The Supreme Court has awarded a group of mussel fishery operators their costs of a partially successful appeal concerning the State's allocation of mussel seed, while leaving earlier High Court and Court of Appeal costs orders unchanged.
The ruling, delivered on June 25, 2025, follows the Supreme Court's substantive judgment of April 11 in proceedings brought by Paul Barlow, Woodstown Bay Shellfish Ltd and several other plaintiffs against the Minister for Communications, Marine and Natural Resources and other State defendants.
The plaintiffs had originally sought damages for losses they alleged arose from mismanagement of mussel seed stocks. They lost their case in the High Court, although they were awarded 25% of their taxed costs and the full cost of hearing transcripts. Their appeal to the Court of Appeal was dismissed, but that court awarded them one-third of their appeal costs.
In the Supreme Court, the plaintiffs achieved a more significant but limited success. The court held that, subject to specified factors, the State defendants may have owed them a duty of care in the statutory allocation of rights to fish for mussel seed. The potential duty was confined to avoiding loss of money the plaintiffs had invested in the relevant mussel fishing operations.
The Supreme Court said the plaintiffs had secured important findings on novel legal issues, including whether negligence could arise through an assumption of responsibility and whether a claim could proceed despite the defendants characterising the relevant decisions as matters of policy. It therefore awarded the plaintiffs their costs of the Supreme Court appeal.
But the court stressed that much of the original case had failed. The surviving negligence claim is narrower, the claimed damages have been significantly restricted, and the plaintiffs must still prove breach, loss and causation in the High Court.
For that reason, the Supreme Court affirmed the existing High Court and Court of Appeal costs orders rather than increasing them.