1998. I found that the s. 153B determinations took the wrong path. I found that the determinations should have considered each licence-holder individually and should have comprehended the consequential loss of each such holder.
9. At the conclusion of my judgment on 15 April 1998 I stated that because of the articulation of the issues as developed in the hearing, it was not appropriate to deal with the tortious or statutory duty matters nor to deal with quantum. Accordingly, I answered the questions formulated by the parties for determination as follows:

"Question 1.: Upon the proper construction of s.153B(1) of the 1996 Act what is the purpose to be served by the payment to be made by the plaintiff as provided for in this subsection?

Answer: the purpose of the payment is to make full and proper compensation for the cancellation of the scallop licence and the losses flowing therefrom to the licence holder.

Question 2.: On the proper construction of s.153B(1) of the 1996 Act did Parliament intend that the payment to be made to the plaintiff reflect his or her loss -

(i) of the benefit of the pre-announcement market value of the licence, scallop boat, scallop equipment and Commonwealth Permit and the post-announcement market value of the same; and

(ii) of any, and if so which, other benefits?

Answer: (i) Yes;

(ii) Yes. Parliament also intended that there be compensation for loss of the plaintiff's business of dredging for or taking and selling scallops pursuant to the scallop licence.

Question 3.: Are the plaintiff's claims barred by the provisions of s.153B(2) Fisheries Act 1995?

Answer: No.

Question 4.: Are the plaintiff's claims not justiciable by reason of the provisions of the Fisheries Act 1996 and the matters pleaded in paragraph 44 of the defence and the defendants' further and better particulars dated 15 September 1997, paragraph 3, 10 October 1997, paragraph 3(b) and 23 February 1998, paragraphs 1 to 4 inclusive?

Answer: No. The plaintiffs claims are justiciable.

Question 5.: Did s.153A and s.153B of the 1995 Act alter or vary s.85 Constitution Act so as to prevent the Supreme Court from entertaining any of the plaintiff's claims?

Answer: No.

Question 6.: Were the defendants bound to accord procedural fairness to the plaintiff prior to making their determination under s.153B(1) of the 1996 Act?

Answer: Yes.

Question 7.: Does the 1996 Act create a duty on the part of the defendants to be performed for the benefit of the plaintiff, a breach of which gives rise to a private right of action by the plaintiff against the defendants for damages for breach of duty or negligence or both?

Answer: This matter was sought to be further considered by the parties pending my decision on the antecedent matters in this case."

10. I declared that the defendants did not act according to law and stated that I proposed to remit the matter of each individual plaintiff's compensation for his her or its true loss to the Treasurer and Minister to be determined in accordance with law.
11. The parties returned before me the next week, on 22 April 1998, they having considered the judgment, in order that orders and final steps might be formulated. I had expected the next stage would have been remittal of the claims to the defendants to be determined in accordance with law, as I stated at the conclusion of my judgment on 15 April 1998 I proposed to do. However, on 22 April when the matter came on, senior counsel for the plaintiffs sought that I then "proceed to answer question 7". I pointed out that the matters comprehended by question 7 had during the hearing not been pursued (as regards negligence: T.1241, 1290) or pursued but briefly (as regards statutory duty), and that as the plaintiffs had succeeded upon the issue which had occupied almost the entirety of the proceeding, it was practical now to remit the claims to the defendants to be determined in accordance with law. Senior counsel for the plaintiffs however sought an answer to question 7, in the anticipation that if duty (statutory or common law) and breach were found, it would be the court, and not the defendants, which would assess quantum. I must say that that appeared to turn the March proceedings on their head. The plaintiffs acknowledged that the amount legally due to them would be the same under the one as under the other. However I considered it was undesirable that curial proceedings as to liability effectively be part heard if further grounds really were to be pursued, and accordingly I agreed to receive submissions on the question of statutory and common law duty. I had, already, at the start of Term Two (15 April 1988), commenced a very substantial criminal matter, and I took the further submissions in the Alesios matter as and when I could, including out of hours, until 5 May 1988. I received written submissions in the Alesios matter until 13 May 1998. The criminal matter which had commenced on 15 April 1998 in fact occupied two full Terms (including sitting throughout the Court's scheduled mid-year vacation) and has just finished. I regret the inconvenience or difficulty the passage of time for delivery of this further judgment has occasioned the parties.
12. In their statement of claim paragraphs 37 to 42, the plaintiffs contend, further and in the alternative to the primary grounds previously pleaded, that the defendants "were under a statutory duty imposed upon them to make a determination, in accordance with s. 153B, that would properly and adequately compensate each plaintiff for any loss, damage and/or injury each would sustain as a result of the cancellation of their scallop licence (`statutory duty')" (paragraph 37). The breach pleaded (paragraph 38) of the statutory duty was essentially that the defendants in making the determinations failed to assess the individual licensees' loss and failed to compensate them for consequential loss. It also was alleged as a particular of breach of statutory duty that (paragraph 38(i)) "in making the determination (the defendants) simply dividing up an amount fixed antecedently by the Government of Victoria which did not take account of the individual loss, damage and/or injury sustained by each registered boat owner or owners as a result of their scallop licence". In paragraph 39, the plaintiffs contend further or in the alternative that the defendants "were under a duty to each plaintiff to exercise all reasonable care, skill, diligence and competence, as Ministers of the Crown -

(a) to construe the provisions of the 1996 Act;

(b) to make a valid determination;

(c) to make a determination in accordance with section 153B -

so as to properly and adequately compensate each plaintiff for any loss, damage and/or injury each would sustain as a result of the cancellation of their scallop licence (`the duty of care')." The breach pleaded (paragraph 40) was essentially that which was pleaded in paragraph 38. The plaintiffs thus contend that the defendants "failed to exercise any or any reasonable or due care, skill, diligence or competence" (paragraph 41) and that in consequence each of them had suffered loss and damage.

13. The defendants deny the existence of and any breach of statutory duty and of common law duty.
14. Over the years there has been considerable public, industry and scientific debate as to the viability of the scallop fishing industry in Port Phillip Bay and as to its environmental impact (including on other species of fish). In this judgment, I do not adjudicate upon that debate and indeed I desist from it. It is not relevant to my determination of this case. The fact is that government, with bipartisan support, has closed Port Phillip Bay to commercial scallop fishing. The sole question for me now to determine is whether the provision for payment for cancellation of the Port Phillip Bay licences, determined by the defendants, was subject to a statutory duty or common law duty of care and if so whether the defendants breached such duty.
15. I consider that the defendants were under no statutory duty or common law duty of care, and had they been, there was no breach of such duty.
16. The essential history is as follows. In recent times there had been numerous Reports into utilisation of the resources of the Bay: amongst them, NREC Allocation of Fish Resources in Bays and Inlets (1991), Dragon Study: Comparative Review of Commercial and Recreational Fishing in Port Phillip Bay (1991), Land Conservation Council of Victoria Marine and Coastal Special Investigation: Proposed Recommendations (1995), Effect of Scallop Dredging on a Soft Sediment Community (1995), the Pepperill Report (1995) and Victoria Fisheries (Fisheries Branch) Studies of the Impact of Scallop Harvesting (February 1996). Then, as noted above, during a State election campaign, by news release on 11 March 1996 from the Offices of the Premier and the Minister for Conservation and Environment, the Premier stated:

"The government has pledged to end scallop dredging in the Bay by repurchasing all existing licences by the end of next year, at an estimated cost of $10 million."

Following the election, the government having been returned to office, on 13 August 1996 the second defendants set up a Working Group - the Port Phillip Bay Scallop Dredge Licence Buy-Back Working Group. Its first Term of Reference was to make recommendations upon "the most effective manner of valuing Licences". It also was to make recommendations on early payment for hardship cases. The Group in turn commissioned Price Waterhouse Corporate Finance P/L ("Price Waterhouse") to advise the Group on Licence valuation matters. Price Waterhouse did so on 25 October 1996. In its 15 page (plus Appendices) Report, Price Waterhouse canvassed various modes of valuation. The Report is methodical and rational (I make no comment upon whether I agree with it). Price Waterhouse concluded that the maximum market value of a Port Phillip Bay scallop fishing licence, if restructuring options (of the government's buy-back plan) were not to be effected, was $69,000 and if restructuring options were to be effected, $111,000. The Working Group considered the Price Waterhouse Report and in December 1996 reported to the second defendant that a Port Phillip Bay scallop licence had an estimated commercial value of $90,000. Again, the 27 page (plus Appendices) Report of the Group is methodical and rational (again, I make no comment upon whether I agree with it). The licence was valued as a licence. The value was standard. No allowance was made for consequential loss. In July, August and September 1996 the Port Phillip Bay licence-holders had been invited to make written submissions to the Working Group. A considerable number did so. Scallop industry groups were invited to make submissions to the Working Group at meetings on 4 and 6 September 1996. A number did so. On 13 November 1996 the second defendant introduced the Fisheries (Amendment) Bill to the Assembly. On 14 November 1996 the honourable Minister moved in the Legislative Assembly that the Fisheries (Amendment) Bill 1996 be read for the second time. The Minister stated (in relevant part):

"Prior to the election earlier this year, the government made a commitment to close down commercial dredging for scallops in Port Phillip Bay. The judgment made was that this was in the best interests of the bay as a whole and its varied users. Provision has therefore been made in the Bill to give effect to that decision. All Port Phillip Bay scallop licences and the Port Phillip Bay component of other Victorian scallop licences will be cancelled and the fishery closed on a day to be determined, but no later than 31 December 1997. Licence holders will receive a payment for the cancellation of the licence of an amount to be determined by the Treasurer and Minister for Agriculture-and Resources." (Assembly Hansard no. 5, 14 November 1996, p.1252)

The Bill passed the Assembly on 5 December 1996, the Council on 10 December 1996 and received Assent on 17 December 1996. It came into operation on 31 March 1997.

Following receipt of the Working Group Report in December 1996 and other consultations in early 1997, on 11 March 1997 the second defendant wrote to the first defendant thus:

"Dear Treasurer CLOSURE OF PORT PHILLIP BAY SCALLOP FISHERY I refer to discussions between us and between Parliamentary Secretaries concerning the amount to be payable to the holders of scallop dredge licences in Port Phillip Bay which will be cancelled following passage of the Fisheries (Amendment) Act 1996. This is to confirm that the amount to be appropriated under the Act is $10 million, to be divided equally between licence holders. It is my intention in addition to allocate a sum from within the Fisheries program in the Department of Natural Resources and Environment to ensure that the amount payable to each licence holder is $120,000."

On 27 March 1997 the second defendant wrote to each Port Phillip Bay Licence-holder summarising the conclusions reached and stating that the Treasurer and he had "determined that the amount to be paid in respect of each licence cancelled will be $120,000". A cheque for $120,000 and dated 1 April 1997 accompanied the letter. The solicitors for the plaintiffs wrote with detailed reasons to the defendants requesting reconsideration of the determination (which is agreed was made on 25 March 1997) but on 12 June 1997 the determination was reaffirmed.

17. I stated in the judgment of 15 April 1998 (p.9) and I repeat:

"It is clear that, if all the defendants were required to do pursuant to s.153B was fairly to value the Port Phillip Bay licences as licences and pay that amount, the defendants would have satisfied the legal requirements. The licence as licence was a standard item with a value, as indeed the plaintiffs themselves have pleaded. The amount of $120,000 was at the low end of the range but on its face not unreasonable."

18. In the 15 April 1998 judgment I then stated:

"The critical question, which emerged with greater singularity as the hearing before me progressed, is: was it a fundamental error for the defendants to make the s.153B determination on a standard (non-individual) basis and in relation to the licence only, rather than also comprehending consequential loss? I consider that the s.153B determination took the wrong path. It should have considered each licence holder individually and should have comprehended the consequential loss of each such holder."

19. I there set out the reasons for that conclusion.
20. The plaintiffs contend that the defendants "were under a statutory duty imposed on them to make a determination, in accordance with s.153B, that would properly and adequately compensate each plaintiff for any loss, damage and/or injury each would sustain as a result of the cancellation of their scallop licence (`statutory duty')" (paragraph 37 of the statement of claim). To that end senior counsel for the plaintiffs submitted the genesis and repository of that duty lay in s. 153B(1) namely a duty to determine according to law the amount of compensation to be paid to each licensee. He relied upon the principle enunciated by Kitto J. in Sovar v. Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405 (a dangerous machinery case) namely "It is not a question of the actual intention of the legislators but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances". That principle was explained by His Honour, in relation to the operation and effect of s.27(1) Factories, Shops and Industries Act (1962) N.S.W.), at 404-405 thus:

"In the case of an enactment such as s.27(1), prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention: see Whittaker v. Rozelle Wood Products Ltd. At least this is so where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter: O'Connor v. S.P. Bray Ltd. But at the outset of every inquiry in this field it is important, in my opinion, to recognize, notwithstanding the views expressed by some writers (see Mr G.M. Fricke's article 76 Law Quarterly Review 240), that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then `imputed' to the legislature. The legitimate endeavour of the courts is to determine what inferences really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation: see Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department), and cases there cited."

21. In Byrne v. Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Brennan C.J. and Dawson and Toohey JJ. stated at 424:

"A cause of action for damages for beach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd an examination of the statute `will rarely yield a necessary implication positively giving a civil remedy'. One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages."

22. Their Honours observed that the provision there under consideration (s. 178 Industrial Relations Act 1988 (Commonwealth)) were "of a very different kind" from the protection cases and were benefit provisions. Their Honours continued (at 425).

"Having regard to the public aims of the legislation, its scope and purpose is not such as to disclose any intention to benefit or protect employees or any other class of persons by conferring on them a right of action at common law for breach of an award obligation. However, in pursuit of those aims the Act does provide for the enforcement of awards thereby giving them statutory force."

Here, as I have previously found, the flawed determination can be remedied by mandamus. Their Honours continue (425):

"The appellants' argument tended to focus upon the award itself rather than the Act. But an award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty enforceable by way of a civil action for damages, then the necessary intention that it should be so regarded must ultimately be found in the Act and not the award. The Act discloses no such intention and, indeed, cannot do so in the absence of any specification of the duties which might be imposed by an award. On the other hand, the Act can and does disclose a contrary intention in providing a means for the enforcement of awards which does not contemplate the existence of private rights enforceable by way of an action for damages."

23. Senior counsel relied generally upon the extra-curial review by Brennan J. (as then he was) in a Paper entitled "Liability in negligence of public authorities: the divergent views" presented in September 1990 at the Proceedings of the Paisley Conference on the Law of Negligence. The Paper is learned and comprehensive; and I am told that the proceedings and the venue were delightful.
24. Senior counsel, Mr Gillard for the plaintiffs, submitted that the Fisheries (Amendment) Act 1996 provided compensation in recognition of the common law principle no confiscation without compensation and it was the duty of the defendants to make a s. 153B determination according to law, which the defendants failed to do. In essence Mr Gillard submitted that s. 153B was enacted solely for the benefit of the licensees, against the fundamental common law principle no confiscation without compensation, thus founding the private right to proceed in the event the defendants breached the statutory duty to make a determination according to law.
25. As to suggested recalcitrance of s. 153B in articulating a private right, Mr Gillard relied upon the already quoted dictum of Dixon J. (as then he was) in O'Connor v. S.P. Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 477-478 that examination of the statute:

"...will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction."

But O'Connor again was a protection case, founded upon clause 31(b) of the regulations contained in the second schedule to the Scaffolding and Lifts Act 1912 (N.S.W.). And the purpose of the Fisheries (Amendment) Act 1996 is clearly stated in s. 1: "The purpose of this Act is to close the Port Phillip Bay scallop dredge fishery".

26. Emphasising the circumstance that the determination was for the benefit solely of the licensees, Mr Gillard relied upon X (Minors) v. Bedfordshire County Council [1995] UKHL 9; (1995) 2 AC 633 at 732 per Lord Browne-Wilkinson who stated:

"The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

But, again, that case arose in the context of protection: child abuse (the Bedfordshire and Newham cases) and otherwise vulnerable children (the Dorset, Hampshire and Bromley cases).

27. I am unpersuaded by Mr Gillard's submissions.
28. First, the purpose of the Fisheries (Amendment) Act 1996 was to close the Port Phillip Bay scallop dredge fishery (s. 1). Although a significant incident of the Act was to provide payment for cancelled licences, that was not its purpose. Second, whilst the relevant payment provision (s. 153B) operates as to an ascertainable, defined and finite class (licensees) there is nothing in that section which evinces a private cause of action sounding in damages. Third, there is nothing in the terms or structure of the Act which evinces a private cause of action sounding in damages. Fourth, the present is not a protection case, wherein the court is more disposed to discover such a right, but is a benefit case. Fifth, the present is not a case where there is an existing duty of care, as in Sovar. Sixth, the function of defendants in making the determination was to crystallise the amount, not appropriate the payment. Seventh, the present is not a case of abuse of power, recklessness or misfeasance in public office as the elements of malice and of knowledge (in the requisite sense) are conspicuously lacking (see Northern Territory of Australia & Ors v Mengel & Ors (1996) 185 CLR 307 especially at 345 and 347-348 per Mason C.J. and Dawson, Toohey, Gaudron and McHugh JJ. and at 355-357 per Brennan J. (as then he was)). In essence, the plaintiffs' submissions confuse the principle of construction that a statute is to be construed as not to abrogate a common law right with the creation of a private cause of action for breach of statutory duty.
29. The defendants contend that if (contrary to their submissions but as I have found) the determination or determinations were flawed, the proper remedy is mandamus and remittal of the matter to the defendants to be determined according to law. I agree. It thus is unnecessary to review in detail the submissions on behalf of the defendants, put with economy and clarity by Mr Lally QC and Mr Ginnane. I should however state that I consider on the question of proximity that there is a distinction to be drawn between that which arose in Gimson v. Victorian WorkCover Authority [1995] VicRp 14; (1995) VR 209 and the present case. In Gimson, as McDonald J. noted at 224, the scheme of the Accident Compensation Act 1985 and its procedures were such that no relevant proximity for a claim for pure economic loss existed. Here, the provisions of s. 153B are much more licensee specific. However, one does not reach that question. The plaintiffs' hurdle here is not proximity: it is the fundamental and antecedent matter that no private right arises. The remedy for the defendants failing to determine according to law is the declaratory relief sought in the Prayer for Relief, mandamus, and the remittal of the matter to the defendants to be determined according to law.
30. In paragraph 39 of the Statement of Claim the plaintiffs pleaded further or in the alternative that the defendants:

"were under a duty to each plaintiff to exercise all reasonable care, skill, diligence and competence, as Ministers of the Group: (a) to construe the provisions of the 1996 Act; (b) to make a valid determination; (c) to make a determination in accordance with s. 153B - so as to properly and adequately compensate each plaintiff for any loss, damage and/or injury each would sustain as a result of the cancellation of their scallop licence (`the duty of care')."

31. The defendants deny the allegation.
32. During the hearing this claim waxed and waned. When last sighted (T.1241) it was inert. However, by written submissions on 29 April 1998 it was put that the defendants "were negligent, inter alia, in failing to make a valid determination or make one in conformity with s.153B(1). At the lowest the Ministers made an error which, it is submitted, is enough to amount to negligence on their part when performing their statutory functions in March 1997 and again in June 1997".
33. The submission of the plaintiffs is misconceived. The section (s. 153B) and the provisions of the Act (Fisheries (Amendment) Act 1996) are not sections of strict liability. The defendants acted reasonably but erroneously. It is not negligence to make an error.
34. Finally, no breach of duty (statutory or at common law) has been demonstrated. The defendants took competent advice. They acted on it. They invited submissions. They varied upwards in favour of the plaintiffs. They had regard to competing considerations. All of that was reasonable. Unfortunately they fell into error. It is appropriate that they correct it.
35. I answer the question formulated by the parties (modified by me to accommodate the development in the case) as follows:

7. Does the 1996 Act create a duty on the part of the defendants to be performed for the benefit of the plaintiff, a breach of which give rise to a private action by the plaintiff against the defendants for damages for:

(a) breach of duty: No

(b) negligence: No

(c) both: No

8. If there existed such duty, was there any breach of either duty or both? Answer: There was no breach.

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