FEDERAL COURT OF AUSTRALIA

Innes v AAL Aviation Limited [2017] FCAFC 202

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY AND WHITE JJ:

1    The appellants (Mr Innes and Mr Hunter) were employed initially by Trans-Australia Airlines (TAA) and later by Qantas Australian Airlines Limited (Qantas). They ceased their employment as a result of retrenchments on 18 April 2012 and 9 December 2005 respectively.

2    Both appellants assert that they were given incorrect advice and information about their ability to join the advantageous superannuation schemes which had been available to employees of TAA until 1 July 1980, so that their superannuation entitlements are now less than they would have been. They brought separate claims against the respondent seeking damages on the basis of multiple causes of action, including negligent misstatement, negligence generally, misleading or deceptive conduct, unconscionable conduct, breach of their contracts of employment and deceit. Their claims, along with that of another former employee (Mr Brewer) were the subject of a single trial. All the claims failed: Brewer v AAL Aviation Limited [2016] FCA 93.

3    In their appeals to this Court, the appellants contend that the primary Judge erred in his conclusion on two of their causes of action, namely, the claims of negligent misstatement and negligence generally. They also contend that the Judge erred in his indication that, if he had been required to assess damages, he would have found that each had failed to mitigate his loss by not entering into the TAA Superannuation Scheme as at 30 June 1981.

4    By notices of contention in each appeal, the respondent contends that the primary Judge should also have found that the applicants’ claims were statute barred, because they were brought outside the applicable six year limitation period.

The parties

5    The respondent was created as an incorporated entity under the Australian National Airlines Act 1945 (Cth) (the ANA Act) as the Australian National Airlines Commission (the ANA Commission). In 1988, as a result of the Australian Airlines (Conversion to Public Company) Act 1988 (Cth), the respondent’s name changed to Australian Airlines Limited and has since changed again to AAL Aviation Limited. Until 1995, the respondent traded as Trans-Australia Airlines and was commonly known as TAA.

6    Mr Innes commenced employment with TAA shortly after 1 July 1974 as a Traffic Officer in its Perth office. This was a clerical position concerned with the retail selling of airline tickets. In 1981, Mr Innes transferred to a position of Despatch Officer at Perth Airport and, in 1994, became an employee of Qantas when it took over the operations and staff of TAA. He became a Load Controller and relocated to Tullamarine Airport in Melbourne in 1999. Mr Innes was 61 years old at the time of his retrenchment.

7    Mr Hunter commenced with TAA on 28 July 1975 as an Airframe Fitter at Essendon Airport but about 18 months later was reclassified as an Airframe Mechanic. In 1980, he transferred to Tullamarine Airport and, in or around 1992, became an employee of Qantas as part of its takeover of TAA. Mr Hunter was 51 years old at the time of his retrenchment.

The superannuation arrangements

8    The appellants’ claims concerned three superannuation schemes which applied at different times during their employment with TAA. The first was the Commonwealth Superannuation Fund (CSF) which was in effect until 30 June 1976 established under the Superannuation Act 1922 (Cth) (the 1922 Act). This Scheme applied generally to Commonwealth public servants but was also available to some employees of an “approved authority”. By reg 4 of the Statutory Rule No 20 of 1952 (Cth), TAA was an “approved authority”.

9    The second was the Commonwealth Superannuation Scheme (CSS) established under the Superannuation Act 1976 (Cth) (the 1976 Act) which came into operation on 1 July 1976. It too was available to certain employees of an “approved authority”. Participants in the CSF automatically became participants in the CSS on its commencement on 1 July 1976. By Statutory Rule 181 of 1980 (Cth), the CSS was closed to new entrants who were employees of TAA with effect from 1 July 1980.

10    Later that year (15 December 1980), TAA established the Australian Airlines General Superannuation Plan (AAGSP). Entrance to that Scheme became available to TAA employees in 1981. The Judge found that, unlike CSF and CSS (which were defined benefit schemes), AAGSP was an accumulation scheme pursuant to which the primary benefit upon retirement was a lump sum benefit and not a pension with a reversionary spouse benefit, at [5]. However, the Judge also found that participants in the AAGSP did benefit from substantial contributions by TAA, unlike private schemes offered by life insurance companies, at [157].

11    Mr Hunter became a contributory member of the AAGSP on 7 February 1986. Mr Innes became a non-contributory member of the AAGSP on 1 January 1987. In 1995, Mr Innes’ non-contributory membership of the AAGSP was transferred to a part of a superannuation fund conducted by Qantas, and he commenced contributions at that time.

12    The 1922 Act distinguished between permanent public servants, on the one hand, and non-permanent public servants and employees of approved authorities, on the other. Permanent public servants became a member of CSF automatically upon commencing their employment (which had been conditional upon them passing a medical examination). However, employees of approved authorities had to satisfy some threshold conditions and be deemed by ministerial direction to be employees to whom the 1922 Act applied. This was the effect of s 4(6) of the 1922 Act, which provided (relevantly):

(6)    Subject to the next succeeding sub-section, where a person employed by an approved authority is required by the terms of his employment to give the whole of his time to the duties of his office and –

(a)    the approved authority certifies that the person’s employment is likely to be continued for a period of at least seven years;

…

the Minister administering the Act or other law by or under which the approved authority is constituted, or a person authorized in writing by the Minister so administering that Act or that other law to exercise his powers under this sub-section, may, on the recommendation of the approved authority, direct that the first-mentioned person be deemed to be an employee within the meaning of this section, and that person shall be deemed to be such an employee as from the date of the direction …

13    In short, three conditions had to be satisfied for an employee of an approved authority to become a member of the CSF: the employee had to work full-time; the approved authority had to certify that the person’s employment was likely to be continued for a period of at least seven years; and the Minister (or the Minister’s delegate) had to direct that the employee be deemed to be an employee for the purposes of the 1922 Act.

14    In relation to non-permanent public servants, the 1922 Act contained counterpart conditions but required, in addition, that the person have been employed for a continuous period of not less than three years. Despite there being no requirement for employees of approved authorities to have served a minimum period before becoming eligible, the Judge found that it had been the practice within TAA to invite employees to join CSS only after two years, and in some cases three years, of continuous employment, at [41].

15    A Form SB17 was adopted in November 1971 as the means by which employing authorities transmitted details of new contributors to the Superannuation Board. The form was addressed to the Minister administering the Act under which the approved authority was constituted and contained certification by the approved authority about satisfaction of the eligibility requirements, a recommendation to the Minister about entry to superannuation and a direction by the Minister to make the identified employees eligible. In 1974, the Minister delegated his power of direction to the Staff Officer of TAA in respect of TAA employees.

16    Under the 1976 Act, the threshold conditions for membership of the CSS were less onerous. Membership was automatic for eligible employees (s 45). The term “eligible employee” was defined in s 3(1) as follows (relevantly):

“eligible employee” means –

(a)    …

(b)    a person who is a permanent employee;

(c)    a person who is a temporary employee and is specified in a direction given under section 11, 12 or 13;

…

Thus, a permanent employee was, by virtue of that status, an eligible employee whereas a temporary employee required in addition a direction under one or other of ss 11, 12 and 13.

17    The term “permanent employee” used in para (b) of the definition of eligible employee was defined in s 3(1) as follows:

“permanent employee” means –

(a)    a person who is an officer for the purposes of the Public Service Act; and

(b)    any other person employed by the Commonwealth or by an approved authority in a permanent capacity,

but does not include a part-time employee who is not an approved part-time employee.

18    The term “temporary employee” used in para (c) of the definition of “eligible employee” was defined in s 3(1) (relevantly) as follows:

“Temporary employee” means –

(a)    a person who is an employee for the purposes of the Public Service Act; and

(b)    any other person employed by the Commonwealth or by an approved authority otherwise than in a permanent capacity, but does not include –

…

19    The primary Judge held, at [46], that neither appellant was a permanent employee. He held instead that each was a “temporary employee” within the definition in s 3(1) of the 1976 Act, at [47]. Each appellant challenged the finding that he was not a permanent employee for the purposes of the 1976 Act and, in the case of Mr Innes, it will be necessary to return to this.

20    Of the provisions (ss 11, 12 and 13) which provided for a direction by which temporary employees could become eligible employees, the Judge considered that only s 11(1) was pertinent in the appellants’ cases. Section 11(1) provided:

Temporary employees likely to be continued in employment.

11.    (1)    Where–

(a)    a person who is a temporary employee has, for the immediately preceding period of 1 year (whether or not the period commenced before the commencement of this Act), been a temporary employee, or a temporary employee and a permanent employee;

(b)    the person requests the Commissioner to direct, under this section, that he be treated as an eligible employee for the purposes of this Act; and

(c)    the Commissioner is satisfied that the person is likely to continue to be a temporary employee for a further period of at least 3 years after the date of the request or that, during that period of 3 years, the person is likely to become an eligible employee otherwise than by virtue of a direction under this section,

the Commissioner may direct that the person is, as from the date of the direction, an eligible employee for the purposes of this Act.

21    The “Commissioner” to whom s 11(1) refers was the Commissioner for Superannuation. As a matter of practice, the Commissioner delegated his or her powers to identified positions in approved authorities, rather than to named persons.

22    As can be seen, s 11(1) contained the following elements:

(a)    a minimum period of one year’s employment by the person;

(b)    a request by the person to the Commissioner to be treated as an eligible employee;

(c)    the Commissioner’s satisfaction (relevantly) that the person was likely to continue to be a temporary employee for a further period of at least three years.

In addition, by s 16(2) of the 1976 Act, the person had to undergo such medical examination or examinations as the Commissioner required.

23    The primary Judge found, at [60], that the day to day arrangements with respect to both the CSF and the CSS were under the control of employing authorities such as TAA and that, after 1976, the only legitimate barrier to entry to CSS in the case of temporary employee with more than 12 months services was a requirement of likely continued employment.

Arrangements within TAA

24    The ANA Act had been amended from time to time, but the Judge applied its provisions as in force in 1973, at [23]. It was not suggested that he had been in error to do so. Sections 17 and 18 of the ANA Act distinguished between “officers” and “employees”. They provided (relevantly):

Appointment of officers

17.    …

(2)    The officers of the Commission shall constitute the Service of the Commission.

(3)    A person shall not be admitted to the Service of the Commission unless–

(a)    he is a natural-born or naturalized British subject;

(b)    the Commission is satisfied, upon such medical examination as is prescribed, as to his health and physical fitness; and

(c)    he makes and subscribes an oath or affirmation of allegiance in accordance with the prescribed form,

and shall not be appointed to a clerical office in that Service unless he has in open competition successfully passed the prescribed entrance examination:

…

Temporary and casual employees

18.    The Commission may appoint such temporary or casual employees as it thinks fit, on such terms and conditions as the Commission determines.

25    There was no definition of “temporary employees” but they were not persons “in the Service of the Commission” within the meaning of s 17 of the ANA Act. The Judge found that each of the appellants was a “temporary” employee engaged under s 18.

26    The ANA Commission had power to determine the conditions of employment of both officers and temporary employees.

27    In 1965, the ANA Commission issued a determination (known as Determination No. 2). This determination dealt with officers pursuant to s 17 and with temporary and casual employees under s 18. It included some general orders, one of which was a Personnel Manual.

28    The Judge found that, with effect from 6 April 1970, the Personnel Manual directed the following arrangements with respect to superannuation:

1.    INCIDENCE

The following are the instructions regarding superannuation applying to employees of Trans-Australia Airlines with the exception of Pilots and Air Hostesses.

2.    SUPERANNUATION ACT OR MANUAL

Refer to Superannuation Act 1922/1965 or the Commonwealth of Australia Superannuation Manual for complete details.

3.    QUALIFYING PERIOD

3.1    Senior Staff

Those employees whose salaries are within the administrative salary ranges, the equivalent of, or above, will be eligible to apply to become contributors to the Superannuation Scheme after the completion of six months’ satisfactory service.

3.2    Sales Representatives

Sales Representatives will be eligible to apply to become contributors after the completion of six months’ satisfactory service.

3.3    Females

In special circumstances, females may be admitted as members of the superannuation scheme after two years’ service. Recommendations to have such employees included in the scheme should be submitted to the Staff Manager for consideration.

3.4    Junior Trainees

Junior Trainees will be eligible to apply to become contributors after the completion of six months’ satisfactory service.

3.5    Apprentices

Apprentices will be eligible to apply to become contributors upon the signing of the prescribed apprenticeship indentures.

3.6    Other Juniors (Male)

Juniors other than those nominated in 3.4 and 3.5. of this Section will be eligible to apply to become contributors after two years’ satisfactory service.

3.7    Other employees

All other employees not included in Sub-Section 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 of this Section will be eligible to apply to become contributors after the completion of two years’ satisfactory service.

4.    RECOMMENDATIONS

Once an employee is eligible to apply to become a contributor with the approval of the Branch Manager or Departmental Head, a recommendation may then be compiled. This will be on Form P.D. 48 “Superannuation Recommendation” and must be completed in detail.

5.    PROCEDURE

The completed Form P.D. 48, together with –

5.1    Medical report

5.2    Chest X-Ray

5.3    Evidence of age

5.4    Election – retiring age

will be forwarded by Personnel Officers to the Staff Manager for processing.

6.    MINISTER’S APPROVAL

Upon receipt of the Minister’s approval by the Staff Manager, advice will be given of:–

6.1    Approval

6.2    Effective date.

The Personnel Officer will then arrange for superannuation contributions to commence.

29    As can be seen, cl 3 in the Personnel Manual provided for qualifying periods to be served before an employee became eligible to apply to become a contributor to the CSF. At trial, it appears to have been common ground that both appellants were in the category of “Other Employees” for whom the qualifying period was two years satisfactory service (cl 3.7). Employees did not become contributors automatically upon the completion of the qualifying period. Instead, a recommendation had to be made supported by medical evidence and other information (cll 4 and 5). Clause 6 contemplated that the recommendation would be made to the Minister but, from 1974, the Minister’s power had been delegated back to a Staff Officer within TAA.

30    The primary Judge was particularly critical of TAA’s adoption of the two year threshold for “Other Employees”. He considered that it was part of a course of conduct in which TAA had engaged in relation to the superannuation entitlements of employees which was in its own interests and that it had, deliberately, not given effect to the statutory provisions concerning such superannuation.

31    The Judge noted that, at the time each of the appellants commenced his employment with TAA, the Australian Government had been applying the “two airlines policy” under which competition on interstate routes within Australia between TAA and Ansett Australia Limited (Ansett) was encouraged, but other airlines excluded. TAA had been concerned that the cost of its employer contributions to the CSF and CSS exceeded the corresponding cost to Ansett, so that it was not competing in a “level playing field”. The Judge found that the decision of the Australian Government to close CSS to new entrants from TAA with effect from 1 July 1980 was a consequence of TAA’s concerns in this respect, at [5]. The Judge was critical of a number of aspects of TAA’s conduct:

[6]    TAA’s concern about the cost of its contributions to CSF and CSS, and its desire to have its own (less costly) superannuation fund for its employees, caused it to adopt policies and practices designed to control and curtail entry to superannuation by its employees. With a combination of hindsight and a more contemporary approach to the protection of employee interests, it is impossible not to be critical of the decisions taken, which owe much to the existence and operation of Australia’s two airlines policy. …

32    It was in this context that the Judge considered that the policy incorporated in the Personnel Manual issued in 1970 and continued throughout the 1970s (including after the commencement of the 1976 Act) of a threshold requirement for two years’ service operated as a fetter on employees’ access to the CSS. The Judge held, at [69]:

It does not reflect the statutory conditions for access to an important employment benefit. In my view, it was not legitimate to superimpose some further administrative requirement of this kind …

33    The Judge also referred to internal memoranda within TAA which indicated that deliberate decisions had been made to restrict entry to the CSF and CSS on the grounds of the cost to TAA. He then continued:

[74]    The passage I have emphasised is disturbing. It appears to suggest that under the 1922 Act, employees had been denied an opportunity to make provision for their retirement which was available to them under Commonwealth legislation. The conduct was deliberate and calculated. It was done to save money. It was done to the future prejudice of employees.

[75]    A number of possible alternatives were proposed to address the problem. None were adopted, but central to the thinking at the time was the desirability of creating a new scheme, similar to Ansett’s and no more expensive, and persuading existing employees to transfer to it. New employees would have no other choice.

…

[86]    One thing which is clear from the history I have recounted is that TAA embarked on a deliberate course of conduct, over a period of some years at least from 1973 to 1980, designed to obstruct, frustrate and prevent entry into superannuation schemes established under Commonwealth statutes for the benefit of employees. The motivation was financial advantage for TAA. The result for employees was a financial prejudice, or potential prejudice, for them.

[87]    I see no way to excuse what happened. However, a lack of excuse for exploitative (and perhaps even odious) conduct does not equate to legal causes of action for individuals even where, as here, they assert that the prejudice suffered by them was financially very substantial.

34    On the appeal, counsel for the appellants used the shorthand “Deterrent Scheme” to refer to the policies and practices which the Judge described. It is convenient to do likewise in these reasons.

Mr Innes’ claim

35    Mr Innes said that, shortly after commencing employment with TAA on 1 July 1974, he had made enquiries about joining “Commonwealth superannuation” by speaking to Mr Tibbs, then a Sales Manager in TAA’s Perth office. Mr Tibbs was responsible for corporate accounts and was not in any line of authority for Mr Innes. Mr Innes spoke to Mr Tibbs because he had been told by other employees that he “handled all superannuation enquiries in Western Australia”. Their first conversation was to the following effect:

Mr Innes:    How do I join the Commonwealth superannuation fund?

Mr Tibbs:    There are a limited number of positions available in the scheme. You will be invited to join on the retirement of a member of the scheme.

36    Mr Tibbs did not say anything to Mr Innes to indicate that he was not the appropriate person to provide the information which Mr Innes was seeking.

37    On the basis of this information, Mr Innes believed that he had no choice but to wait. Thereafter, he spoke to Mr Tibbs about twice each year about joining “the scheme”. On each occasion he was told that, although persons had left TAA, there were “no positions available” or “the position has gone to someone else who was ahead of you in the queue” or “you will have to wait your turn”. Mr Innes accepted these statements and took no further action.

38    Because he was keen to provide some financial security for his family, he took out a life policy with AMP in July 1978 and a superannuation policy in August 1981. Mr Innes joined AAGSP with effect from 1 January 1987 and on 30 June 1990 took out a second AMP policy.

39    Mr Innes’ case was that the information he had been given by Mr Tibbs was wrong and misleading and that he had relied on it to his detriment. His evidence was that, if he had been told by Mr Tibbs that he was eligible to join “Commonwealth superannuation”, he would have “taken all necessary steps to join”.

40    It was common ground at the trial that Mr Tibbs is now deceased.

Mr Hunter’s claim

41    Mr Hunter’s evidence was to the following effect. He learnt about superannuation from discussions with fellow employees shortly after starting at TAA. In particular, he was told by his fellow employees that “Commonwealth superannuation” was “very beneficial”. In August 1975, he and two other employees who had started at the same time as he had (on 28 July 1975) went to see Mr Kent, the Personnel Manager at Essendon Airport. He (Mr Hunter) was the spokesperson and a conversation to the following effect occurred:

Mr Hunter:    I understand I am eligible to join the Government superannuation scheme, what do I have to do about joining?

Mr Kent:    Superannuation is by invitation only. You have been here long enough to know better.

Mr Hunter:    Why?

Mr Kent:    That is the way it works.

42    Shortly afterwards, a foreman (Mr Sibble) told Mr Hunter and others during a smoko break discussion that “superannuation is by invitation only”.

43    A few days later, Mr Hunter had a discussion with TAA’s paymaster, Mr Sherburn, at a club at which they were both members. Mr Hunter told Mr Sherburn of his discussion with Mr Kent and asked whether what he had been told was correct. Mr Hunter said that Mr Sherburn responded with words to the effect “everyone is eligible to join Commonwealth superannuation”, that what Mr Hunter had been told by Mr Kent was correct, but that sometimes “it gets short circuited by applying through other means”.

44    Mr Hunter’s evidence was that he had accepted what he had been told and did not take steps to pursue joining Commonwealth superannuation. He said, however, that if he had known that what Mr Kent had said was incorrect, he would have done something about joining by “making waves” and would have “pushed it as far as I could through legitimate channels”.

The decision of the primary Judge

45    The primary Judge found that neither Mr Innes nor Mr Hunter was a “permanent employee” of TAA, at [47] and [90]. Further, the Judge held that, even if they had made applications to join the CSF before 30 June 1976, it is improbable that they would have obtained the necessary certification that their employment would continue for at least seven years (see [91]-[93]). That fact meant, by itself, that Mr Innes and Mr Hunter’s claims with respect to the CSF failed. On his appeal, Mr Hunter accepted that this was so and did not pursue any claim with respect to the CSF.

46    It is evident that the Judge felt significant disquiet about the quality of the evidence presented by the appellants. He considered that the absence of an “objective” record and “satisfactory corroboration” made their cases “difficult”.

47    The Judge referred to the authorities indicating that liability for negligent misstatement depends on it being established that the speaker realised, or at least ought to have realised, that he or she was being trusted to give information or advice on which the other would act. His Honour found that the appellants could not establish “the requisite degree of knowledge or appreciation on the part of those persons who statements they claim forestalled any further action on their part to pursue the question of entry into a Commonwealth superannuation scheme”, at [115]. In this respect the Judge regarded it as significant that each of the applicants had failed “on their own evidence, to take the basic and most obvious step of making a formal or even focussed enquiry with their local Personnel Officer about a matter which was clearly, and obviously, in that domain” (at [109]). The Judge went on to explain the significance of that conclusion:

My earlier criticism of the policies and practices being adopted by TAA will not sustain an assumption in favour of the applicants that any enquiry would have been rebuffed, when no enquiry was attempted and no response was elicited.

48    In relation to the claim in negligence, the primary Judge applied the approach of Heerey J in Mulcahy v Hydro-Electric Commission [1998] FCA 605; (1998) 85 FCR 170, which involved circumstances which were in some respects analogous to those of the appellant’s claims. It will be necessary to return to this decision.

49    In relation to Mr Innes’ individual claim, the Judge concluded:

(1)    there was no objective support for Mr Innes’ assumption that Mr Tibbs was the appropriate person to approach on the question of superannuation, that Mr Tibbs had any responsibility for superannuation, or that Mr Tibbs would have realised that Mr Innes would rely on what he said, or that it was or would have been reasonable for him to do so, at [167]-[168];

(2)    these matters constituted insurmountable obstacles for Mr Innes’ case, at [168];

(3)    any serious enquiry by Mr Innes should have been made to his personnel officer, at [169];

(4)    Mr Innes had not actively pursued an interest in joining CSS or CSF, and did not make out a case that he would have pursued joining CSS or CSF but for the alleged misleading advice from Mr Tibbs, at [161] and [175];

(5)    that if Mr Innes had made out his case, he would have been entitled to entry to the CSS from 1 July 1976 when it commenced, at [176].

50    In relation to Mr Hunter, the primary Judge concluded:

(1)    there were inconsistencies in his evidence which suggested that his account was unreliable, at [188];

(2)    that he had not established that he had pursued any interest in joining CSS or that conversations had occurred which had had the effect of denying him the opportunity to do so, at [188], [192];

(3)    that Mr Hunter’s then ambition to train as a pilot made it unlikely that he would have intended continuing working at TAA and was inconsistent with his professed desire to start contributing to a superannuation scheme with a view to eventual retirement from TAA in some 40 or so years’ time, at [190]-[191];

(4)    that if Mr Hunter had made out his case, he would have satisfied the qualifying period for entry into the CSS on 28 July 1976, at [194].

51    Thus, the claims of Mr Innes and Mr Hunter failed.

52    The primary Judge addressed two further matters. First, he rejected the respondent’s claim that the appellants’ claims were statute barred because they had been commenced outside the six year limitation period fixed, in the case of Mr Innes, by the Limitation Act 1935 (WA) and the Limitation Act 2005 (WA) and, in the case of Mr Hunter, by the Limitation of Actions Act 1958 (Vic).

53    The Judge did not assess the damages to which the appellants would have been entitled, had their claims succeeded, although he did outline some elements of the approach he would have adopted in that event.

Issues on the appeals

54    The respective notices of appeal contained multiple grounds, several of which are common to both appeals. Many of the grounds are expressed in a discursive way. On our understanding, the notices of appeal raise the following issues:

(1)    if Mr Innes was a temporary employee, did the Judge err in finding that, even if he had applied to join the CSF before 1 July 1976, it would have been (i) reasonable for TAA to have required some minimum period of service before certifying that he was likely to be employed for at least seven years; and (ii) improbable that TAA would have given that certification in time for him to have gained entry to the CSF? (Innes Ground 6 and 7). Mr Hunter did not pursue the corresponding grounds in his notice of appeal.

(2)    in relation to the claims concerning the CSS, should the Judge have found that each appellant was employed in a permanent capacity? (Innes Ground 5; Hunter Ground 5);

(3)    in relation to the appellants’ claims of negligent misrepresentation did the Judge:

(a)    misdirect himself as to the elements of the tort to be established, and thereby err in law? (Innes Grounds 1 and 2; Hunter Grounds 1 and 2);

(b)    err in law in finding that an insurmountable obstacle to the success of the appellants’ claims was their inability to establish that those on whom they relied knew, or ought to have known, that their advice would be relied on? (Innes Ground 12; Hunter Ground 12);

(c)    err in his approach to the assessment of the appellants’ evidence, in particular, by saying that the appellants had “a heavy onus” and that there was no objective record or other satisfactory corroboration of the misrepresentations alleged? (Innes Grounds 3, 4 and 8; Hunter Grounds 3, 4 and 8);

(d)    err in finding that Mr Innes had not established that Mr Tibbs was an appropriate person to approach and that it had been reasonable for him to rely on Mr Tibbs’ statements? (Innes Grounds 13 and 14);

(e)    err in concluding that any serious enquiry by the appellants should have been made to their personnel officer, especially as, in the case of Mr Hunter, he had made such an enquiry? (Innes Ground 11; Hunter Ground 11);

(f)    err in failing altogether to consider Mr Hunter’s evidence concerning Mr Sherburn? (Hunter Ground 13);

(g)    err in failing altogether to address the appellants’ claims that TAA had an ongoing duty to correct the representations previously made which were incorrect? (Innes Ground 18; Hunter Ground 17);

(4)    in relation to the appellants’ claims in negligence, did the primary Judge err in:

(a)    failing to find that TAA did owe the appellants a duty of care to avoid causing them economic loss in relation to the superannuation arrangements? (Innes Ground 20; Hunter Ground 19);

(b)    relying on Mulcahy to find that there was no duty of care? (Innes Ground 20; Hunter Ground 19);

(c)    failing to find that the Deterrent Scheme and its implementation in relation to the appellants constituted a breach of the duty of care? (Innes Ground 19; Hunter Ground 18);

(d)    failing to make the necessary findings of fact? (Innes Ground 21, Hunter Ground 20);

(5)    on the issue of causation and reliance did the primary Judge err in:

(a)    finding that Mr Innes had not established that he would have pursued an interest in joining the CSF or the CSS, that the conversations upon which he said he had relied had had that effect, and that he had been wrongly precluded from the CSS from at least 1 July 1976? (Innes Grounds 9, 10, 15, 16 and 17):

(b)    the case of Mr Hunter in finding that, even at face value, Mr Hunter’s evidence did not establish that he would have pursued an interest in joining the CSS and that the conversations on which he relied had had the effect of denying him the opportunity to join CSS? (Hunter Grounds 9, 10, 11 and 15);

(c)    the significance which he attached to Mr Hunter’s ambition to become a pilot? (Hunter Grounds 14 and 16);

(6)    did the Judge err in finding that, if he had been called upon to assess damages, he would have found that each appellant had failed to take reasonable steps to mitigate his own loss? (Innes Ground 22; Hunter Ground 21).

55    In addition, the respondent claims, by notices of contention, that the primary Judge should have upheld its defences that the claims are statute barred.

Disposition of Mr Hunter’s appeal

56    In our view, it is not necessary to consider all these issues on Mr Hunter’s appeal as it is plain that the appeal must fail in any event.

57    As noted earlier, Mr Hunter’s claim was that he had accepted the accuracy of what he had been told by Mr Kent and Mr Sibble and that, if he had known that the information they had given him was incorrect, he would have pursued participation in the CSS. The difficulty for Mr Hunter on appeal arises from the fact that the Judge regarded his evidence with respect to the issues of reliance and causation as unreliable and in other respects as implausible. As to the unreliability of Mr Hunter’s account, the Judge referred to:

(1)    the inconsistency in his evidence concerning when he had first learnt about the AAGSP, at [184];

(2)    inconsistencies in his evidence concerning the sequence with which he had spoken to Mr Kent and to Mr Sibble, at [185];

(3)    the implausibility of his account that he had approached Mr Kent to see how long it would take for him to receive an “invitation” to participate when he had not asked Mr Kent that question, at [186].

58    The Judge concluded at [188]:

Inconsistencies of this kind do not necessarily connote dishonesty or false evidence but they may suggest some unreliability. They do so in the present case. However, accepting Mr Hunter’s evidence about the conversations at face value, I would not conclude or accept that he pursued any interest in joining CSS, or that conversations before CSS commenced had the effect of denying him any opportunity to join CSS. …

59    The Judge also considered that it was implausible that Mr Hunter would have wished to pursue participation in the CSS in 1975 or 1976. When Mr Hunter commenced with TAA, he was 21 years old, unmarried, without dependants and had ambitions to become a pilot with a commercial air service (not necessarily TAA). To that end, Mr Hunter was putting his money towards flying lessons. He did not abandon his ambitions to become a pilot until he was 25 or 26 years old.

60    The Judge regarded this evidence as being inconsistent with Mr Hunter’s evidence that he had wanted, in 1975 and 1976, to start contributing to a superannuation scheme with a view to eventual retirement from TAA approximately 40 years later, at [191]. He said that the evidence concerning Mr Hunter’s pilot ambitions confirmed his conclusion that Mr Hunter had not pursued any interest in joining CSS. It is evident that the Judge considered that Mr Hunter would instead have wished to avoid having superannuation contributions deducted from his wage when he had the prospect of recouping only the accumulated contributions if he left TAA’s employment to pursue pilot training.

61    The appellate approach to review of factual findings of the present kind is that discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [27]-[31]. The Court may interfere with the findings of a trial judge even though based on the judge’s assessment of the credibility of a witness who the judge has seen give evidence. However, generally the Court will do so only if it considers that there are incontrovertible facts or uncontested testimony indicating that a trial judge’s conclusions are erroneous or that the decision is otherwise glaringly improbable or contrary to compelling inferences.

62    Counsel for Mr Hunter first sought to demonstrate error in this case by a submission that the Judge had not taken into account Mr Hunter’s evidence of his discussion with the TAA paymaster, Mr Sherburn, in a conversation away from work and at a club. However, Mr Hunter had not made this conversation part of his pleaded case so that it was not necessary for the Judge to make findings concerning it. In our view, it cannot reasonably be supposed that the Judge overlooked this evidence as it was contained in the run of paragraphs in Mr Hunter’s affidavit to which the Judge referred expressly in his reasons.

63    Secondly, counsel submitted that Mr Hunter’s pilot ambitions were irrelevant. This was so it was said, because there was no suggestion that TAA or the Commissioner’s delegate had been aware of them and so could not have taken them into account in any decision concerning Mr Hunter’s participation in the CSS. In our view, this submission misses the point. The Judge did not refer to Mr Hunter’s pilot ambitions with respect to any decision to be made by TAA or the Commissioner’s delegate but instead with respect to whether Mr Hunter would have pursued participation in the CSS. It was a matter bearing upon Mr Hunter’s decision-making and not that of TAA or the Commissioner’s delegate.

64    In our opinion, Mr Hunter has not shown any error of the kind which would warrant this Court interfering with the Judge’s credibility findings. Counsel for Mr Hunter conceded that his appeal must fail unless he could show error of this kind. In our view, that is the position. Accordingly, as indicated, it is not necessary to address the other issues concerning Mr Hunter’s appeal.

Mr Innes’ claim to participation in the CSF

65    Mr Innes’ first contention was that he had been inappropriately denied the opportunity to participate in the CSF. As noted earlier, the CSF closed on 30 June 1976 just under two years after Mr Innes had commenced employment with TAA. Had Mr Innes been a participant in the CSF on or before 30 June 1976, he would automatically have become a member of the CSS on 1 July 1976.

66    Section 4(6) of the 1922 Act had the effect that Mr Innes could have become a participant in the CSF before its closure only if (relevantly) TAA had certified that his employment was “likely to be continued for a period of at least seven years”, had recommended to the Minister that he be deemed to be an employee as defined in the 1922 Act, and the Minister had given a direction to that effect.

67    At the trial, Mr Innes argued that he should have been regarded as entitled to join the CSF on the completion of his six month probation period (in January 1975) and without having to complete two or three years’ service, as was the apparent practice of TAA. The Judge rejected that contention. His Honour considered that TAA could reasonably have regarded the completion of a “qualifying” period as a matter bearing on the certification that a person’s employment was likely to last at least seven years. That was because such a period would have enabled an assessment to be made of the stability of the employment and of the person’s diligence in attending to the required and assigned tasks, at [43]. It is implicit in the Judge’s reasons that he considered that TAA could have regarded two years as being reasonable as a qualifying period for this purpose.

68    Mr Innes contended on appeal that this finding was wrong. However, his submissions to that effect did not arise above assertion and did not identify any error in approach by the Judge.

69    In our view, no error has been shown in this conclusion of the Judge. Mr Innes’ failure on this issue is sufficient to indicate that his appeal insofar as it concerns the CSF must fail. Even had he been properly informed about the CSF, he cannot show that he would have become a participant in it before admission to it closed on 30 June 1976.

Was Mr Innes a permanent employee?

70    The question of whether Mr Innes was a permanent or temporary employee arose from the definition of “eligible employee” in the 1976 Act (set out earlier in these reasons), and because permanent employees were entered without further qualification into the CSS.

71    Section 3(1) of the 1976 Act, out earlier in these reasons, defined a “permanent employee” (relevantly) as a person employed by an approved authority “in a permanent capacity”. It also distinguished such an employee from a “temporary” employee who was defined as a “person employed … otherwise than in a permanent capacity”.

72    The Judge concluded that there was no evidence that either of the appellants was a permanent employee, giving brief reasons:

[46]    … There is no evidence that any of the applicants was a permanent employee. For example, none was required to undergo a medical examination upon employment. They were certainly not persons “in the Service of the Commission” within the meaning of the ANA Act.

[47]    I am satisfied, therefore, that each of the applicants was a “temporary employee” within the definition in s 3(1) of the 1976 Act …

The Judge’s reference to the “Service of the Commission” was a reference to s 17 of the ANA Act, set out earlier in these reasons.

73    Later, at [90], the Judge said that he was satisfied that only persons “in the Service of Commission” were permanent employees of TAA and therefore entitled (subject to medical examination) to admission to the CSS without the need for certification of likely employment for at least seven years and without delay.

74    The two factors on which the Judge relied were inter-related because s 17(3) of the ANA Act provided that a person was not to be admitted to the “Service of the Commission” unless, amongst other things, TAA was “satisfied, upon such medical examination as is prescribed, as to his health and physical fitness”. The evidence did not indicate whether any such examination had been prescribed.

75    The evidence did indicate that the concept of “the Service of the Commission” had fallen into desuetude because, in the early 1960s, TAA had ceased appointing persons to the Service of the Commission. The Judge accepted at [26] that that was so and it is in any event confirmed by a memorandum from TAA’s Personnel Practice Superintendent to its Personnel Director dated 19 May 1975. The memorandum included the statement:

Entry into Service of the Commission has not been carried out since the early 1960s …

The establishment of officers as were originally approved by the Commission no longer has any relation to any overall staffing establishment …

The manner in which TAA had made appointments of staff since the early 1960s was not the subject of the evidence nor of findings by the Judge.

76    The second submission of counsel for the appellants was that, as the expression “employed in a permanent capacity” was used in the 1976 Act, the terms of the ANA Act did not control its meaning. The submission was that, irrespective of whether (relevantly) Mr Innes had been employed under s 17 or s 18 of the ANA Act, he had, as a matter of proper legal and factual characterisation, been employed in a permanent capacity for the purposes of the definition of eligible employee in the 1976 Act.

77    When the 1922 Act was first enacted, only permanent employees could participate in the CSF: see the definition of “employee” in s 4(1). The eligibility for participation in the CSF was expanded by the Superannuation Act 1942 (53 of 1942) (Cth) to permit persons employed by the Commonwealth other than in a permanent capacity to join. Such persons had to have had at least five years continuous service and their employment certified as likely to continue “for an indefinite period”. By the Superannuation Act 1971 (46 of 1971) (Cth), s 4(6) was inserted into the 1922 Act so as to permit persons employed by an approved authority to participate in the CSF. Section 4(6) did not distinguish between permanent and temporary employees. In order to participate in the CSF, employees of approved authorities had to have been required by the terms of their employment to give the whole of their time to the duties of their office and their employment certified as being likely to continue for at least seven years.

78    It is readily understandable that the primary Judge considered the terms of ss 17 and 18 of the ANA Act in determining whether the appellants were employed in a permanent capacity. They conceded on appeal that, for the purposes of that Act, their employment had to be in one or other of the categories contemplated by those sections and seemed to acknowledge that they had not been admitted to the Service of the Commission under s 17. Counsel submitted, nevertheless, that even if the appellants were temporary employees for the purposes of the ANA Act, they were employed “in a permanent capacity” within the meaning of that expression in the 1976 Act. As part of this submission, counsel contended at one stage that the term “temporary” in the ANA Act was not used in its usual sense of “short term” or “for the time being”.

79    In our opinion, the starting point should be the definition in the 1976 Act. The criterion in that definition is the capacity in which the person is employed rather than the categorisation of the employment by the approved authority. This is made evident by the reference in the definition of permanent employee to the position of persons employed by the Commonwealth. It contemplated expressly that the Commonwealth may have persons employed in a permanent capacity even though they were not officers for the purposes of the Public Service Act, thereby implying that regard may be had to the actual circumstances of a person’s employment. Accordingly, we consider that the question of whether Mr Innes was employed in a permanent capacity for the purposes of the 1976 Act is informed, but not controlled, by the forms of employment contemplated by the ANA Act. In particular, we consider that the emphasis for the purposes of determining the question arising under the 1976 Act should be on the circumstances of Mr Innes’ employment even if, in form, his appointment for the purposes the ANA Act was classified as temporary. The formal classification of the employment by ANA of Mr Innes should not, for present purposes, control the determination of whether he was employed in a permanent capacity.

80    We are confirmed in this view by the approach of Heerey J in Mulcahy in relation to a counterpart provision in the Retirement Benefits Act 1970 (Tas). Heerey J said, at 195:

The expression “a person … employed in a permanent capacity” is not a legal term of art, like “lease” or “partnership”. The words are ordinary English words which have to be construed and given effect to in the context of this particular legislation.

81    Later, at 196-7, Heerey J noted three further features of the concept “employed in a permanent capacity”:

(a)    the test of permanency or otherwise is to be applied at the date of engagement or at any subsequent stage at which there is an express agreement to vary the nature of the employment;

(b)    the criterion is objective;

(c)    lengthy service is not necessarily determinative of permanency.

82    In deciding that the employees under consideration in Mulcahy were not employed in a permanent capacity despite their subjective intention at the time of engagement to remain at the Hydro indefinitely and possibly for all their working lives, Heerey J took into account objective considerations, namely, that the business of dam construction carried on by the Hydro was not one which could be regarded as continuous and indefinite; that its construction workforce could be used only on projects approved by the Tasmanian Parliament; and that many employees did not wish to be other than temporary (thereby avoiding having a regular amount by way of superannuation contributions deducted from their wages).

83    The decision and approach of Heerey J was confirmed on appeal: Mulcahy v Hydro-Electric Commission [1998] FCA 1780; (1998) 85 FCR 248.

84    We are not able to discern any indication in the evidence concerning Mr Innes’ appointment in 1974 to indicate that it was to be other than in a permanent capacity. Mr Innes made an application for employment using the pro-forma application form issued by TAA. The pro-forma document was of a kind which could be used for all manner of employees including flight crew and flight stewards. There was nothing on its face to indicate that the employment for which Mr Innes was applying was temporary in nature. Moreover, the pro-forma document required Mr Innes to acknowledge a number of conditions of employment which were apt for permanent employment.

85    Perhaps of more significance is the letter of appointment sent to Mr Innes on 1 July 1974. By this letter, Mr Innes was informed that his application for the position of Traffic Officer had been successful; that his salary would be at the rate of $5,831 per annum; and that his appointment was subject to a probationary period of six months. There was no suggestion that Mr Innes’ employment was temporary or short term. Further, an internal TAA document indicated that Mr Innes was being recruited to replace another employee who had been “reclassified and transferred”.

86    We respectfully agree with the view of Heerey J in Mulcahy that the permanency or otherwise of a person’s employment is to be assessed as at the date of the engagement (in the absence of evidence of some later variation). This means that the course of subsequent events would not ordinarily bear on the question. We observe, however, that there would be some incongruity in a finding that Mr Innes had been a temporary employee of TAA throughout the period commencing on 1 July 1974 until at least 1994 when his employment was transferred to Qantas. We also consider that there would be some incongruity in the Court accepting that all employees engaged by TAA after the early 1960s had, for the purposes of the superannuation legislation, been engaged in a temporary capacity only, yet that seems to be a necessary consequence of acceptance of the respondent’s submissions.

87    We conclude that Mr Innes was a permanent employee for the purposes of the 1976 Act and, therefore, an “eligible employee”. Accordingly, his participation in the CSS had been mandatory.

88    Mr Innes’ claims did not include a claim that TAA had breached a statutory duty owed to him by TAA in failing to act on the basis that he had been employed in a permanent capacity and has not pursued on appeal any claim of breach of contract of employment. Such causes of action may have been difficult to sustain, for other reasons.

The claim of negligent misrepresentation

89    A person may be liable to another for the economic loss resulting from the negligent provision of information or advice. In L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) (1981) 150 CLR 225, Mason J with whom Aickin J agreed, referred, at 250-1, to the judgment of Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628 and said:

According to the Chief Justice, whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realizes, or ought to realize, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give.

In this formulation there are several points to be noted. First, liability for negligent mis-statement is not confined to those who carry on, or profess to carry on, a profession, business or occupation involving the possession of skill and competence. The Chief Justice, like the minority in the Privy Council, was in disagreement with the majority in the Privy Council who drew a distinction between those who bring, or profess to bring, professional knowledge or skill into the preparation of their statements and those who do not do so and are not expected to do so, the latter being under no duty of care in relation to their statements. …

…

I prefer the wider view to that expressed by the majority of the Privy Council in the MLC case. I consider that this Court should now adopt Barwick CJ’s statement of the conditions which give rise to a duty of care in the provision of advice or information. It will be noted that his Honour specifically equated the provision of information with the giving of advice, a conclusion which conformed to his Honour’s view that liability is not confined to those who carry on a profession or business.

(Citations omitted)

90    In Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, Gleeson CJ, Gummow and Hayne JJ referred to MLC v Evatt and said:

[47]    The statement of principle by Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt regained vitality after the consideration in Shaddock of the reasoning of the majority in the Privy Council in the Evatt litigation. In his judgment, Barwick CJ referred to various features of the special relationship in which the law will import a duty of care in utterance by way of information or advice. They were restated by Brennan J in San Sebastian Pty Ltd v The Minister. Two of the points made by Barwick CJ are of immediate significance for this appeal. The first is the statement that:

“the speaker must realize or the circumstances be such that he ought to have realized that the recipient intends to act upon the information or advice in respect of his property or of himself in connexion with some matter of business or serious consequence”.

The second is that:

“the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker. The nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker.”

[48]    The first statement emphasises the need for caution lest a duty of care be imposed upon a party who has no appreciation of, and could not be expected to appreciate, the implications of making an error. ...

(Citations omitted)

See also Gaudron J in Tepko at [75] and ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 at [573]-[577].

91    The primary Judge applied the principles stated in Shaddock and Tepko. In doing so, his Honour referred to the well-known statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 that:

When the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

92    In a similar vein, the primary Judge referred to, and applied, the observations made by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-9:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration. …

The basis for Mr Innes’ claim

93    Mr Innes’ claim of negligent misrepresentation was based on the statements which he alleged had been made by Mr Tibbs, then the Sales Manager in the Perth city office of TAA. As noted earlier, he said that, commencing in the first 12 months of his employment, he had made enquiries of Mr Tibbs on several occasions about how he might join “the Commonwealth superannuation fund”. His claim was that on the first occasion Mr Tibbs had told him that there were a limited number of positions available in the CSF and that he would be invited to join the scheme on the retirement of a member of the scheme, thereby representing that eligibility to participate in Commonwealth superannuation was by invitation only.

94    Mr Innes said that thereafter he had periodically enquired of Mr Tibbs whether there was now a position “in Commonwealth super” and that Mr Tibbs had responded with words to the effect of “there are no positions available”, or “the position has gone to someone else who was ahead in the queue” or “he [the applicant] would have to wait his turn”.

95    Mr Innes’ evidence in chief concerning these conversations was provided by way of affidavit and was as follows:

31.    After I first started working at TAA, I was speaking to fellow workers in general conversation when some of those workers, who were approaching retirement, asked me if I had applied to join Commonwealth superannuation. Those workers included:

(a)    Patrick Tennant, Supervisor in TAA City Office;

(b)    Geoffrey Jayger, Supervisor in TAA City Office; and

(c)    Harold Childs, Honorary President of FCU in Western Australian and Traffic Officer at TAA.

This was the first time that I became aware of Commonwealth super. This topic came up regularly. They all suggested I approach Graham Tibbs. I was told by them that Mr Tibbs “handled all the superannuation enquiries in Western Australia,” or words to that effect.

32.    After these discussions, in about the first six months of my employment, I decided to join Commonwealth superannuation and I approached Mr Graham Tibbs, the Sales Manager, at his office in the Booking Hall at the Perth TAA office. Mr Tibbs’ office was located upstairs in the same building where I worked. I went to his office, knocked on the door and spoke to him. I asked Mr Tibbs words to the effect of: “How do I join the Commonwealth superannuation fund?”

33.    Mr Tibbs responded with words to the best of my recollection: “There are a limited number of positions available in the scheme. You will be invited to join on the retirement of a member of the scheme.” Mr Tibbs did not offer me any information about the scheme and did not suggest that he was not the appropriate person to talk to or refer me elsewhere. It was a very brief conversation. I was left with the distinct belief that I had no further option other than to wait.

34.    I continued to press Mr Tibbs about joining the scheme but was repeatedly told the same story. Prior to 1978 I would go into Mr Tibbs’ office and make enquiries with him directly about twice per year. This is because people were retiring and I believed, given what he had previously told me, that the situation for me may have changed. When I was spending more and more time out at the airport, it was more convenient for me to contact Mr Tibbs by telephone, and I did so about once per year from 1978.

35.    On each occasion I would ask Mr Tibbs words to the effect: “I understand that someone has left. Is there now a position in Commonwealth super?”

36.    In response to my enquiries, Mr Tibbs would respond with words to the effect of:

(a)    “There are no positions available;” or

(b)    “The position has gone to someone else who was ahead of you in the queue;” or

(c)    “You will have to wait your turn.”

37.    On each occasion Mr Tibbs’ response was basically the same. On no occasion did Mr Tibbs suggest I make enquiries elsewhere, or suggest that he was not the right person to talk to about joining Commonwealth superannuation.

38.    I accepted that Mr Tibbs would know the correct position, and that I would be invited to join Commonwealth super when a position became available. I understood that Mr Tibbs was responsible for all personnel matters of employees at the Booking Office.

96    Mr Innes’ evidence as to what he would have done had he been told by Mr Tibbs that he was eligible “to join Commonwealth superannuation” was set out in the following two paragraphs of his affidavit:

39.    If I had been told by Mr Tibbs that I was eligible to join Commonwealth superannuation, I would have taken all necessary steps to join, I would have obtained and submitted an application to join, and followed it up to ensure it was processed as soon as possible.

40.    From the time when I began at TAA and after I learned about Commonwealth superannuation I was keen to join because I was aware of the benefits the scheme provided. If I had been permitted to join I would have been able to contribute part of my salary towards Commonwealth superannuation as required. Even though I was supporting a young family, I was on a relatively high income compared to what I had been previously used to, and also received shift allowances. I had disposable income and would have been able to afford to contribute to the scheme as required.

97    The primary Judge did not make express findings as to whether Mr Innes had spoken to Mr Tibbs as he claimed nor whether Mr Tibbs had made the statements which Mr Innes attributed to him.

98    It is apparent that the Judge had misgivings about the reliability of Mr Innes’ account. He said that he was not prepared to give “unqualified acceptance” to the statements made by Mr Innes in [31]-[40] of his affidavit, at [162]. The Judge referred more than once to a lack of objective evidence and of evidence which was corroborative of Mr Innes’ account, at [104], and, at [102], described the appellants’ evidence generally as “skimpy and one-sided”. Specifically, the Judge did not accept Mr Innes’ evidence contained in [38] of his affidavit that he had understood Mr Tibbs to be “responsible for all personnel matters of employees” at TAA’s Booking Office. In this respect, the Judge accepted the submission of counsel for the respondent that Mr Innes had been well aware that he should speak to the personnel officer about employment related matters, at [172].

99    Nevertheless, we think it appropriate to proceed on the basis that the Judge did accept, or at least had been willing to assume, the correctness of Mr Innes’ evidence that he had spoken to Mr Tibbs within the first 12 months of his commencement with TAA and periodically thereafter. The content of those discussions will be the subject of separate consideration. We think it appropriate to proceed on this basis because, not only did the Judge not make an express finding to the contrary, but there had been no positive submission by the respondent at trial that Mr Innes’ evidence that he had had those discussions with Mr Tibbs was false, whether deliberately so or as a result of some process of reconstruction. On the contrary, several of the respondent’s submissions at first instance seemed to assume the correctness of Mr Innes’ evidence that he had approached Mr Tibbs about superannuation arrangements. Further, it seems inherently unlikely that, had Mr Innes been fabricating the evidence, he would have nominated Mr Tibbs as the person to whom he had spoken.

The basis for the Judge’s rejection of the negligent misrepresentation claim

100    It is evident that the Judge considered that Mr Innes’ claim of negligent misrepresentation should fail for three principal reasons.

101    First, the Judge held that Mr Innes had not established that Mr Tibbs was, or ought to have been, aware that he [Mr Innes] intended to act upon the information he provided, at [102], [115] and [168]. In the last of these paragraphs, the Judge said:

[Mr Innes] cannot show that Mr Tibbs had any responsibility for superannuation, that Mr Tibbs would realise that Mr Innes would rely on what he said, or that it was or would have been reasonable to do so. He cannot show that Mr Tibbs would appreciate the (alleged) implications [from] making an error in his statements.

102    Secondly, the Judge considered that it had not been reasonable for Mr Innes to have relied on what he was told by Mr Tibbs. As to this, the Judge said:

[167]    There is no objective support of any kind to Mr Innes’ stated assumption that Mr Tibbs was an appropriate person to approach about the question of superannuation. I give no weight to the suggestion that he was told that some other people thought so.

[168]    That difficulty is an insurmountable obstacle for Mr Innes’ case, although it is far from the only one. …

[169]    Furthermore, whatever local role Mr Tibbs may have played (assuming that for this purpose) the Personnel Officer was an obvious and inescapable candidate for any serious enquiry about superannuation. No serious enquiry about the matter could be complete, in my view, without seeking information also from the Personnel section or the Personnel Officer.

103    Thirdly, the Judge held that Mr Innes had not established that he had suffered damage as a result of the statements which he attributed to Mr Tibbs. In this respect, the Judge noted that a “cause of action in negligence does not arise unless and until the plaintiff suffers damage” (Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 per Crennan, Bell and Keane JJ at [124] (Brookfield)). His Honour considered that, in order for the appellants to succeed, it was necessary for them to establish, on the balance of probabilities, that if the statements about which they complained had not been made or if they had been given correct advice, they would in fact have joined Commonwealth superannuation, at [150].

104    The Judge considered that Mr Innes had not established that matter, at [151], and said later at [175]:

I do not accept that Mr Innes actively pursued an interest in entering CSS (or CSF) or that he has made out any case that he would have pursued the matter but for the alleged misleading advice from Mr Tibbs.

105    In a similar vein, the Judge said at [161] that he could see nothing in Mr Innes’ history to support his claim that, in 1974 or at any time before the CSS closed to new entrants from TAA, that he had been “determined” to pursue the possibility of entering into Commonwealth superannuation. Again, the Judge referred to an absence of “objective support” for Mr Innes’ claim that he had had such an intention or desire.

106    There is a passage in the Judge’s reasons which may suggest a second strand of reasoning on this topic. The Judge referred to the necessity of assessing what the position would have been had the statements claimed by the applicants at first instance not been made and continued:

[108]    The applicants assert that they would have continued their efforts to enter Commonwealth superannuation but that is far from a sufficient foundation upon which to conclude that those efforts would have been successful. Indeed, rather more application to the task would have been required than the applicants demonstrated.

(Emphasis added)

107    It is evident, however, that the Judge did not give effect to that reasoning of that kind. Instead, he found, at [176], that if Mr Innes had otherwise established his case, he would have been entitled to a favourable finding concerning participation in the CSS:

[176]    [I]f he had made out a case … he would be entitled to a finding that at least after three years’ service he might have expected to be given the necessary certification if TAA was not inappropriately manipulating and blocking entry into CSS for its own financial benefit. Indeed, I can see no reason why he would not have been entitled to entry from 1 July 1976, when CSS commenced. At that point, he had more than the minimum 12 months service to meet the qualifying period, there is no suggestion of unsatisfactory service (if that was relevant) and no suggestion that his employment would not be forecast to continue for at least three years.

The finding concerning Mr Tibbs’ appreciation

108    The Judge’s conclusion that Mr Innes had not shown that Mr Tibbs had, or should have, realised that he was being relied upon in the requisite way turned very much on his assessment of the evidence concerning Mr Tibbs’ responsibilities.

109    The evidence at trial concerning those matters came only from Mr Innes. He testified that Mr Tibbs was the Sales Manager with responsibility for corporate sales; that in that position he supervised the sales staff who attended to corporate sales; that Mr Tibbs’ office was on the Mezzanine Level of TAA’s Perth premises; and that Mr Tibbs had no responsibility for Mr Innes’ work (he being engaged in retail sales). Mr Innes’ evidence was that the only interactions which he had with Mr Tibbs were in relation to his superannuation queries.

110    The description by Mr Innes of Mr Tibbs’ role coupled with the evidence about the Personnel Department in TAA’s city office seemed, on its face, to make it improbable that Mr Tibbs would have had any responsibility for superannuation arrangements for TAA’s staff.

111    The matters on which Mr Innes relied for thinking that Mr Tibbs did have such responsibility were these:

(1)    Mr Childs, the Honorary President of the Federated Clerks’ Union in Western Australia and a fellow Traffic Officer at TAA, had told him that Mr Tibbs was in charge of superannuation for staff in Western Australia and the person to speak to if he wished to join the scheme;

(2)    other staff (apparently Mr Jayger and Mr Tennant who were supervisors in TAA’s city office) had told him the same thing;

(3)    Mr Tibbs himself had confirmed that he was the person who dealt with superannuation in Western Australia.

112    Mr Innes’ evidence concerning what had been said by Messrs Childs, Jayger and Tennant was admissible because it provided the explanation for his having approached Mr Tibbs in relation to superannuation. However, because of its hearsay nature (s 59 of the Evidence Act 1995 (Cth)), that evidence could not be used to prove that Mr Tibbs did in fact have that responsibility. Although the Judge did not say so expressly, this appears to be the explanation for his statement at [167] that he would give “no weight” to Mr Innes’ evidence that others had told him that Mr Tibbs was the appropriate person to whom to speak. An alternative explanation would be that the Judge was not willing to accept Mr Innes’ evidence concerning what these men had told him.

113    That left only Mr Tibbs’ own statements, as reported by Mr Innes. Given that Mr Tibbs is now deceased, the statements which Mr Innes attributed to him were admissible: Evidence Act s 63, having regard to the terms of s 62.

114    It is evident, however, that the Judge considered that superannuation was more likely to be a responsibility of TAA’s Personnel Department. That was a natural inference. Furthermore, contemporaneous documents within TAA confirmed that that was so. The documents issued by TAA to its staff concerning superannuation emanated from its Personnel Department and provisions concerning superannuation were contained in its Personnel Manual (for which the Personnel Department had apparent responsibility).

115    Mr Boxshall, the Personnel Officer, also had an office on the Mezzanine Level of TAA’s Perth premises. Given that proximity, there was no apparent need for there to have been some delegation of functions from the Personnel Department to Mr Tibbs in his capacity as Sales Manager.

116    In addition, Mr Innes acknowledged that he had dealt with the Personnel Department in relation to other employment matters and, in his capacity as Union Delegate, had referred other TTA employees to that Department.

117    We referred earlier to the Judge’s misgiving about the reliability of Mr Innes’ evidence. In particular, the Judge’s rejection of Mr Innes’ claim that he had understood Mr Tibbs to be responsible “for all personnel matters” would seem to have undermined his evidence that Mr Tibbs had said that he was the person who dealt with superannuation.

118    It is convenient at this point to address some submissions by counsel for Mr Innes critiquing the Judge’s assessment of the evidence.

119    Counsel accepted that the evidence was “one-sided” in the sense that the evidence of the events in question had come solely from the appellants, but submitted that the Judge had been wrong to disparage its quality on this account. We are not willing to accept that the primary Judge was using the term “one-sided” in this sense. To do so would be to impute to the primary Judge the fairly basic error of discounting the value of evidence simply because it had been adduced by one party only. We think instead that the Judge was referring to the nature of Mr Innes’ own evidence, namely, that it comprised almost wholly his own oral account and was not supported by contemporaneous documents or by witnesses who were independent of him. In that sense it was one-sided. In our opinion, this was an appropriate matter for the Judge to take into consideration. It reflects the common sense inference that, if Mr Innes’ account of his interactions with Mr Tibbs was correct, then it is likely that other employees of TAA in Perth would have had similar interactions with him. Yet Mr Innes had adduced no evidence from others to that effect.

120    Counsel for Mr Innes pointed to evidence that TAA had had a number of employees involved in its personnel, industrial relations or employee relation departments and seemed to suggest that it had been open to the respondent to call some of these. He submitted that the Judge had been wrong in failing to draw a Jones v Dunkel inference from the respondent’s omission to do so. However, the evidence did not indicate that these persons were any more available to the respondent than they were to Mr Innes himself and it is understandable that the primary Judge did not regard that submission as persuasive.

121    Counsel critiqued the Judge’s reference in [104] to an absence of an “objective record” and “satisfactory corroboration”. Counsel submitted that, insofar as this may be understood as a statement of law, it was an error because there is no requirement in cases of negligent misstatement that the statement be corroborated or written and, insofar as it may be understood as a statement of fact, the Judge had overlooked the evidence concerning the Deterrent Scheme. We would not readily impute the first of these errors to the Judge. Again, one would not readily suppose that the Judge had made such a basic error as to think that the law required corroborative evidence before a finding of negligent misrepresentation could be made. There is no indication to that effect at all in any of the authorities to which the Judge referred. We do not accept that part of the submission.

122    Nor are we willing to find that the Judge overlooked the evidence concerning the Deterrent Scheme. As already noted, the Judge made a number of criticisms concerning the conduct of TAA and his Honour had accepted the appellants’ submissions concerning the Deterrent Scheme. It is not readily to be supposed that, having done this, the Judge overlooked altogether his own findings. In any event, the Judge’s reasons indicate to the contrary. His Honour held that the “lack of excuse for [TAA’s] exploitative (and perhaps even odious) conduct does not equate to legal causes of action for individuals” (emphasis added), at [87]. Later, at [109], the Judge said:

… My earlier criticism of the policies and practices being adopted by TAA will not sustain an assumption in favour of the applicants that any enquiry would have been rebuffed, when no enquiry was attempted and no response was elicited.

123    We understand the Judge to have been holding in these passages that, even given his findings concerning the Deterrent Scheme, it was still necessary for the applicants, as individuals, to establish each element of their respective claims. At the least, these passages indicate that the Judge did not overlook his findings concerning the Deterrent Scheme.

124    However, we accept counsel’s submission that the Judge did not advert expressly in this context to the inferences arising from Mr Innes’ evidence that he had periodically approached Mr Tibbs, had made a similar enquiry on each occasion as he had made on as the first, and had received a similar answer. Counsel submitted that the very persistence of Mr Innes in making enquiries of Mr Tibbs should have been sufficient to cause Mr Tibbs to realise that Mr Innes was relying upon his information and advice. The Judge did not make any findings about this.

125    It is difficult, however, for this Court to conclude that that evidence should lead to a finding of error by the trial Judge, let alone a finding different from that of the Judge. Much would depend on the particular content of the interchanges between Mr Innes and Mr Tibbs at those times. In this respect, Mr Innes’ acknowledgements in his cross examination that he did not have a precise recollection of his conversations with Mr Tibbs and that the recollection he did have was vague is pertinent. So also are the observations of McLelland CJ in Eq in Watson v Foxman to which we referred earlier.

126    In our view, the uncertainty as to what each had said makes difficult a conclusion that Mr Tibbs should have realised that he was being relied upon in a serious way. The necessary foundation is absent. That is especially so given the possibility that Mr Tibbs was a person who, although having no official function with respect to superannuation, was seen amongst the TAA workforce in its city office as having a general knowledge about superannuation arrangements and so was sought out from time to time to give informal advice on the topic. This seems to be a plausible explanation for the matters described by Mr Innes.

127    In our opinion, the Judge’s conclusion that there was no “objective support” for Mr Innes’ assumption that Mr Tibbs was the appropriate person to whom to speak has not been shown to be wrong. On the contrary, as indicated, the objective evidence points in the opposite direction.

128    We consider that Mr Innes has not made good this challenge to the Judge’s conclusion.

The reasonableness of Mr Innes’ reliance

129    To an extent, the matters to which we have just referred also bear on the reasonableness of Mr Innes’ reliance on the statements of Mr Tibbs. Mr Innes’ claim that it was reasonable for him to have relied on Mr Tibbs would have been much stronger had he been able to demonstrate that Mr Tibbs did in fact have responsibility for superannuation arrangements in the TAA office.

130    The circumstance that Mr Tibbs was regarded by employees within the TAA office as having a general knowledge about superannuation arrangements (if that be the case) would not avail Mr Innes in an action against the present respondent, if Mr Tibbs did not in fact have any official function with respect to superannuation arrangements and had not been held out by TAA as having such a function.

131    The Judge referred to an additional matter, namely, Mr Innes’ omission to make any enquiry of the Personnel Department with respect to superannuation. As already noted, his Honour considered that any serious enquiry by Mr Innes about superannuation would have involved him seeking information from the Personnel Department. The implication in the Judge’s findings was that it had been unreasonable in this context for Mr Innes to have relied only on what he had been told by Mr Tibbs.

132    In relation to this issue, counsel referred to the statement of the primary Judge at [102] that the appellants had “the persuasive burden of showing that the person(s) they have identified as giving them advice had some appreciation that they would be deflected by the advice from making or pursing enquiries about a right to superannuation”. Counsel submitted that that statement was wrong in law. Instead the correct proposition, so counsel submitted, was that it was for the appellants to show that the persons giving them information or advice had, or ought to have had, some appreciation that they would accept, or act or refrain from acting, in accordance with, the advice, such that they did not join Commonwealth superannuation before July 1980. In our view, there is no substantive distinction between these formulations of the duty. They reflect in different ways the requirement established in the authorities that the giver of the information or advice must realise, or ought to realise, that the recipient of the information or advice intends to act on that information or advice in connection with some matter of business or serious consequence.

133    Mr Innes’ contention on appeal that the Judge had been wrong to conclude to the contrary depends upon him being able to establish that it had been reasonable for him, objectively considered, to rely only upon what he had been told by Mr Tibbs. As indicated, that is to be assessed in the context that Mr Innes is seeking to have responsibility for Mr Tibbs’ conduct imposed on TAA.

134    As the Judge’s conclusion on this issue appears to have been based on his assessment of the credibility and reliability of Mr Innes’ evidence as well as the inferences to be drawn from the objective circumstances, this submission brings into focus appellate review of findings of this kind. Earlier in these reasons we referred to Fox v Percy. In our view, Mr Innes has not shown circumstances of the kind discussed in Fox v Percy which would warrant this Court interfering with the Judge’s finding. On the contrary, we consider that the Judge’s conclusion that an enquiry of the Personnel Department was an obvious (and readily available) step was sound.

Proof of damage

135    As we understand it, the matters which led his Honour to the conclusion that Mr Innes had not established that he had suffered any damage as a result of the statements attributed to Mr Tibbs were:

(1)    the inferences available from the course of events occurring during Mr Innes’ employment (to which the Judge referred as “the history”, at [161]);

(2)    the inferences arising from his omission to make any enquiry of a TAA personnel officer about participation in Commonwealth superannuation;

(3)    the misgivings about the reliability of Mr Innes’ evidence more generally.

136    With respect to the history, the Judge referred to the matters to which Mr Innes had deposed in [31] to [38] of his affidavit set out earlier in these reasons and to later events in his employment. His conclusion was that there was “nothing in that history to support a claim that in 1974, or any time before 1980 when the CSS was closed to TAA employees” that Mr Innes had been determined to pursue the possibility of entry into Commonwealth superannuation.

137    In our view, there are some difficulties with this reasoning. The evidence that Mr Innes had made multiple approaches to Mr Tibbs in relation to superannuation (which as indicated earlier, the Judge appears to have accepted) was evidence of Mr Innes’ interest in participating in Commonwealth superannuation. With respect to the Judge, it is not easy to see how it could have been regarded otherwise. Whether or not it had been objectively reasonable for Mr Innes to approach Mr Tibbs and not the Personnel Department, it is difficult to characterise his conduct in doing so (apparently accepted by the Judge) as other than a manifestation of his pursuit of an interest in Commonwealth superannuation.

138    We accept that the evidence of later events does provide some support for the Judge’s conclusion. Mr Innes did not take advantage of the opportunity available to him in 1981 when TAA established the AAGSP to participate in that scheme. Mr Innes became obliged to participate in the AAGSP in 1987 on the introduction of occupational superannuation as a legislated standard but did so only as a non-contributing member when he could have chosen to make his own contributions in addition. Further, Mr Innes did not commence as a contributing member of the AAGSP until July 1995.

139    Counsel for Mr Innes submitted that the significance of Mr Innes’ conduct in 1981 and afterwards was diminished by the circumstance that he had already, in 1978, and again in 1981, taken out life insurance policies. This was said to be significant in two ways: first, it demonstrated an interest by Mr Innes in providing for the financial security of his family and, secondly, it meant that he was already committed to the making of contributions to those policies when the opportunity to participate in the AAGSP became available.

140    While we accept that inferences from the course of events from 1981 onwards may support the Judge’s conclusion, the inferences arising from Mr Innes’ multiple approaches to Mr Tibbs point strongly in the opposite direction, and the Judge did not take these into account.

141    We also consider, with respect, that the Judge was in error in attaching much significance on this issue to Mr Innes’ omission to approach the Personnel Department in relation to his superannuation concerns. If Mr Innes had genuinely believed that Mr Tibbs was the appropriate person to whom to speak, there was a readily available explanation for him not having approached the Personnel Department. The fact that it may have been, objectively speaking, unreasonable for him not to have approached the Personnel Department would not affect that explanation. The Judge appears to have overlooked this.

142    The Judge’s misgivings about the reliability of Mr Innes’ evidence are important. However, for the reasons we have explained, the Judge has overlooked a significant piece of evidence which points strongly in favour of Mr Innes having had the relevant interest and attached inappropriate significance (on this issue) to Mr Innes’ omission to make enquiries of the Personnel Department. Accordingly, had it been necessary to do, we would have found that the Judge had been in error in rejecting this part of Mr Innes’ claim.

143    Before leaving this issue, we note a further submission of counsel for the appellants. Counsel submitted that the Judge had been wrong in holding that it was necessary to consider what the position would have been if Mr Tibbs had not made the statements attributed to him. He submitted that once it was accepted that the representations actually made were wrong, it was not necessary for Mr Innes to establish that he would have made further enquiries, only that he had continued to rely on the advice which was given. Instead, counsel submitted, that the onus had been on the respondent to correct the wrongful advice which had been given.

144    In support of this submission, counsel referred to authorities indicating that the makers of misrepresentations with continuing effect will mislead the recipients so long as the misrepresentations are not corrected. In our opinion, the submission confuses two distinct matters: the “duty” to correct a misrepresentation which has continuing effect, on the one hand, and the requirement that an applicant demonstrates some damage caused by the conduct in question in order to show the existence of the tort. The first concerns the issue of breach of duty and the second the proof of damage. The present issue concerns the latter, to which the authorities which counsel referred are not relevant.

145    In summary, had it been necessary to do so, we would have found that Mr Innes had made good his challenge to the reasons of the Judge on this issue.

Summary

146    While we consider that Mr Innes has made good his appeal with respect to the third of these issues, for the reasons given earlier, we are not satisfied that the Judge has been shown to have been in error in relation to the first two. That means that Mr Innes did not establish two essential elements of his claim in negligent misrepresentation. For these reasons, the appeal with respect to the claimed negligent misrepresentation fails.

The claim in negligence

147    Mr Innes pleaded the duty of care he alleged at a reasonably high level of generality, namely, that by reason of a number of “facts, circumstances and salient features” the Respondent had owed him a duty of care to avoid causing “foreseeable economic loss by reason of its acts or omissions with respect to the availability of Commonwealth superannuation to [him] and his joinder to the available Commonwealth superannuation scheme for which he was eligible and membership of which he had sought”.

148    The general rule of the common law has been that damages are not recoverable for economic loss which is not consequential upon injury to person or property: Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, (2004) 216 CLR 515 at [22]; Brookfield at [127] (Crennan, Bell and Keane JJ).

149    Nevertheless, a number of decisions have upheld claims for pure economic loss. These include Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; Perre v Apand [1999] HCA 36, (1999) 198 CLR 180; Hill v Van Erp (1997) 188 CLR 159; and Bryan v Maloney (1995) 182 CLR 609.

150    In these cases, it has been the presence in combination of a number of features which have been regarded as sufficient to give rise to the duty. Those features have included the reasonable foreseeability that action or inaction on the defendant’s part was likely to cause consequential economic loss to the class of persons of which the plaintiff was a member and, in some instances, the defendant’s actual knowledge that that would be so; that the number of persons in the class of which the plaintiff is a member is not indeterminate; that the economic loss was a direct and immediate consequence of the action or inaction in question; the vulnerability of the plaintiff to action or inaction by the defendant (in the sense of the inability of the plaintiff to protect itself from the consequences of the defendant’s want of reasonable care); satisfaction that the imposition of the imputed duty would not impair the defendant’s legitimate pursuit of its autonomous commercial interests; the contractual relationship if any between the plaintiff and the defendant; and the closeness of the relationship between them.

151    In the present case, as has already been noted, the primary Judge held that the obligations of TAA to Mr Innes were to be determined by reference to the terms of his employment contract, express and implied and, inferentially, that those terms did not require TAA to exercise reasonable care with respect to the provision to Mr Innes of information and advice about superannuation arrangements. The Judge also considered that it was no part of TAA’s function to give legal or financial advice to its employees. In both of these strands of reasoning, the Judge applied the reasoning and conclusion of Heerey J in Mulcahy, saying that he would depart from Mulcahy only if satisfied that it was “demonstrably and plainly wrong”.

152    In our respectful opinion, it was not appropriate for the Judge to have adopted the approach in Mulcahy, especially given developments in the law since it was decided in 1998.

153    There are some decisions of the High Court which indicate that, when the parties’ relationship is governed by a contract, it is the law of contract and not of tort which will provide a remedy for economic loss suffered by the plaintiff. This is an incident of the law’s search for coherence. Thus, in Hill v Van Erp at 179, Dawson J spoke of the importance of the tort of negligence not being regarded as providing an all-enveloping remedy which supplants other remedies and rules, including contractual obligations. See also Gummow J at 223, 231-4. In Brookfield, Crennan, Bell and Keane JJ said:

[132]    These passages [in earlier judgments] accord with the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed expectations under a contract. The common law has not developed with a view to altering the allocation of economic risks between parties to a contract by supplementing or supplanting the terms of the contract by duties imposed by the law of tort.

(Citation omitted)

154    However, the cases do recognise circumstances in which a common law duty of care may co-exist with, and indeed have its origins in, the parties’ contractual relationship. Professional retainers which give rise to a duty in tort as well as a duty in contract are a ready example: Hawkins v Clayton (1988) 164 CLR 539.

155    Brookfield concerned a claim that a builder owed a duty of care to the strata corporation of a building it had constructed in respect of latent defects. All members of the Court rejected that claim. As already noted, Crennan, Bell and Keane JJ referred to the primacy of the law of contract in providing remedies against unintended harm to economic interests of the parties to the contract.

156    However, the other four members of the Court emphasised that their conclusion did not turn on notions that the strata corporation’s remedies should be found in contract. Hayne and Kiefel JJ, with whose reasons on this point French CJ agreed, said:

[59]    … The conclusion does not depend, however, upon making any a priori assumption about the proper provinces of the law of contract and the law of tort. As McHugh J pointed out in Woolcock Street, “[t]he decisions in Hedley Byrne [& Co Ltd v Heller & Partners Ltd], Donoghue [v Stevenson], White [v Jones] and Hill [v Van Erp] ... make it difficult to argue that claims in negligence for pure economic loss should be excluded merely because such claims may outflank or undermine fundamental doctrines of the law of contract”. And as McHugh J also observed, this Court rejected in Bryan v Maloney “the notion that in Australia contract and tort were so neatly compartmentalised that it would be an error to give a remedy in tort for economic loss”. …

(Citations omitted)

Similarly, Gageler J said:

[175]    It has long been accepted that a common law duty of care can coexist with a duty in contract and that a duty of care can be to avoid economic loss. That being so, legal taxonomy alone cannot assign such common law liability as a builder may have to a subsequent owner of a building to the province of contract to the exclusion of the province of tort. …

157    Further, and in any event, the relationship between Mr Innes and TAA in issue in the present case was not governed only by the terms of the contract of employment. TAA also had functions under both the 1922 and 1976 Acts with respect to the provision of superannuation benefits for its employees, including Mr Innes. By s 53(2) of the 1976 Act, the contributions payable by eligible employees could be deducted by TAA from their salary and paid to the Commissioner. In practice, that is how employee contributions were made. By s 11 of the 1976 Act, persons who had been a temporary employee for one year could request the Commissioner of Superannuation to direct that they be treated as eligible employees and the Commissioner could make such a direction if satisfied that the persons were (relevantly) likely to continue as a temporary employee for a period of at least three years after the request. The evidence at trial was that those powers of the Commissioner had been delegated to TAA, pursuant to s 25 of the 1976 Act. That being so, it would not be appropriate for this case to be determined on the basis that the obligations and expectations of the parties were to be found only within the four walls of their contract.

158    Having regard to these matters we conclude, with respect, that, insofar as the conclusion of the Judge rested on the view that any remedy of Mr Innes was to be found solely in the law of contract, it was in error. Further, the appellants have shown a sufficient basis for the decision in Mulcahy on that question not to be followed.

159    In our view, the existence or otherwise of the duty of care alleged should be determined having regard to the features emerging from the authorities which were identified earlier. A number of those features are present in this case.

160    Plainly, it was reasonably foreseeable to TAA that its employee may suffer financial loss if they did not participate in the CSF or the CSS. The Judge found that TAA had embarked on a deliberate course of conduct designed to obstruct, frustrate and prevent its employees entering into the CSF and CSS for the purposes of its own financial benefit and advantage and to the potential prejudice of its employees, at [74], [86], [176]. Further, the class of persons to whom the duty may be owed is finite. At its largest, the class would comprise only those whose entry into the CSS and CSF schemes was frustrated by the provision of negligent misrepresentations. The numbers are not known but it can at least be said that the class is not indeterminate.

161    In addition, the employment relationship indicates the closeness of the relationship between Mr Innes and TAA. It was not suggested that there was any conflict between the imputed duty, on the one hand, and the obligations under the contract of employment, on the other. Further, as already noted, TAA had an important role in the implementation of the superannuation schemes. It stood in a position of particularly close proximity to Mr Innes in relation to matters of superannuation and was able to determine directly matters bearing upon his superannuation status.

162    Considered by themselves, these matters could point towards the existence of a relevant duty of care. However, the vulnerability of a plaintiff is recognised as an important element in cases in which a duty of care to avoid economic loss has been found: Woolcock at [23]. As already noted, vulnerability in this context refers to the inability of plaintiffs to protect themselves from the consequences of the defendant’s want of care. In Perre v Apand at [118], McHugh J said:

[118]    Cases where a plaintiff will fail to establish a duty of care in cases of pure economic loss are not limited to cases where imposing a duty of care would expose the defendant to indeterminate liability or interfere with its legitimate acts of trade. In many cases, there will be no sound reason for imposing a duty on the defendant to protect the plaintiff from economic loss where it was reasonably open to the plaintiff to take steps to protect itself. The vulnerability of the plaintiff to harm from the defendant’s conduct is therefore ordinarily a prerequisite to imposing a duty. If the plaintiff has taken, or could have taken steps to protect itself from the defendant's conduct and was not induced by the defendant’s conduct from taking such steps, there is no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk of pure economic loss.

(Emphasis added)

163    In the present case, we do not consider that Mr Innes can be held to have been vulnerable in the requisite sense. Although there was no evidence adduced at trial to this effect, we think it reasonable to infer that the 1976 Act, like other legislation enacted by the Commonwealth Parliament, was reasonably available to members of the public, and to Mr Innes. In the days before the internet and information technology, locating the 1976 Act may have required more than usual persistence but, nevertheless, we think it proper to conclude that the 1976 Act was as available to employees of TAA (and in particular Mr Innes) as it was to TAA itself. A study of that Act would have enabled Mr Innes to identify his position under that Act rather than relying on what he had been told by Mr Tibbs.

164    Mr Innes had other alternatives, including the making of enquiries to the Commissioner for Superannuation or, in his position of job delegate for the Federated Clerks’ Union, enlisting the assistance of that Union in ascertaining the legislation. Alternatively again, Mr Innes could have sought professional assistance. We note in this respect that Mr Innes’ pleaded case was that, if he had been informed of the Deterrent Scheme, he would have taken “legal and/or administrative action and/or action by prerogative remedy, to challenge the legality of the policy and/or its implementation”.

165    This implies the availability of professional assistance to Mr Innes. This is not a case in which it may be said that TAA was one of limited number of custodians of the relevant information. There was no suggestion that TAA had taken steps to preclude Mr Innes from accessing the legislation. We appreciate that it may have been natural for Mr Innes to have looked to his employer for advice and information in relation to the topic of superannuation but that does not suffice to have placed him in a position of vulnerability of the requisite kind.

166    This conclusion is similar to that reached in analogous circumstances by Refshauge J in Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221; (2013) 280 FLR 385 at [510]-[532].

167    In our opinion, the absence of vulnerability of the requisite kind is fatal to Mr Innes’ claim that he was owed a duty of care. In those circumstances, it is not necessary for this Court to consider the grounds of appeal concerning the alleged breach of duty.

168    In summary, we consider that the absence of vulnerability of Mr Inness of the requisite kind is fatal to his appeal on the issue of negligence.

Limitation defences

169    In relation to the limitation defences raised by the Respondent’s Notice of Contention in Mr Innes’ appeal, we respectfully agree with the reasons of Bromberg J and do not wish to add to them. For the reasons previously given, it is not necessary to address the corresponding Notice of Contention in the appeal by Mr Hunter.

Damages

170    The primary Judge did not assess the damages to which the appellants would have been entitled, had their claims succeeded. His Honour did outline some elements of the approach he would have adopted. This included a statement, at [291], that he would have found that each appellant had failed to take reasonable steps to mitigate his loss. Both appellants complained on appeal that that indicative ruling was wrong.

171    We consider that it is unnecessary and inappropriate to address these grounds of appeal. It is unnecessary because each appeal fails for other reasons. It is inappropriate because there is no order of the Court which gives effect to the indicative ruling and, further, because issues of mitigation should in any event be addressed as part of the assessment of damages.

Conclusion

172    For the reasons given above, we consider that neither appeal should succeed. We would dismiss each appeal and would hear the parties as to costs.

Associate:

Dated:    12 December 2017

REASONS FOR JUDGMENT

BROMBERG J:

173    On findings unchallenged on this appeal, from at least 1973 to 1980, Trans-Australian Airlines embarked upon and pursued a deliberate course of conduct designed to obstruct, frustrate and prevent entry by its employees into superannuation schemes established for their benefit under Commonwealth statues. That conduct described below as the “Deterrence Scheme” was taken for the purpose of TAA’s own financial advantage and to the potential prejudice of TAA’s employees. The claims before the primary judge raised whether the appellants, both former employees of TAA, were in fact prejudiced and whether any such prejudice sounded in damages.

174    For the reasons which follow I consider that Mr Innes should succeed on his claim of negligent misrepresentation. On all other issues raised on the appeal, I respectfully agree with Tracey and White JJ for the reasons their Honours have given. The relevant superannuation arrangements and other background matters need not here be repeated. I gratefully adopt the outline given in the reasons of Tracey and White JJ as well as the abbreviations there utilised.

Mr Innes’ claim of negligent misrepresentation

175    As the primary judge recorded at [99], Mr Innes’ claim of negligent misrepresentation relied upon information given to him by an officer of TAA (Mr Tibbs) and which he contended should be “sheeted home to TAA”. The advice was claimed to fall within the categories of advice or information recognised by the High Court as giving rise to a duty of care.

176    What was in issue on the question of whether a duty of care existed was whether two ingredients of the special relationship required by the law to import a duty existed. Those ingredients’ features and their source are not contentious and were described by Gleeson CJ, Gummow and Hayne JJ in Tepko Pty Ltd v Water Board (2001) 206 CLR 1 in the following passage (at [47]) which the primary judge cited at [114]:

The statement of principle by Barwick CJ in Mutual Life & Citizens' Assurance Co Ltd v Evatt regained vitality after the consideration in Shaddock of the reasoning of the majority in the Privy Council in the Evatt litigation. In his judgment, Barwick CJ referred to various features of the special relationship in which the law will import a duty of care in utterance by way of information or advice. They were restated by Brennan J in San Sebastian Pty Ltd v The Minister. Two of the points made by Barwick CJ are of immediate significance for this appeal. The first is the statement that:

“the speaker must realize or the circumstances be such that he ought to have realized that the recipient intends to act upon the information or advice in respect of his property or of himself in connection with some matter of business or serious consequence.”

The second is that:

“the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker. The nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker.”

177    These then were the two inquiries which the primary judge was required to undertake in order to determine whether TAA had a duty of care to Mr Innes in relation to the making by Mr Tibbs of the representations alleged. Those representations (as pleaded and as deposed to in chief) were to the effect that, in late 1974 or early 1975, Mr Innes was told that there were limited positions available in the Commonwealth superannuation fund and that Mr Innes would be invited to join on the retirement of a member of the scheme. Further representations were made at various times thereafter through to 1981 (twice a year prior to 1978 and once a year thereafter) that there were no positions then available or that available positions had gone to others who were ahead of Mr Innes in the queue and that Mr Innes would have to wait his turn. In cross-examination, Mr Innes conceded that his recollection of the actual words used was a little vague and that a fair summary of what he was told was that “there are no positions available at the moment”.

178    Beyond determining whether a duty of care existed, the issues which required consideration were whether the alleged representations were made and, if made, whether they misrepresented the true position and thus whether the duty was breached. Additionally, Mr Innes needed to establish that he relied on the representations and that such reliance was causative of his failure to join CSF or CSS.

179    Whilst the primary judge did not expressly resolve each of those questions, and there is room for some doubt as to the precise approach taken by the primary judge which led to the dismissal of Mr Innes’ claim, two conclusions reached by the primary judge seem clear. First, on the issue of reliance and causation, the primary judge was not persuaded that any representations made by or on behalf of TAA were the cause for Mr Innes not joining CSF or CSS. That was because the primary judge was not persuaded that Mr Innes wanted to join and thus would have joined if the alleged representations had not been made. That finding is expressed at [161] and also at [175] as follows:

[161]    I see nothing in that history to support a claim that in 1974, or at any time before 1980 (when CSS was closed to TAA employees), Mr Innes was determined to pursue the possibility of entry into Commonwealth superannuation. There is no objective support for a claim that he had such an intention or desire.

…

[175]    I do not accept that Mr Innes actively pursued an interest in entering CSS (or CSF) or that he has made out any case that he would have pursued the matter but for the alleged misleading advice from Mr Tibbs.

180    Second, on the question of whether a duty of care existed, the primary judge appears not to have been satisfied of the first of the two ingredients features referred to in Tepko, that the speaker did realise that the recipient intended to act on the information. At [167]–[168] the primary judge said:

[167]    There is no objective support of any kind for Mr Innes’ stated assumption that Mr Tibbs was an appropriate person to approach about the question of superannuation. I give no weight to the suggestion that he was told that some other people thought so.

[168]    That difficulty is an insurmountable obstacle for Mr Innes’ case, although it is far from the only one. Because of it, he cannot establish the ingredients necessary to make out a case of negligent misrepresentation. He cannot show that Mr Tibbs had any responsibility for superannuation, that Mr Tibbs would realise that Mr Innes would rely on what he said, or that it was or would have been reasonable to do so. He cannot show that Mr Tibbs would appreciate the (alleged) implications for making an error in his statements.

Reliance and causation

181    In relation to reliance and causation, the primary judge’s conclusion that Mr Innes did not want to join CSF/CSS seems to have been founded on three related conclusions. The first (at [161]) was that there was “nothing in that history” to support Mr Innes’ evidence of his determination to join CSF/CSS and the related finding at [175] that Mr Innes had not “actively pursued” an interest to join. Second (also at [161]) that there was “no objective support for a claim that [Mr Innes] had such an intention or desire”. And thirdly that Mr Innes should have but did not make his enquiries about joining CSF/CSS to a Personnel Officer of TAA who the primary judge considered was “an obvious and inescapable candidate for any serious enquiry about superannuation”. His Honour continued at [169] that “[n]o serious enquiry about the matter could be complete, in my view, without seeking information also from the Personnel section or the Personnel Officer”.

182    The evidence given by Mr Innes as to his intent to join CSF/CSS was dealt with in his affidavit and set out at [162] of the primary judge’s reasons as follows:

39.    If I had been told by Mr Tibbs that I was eligible to join Commonwealth superannuation, I would have taken all necessary steps to join, I would have obtained and submitted an application to join, and followed it up to ensure it was processed as soon as possible.

40.    From the time when I began at TAA and after I learned about Commonwealth superannuation I was keen to join because I was aware of the benefits the scheme provided. If I had been permitted to join I would have been able to contribute part of my salary towards Commonwealth superannuation as required. Even though I was supporting a young family, I was on a relatively high income compared to what I had been previously used to, and also received shift allowances. I had disposable income and would have been able to afford to contribute to the scheme as required.

183    Additionally, in evidence not referred to by the primary judge, Mr Innes confirmed in cross-examination that he wanted to get into superannuation in the late 1970s and said that he was “keen” to get into superannuation from 1974. He described himself as “anxious to join” and denied that superannuation was not a matter of particular concern to him in 1978.

184    Although Mr Innes’ evidence that he was “keen to join” and would have taken all necessary steps to join was not expressly rejected by the primary judge, that evidence must be regarded as having not been accepted and, on a proper understanding of the primary judge’s reasons, not accepted principally because of the three matters that I have identified. Namely, the lack of historical support and the lack of “objective support” for Mr Innes’ claim that he intended to join in the context of the primary judge’s view that no serious intent to join could have been demonstrated in the absence of an enquiry made by Mr Innes with the Personnel section of TAA.

185    The primary judge’s reliance on each of those three matters is the subject of various challenges. For the following reasons I consider there is force in Mr Innes’ contention that the primary judge erred.

186    The evidence given by Mr Innes as to his intent to join CSF/CSS was not the subject of any finding of dishonesty despite the fact that the respondent did contend that Mr Innes was not a credible witness who was willing to change his evidence to advance his own case. The reliability of Mr Innes’ evidence of his own intent must, however, have been of concern to the primary judge. The primary judge was entitled to approach that evidence with circumspection given that over 30 years had passed since the intent was said to have been held. His Honour was conscious that human memory is fallible for a number of reasons and cited (at [103]) the following observations of McLelland CJ in Eq in Watson at 318-319 which the primary judge regarded as “pertinent”:

Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration …

187    The primary judge then said this (at [104]):

So it is in the present cases. There is no objective record and no other satisfactory corroboration. That does not spell the end of the applicants’ cases, but it makes it difficult.

188    I have no difficulty with the proposition expressed by McLelland CJ in Eq and no doubt applied by the primary judge, that it was incumbent upon Mr Innes to prove “to the reasonable satisfaction of the court” that he held an intent to join CSF/CSS and, in that respect, that the court “must feel an actual persuasion of its occurrence or existence”. I note, however, that McLelland CJ in Eq was addressing the fallibility of human memory in the context of words spoken in the course of a conversation. Some distinction ought to be drawn between the reliability of evidence given by a person about the precise words spoken in a conversation heard by that deponent many years previously and a deponent’s memory of a state of mind held at an earlier time. As a general proposition, a person is more likely to be able to reliably recall his or her state of mind (anger, desire, intent) particularly where that state of mind concerned a matter regarded by that person as important. Nevertheless, I would respectfully agree with the observation in Watson that “the degree of fallibility increases with the passage of time”.

189    Mr Innes gave evidence of his state of mind. He gave evidence that, being aware of its benefits, he was keen to join CSF/CSS and that he intended to take all the necessary steps to do so. It appears that the primary judge gave no weight at all to that expression of intent because of his view that it was unsupported by any historical or objective evidence and negated by the fact that Mr Innes had made no enquiry of the Personnel section.

190    The primary judge’s view that there was “nothing in that history” to support Mr Innes being determined to pursue entry into CSF/CSS seems, at the very least, to overstate the position. The history, recounted by the primary judge at [152]–[160], includes Mr Innes’ various enquiries of Mr Tibbs. No findings were made by the primary judge as to whether those events occurred, but the primary judge’s conclusion that there was nothing in the history recounted by him must be taken to have proceeded on the assumption that the primary judge accepted that, at least for the purpose of reaching his conclusion, those events had occurred. On that basis, Mr Innes’ enquiries of Mr Tibbs, which the evidence suggests were about 10 in number, are each open to be characterised as events or occurrences consistent with and thus supportive of Mr Innes’ evidence about his intent to join. They are also open to be accepted as demonstrating that “Mr Innes actively pursued an interest in entering CSS (or CSF)”, a proposition which the primary judge rejected at [175].

191    In my view, the evidence that Mr Innes tried to join CSF/CSS on some 10 occasions by approaching Mr Tibbs should have been accepted and needed to have been taken into account as tending in support of the fact that Mr Innes held an intent to join. It was not. The failure to do so and the basis for the primary judge not doing so, which appears to be founded upon Mr Tibbs not having been an appropriate person to approach in relation to superannuation, evinces error.

192    The conclusion reached by the primary judge at [167] that “[t]here is no objective support of any kind for Mr Innes’ stated assumption that Mr Tibbs was an appropriate person to approach about the question of superannuation” was a conclusion about whether or not Mr Tibbs was, in fact, an appropriate person. The proper question on the issue of whether Mr Innes wanted to join Commonwealth superannuation was whether there was support for Mr Innes’ expressed belief that Mr Tibbs was an appropriate person. In other words, if Mr Innes could establish that from 1974 to 1981 he held the belief that Mr Tibbs was an appropriate person, the fact that he made enquires of Mr Tibbs rather than of a Personnel Officer does not undermine his evidence that he intended to join Commonwealth superannuation even if, as a matter of fact and unbeknown to Mr Innes, Mr Tibbs was not an appropriate person for Mr Innes to have approached.

193    There was evidence which supported the conclusion that Mr Innes genuinely believed that Mr Tibbs was an appropriate person to approach about entering the CSF/CSS:

    Mr Innes had been told by two supervisors and Mr Childs (a TAA employee who was then the President of Mr Innes’ union) that Mr Tibbs “handled all the superannuation enquiries in Western Australia” or words to that effect;

    Mr Innes understood Mr Tibbs to hold a managerial role as Sales Manager for Western Australia;

    When Mr Innes first enquired, Mr Tibbs did not suggest that he was not the appropriate person to talk to nor was Mr Innes referred elsewhere;

    When asked in cross-examination why he did not go to speak to Mr Boxshall the Personnel Officer about superannuation, Mr Innes said that when he spoke to Mr Tibbs he confirmed that he was the man that dealt with superannuation in Western Australia and later that Mr Tibbs confirmed that he was “in charge of superannuation”;

    When, as a representative of the Federated Clerks’ Union, Mr Innes was approached by members of staff seeking to join the superannuation scheme he referred them to Mr Tibbs because “Mr Tibbs was the person in charge of superannuation in the office … that’s what [Mr Innes] was told and Mr Tibbs agreed with that”.

194    No findings about that evidence were made by the primary judge. At [167] the primary judge did say that he gave no weight to the suggestion that Mr Innes was told that some other people thought “that Mr Tibbs was an appropriate person to approach”. In the context of the primary judge there considering whether Mr Tibbs was an appropriate person to approach, as a matter of fact, it is understandable why little or no weight should be given to the understanding of others. However, the proper question was what Mr Innes understood to be Mr Tibbs’ role in relation to superannuation. Evidence that others, including two supervisors and the President of the relevant union, had told Mr Innes about Mr Tibbs’ role was relevant and should have been given weight.

195    In the absence of a finding rejecting Mr Innes’ evidence of his understanding that Mr Tibbs was the person responsible for superannuation, it was with respect, erroneous for the primary judge to have concluded (as in effect he did at [169]) that Mr Innes’ failure to make an enquiry with the Personnel section was demonstrative of Mr Innes not holding any serious intent to join CSF/CSS. Whether or not a serious enquiry about superannuation could or could not be complete without an enquiry of the Personnel section was not to be assessed in the abstract but needed to be assessed by reference to Mr Innes’ understanding of who was responsible for superannuation. While Mr Innes confirmed that in relation to personnel issues he spoke with Mr Boxshall, the Personnel Officer, he explained why he did not do so in relation to superannuation. He said that he did not go to Mr Boxshall because Mr Tibbs had confirmed that he was in charge of superannuation and that he had accepted Mr Tibbs’ word on that issue. His failure to approach Mr Boxshall was also consistent with Mr Innes’ evidence that others had told him that Mr Tibbs was the appropriate person to approach and his evidence that Mr Tibbs provided superannuation information to him without suggesting that he was not the appropriate person or referring Mr Innes elsewhere. Without rejecting that evidence, there could be no basis for the conclusion that “[n]o serious enquiry about the matter could be complete … without seeking information also from the Personnel section or the Personnel Officer”. Mr Innes’ evidence that, on his understanding, he was already speaking to a person with responsibility for superannuation explained why in his own mind no enquiry of Mr Boxshall was necessary. The question that the primary judge was addressing was Mr Innes’ subjective intent and not whether, from an objective perspective, Mr Innes’ failure to enquire of Mr Boxshall was reasonable conduct. I will return to that question later.

196    There were four broad submissions made by the respondent to the primary judge about Mr Innes’ evidence. The first dealt with the contention that Mr Innes should have made enquiries about superannuation with the Personnel Officer. The second contended that Mr Innes’ account of his discussions with Mr Tibbs should not be accepted. The third contention was that Mr Innes would not have joined because he could not have afforded to make the necessary contributions. The fourth submission addressed Mr Innes’ failure to join AAGSP. The only submission accepted by the primary judge was the first submission, most of which is set out at [172] of the reasons for judgment.

197    It seems reasonably clear that that submission was directed at the question of duty of care. The respondent’s contention was that the fact that Mr Tibbs was unconnected with the Personnel department and therefore unqualified to give advice about the superannuation regime militated against the finding of a duty of care. Whether the submission was also directed at the contention that Mr Innes was not willing to join the CSF/CSS is less clear. In any event, the purport of the submission was that it had not been established, as a matter of fact, that Mr Tibbs had responsibility for superannuation. That submission seems to have been the springboard for the primary judge’s approach which, in my respectful view, erroneously focussed upon whether Mr Tibbs was in fact responsible for superannuation rather than on Mr Innes’ understanding of his responsibility.

198    It is not entirely clear what the primary judge meant by the phrase “no objective support” as used at [161]. Read in context with the first sentence of [161] it is likely that a lack of something other than Mr Innes’ conduct or the history of events was agitating the primary judge’s mind. The lack of an “objective record” was referred to by the primary judge at [104] following the reference to the passage from the judgment of McLelland CJ in Eq in Watson. In that context “objective record” seems to have been an intended reference to a contemporaneous document.

199    It may be that by the phrase “no objective support” at [161] the primary judge meant no documentary corroboration but I think the better view is that his Honour had a wider frame in mind and meant no evidence beyond that given by Mr Innes. That seems to be the way in which the same phrase was used at [167]. But, that all begs the question of what evidence independent of that given by Mr Innes the primary judge considered would have been necessary to support a finding as to Mr Innes’ state of mind and how any such evidence would have been admissible in any event. I consider that the primary judge’s insistence upon “objective support” to corroborate Mr Innes’ intent also betrays error. That approach may have been justified if it had been the case that Mr Innes’ evidence of his intent to join was, given the passing of time, inherently unreliable and thus necessarily unsafe without corroboration. However, as earlier stated, the reliability of Mr Innes’ memory of his state of mind is not to be treated as though he was giving evidence of the precise words spoken in a conversation of little consequence to him at the time. It is not inherently unlikely that some 30 years later a person like Mr Innes could reliably recall his own attitude to a matter that, as the following evidence suggests, was both topical at the time and recognised by him as important. The evidence is also supportive of Mr Innes holding the relevant intent because it demonstrates Mr Innes’ motivation for joining CSF/CSS. Beyond the evidence that Mr Innes gave at [40] of his affidavit set out at [182] above, Mr Innes also said that:

    Before he first went to see Mr Tibbs about superannuation he had discussions about superannuation with Mr Childs. Mr Childs told him that Commonwealth superannuation was a good scheme and that in his opinion it was the best scheme available in Australia;

    In 1974, superannuation was a “hot topic” and the importance of getting into superannuation was a matter discussed by Mr Innes with various people;

    In about 1974, Mr Innes’ understanding of the Federated Clerks’ Union’s position about superannuation was that the union encouraged people to join on the basis that it was a good scheme to get into. What was talked about often was the desirability of superannuation;

    As at 1978, Mr Innes was still trying to get into the Commonwealth superannuation scheme because he had been told that it was better than any private scheme;

    On 20 July 1978, Mr Innes took out a life/whole of life insurance policy with AMP. He did so “because [he] had not yet been permitted to join Commonwealth superannuation and [he] was keen to provide some financial security for the future”. That policy required contributions of just under $16 per fortnight;

    In about 1981 after Mr Innes realised that Commonwealth superannuation was closed to TAA employees, Mr Innes took out a further policy with AMP which required contributions of $42.18 per fortnight.

200    In my view that evidence was relevant to an assessment of Mr Innes’ subjective intent and should have been taken into account as supportive of the existence of that intent. Given his own understanding of Mr Tibbs’ role, Mr Innes’ evidence as to why he did not make enquiries of the Personnel section is not inherently improbable and nor, in my view, is Mr Innes’ evidence of his state of mind to be characterised as inherently unreliable without corroboration. Mr Innes’ evidence that he was keen to join CSF/CSS should have been accepted.

201    Although the primary judge saw Mr Innes give evidence and I have not, the three matters which appear to have been determinative of the primary judge’s view that Mr Innes’ evidence of his subjective intent was not reliable are not matters over which the primary judge enjoyed any particular advantage. Each matter involved the primary judge drawing inferences from facts which were undisputed. Whilst respect needs to be given to the conclusion of the primary judge, this is an occasion where an appellate court should not shrink from making its own conclusions: Fox v Percy (2003) 214 CLR 118 at [29].

202    An appellate court conducting an appeal by way of rehearing must conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment: Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 at [43] (French CJ, Bell, Keane, Nettle And Gordon JJ). This does not mean that the appeal is to be dealt with as if it were being tried at first instance; the appellate court must accord proper weight to the trial judge’s views in light of the advantages enjoyed by the trial judge in conducting the trial and hearing the evidence: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [24]–[30] (Allsop J). However, deference to the trial judge’s assessment of evidence does not preclude the possibility of disturbing his or her ultimate conclusions where those conclusions are based on inferences drawn from accepted facts. As the a majority of the High Court (Gibbs ACJ, Jacobs and Murphy JJ) said in Warren v Coombes (1979) 142 CLR 531:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.

Duty of care

203    It is next necessary to address the primary judge’s rejection of the existence of a duty of care commencing with his Honour’s non-satisfaction that Mr Tibbs did or should have realised that Mr Innes would rely upon what Mr Tibbs told him.

204    Despite the challenge made by Mr Innes I do not accept that the primary judge posed the wrong test. The primary judge’s view at [168] that it had not been established that Mr Tibbs “would realise” or “that it would have been reasonable to do so” suggests that the primary judge had both subjective and objective aspects of the relevant question in mind.

205    Nevertheless, I am satisfied that the primary judge’s application of the test was erroneous. On this issue, the reliability of Mr Innes’ evidence does not seem to me to have influenced the primary judge’s holding. The only expressed basis for the primary judge’s conclusion that it had not been demonstrated that Mr Tibbs did realise or ought to have realised that Mr Innes would rely upon the information Mr Tibbs conveyed was that Mr Innes had failed to establish that, as a matter of fact, Mr Tibbs was an appropriate person to approach about the question of superannuation. So much is apparent from [167] and [168] of the primary judge’s reasons where the primary judge described that failure as “an insurmountable obstacle for Mr Innes’ case” and that “[b]ecause of it, [Mr Innes] cannot establish the ingredients necessary to make out a case of negligent misrepresentation”.

206    Whilst that circumstance is not an irrelevant consideration, with respect to the primary judge, it does not logically follow from the fact that Mr Tibbs had no responsibility for superannuation that he would not have realised or ought not to have realised that Mr Innes would rely upon advice about superannuation conveyed by him to Mr Innes. As long as Mr Tibbs understood or should have understood that Mr Innes believed that he had responsibility for superannuation it was possible that he did or ought to have realised that Mr Innes would rely upon his advice. It was necessary for the primary judge to have recognised and addressed that enquiry. The failure to do so evinces error.

207    It is necessary to observe that the first ingredient necessary to attract a duty and referred to in Tepko is addressing whether there has been an assumption of responsibility. As Crennan, Bell and Keane JJ said at [128] of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 (citations omitted):

In Woolcock Street Investments, the plurality noted that the exception to the general rule for negligent misstatement recognised in cases such as Mutual Life & Citizens' Assurance Co Ltd v Evatt and L Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] depends on proof of an assumption of responsibility by the defendant and known reliance on the defendant by the plaintiff.

208    A person may assume responsibility for another person in relation to a particular matter even though the person is not responsible for that subject in the ordinary course. Whether Mr Tibbs as the agent of TAA had assumed responsibility for Mr Innes in relation to his entry into Commonwealth superannuation was to be answered by reference to all of the relevant circumstances and not simply by reference to the authority actually held by Mr Tibbs in relation to superannuation.

209    There was evidence before the primary judge as to what Mr Tibbs did and as to what he said that, if accepted, was capable of substantiating a finding that he did realise or ought to have realised that Mr Innes would regard as authoritative and rely upon the information conveyed by him about superannuation. That evidence was the evidence given by Mr Innes that he approached Mr Tibbs on numerous occasions seeking to join CSF/CSS, that on each occasion Mr Tibbs provided information about whether he could join, that Mr Tibbs did not suggest that he was not the appropriate person to talk to and that he confirmed that he was the person that dealt with superannuation and said that he was in charge of superannuation.

210    Again, whilst the credibility of Mr Innes’ evidence of his conversations with Mr Tibbs was impugned by the respondent, the primary judge did not make any findings let alone adverse credibility findings and that failure to do so has not been challenged on this appeal. I consider that there is no basis for rejecting as unreliable at least the essence of the evidence given by Mr Innes about his interactions with Mr Tibbs. That evidence was, in the end, short and of a general nature and not dependent upon precise accounts of conversations. It was, that on some 10 occasions Mr Innes raised with Mr Tibbs his desire to join CSF/CSS and was told by Mr Tibbs that there were no positions then available in circumstances where Mr Tibbs did not suggest that the enquiries were misplaced in the sense that he was not an appropriate person to advise on superannuation or that an enquiry on that matter should be made elsewhere.

211    The acceptance of that evidence suffices to establish that, in the circumstances, it is likely that Mr Tibbs appreciated that Mr Innes believed that he was an appropriate person to speak to about superannuation. The mere fact that Mr Innes came to him repeatedly for advice on whether he could join, was sufficient in itself to have led Mr Tibbs to appreciate that Mr Innes saw him as an appropriate person to speak to on that subject.

212    It is also relevant to have regard to the nature of the information given by Mr Tibbs and the context in which it was given. The circumstances were such that it must have been apparent that an enquiry was being made in relation to a matter of importance to Mr Innes and in relation to which Mr Innes believed Mr Tibbs to hold information or knowledge. The context was serious, these were not casual conversations at a social function. The information was conveyed by a person with managerial authority within the course of his employment. The nature of the information was specific and purported to be current. Whether there was a membership position in the superannuation scheme available at the time is information which may reasonably be assumed not to have been obtained from a brochure or other generally available source but would likely only be available to a person with responsibility for superannuation or at least some capacity to authoritatively deal with superannuation.

213    Both Mr Innes’ approaches and Mr Tibbs’ reactions were consistent with the conclusion that Mr Tibbs either must have understood or ought to have understood that Mr Innes would regard his representations as authoritative and would likely be acted upon. As I have said, the evidence in question was not rejected on the basis that it was not credible and no point about the primary judge’s failure to do so has been taken on the appeal. I consider that the evidence was sufficient to sustain a finding that Mr Tibbs either did or ought to have appreciated that Mr Innes intended to rely upon his advice. Indeed, by the time of the second approach, Mr Tibbs must have appreciated that Mr Innes had relied upon the advice given on the first occasion and likewise in relation to each subsequent approach. That Mr Innes kept coming back with the same inquiry, and that he continued to wait for a place in the CSS, must have or ought have confirmed to Mr Tibbs that Mr Innes regarded his advice as authoritative and would rely upon it in the future as he had done in the past.

214    The second ingredient that Mr Innes needed to establish to attract a duty of care, as specified in Tepko and set out at [176] above, was that it was reasonable in all the circumstances for him to have sought or accepted and relied upon the advice provided by Mr Tibbs. At [168] the primary judge referred to Mr Innes’ inability to establish the “ingredients” necessary to make out a case of negligent misrepresentation. His Honour may have had more than one ingredient in mind, although the latter part of [168] seems to be addressing the first and not the second ingredient referred to in Tepko. It may be that the primary judge’s holding that Mr Innes cannot show that “it was or would have been reasonable to do so” is not referring to the first ingredient and what Mr Tibbs ought to have appreciated (as I have presumed at [204]) but is instead referring to the requirement of the second ingredient that it was reasonable for Mr Innes to have relied on the advice given by Mr Tibbs. On that reading, Mr Innes’ complaint that the primary judge failed to deal with the objective limb of the first ingredient (ie whether Mr Tibbs ought to have appreciated that Mr Innes would rely upon his advice) resurfaces as a potential error.

215    It is best to address the content of [168] on both of the available constructions because, if it is the case that the primary judge held that the second ingredient was not established because Mr Innes had not shown that it was reasonable in all the circumstances to have relied upon Mr Tibbs’ advice, I respectfully consider that the primary judge erred.

216    The primary judge’s conclusion is based upon the “insurmountable obstacle” that Mr Innes could not establish, as a matter of fact, that Mr Tibbs had responsibility for superannuation. That Mr Tibbs, in fact, had no responsibility for superannuation is a circumstance that may be taken into account in assessing the reasonableness of Mr Innes’ act of reliance. However, in my respectful view, it is not the only relevant circumstance and, and as such, the obstacle it presented should not have been treated as insurmountable. Mr Innes’ understanding as to whether the advice provided by Mr Tibbs was authoritative, in the sense that it was given by someone with some responsibility for superannuation, was also a relevant circumstance, as well as the circumstances that led him to come to that understanding. If in all the circumstances that understanding was reasonably arrived at, it would follow that Mr Innes’ reliance upon Mr Tibbs’ advice was, in all the circumstances, reasonable.

217    If what I have referred to as the evidence of the essence of Mr Innes’ interactions with Mr Tibbs had been accepted, as I consider it should have been, the relevant circumstances favour a finding that it was reasonable for Mr Innes to have understood that Mr Tibbs’ advice was authoritative and thus that his reliance upon it was reasonably made.

218    Those circumstances have been discussed already. They include the serious nature of the subject matter of Mr Tibbs’ advice, the specific and current nature of that advice and that the advice came from a person holding a managerial position who, despite repeated approaches from Mr Innes about superannuation, did not suggest that he had no responsibility over that subject matter or that the advice given by him was other than authoritative.

219    I have taken into account, on the question of the reasonableness of Mr Innes’ reliance upon Mr Tibbs’ advice, Mr Innes’ failure to make an enquiry of the Personnel section. The evidence supported a finding that Mr Innes did approach Mr Boxshall in relation to personnel issues and recognised that employment matters were the province of the Personnel section. However, that evidence has to be understood in the context of Mr Innes’ evidence that it was his understanding that on the issue of superannuation Mr Tibbs was the appropriate person to speak to. Mr Boxshall may well have been recognised by Mr Innes as an obvious candidate for an enquiry about superannuation if it had not been for the information provided to Mr Innes by others and the information and conduct of Mr Tibbs himself. It was reasonable for a person in Mr Innes’ position to assume that he had come to the right place for making his enquiry when his enquiry was addressed without any suggestion that he ought to go elsewhere. That is particularly so given that the enquiry was addressed by a person with managerial authority who may be expected to act responsibly and address matters within, rather than outside of, his own set of responsibilities. It was in those circumstances reasonable for a person in Mr Innes’ circumstances to assume that he had come to the right place and that no different enquiry was necessary.

220    Part of the respondent’s submission as to why an enquiry of Personnel should have been made was that Mr Innes took no steps to speak to a person in Personnel despite “being continually rebuffed by Mr Tibbs and being provided with no information about the CSS, including his place in the ‘queue’”. That submission, set out at [172] of the primary judge’s reasons, was accepted. With respect to the primary judge, the evidence in question (being Mr Innes’ evidence) did not suggest that he had been rebuffed and that he had been provided with no information. To the contrary the evidence was that Mr Tibbs repeatedly addressed his enquiries by providing information that there was no place for him at that time. Reliance was also placed by the respondent and the primary judge upon the passing of time, in that Mr Innes “allowed this situation to continue for seven years”. It may be accepted that a prudent person may well have sought a second view.

221    But the question is Mr Innes’ reasonableness in his reliance on Mr Tibbs’ advice and not on his imprudence or unreasonableness in not seeking a second opinion; they are not one and the same. That is because a person’s reliance on only a single source for obtaining correct information may be unreasonable only to the extent that there exists other sources of correct information. The reasonableness of Mr Innes’ reliance upon Mr Tibbs’ advice has to be assessed objectively. In the context of the existence of the Deterrence Scheme it could not be concluded that the Personnel section was an alternative source for correct information on joining Commonwealth superannuation. In that context, the respondent’s contention that Mr Innes should fail because he ought to have made an enquiry that would have made no difference must be rejected.

Other issues

222    I have also taken into account the respondent’s contention that the failure of Mr Innes to establish that, as a matter of fact, Mr Tibbs had responsibility for superannuation was fatal to Mr Innes’ claim. It was contended that absent that finding, the advice provided by Mr Tibbs to Mr Innes could not be attributed to the respondent and that the primary judge had rejected Mr Innes’ claim on that basis. I reject that contention. There is nothing in the primary judge’s reasons which indicate that he took that approach. Rather, in the context of Mr Innes’ pleading that Mr Tibbs was the agent of the respondent and thus liable for its conduct and the respondent having put no affirmative case to the contrary, the primary judge correctly assumed that the fact that Mr Tibbs was an agent of the respondent was not in contest. To the extent that the respondent contended that Mr Tibbs’ conduct could not be attributed to TAA it did so in the context of its contention that no duty of care should be found. That contention has already been addressed.

223    The primary judge’s findings which accepted the existence of the Deterrent Scheme were not challenged on the appeal. It was common ground that upon becoming eligible to enter into CSF/CSS, Mr Innes had an entitlement to join and that a representation to the effect that he could not join until positions became available in the superannuation scheme would misrepresent the truth. Mr Innes’ evidence that when he made his enquiries of Mr Tibbs about joining he was told, in effect, “that there are no positions available at the moment” should have been accepted. It was not in contest that, in those circumstances, the making by Mr Tibbs of that representation involved a failure to use reasonable care. Mr Innes is entitled to a finding that the respondent breached its duty of care to him. For the reasons given, I am satisfied that Mr Innes established reliance. Accordingly, I consider that grounds 1, 2, 9, 11, 12, 14 and 16 of Mr Innes’ Notice of Appeal should (at least in part) be upheld and that judgment should be entered for Mr Innes in relation to his claim of negligent misrepresentation on the basis that damages be assessed. As I agree that Mr Innes’ claim to participation in the CSF must fail, it is only Mr Innes’ participation in CSS that will be relevant on the question of damages.

Negligence

224    The view I have taken on negligent misstatement does not affect my conclusion that on his case in negligence generally, Mr Innes failed to establish that he was owed a duty of care. For the reasons given by White and Tracey JJ, Mr Innes could have taken steps to protect his own interests and was not sufficiently vulnerable to harm to warrant a duty of care being imposed on the respondent. That he was given the wrong information by TAA is resolved by his claim in negligent misstatement: Meredith v Commonwealth (No 2) [2013] ACTSC 221 at [518]–[522] (Refshauge J).

Limitation defence

225    The only issue left to address is the notice of contention of the respondent in respect of Mr Innes’ appeal. Because I agree with Tracey and White JJ’s reasons for dismissing the appeal of Mr Hunter, I need not consider the respondent’s notice of contention in that proceeding, although if it had have been necessary to do so, the result would have been the same.

226    Mr Innes commenced his proceeding on 28 November 2013. His employment with Qantas terminated on 18 April 2012.

227    It was common ground that the six year limitation period fixed by s 38(1)(c) of the Limitation Act 1935 (WA) and by s 13(1) of the Limitation Act 2005 (WA) applied to Mr Innes’ claim.

228    Those limitation periods commenced to run on the date that the cause of action of Mr Innes accrued. The identification of that date was the subject of some debate in the proceeding at first instance, with various alternatives canvassed: 30 July 1995 or a date 21 days thereafter, when the employees of AAL ceased to be “eligible employees” for the purposes of the 1976 Act and those employees who were CSS members were required to make an election in relation to their contributions; and the date of termination of employment.

229    After reviewing the judgments in Commonwealth v Cornwell (2007) 229 CLR 519 and Innes v Commonwealth [2015] ACTCA 33, s 80 of the 1976 Act and regulations made under that Act, and the contentions of the respondent, the primary judge concluded that the respondent’s limitations defences did not succeed.

230    By its notice of contention, the respondent contended that the primary judge should have found that the limitation period commenced to run “from about 30 July 1995”, being the latest date on which the cause of action had accrued. The respondent did not press the second ground in its notice of contention concerning the appeal of Mr Innes.

231    The respondent’s notice of contention in this case requires consideration of the position on or about 30 July 1995. Its identification of that date as the date by which Mr Innes’ cause of action had accrued was based on the arrangements put in place in relation to the “privatisation” of Qantas.

232    Mr Innes became an employee of Qantas in 1992 when it took over the operations of TAA. In about 1995, Qantas was privatised. This meant that the employees of Qantas who were members of the CSS would cease to be “eligible employees” as defined in s 3 of the 1976 Act.

233    Sections 126 and 126A of the 1976 Act provided for regulations made under the Act to modify the operation of the Act in relation to people who were previously members of CSS, including former “eligible employees”. In the exercise of this power, the Superannuation (CSS) Former Eligible Employees’ Regulations 1986 (Cth) (“Regulations”) were made and came into effect on 1 October 1986. By reg 15B(2), the 1976 Act was modified in accordance with Sch 11 of the Regulations (“Sch 11”) in relation to an employee who would cease to be an “eligible employee” on the sale of the Commonwealth’s controlling interest in Qantas and who made a request under Reg 15B(4)(b).

234    It is common ground that on or about 30 July 1995, upon the privatisation of Qantas, employees of TAA who were members of CSS ceased to be “eligible employees” for the purposes of the 1976 Act and could not make any further contributions to CSS. Members of CSS who ceased to be “eligible employees” had three options available to them with respect to their superannuation benefits. Those options were:

(1)    an election under s 137 of the 1976 Act for a deferred withdrawal benefit (“DWB”) under s 136 of the 1976 Act;

(2)    a request under Reg 15B(4)(b) of the Regulations with the effect that Sch 11 had application such that a delayed updated pension (“DUP”) would be payable in accordance with the provisions set out in Sch 11; or

(3)    the payment of accumulative contributions, including interest, under s 80 of the 1976 Act, known as an immediate withdrawal benefit (“IWB”).

235    On the counterfactual being considered, Mr Innes would have been in the position of either electing to receive a DWB or a DUP, or alternatively, if no election under either provision was made, s 80 (the IWB) would have applied.

236    Section 80(1) of the 1976 Act was in the following terms:

(1)    Subject to subsections (2) and (3), where:

(a)    a person ceases to be an eligible employee otherwise than by reason of death; and

(b)    the person is not entitled to benefit under Division 1, 2 or 4 of this Part or under Division 3 of Part IX;

the person is entitled to a lump sum benefit, payable out of the Fund, of an amount equal to the person's accumulated contributions.

237    The reference in s 80(1) to “accumulated contributions” is to basic contributions and supplementary contributions together with interest at the fund earning rate: s 3 of the 1976 Act.

238    Before the primary judge, the respondent contended that Mr Innes’ loss crystallised as and from 30 July 1995 when, on the counterfactual, the Commonwealth became liable to pay some kind of benefit arising from contributions to CSS. As the primary judge noted at [267], although a second argument was made based more specifically on s 80 of the 1976 Act, the two arguments were essentially the same and based on the possibility of an entitlement arising under s 80 of the 1976 Act on 30 July 1995. The respondent’s argument was rejected. The primary judge concluded:

[271]    However, the respondent’s argument depends on the occurrence of a loss being demonstrated on this scenario. As I shall discuss shortly, I am not satisfied that if s 80 applied in 1995, return of contributions would crystallise a loss in the sense that the value of those contributions would be assessed to be higher than the value of moneys which had not, over the same period, been paid as contributions. On the actuarial evidence, which I will discuss next, there would only have been a loss in the event that the DUP or DWB option was selected and that loss would have accrued later. Innes is therefore distinguishable on its facts and does not require the enforcement of the limitation period.

239    As the primary judge noted at [266] another argument was advanced based on the possibility that a DWB may have been selected. The primary judge found the argument unconvincing because it depended on speculative assumptions.

240    On the hearing of the appeal (and contrary to the position taken in written submissions filed by the respondent prior to the hearing), the respondent abandoned its s 80 argument put to and rejected by the primary judge. The respondent accepted the primary judge’s analysis that the s 80 return of contributions – the IWB option – would not have crystallised a loss. The respondent went further to say that the IWB option was “a speculative possibility which is utterly implausible” as, on the counterfactual, it was not an option that Mr Innes would have chosen.

241    The asserted error of the primary judge was recast as being “focussing only on the IWB” and, by inference, not focussing on the DUP and the character of the DUP which I will shortly outline.

242    No legitimate criticism of that kind can be made about the primary judge’s reasoning because the argument relied upon by the respondent on the appeal was not put below. No leave to rely on a new argument was sought but nor did Mr Innes resist the submission being heard despite the fact that counsel for Mr Innes recognised that the respondent had recast the basis of its challenge. In the circumstances, I consider that the best course is to address the new argument relied upon by the respondent on the appeal.

243    It is necessary then to record the argument upon which the respondents now rely. I should say that the argument was variously put and its foundation shifted between two alternative but perhaps related formulations. The argument relies upon Mr Innes, on the counterfactual, having elected for a DUP. That such an election would have been made is consistent with the way Mr Innes put his case as described by the primary judge at [276], was regarded by the primary judge as a sound assumption (at [251]) and appears to have been common ground on the appeal.

244    On that foundation and on the presumption that it had been negligent, the respondent contended that the negligence which led to Mr Innes being denied the opportunity to elect for the DUP on or about 30 July 1995, crystallised his loss as of that date. That was so, on one of the ways in which the argument was put, because the election would have provided to Mr Innes a present or existing or “locked-in” entitlement to a future payment which, irrespective of which of the available DUP benefits eventuated, was more valuable than the contributions Mr Innes did not make to CSS over the relevant period to 30 July 1995 together with the return on the investment of those monies. The loss was first suffered, so the respondent contended, when it could be said that an opportunity was denied to Mr Innes, which, had it existed, would have given Mr Innes a present entitlement albeit to a future revenue flow.

245    The respondent’s contention valued the monies not contributed to CSS together with any returns as equivalent to the return of contributions that would have been payable to Mr Innes under s 80 of the 1976 Act if he had been a member of CSS. That assumption, which appeared to be based on the non-satisfaction of the primary judge (at [271]) that the election of the IWB would crystallise a loss, was said to be common ground but why it ought be so regarded was not explained. On the basis of it, the respondent contended (again as a matter of asserted common ground) that the election for a DUP was necessarily superior in value to a return of contributions because the value of a return of contributions (ie the s 80 benefit) was less than the value of each of the available benefits under the DUP and thus inferior to the value of the DUP as a present entitlement to a future payment.

246    The High Court’s judgment in Cornwell, to which I will return, was said by the respondent to be distinguishable because, unlike the position of Mr Innes, the opportunity said to have been lost by Mr Cornwell did not guarantee him a benefit more valuable than returns on contributions. For Mr Cornwell, and unlike a person entitled to the DUP, a s 80 return of contributions remained a possibility. Thus, it was said that Mr Cornwell never had a guaranteed entitlement to a benefit better than the s 80 benefit and therefore would not have suffered a loss until he reached a point where he would have qualified for a benefit superior to the value of returns on contributions and thus superior to the value of monies not contributed into CSS together with any return on those monies. As not all of the available contingencies (on the counterfactual) were superior to what Mr Cornwell had (on the factual), the respondent contended that the High Court in Cornwell reasoned that there was a need to wait and see which of the contingencies fell in to know when a loss had first occurred. That was said to be the difference between this case and Cornwell.

247    In this respect, the respondent’s second formulation of its argument seems to have been based, not on the loss of a present entitlement to a future payment or revenue flow, but upon a loss of a chance or opportunity to take up an election which guaranteed a benefit superior to that which Mr Innes could have achieved with the monies not contributed to CSS.

The 1976 Act

248    Before discussing the respondent’s contention and in order to provide the foundation for that discussion, I should say some more about the structure of the 1976 Act and the amendments to it which provided for the DUP. A broad outline is sufficient for current purposes.

249    The 1976 Act established the CSS Fund. The Fund was a defined benefits scheme. It received contributions from “eligible employees” as well as “designated employers” (s 3C). For current purposes it is sufficient to record that a person who was a permanent or temporary employee of an approved authority was an “eligible employee” whilst so employed.

250    The benefits provided to eligible employees were set out in Parts V and VI of the 1976 Act. Broadly described and putting aside various qualifications not relevant for present circumstances, the benefits provided under the 1976 Act fell into the following five categories. An “age retirement” benefit, available to a person who ceased to be an eligible employee on or after attaining the age of 65 years otherwise than by reason of death (Part V, Div 1). An “early retirement” benefit, available to a person who had not attained the age of 60 but ceased to be an eligible employee by reason of early retirement (Part V, Div 2). An “invalidity benefit”, available to a person who ceased to be an eligible employee by reason of retirement on the ground of invalidly before attaining his or her maximum retiring age (Part V, Div 4). Additionally, Part VI provided for various benefits to the spouse and children of an eligible employee who dies before attaining his or her maximum retirement age where the eligible employee was survived by a spouse. Where a person ceased to be an eligible employee otherwise than by reason of death and the person was not otherwise entitled to another benefit then s 80, as earlier described, applied. Where a person ceased to be an eligible employee because of death and no spouse and children benefit was payable under Pt VI, s 111 provided for accumulated contributions to be paid to the person’s legal personal representative.

251    As the majority said in Cornwell at [27], “[p]ensions under the 1976 Act were calculated as a percentage of final salary, the percentage being fixed by reference to the ‘period of contributory service’; the greater the number of complete years of contributory service, the higher the percentage of final salary paid as a pension”. In other words, the rate of pension provided was a specified percentage of the final annual rate of salary of the former eligible employee, where the specified percentage was calculated by reference to the former employee’s years of contributory service.

252    As earlier noted, the 1976 Act was modified in accordance with Sch 11 to provide for the DUP. Schedule 11 had the effect of inserting into the 1976 Act a new Div 3A of Pt IX comprising ss 144A-144J. Section 144A was in these terms:

144A    Delayed updated pension

(1)    The benefits applicable under this Division in respect of a former eligible employee are such benefits payable under this Act as the Commissioner considers to be benefits:

(a)    of the same nature; and

(b)    payable:

(i)    in the same circumstances and on the same conditions; and

(ii)    on the death of the person — to the same persons (if any);

as the benefits that would have been payable to or in respect of the former eligible employee under this Act if he or she had not ceased to be an eligible employee and had not made the request under subregulation 15 (3) of the FEE Regulations, or the election under paragraph 15A (3) (d) of those Regulations, or a request under paragraph 15B (4) (b) of those Regulations, by virtue of which this Division became applicable.

(2)    Delayed updated pension is payable:

(a)    to a former eligible employee who has reached the age of 65; or

(b)    on request — to a former eligible employee on retirement if he or she is aged 55 or more; or

(c)    on request — to a former eligible employee on retirement on the grounds of invalidity; or

(d)    on request — to a spouse or child of a deceased former eligible employee, in accordance with Part VI.

(3)    In paragraph (2) (c), grounds of invalidity means total and permanent incapacity within the meaning of Part IVA that, to the satisfaction of the Commissioner, is due to invalidity or mental or physical incapacity.

253    Section 144B then dealt with the age 65 retirement benefit as follows:

144B    Benefits — age 65 retirement

(1)    A former eligible employee entitled to delayed updated pension who retires at or after the age of 65 is entitled to age retirement benefits in accordance with Division 1 of Part V:

(a)    that relate to the period of contributory service that ended on the day he or she ceased to be an eligible employee; and

(b)    subject to adjustment (if any) under section 144H — as if his or her final annual rate of salary on ceasing to be an eligible employee is the final annual rate of salary on retirement.

(2)    For the purposes of subsection (1), the reference in paragraph 57 (1) (a) to ‘his last day of service’ is taken to be a reference to the former eligible employee’s last day of employment.

254    With various qualifications not relevant for current purposes, an early retirement benefit was provided for by s 144C. That entitlement was made referable to the early retirement benefit in Div 2 of Pt V of the 1976 Act. Similarly, the invalidity retirement benefits dealt with by ss 144D-F tied the benefit back to the invalidity benefits in Div 4 of Pt V and the spouse and children benefit specified by s 144G provided for a pension “in accordance with Part VI” of the 1976 Act. In each case, the same qualifications made by s 144B(1) had application. The benefit provided for under the relevant Division or Part of the 1976 Act was to relate only to “the period of contributory service that ended on the day he or she ceased to be an eligible employee” and, subject to adjustment under s 144H, the benefit was calculated by reference to the employee’s final annual rate of salary on ceasing to be an eligible employee. Section 144H had the effect of adjusting or “updating” the final annual salary by reference to CPI increases to the date that the person ceased employment in the workforce.

255    In broad terms, the DUP amendments to the 1976 Act provided for a scheme designed to permit certain eligible employees, whose service with the Commonwealth or an approved authority had ceased owing to privatisation, etc, to remain eligible for a CSS pension. The scheme operated by freezing the period of contributory service at the time of ceasing to be an eligible employee, but delaying entitlement to that pension until one of the age, invalidity or death criteria (specified by the 1976 Act) was satisfied. At that time, the rate of pension would be updated by adjusting into real dollar terms the “final annual rate of salary” of the former eligible employee in accordance with the formula provided by s 144H. Hence the name “Delayed updated pension”.

Discussion

256    The decision in Cornwell concerned a Commonwealth employee who had been informed, negligently and incorrectly, by his superior in July 1965 that he was not eligible to join the CSF. As a result of a subsequent reclassification, Mr Cornwell did become a member of the CSS on 24 March 1987. The Commonwealth contended that his claim for the additional benefits he would have received if he had been admitted to the CSF 22 years earlier was statute barred, on the basis that his loss had crystallised in either 1976 when the CSF was closed and replaced by the CSS, or on 24 March 1987 when he joined the CSS.

257    By majority, the High Court held that Mr Cornwell had sustained actual loss only on his retirement on 31 December 1994. The majority (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) emphasised the necessity in actions for negligence causing economic loss of identifying the interest said to be infringed, referring at [16] to the observations of Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527. The majority in Cornwell identified the economic loss which Mr Cornwell sustained as “the lesser benefit” which he had obtained “on his retirement”. That is, the difference between what he did obtain on his retirement on the one hand, and the benefit he would have received had he not relied upon the negligent advice on the other.

258    The majority accepted (at [36]) that, on the commencement of the 1976 Act, it had no longer been open to Mr Cornwell to make up for his years of service since 1965 for the purposes of the calculation of benefits under the 1976 Act. The majority also accepted that Mr Cornwell could have been assured that the amount of his actual contributions paid under the 1922 Act was secured to him by s 51(1) of the 1922 Act.

259    Despite those considerations, the majority considered Mr Cornwell’s entitlements to be “prospective and contingent” upon the satisfaction of the differing statutory criteria at some future time. These criteria were those contained in Parts V and VI of the 1976 Act discussed above, including the “standard age retirement pension”, an “early retirement benefit”, an “invalidity benefit”, or commutation of a pension. If there was no entitlement to any of those benefits and the employee’s employment ceased for reasons other than death, Mr Cornwell would have been entitled to the accumulated contributions made by him under s 80. Until it was known which of these criteria were satisfied, Mr Cornwell had not sustained a loss so as to set the limitation period running.

260    Another relevant decision is Commonwealth v Innes, a decision on a special case referred to the Full Court of the ACT Supreme Court (Murrell CJ, Penfold and Katzmann JJ). It concerned an employee born in 1947 who was employed by the Commonwealth between 1963 and 1993. His employment came to an end on his acceptance of voluntary redundancy. The employee was then employed in the private sector until December 2013 when he retired. His claim was that, but for negligent advice, he would have joined the CSF in about February 1966, transferred to the CSS, and elected at the time of his voluntary retirement to preserve his superannuation benefit until he turned 60 in June 2007. The employee did not commence his action against the Commonwealth until 18 May 2011. He claimed that this was within the six year limitation period on the basis that his cause of action had not accrued until he had turned 60 when, but for the negligence of the Commonwealth, he would have retired and accessed his deferred benefit.

261    The Full Court rejected that argument. It held, applying Cornwell, that the employee’s loss comprised the loss of entitlement to receive superannuation from the CSS on satisfaction of any one of the statutory criteria. On the counterfactual circumstance on which the special case was based, this was in 1993 when the employee’s employment ceased, because he then had an entitlement to be paid early retirement benefits. The contention that he would have chosen to defer that payment by choosing to preserve the benefit until he turned 60 did not alter the fact that an entitlement to payment had accrued. Thus, the employee’s claim was statute barred.

262    As I have noted, the respondent contended that these appeals are relevantly distinguishable from Cornwell. It was not suggested that the facts of this case align with those in Innes.

263    Before I return to further consider Cornwell I should refer to the judgment in Wardley upon which the majority in Cornwell relied in two important respects.

264    Wardley had made misleading representations to the State of Western Australia which led the latter to provide an indemnity to the National Australia Bank against a facility granted by Rothwells Ltd. The representations were said to be to the effect that Rothwells was a sound financial institution with substantial net assets, and it was said that those representations were contrary to fact. In due course the Bank called on the indemnity. The State sought to sue Wardley for engaging in misleading and deceptive conduct. A question arose as to when the State’s cause of action accrued. As the majority (Mason CJ, Dawson, Gaudron and McHugh JJ) outlined at 522, Wardley claimed, and at first instance French J accepted, that the State suffered loss the moment it executed the indemnity because it had assumed a risk of loss that was very much greater than it had been led to believe was the case, representing a compensable loss. On appeal the Full Court of this Court disagreed. The Full Court held that the indemnity created an executory and contingent obligation which, at the earliest, had crystalized when the National Australia Bank requested the State to indemnify it.

265    In the High Court, the majority agreed with the Full Court. The majority characterized the indemnity as “contingent and executory” (at 524) and went on to say that “[t]he likelihood, perhaps the virtual certainty, that there would be a loss, in the light of Rothwell's actual financial position as it stood when the indemnity was executed, did not transform the liability into an actual or present liability at that time” (at 524-525).

266    Of some importance to the majority’s rejection of Wardley’s contention was the judgment of Gaudron J in Hawkins v Clayton (1988) 164 CLR 539, where, at 600-601, and in relation to whether a limitation provision had barred the suit, her Honour had observed that when a cause of action for economic loss accrues may depend on the nature of the interest infringed. The majority in Wardley said this at 527 (emphasis added, citations omitted):

Economic loss may take a variety of forms and, as Gaudron J. noted in Hawkins v Clayton, the answer to the question when a cause of action for negligence causing economic loss accrues may require consideration of the precise interest infringed by the negligent act or omission. The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough.

267    The majority continued (emphasis added):

When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement. That is because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the plaintiff. But, as will appear shortly, detriment in this general sense has not universally been equated with the legal concept of "loss or damage". And that is just as well. In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of undercompensation or overcompensation, the risk of the former being the greater.

268    The majority in Wardley concluded that where a plaintiff enters into a contract which exposes that person to a contingent loss or liability, loss is not first suffered on entry into the contract (at 532). At 533 and in support of that conclusion the majority reiterated (emphasis added):

The conclusion which we have reached is reinforced by the general considerations to which we referred earlier. It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred. Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered. These practical consequences which would follow from an adoption of the view for which the appellants contend outweigh the strength of the argument that the principle applicable to the cases in which the plaintiff acquires property (or a chose in action) should be extended to cases where an agreement subjects the plaintiff to a contingent loss. In such cases, it is fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled.

269    The observations made in Wardley as to the importance of determining the nature of the interest said to be infringed and the disadvantageous practical consequences which flow from a finding that loss has accrued when loss is not ascertained or ascertainable, were taken up and relied upon the majority in Cornwell at [16] and [17] (citations omitted):

[16]    In Hawkins v Clayton, Gaudron J emphasised the importance for actions for negligence causing economic loss in identifying the interest said to be infringed, whether it be the value of property, the physical integrity of property, or the recoupment of moneys advanced. Thereafter, in Wardley Australia Ltd v Western Australia, Mason CJ, Dawson, Gaudron and McHugh JJ observed:

“To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of under compensation or overcompensation, the risk of the former being the greater.”

Their Honours also said:

“The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough.”

[17]    In Law Society v Sephton & Co, Lord Mance said, with reference to Wardley, that he saw the attraction of an approach:

“the effect of which is that unless and until a remote contingency eventuates the claimant is not expected to issue proceedings which he would not normally issue or wish to issue unless and until that point arrives.”

270    Thereafter, at [18], the majority in Cornwell identified the nature of the economic loss which it was alleged Mr Cornwell had sustained. The loss alleged was the lesser CSS benefit Mr Cornwell obtained on his retirement as a result of the negligent advice given to him in 1965. The nature of Mr Cornwell’s interest (in the sense used in Wardley) was an “entitlement conferred by federal statute law”. The majority distinguished such an interest from “proprietary or other rights or obligations created or governed by the general law”. At [19] and at [37] the majority characterised Mr Cornwell’s CSS entitlements prior to his retirement as prospective and contingent upon the falling in at a future time of the statutory criteria upon which those entitlements depended. At [19] the majority said this:

What was only in prospect until the falling in of one or more of various contingencies, matured into actual loss only at the end of the respondent's service and upon the falling in of one or more of the statutory contingencies which had to be met for the respondent to be entitled to a statutory benefit.

271    Put another way, Mr Cornwell’s interest (in the sense used in Wardley) only crystallised and became capable of being infringed upon the falling in of one or other of the statutory criteria. At that time Mr Cornwell’s prospective entitlements became an actual entitlement and Mr Cornwell suffered actual loss.

272    Turning then to the facts of this case, the loss alleged by Mr Innes is of the same nature as in Cornwell being the loss of a CSS benefit on retirement. The nature of the interest is, just as in Cornwell, the entitlement to be payed a benefit under the 1976 Act on the falling in of one or other of the statutory contingencies.

273    In my view, just as in Cornwell, the interest here infringed was Mr Innes’ entitlement to a benefit conferred by the 1976 Act. That entitlement, whether provided under s 144B (age 65 retirement), s 144C (early retirement), ss 144D-F (invalidity) or s 144G (spouse and children) “depended upon the terms of the particular legislation” and “was only in prospect until the falling in of the various contingencies” (Cornwell at [19]). It is only at that time that the infringement of the interest of Mr Innes can be said to have “matured into actual loss” (Cornwell at [19]). Prior to that time, the entitlement was “prospective and contingent upon the falling in at a future time of the statutory criteria” (Cornwell at [37]). There is no relevant distinction as to the nature of the interest held by Mr Cornwell and that interest held by Mr Innes. Nor is a distinction to be found in the nature of the interference to which those respective interests were subjected.

274    The position may well have been different if the opportunity to elect for a DUP had crystallised the prospective contingent entitlements available under the 1976 Act, a circumstance akin to the position in Innes. But the election had no such consequence. Each of the entitlements available under the 1976 Act and provided under the DUP remained prospective and contingent upon the falling in at a future time of the statutory criteria provided by the 1976 Act. The fact that on making the election, the available contingent entitlements were narrower and excluded a s 80 return of contributions (a feature emphasised by the respondent) did not alter the prospective and contingent nature of the remaining entitlements. The opportunity lost to elect for the DUP was an opportunity to extend access to one or other of the several prospective and contingent entitlements. It was not an opportunity to convert a prospective entitlement into an actual entitlement.

275    Insofar as the respondent’s contention sought to characterise the interest infringed as a present entitlement to a future payment or a future revenue flow under the DUP, there is a short answer to that contention. The negligence of the respondent did not infringe any such interest because no such interest could have existed. Any proprietary or other right to or interest in a future payment or revenue flow remained prospective and contingent, at least until one or other of the statutory criteria for the payment of a benefit had been satisfied. As at 30 July 1995 no statutory criterion had been met by Mr Innes.

276    Insofar as the respondent’s contention was grounded in the loss as at 30 July 1995 of a chance or valuable opportunity, I do not consider that the matters relied upon by the respondent demonstrate an interest (in the sense used in Wardley).

277    On the assumption that each of the available contingent entitlements on the counterfactual were superior to the value of the monies not contributed to the CSS and held on the factual, the respondent characterised the opportunity said to have been lost as an opportunity for a guaranteed entitlement to a benefit. However, to adopt the reasoning in Wardley quoted at [265] above, “[t]he likelihood, perhaps the virtual certainty”, at the time that the opportunity was lost that there would be a benefit in the future did not transform the contingent benefits into actual benefits at that time. Therefore, any interest and thus any loss remained prospective. As the majority said in Wardley at 527 in the passage quoted at [267] above, detriment in a “general sense has not universally been equated with the legal concept of ‘loss or damage’”. That is so including because to compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable may be unjust.

278    I should add that the respondent was wrong to assert, as a point of distinction, that the High Court in Cornwell reasoned that there was a need to wait and see which of the contingencies fell in to know when a loss had occurred because in Cornwell a s 80 return of contributions remained a possibility. Nothing in the judgment of the majority suggests that the High Court so reasoned.

279    In any event, I find it difficult to see how, on the respondent’s argument, the guarantee of an entitlement more valuable than a s 80 return of contributions could form the basis of a relevant distinction with the facts in Cornwell. The respondent’s contention that loss accrued at the time of the 1995 election rests on a premise that, on the counterfactual, Mr Innes held some interest in his future entitlement under the DUP which was capable of being valued at the time of the 1995 election. If it were otherwise, the respondent could not say that Mr Innes had suffered a loss at that time. It was contemplated that the valuation of that interest would be approached on the basis of the relative likelihood of each contingency falling in applied against the relative values of those contingencies. That valuation process does not differ in any material way from the process that would be applied to the valuation of an interest in a future entitlement which included a s 80 return of contributions. Such a process is capable of taking into account the possibility of a net return of zero in the case of a s 80 return of contributions. However, significantly, the prospect of a zero return in combination with other valuable contingencies does not diminish the overall value of the interest to zero. The relative likelihood of the other “more valuable” contingencies falling in has the result that the net value of the interest remains positive and, on the respondent’s argument, is similarly capable of forming the basis of a loss for the purposes of the limitation period.

280    It follows that on the respondent’s argument, on the counterfactual, Mr Innes had a benefit of greater value than a s 80 return of contributions on entering the CSS. The same would have been true for Mr Cornwell. Yet the High Court did not rule that Mr Cornwell would have suffered loss on entering CSS. These observations point to the artificiality of the respondent’s fixation on the 1995 election as providing some point of distinction with the facts of Cornwell.

281    Furthermore, the assumption upon which the respondent’s contention relied and described at [277] above, was not substantiated.

282    In Cornwell, the High Court only briefly dealt with the idea that Mr Cornwell may have suffered a lost chance or commercial opportunity. At [38] the majority said this:

The respondent also correctly emphasised that his was not a “transaction case” where property was sold or acquired at a disadvantageous price, or the opportunity was lost of the lucrative exploitation of contractual rights or of some other commercial opportunity. The appellant submitted that the respondent's loss was “necessarily and irretrievably sustained” when the 1976 Fund commenced and replaced the 1922 Fund in the manner described briefly earlier in these reasons. However, whether in 1976 the respondent would have been better or worse off had he invested elsewhere the contributions he otherwise would have placed for units under the 1922 Fund arrangements is a matter of speculation. He could not be said, consistently with remarks in Sellars v Adelaide Petroleum NL, in 1976 to have sustained loss of a commercial opportunity which had some value, as a matter of the degree of probabilities and possibilities.

283    As I read that passage and in particular when read in the context of the majority’s reasons at [18] where the nature of the interest infringed was discussed and similar observations were made by the majority about the non-commercial nature of that interest, the first part of [38] acknowledges the view of the majority that a loss of a commercial chance or opportunity was not the relevant interest infringed by the negligence suffered by Mr Cornwell. The second half of the paragraph concludes that a loss of opportunity case could not be sustained. The latter conclusion seems to have been premised on the contrary presumption that the interest infringed on the counterfactual could have been a commercial opportunity. On that presumption, the majority held that whether Mr Cornwell was worse off on the counterfactual than on the factual involved speculation and was therefore not established.

284    Here too, whether Mr Innes was worse off by being denied the chance or opportunity to take up the DUP is a matter of speculation that has not been established on the evidence. Such a finding could only have been made on a forward looking assessment from the vantage of mid-1995.

285    For the factual, an assessment would have been required of the value of monies not contributed into the CSS through to mid-1995 (when contributions closed) together with the return on the investment of those monies. I will call that exercise A. In order to know whether those monies were, as at mid-1995, less valuable than the value of the DUP as an opportunity of value, would have entailed some forecast as to what rate of growth could be expected through to the time when a benefit under the DUP would be paid. I will call that exercise B.

286    For the counterfactual, to assess the value of the lost opportunity would have required, again from the vantage of mid-1995, an assessment of when a benefit would likely first be paid and which of the available benefits that would be. I will call that exercise C. Additionally, it would have been necessary to make an assessment as to the rate of pension that would likely be payable in the context of the operation of s 144H which provided for the final annual salary to be adjusted for CPI but only to the last day of employment in the workforce. For that, it would have been necessary to assess, again from the vantage of mid-1995, what would likely be the last day of employment in the workforce for Mr Innes. I will call that exercise D.

287    It is arguable that the primary judge undertook exercise A (see at [271], [296] and [297]) but the primary judge clearly did not undertake exercises B, C or D including because the nature of the case put by the respondent to him did not require it. Each of exercises B, C and D, by their nature, involve a high degree of speculation. On the findings made by the primary judge Mr Innes could not “be said, consistently with remarks in Sellars v Adelaide Petroleum NL [(1994) 179 CLR 332], [in mid-1995] to have sustained loss of a commercial opportunity which had some value, as a matter of the degree of probabilities and possibilities” (Cornwell at [38]).

288    Mr Innes relied upon [38] of Cornwell to submit that the many variables at hand render speculative the identification of loss as at mid-1995. To some extent, the submission is consistent with the views I have just expressed. However, in two respects, Mr Innes’ submission went further and for completeness I should deal with each.

289    First, Mr Innes submitted that an entitlement under those provisions which established the DUP will depend upon the content of the legislation at the time that the relevant contingency occurs and, like any other statute, the provisions in question are not fixed and may be amended. That argument seems to have been directed to the respondent’s contention that the DUP provided a present entitlement to a future payment and sought to draw a distinction between an entitlement founded in a commercial or private right with that based in a statutory right capable of being varied at the whim of Parliament. But, the distinction sought to be drawn is not so clear cut. A commercial or private right may not be conferred by statute but its value may nevertheless be dependent upon it and thereby is also capable of being at risk of legislative amendment. I agree, however, with Mr Innes’ alternative point that the prospect of legislative change over the particular subject matter in question adds to the basket of contingencies and thus the speculative nature of the assessments which the respondent’s proposition called for.

290    Second, responding to the contention that under the DUP Mr Innes would necessarily do better than a return of contributions, Mr Innes contended that one possibility under the DUP is that a former eligible employee could get no benefit at all not even a return of contributions.

291    In order to deal with the argument it is necessary to set out the terms of s 144A(2) and convenient to set out s 144B(1) and 144C(1):

144A    Delayed Updated Pension

…

(2)    Delayed updated pension is payable:

(a)    to a former eligible employee who has reached the age of 65; or

(b)    on request — to a former eligible employee on retirement if he or she is aged 55 or more; or

(c)    on request — to a former eligible employee on retirement on the grounds of invalidity; or

(d)    on request — to a spouse or child of a deceased former eligible employee, in accordance with Part VI.

…

144B    Benefits — age 65 retirement

(1)    A former eligible employee entitled to delayed updated pension who retires at or after the age of 65 is entitled to age retirement benefits in accordance with Division 1 of Part V:

(a)    that relate to the period of contributory service that ended on the day he or she ceased to be an eligible employee; and

(b)    subject to adjustment (if any) under section 144H — as if his or her final annual rate of salary on ceasing to be an eligible employee is the final annual rate of salary on retirement.”

…

144C    Benefits — early retirement

(1)    A former eligible employee entitled to delayed updated pension who retires at or after the age of 55 but before the age of 65 is entitled to early retirement benefits in accordance with Division 2 of Part V (except sections 60 and 62):

(a)    that relate to the period of contributory service that ended on the day he or she ceased to be an eligible employee; and

(b)    subject to adjustment (if any) under section 144H — as if his or her final annual rate of salary on ceasing to be an eligible employee is the final annual rate of salary on retirement.

…

292    Mr Innes’ submission was this (emphasis in original):

Sections 144B and 144C identify the entitlement prerequisites for receipt of a delayed updated pension by a former eligible employee upon “retirement”. Such provisions are quite explicit, namely that such employee must be one “who retires at or after the age of 65” (emphasis added), or in the case of s 144C “who retire at or after the age of 55 but before the age of 65” (emphasis added).

For example, in the case of s 144C, a former eligible employee who retires at age 57 falls within the entitlement prerequisite. However, a former eligible employee who retires at age 50, in one of the circumstances exemplified above in paragraph 4, is not a person “who retires at or after the age of 55 but before the age of 65”. Rather, such person is one, to adapt the statutory language, “who retires before the age of 55”.

293    Mr Innes’ interpretation would lead to perverse and bizarre outcomes. An employee who retired from the workforce a day after reaching the age of 55 would be entitled to a benefit but an employee who retired the day before reaching 55 years of age would be entitled to nothing at all, not even the age 65 retirement benefit on reaching 65 years of age. The policy that would give rise to an intent to implement such a scheme is not apparent. It would create an extreme disincentive—verging on a punitive disincentive—to retirement prior to the age of 55. Such a disincentive is not elsewhere manifest in the Act, as the existence of the DWB reveals (see ss 138(2)(c) and 138(3) of the 1976 Act). And, it is hard to imagine why the framers of Sch 11 would care whether persons who are no longer public employees and no longer entitled to contribute to the CSS scheme should withdraw from the workforce before or after the age of 55. Still less likely is it that it was intended to implement a regime that could very well destroy the retirement savings of former public employees because they happen to voluntarily leave the workforce (or be retrenched) at the age of (say) 54.

294    The absurdity, inconvenience, and improbability of the result of that construction render it the kind of construction that would be avoided by a court, if another construction were reasonably open: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.

295    Another construction is reasonably open. In my view the word “retires” in s 144C(1) must be read with s 144A(2)(b) which relevantly provides that the early retirement benefit provided for by s 144C “is payable … on request – to a former eligible employee on retirement if he or she is aged 55 or more” (emphasis added). In that context “retires” is open to be read as not merely a reference to the employee withdrawing from the workforce but that it contemplates that the employee has at least reached the minimum retirement age of 55 years of age. On that construction, an employee who has both withdrawn from the workforce and reached the age of 55 may be regarded as having retired. When the word “retires” in s 144(C)(1) is so understood, the absurd results earlier referred to are avoided. It follows that Mr Innes’ construction should be rejected.

296     For those reasons the respondent’s notice of contention should be dismissed.

Associate:        

Dated:    12 December 2017