The Court of Appeal has awarded the appellants one-third of their appeal costs after dismissing their appeal over the State’s alleged mismanagement of mussel seed stocks. It refused the respondents’ application for their appeal costs.
The ruling, delivered by Mr Justice John Edwards on 31 July 2023 with the agreement of Collins and Power JJ., concerns costs following the court’s earlier decision on the substance of the appeal. That principal judgment dismissed all grounds of appeal. It concluded that, despite finding that the expert evidence demonstrated mismanagement, the dealings between the parties were not sufficiently close to give rise to the duty of care claimed by the appellants.
The appellants were involved in commercial fishing, harvesting and sale of ground or bottom mussels. They had sought damages and other relief, alleging negligent mismanagement of mussel seed stocks in State territorial waters. The High Court dismissed their claims. On appeal, the Court of Appeal disagreed with the High Court’s assessment of the expert evidence and criticised its approach to the duty-of-care issue, but upheld the conclusion that no private law duty of care was owed in the circumstances.
The respondents argued that they had succeeded entirely because the appeal was dismissed, and that costs should follow the event. They also argued that the appeal had narrowed to a claim for private commercial damages. The appellants sought their costs, or a share of them, relying on the public importance and complexity of the issues, the criticism of the High Court’s reasoning, and the circumstances that had prompted the litigation.
Justice Edwards accepted that the appellants were pursuing a private commercial advantage, but found a significant residual public interest in the case. It raised complex and important questions about when a public authority may owe a duty of care to private parties while performing or failing to perform public obligations. The claim was unsuccessful but “far from unarguable”, he said.
The judgment also took account of the appellants’ exposure to declining mussel seed yields attributed to mismanagement, the State’s responsibility for the circumstances that prompted the case, and capital investment the appellants had made with State encouragement. The judge considered that a full costs award against them could deter future public interest litigation. He noted, however, that the appellants’ claims concerning property rights and a right to earn a livelihood had been rejected, and those rights were not engaged in deciding costs.
The court ordered the respondents to pay one-third of the appellants’ appeal costs, either as agreed or as assessed if the parties could not agree. The respondents’ application for appeal costs was refused. The ruling concerns the costs of the appeal; it does not change the dismissal of the underlying claims.