Van Eden v State of New South Wales [2008] NSWSC 629

New South Wales Supreme Court

CITATION : Van Eden v State of New South Wales [2008] NSWSC 629

HEARING DATE(S) : 3-5 June 2008

JUDGMENT DATE : 20 June 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Hislop J

DECISION : Final orders deferred.

LEGISLATION CITED : Fisheries Management Act, 1994 Civil Liability Act, 2002

Franciscus Maria van Eden (Plaintiff) PARTIES : State of New South Wales (1st Defendant) Bradley Harrison (2nd Defendant) Robert Charles Moxham (3rd Defendant)

FILE NUMBER(S) : SC 11189/06

COUNSEL : R.B. Wilson (Plaintiff) J. Klarica (Defendants)

SOLICITORS : Langes (Plaintiff) Crown Solicitor (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

Friday 20 June 2008

11189/06 FRANCISCUS MARIA VAN EDEN v STATE OF NEW SOUTH WALES & ORS

JUDGMENT

Introduction 1 The plaintiff since 1991 has held an oyster lease on the Brisbane Waters. He there farms Sydney rock oysters. His method of aquaculture is to grow the oysters in floating baskets essentially constructed of plastic pipes set in a rectangular form from which a plastic mesh basket is suspended. 2 A problem for oyster farmers in the Brisbane Waters has been the presence of Pacific oysters. These oysters are larger and faster growing than Sydney rock oysters and would take over a lease if not controlled. They were not permitted to be cultivated in the Brisbane Waters and leaseholders were required to destroy them if found on leases. 3 The Pacific oysters spawned each year. The spawn would travel on the tide. Ultimately it would attach itself to an object where it would commence to grow. The growing Pacific oyster would not be visible to the naked eye for some months after attaching. Thus Pacific oyster spawn could attach to the outer surfaces of the plaintiff's baskets and could enter the plaintiff's baskets and attach to the basket or to the Sydney rock oysters therein. 4 The plaintiff had two large pontoons upon which he had constructed special lifting apparatus which enabled him to lift the baskets five at a time and hold them suspended whilst he harvested fully grown oysters, inspected, cleaned and repaired the baskets. He would remove any Pacific oysters. If he harvested all the oysters he would clean out the basket and float it upside down so that the mesh would dry, killing any unwanted marine growth and Pacific oysters. He would then reuse the basket. 5 Prior to 1999 the plaintiff had noticed some Pacific oysters on his lease. He had destroyed them. In June 1999 he noticed a large number of Pacific oysters on the lease. He commenced to destroy them and notified the Fisheries Department. The fisheries officers inspected the lease and gave him notice to remove the Pacific oysters. In mid 2000 he observed a large number of Pacific oysters. He reported their presence to the Fisheries Department. The fisheries officers inspected the lease and a further removal notice was issued. 6 In mid 2001 he noticed a much larger number of Pacific oysters on the lease. He commenced to remove and destroy them. He reported their presence to fisheries officers. On 13 August 2001 his lease was inspected by fisheries officers. On 27 August 2001 he was issued with a notice to remove Pacific oysters from the lease. On 9 November 2001 his lease was again inspected by fisheries officers. On 19 November 2001 a further notice was issued to remove Pacific oysters. On 4 December 2001 fisheries officers again inspected the lease. During the interim the plaintiff had been continuing to lift baskets and remove Pacific oysters. He estimated on 4 December 2001 that he had about 90 baskets to do of the 450 baskets that were in the water growing oysters. Between 4 December 2001 and 22 January 2002 he lifted a further 14 baskets and removed the Pacific oysters. 7 On 19 December 2001 he received by post a notice signed by the Fisheries Department Regional Manager North dated 12 December 2001 requiring him to remove Pacific oysters from his lease within seven days and that a further inspection would be carried out in seven days from the date of the letter and that "If Pacific oysters are still present in excess of the criteria, ie, more than one identifiable Pacific oyster per 600 oysters, action will be taken to seize the stock and remove the noxious fish under the provisions of the Fisheries Management Act , 1994." 8 On 17 January 2002 the second defendant, a fisheries officer, together with the third defendant, an oyster farmer in the area, inspected the lease in the absence of the plaintiff. 9 On 22 January 2002 the second and third defendants went to the plaintiff's lease. The second defendant inspected each floating basket and seized those that exceeded the permitted criterion level of Pacific oysters. In all 126 baskets containing Sydney rock oysters and Pacific oysters were seized. These baskets were lifted singly by a hoist with a scissors apparatus and the contents tipped into drums. In the course of this operation there was spillage of some of the contents and some of the plastic pipes were cracked. The empty baskets were stacked on top of each other. 44 dozen live Pacific oysters were attached to the Sydney rock oysters in the baskets and another 107 dozen Pacific oysters were stuck to the baskets. 10 The second defendant had left a telephone message on the plaintiff's phone at 7.11 am on 22 January 2002 advising that he was going to the lease. He did not recall if he said in the message he was going to be removing Pacific oysters from the plaintiff's lease that day. The plaintiff did not receive this message until late in the day. Upon receipt of it he attended at the lease site. He observed the baskets being removed. The second defendant told him they were seizing the baskets that had Pacific oysters in them. He asked the second defendant to stop as the baskets were being damaged but they did not. He did not offer to assist or make available his specialised lifting equipment. 11 The third defendant culled the Sydney rock oysters. Fifty percent were found to be dead and the remaining 50 percent were placed on feeding grounds where approximately 50 percent of them died. Ultimately 22 bags of Sydney rock oysters survived and were sold for $7700. The third defendant kept $700 of this as commission and the balance was paid to the first defendant. Each bag contained approximately 130 dozen oysters. 12 The plaintiff was given notice of seizure pursuant to s 272 of the Act. He served a notice disputing the seizure on the Minister pursuant to that section. Proceedings were commenced against him for a fisheries offence. The proceedings were dismissed in December 2003. No order for forfeiture was made - see, generally, ss 271-275. 13 The plaintiff has claimed damages for the loss of the Sydney rock oysters and the 126 baskets. In relation to liability, counsel for the plaintiff said: "…the only issue in the case is whether the actions of the Fisheries officers in taking the Sydney rock oysters were justified under s 268 of the Fisheries Management Act , 1994. S 268 simply provides that a Fisheries officer or any other person is not liable for a seizure under this part for which there was reasonable cause. So far as liability is concerned, if there was reasonable cause my friend's defence under s 268 applies."