CATCHWORDS
NEGLIGENCE - duty of care - representations by Authority as to level of pension - wrong advice given - duty to take reasonable steps to ascertain correct information and interpretation of relevant provisions - proximity - reliance and causation - mitigation
APPEAL - practice and procedure - inference to be drawn regarding credibility of witnesses - principles for appellate court to draw inference of fact
Defence Act 1903 s 27
Federal Court of Australia Act 1976 s 25
Devries v Australian National Railways Commission (1993) 177 CLR 472 Cons
Italiano v Barbaro (1993) 40 FCR 303 Refd
Warren v Coombes (1979) 143 CLR 531 Cons
Dawson v Westpac Banking Corporation (1991) 104 ALR 295 Refd
Federal Commissioner of Taxation v Chubb Australia Ltd 128 ALR 489 Refd
The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 Refd
Carter v Geoff Layton & Co Pty Ltd (unreported decision of Full Federal Court 21 June 1993) Cons
Gould v Vaggelas (1985) 157 CLR 215 Cons
Jones v Hyde (1989) 63 ALJR 349 Refd
Abalos v Australian Postal Commission (1990) 171 CLR 167 Refd
Daniels v Burfield (1994) 125 ALR 33 Refd
Baker v Official Trustee in Bankruptcy (unreported decision of Full Federal Court 3 August 1995 Refd
Westpac Banking Corporation v Spice [1990] ATPR 51,386 Refd
Donnelly v Edelsten (1994) 49 FCR 384 Refd
SS Hontestroom v SS Sagaporack [1927] AC 37 Refd
Watt or Thomas v Thomas [1947] AC 484 Refd
Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Cons
Mutual Life & Citizens' Assurance Company Limited v Evatt (1968) 122 CLR 556 Cons
L Shaddock & Associates Proprietary Limited v The Council of the City of Parramatta (1981) 150 CLR 225 Cons
Spring v Guardian Assurance Plc [1995] 2 AC 296 Cons
Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Refd
Bryan v Maloney (1995) 128 ALR 163 Refd
March v E & M H Stramare Pty Limited & Anor (1991) 171 CLR 506 Refd
Watts v Rake (1960) 108 CLR 158 Refd
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR(NSW) 120 Refd
Vandeloo v Waltons Ltd [1976] VR 77 Refd
Hawkins v Clayton (1988) 164 CLR 539 Refd
The Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 Refd
Gala v Preston (1991) 172 CLR 243 Refd
Nagle v Rottnest Island Authority (1993) 177 CLR 423 Refd
San Sebastian Proprietary Limited v The Minister Administering the Environment Planning and Assessment Act 1979 (1986) 162 CLR 340 Refd
Medlin v State Government Insurance Commission (1995) 127 ALR 180 Refd
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1 Refd
Donald Thomas Rennie v The Commonwealth of Australia and The Defence Force Retirement and Death Benefits Authority
No ACTG 14 of 1995
Burchett, Tamberlin, Kiefel JJ.
Sydney (Heard in Canberra)
17 November 1995
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACTG 14 of 1995
On appeal from a Judge of the Supreme Court of the Australian Capital Territory
BETWEEN: DONALD THOMAS RENNIE
Appellant
AND: THE COMMONWEALTH OF AUSTRALIA and THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondents
CORAM: Burchett, Tamberlin, Kiefel JJ.
PLACE: Canberra
DATE: 17 November 1995
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. In lieu of the orders of Gallop J. give judgment for the plaintiff for damages to be assessed.
3. The defendants pay the costs of this appeal and the trial below.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) ACTG 14 of 1995
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: DONALD THOMAS RENNIE
Appellant
AND: THE COMMONWEALTH OF AUSTRALIA and THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondents
CORAM: Burchett, Tamberlin and Kiefel JJ.
PLACE OF HEARING: Canberra
DATE : 17 November 1995
REASONS FOR JUDGMENT
BURCHETT J.:
Although this is an appeal from the decision of a Judge of the Supreme Court of the Australian Capital Territory, the Court was constituted without the inclusion among its members of a judge having a primary commission on that Court. We were so constituted pursuant to a determination made by the Chief Justice under s. 25 of the Federal Court of Australia Act 1976.
I am in agreement with the reasons which Kiefel J. gives for holding that this appeal must be allowed, and with the orders which her Honour proposes. In my respectful opinion, the trial judge fell into error when he held that "the Authority could have been under no higher duty than to give an
honest answer". This error plainly infected the finding that no breach of duty had been established. The further basis for the decision, that reliance had not been shown, so as to complete the circle of duty, breach, reliance and damage, was, as Kiefel J. has pointed out, in conflict with the trial judge's earlier finding that the terms of the appellant's request, to which the negligent advice was a response, "made it fairly plain that he was going to place some reliance on the answers he received". The reasoning by which the Judge nevertheless arrived at his conclusion commences with what I respectfully think was an inapposite quotation from an authority concerned, not with the establishment of liability via reliance, but with the assessment of damages, and continues by putting forward two reasons only for the denial of a causative link between the respondents' breach and the appellant's action that led to the loss. In my opinion, Kiefel J. has shown convincingly that neither of these reasons provides persuasive support for that conclusion. I think it is also important to notice that what is in question is an ultimate conclusion of fact, based upon inferences from primary facts.
In the respondents' outline of argument, it was suggested that the trial judge's finding as to reliance "involved an assessment of the credibility of the appellant as a witness". It was submitted that such a finding could only be set aside in the circumstances referred to in Devries v Australian National Railways Commission (1993) 177 CLR 472.
In Italiano v Barbaro (1993) 40 FCR 303 at 326 the joint judgment of Neaves, Burchett and Whitlam JJ. states the relevant rule as follows:
"In cases where an attack on the findings of a trial judge involves the credibility of witnesses and the confidence to be reposed in them, firm rules have been laid down restricting the interference of appellate courts. The leading authorities were discussed at some length in the joint judgment of Wilcox and Burchett JJ. in Westpac Banking Corporation v Spice [1990] ATPR 51,386 at 51,396-51,399. The passages there cited emphasise that such a decision is nearly invulnerable unless the court is satisfied that the trial judge has not taken proper advantage of his opportunity to see and hear the witnesses, or has failed to appreciate the weight or bearing of established circumstances, or unless for some other reason the decision can be seen to be clearly wrong on grounds which do not depend merely on credibility: see also Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission [supra]. Nevertheless, as was affirmed by the High Court after full debate in Warren v Coombes (1979) 142 CLR 531, an appellate court may decide the proper inference to be drawn from established facts, and should not shrink from giving effect to its own conclusion, although it will give respect and weight to that of the trial judge."
Considering that the case "turn[ed] to a very great extent upon inferences" and that "several clear errors [had] been identified" in the reasoning below, the joint judgment held that it was open to the full court to reverse vital factual findings of the trial court.
Warren v Coombes states a basic principle for the guidance of appellate courts to which there is a full right of appeal. In Dawson v Westpac Banking Corporation (1991) 104 ALR 295 at 304, Mason C.J. (with whom Deane J. agreed, and McHugh J. also agreed, subject to some additional comments) said of a particular conclusion:
"In accordance with the decision in Warren v Coombes ..., it was for the Court of Appeal to determine for itself the correct inference to be drawn, after giving respect and weight to the view of the primary judge."
See also Federal Commissioner of Taxation v Chubb Australia Ltd (1995) 128 ALR 489 at 491-492, 503; The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 at 531; and Carter v Geoff Layton & Co Pty Ltd (French, Heerey and Drummond JJ, unreported, 21 June 1993). The last case bears some resemblance to the present, insofar as the full court reversed the trial judge's finding of fact that a plaintiff had not relied on a representation when taking a decision to which it was directed. The full court relied on the "inherent probability that [the plaintiff] would in fact rely on such a representation", and on its own view that a fact which the trial judge had considered to contradict reliance should not be understood as having that significance. It said: "The representation shown to be misleading and deceptive need not be the sole inducement, or even the major inducement, to a representee: Gould v Vaggelas (1985) 157 CLR 215 at 236." It concluded that the fact to which the trial judge had referred "does not logically in our view lead to the conclusion that [the plaintiff] did not rely at all on those representations." The joint judgment of the Court then adds:
"In considering the correctness of the conclusion drawn by the learned trial judge we bear in mind that for the appellant to succeed on a question of fact his Honour's decision must be shown to be clearly wrong on grounds which do not depend merely on credibility; for example on the ground that the evidence which was accepted was inconsistent with established facts or was glaringly improbable - Brunskill v Sovereign Marine & General Insurance Co. Ltd (1985) 62 ALR 53 at 57. Where a trial judge resolves a conflict of evidence between witnesses the subtle influence of demeanour on his or her determination cannot be overlooked even if not explicitly mentioned: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179. Notwithstanding those cautionary observations, the principles enunciated in Warren v Coombes [supra] remain in force:
`Shortly expressed, the established principles are, we think, that in 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.'
Those principles were recently reaffirmed in Dawson v Westpac Banking Corporation [supra] (Mason CJ, Deane and McHugh JJ agreeing). In the present case we have differed from his Honour's conclusion on matters of inference from primary facts which he found. This does not involve a departure from his assessment of the credibility of the witnesses. Those of his Honour's conclusions from which we differ are entitled to weight and respect as those of the trial judge but we consider they are not supported by the primary facts for the reasons outlined."
In Warren v Coombes itself, the joint judgment of Gibbs A.C.J., Jacobs and Murphy JJ. includes (at 552-553) a passage
which this Court cited in Saints Gallery v Plummer at 531. That passage contains the following:
"(W)e can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. ... (I)f the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it."
The principle applicable to a finding of fact, made by a tribunal of fact, which is based on the demeanour or credibility of witnesses is an important qualification upon the broader principle established by Warren v Coombes. The leading recent decisions of the High Court stating this important qualification are Jones v Hyde (1989) 63 ALJR 349 at 351-352; Abalos v Australian Postal Commission (supra, at 178-179); Devries v Australian National Railways Commission (supra, at 479); and Daniels v Burfield (1994) 125 ALR 33 at 35. In Baker v Official Trustee in Bankruptcy (Burchett, Ryan and Carr JJ., unreported, 3 August 1995) the joint judgment of the Full Court refers to these cases, and adds a citation from Westpac Banking Corporation v Spice (supra, at 51,399) referring to statements in the authorities concerning the burden undertaken when an appellant attacks findings based on the credibility of witnesses. The passage cited reads:
"In these statements of principle the word `clear', or some equivalent expression, keeps recurring. Whatever shifts of emphasis may have occurred to accommodate the differing key features of particular cases, it must always be clear, if a decision on credibility is to be overturned, that its acceptability has been destroyed by the revelation of some serious and demonstrable error."
Reference was also made to Donnelly v Edelsten (1994) 49 FCR 384 at 389.
The authorities do not assert that any finding of a trial judge which relates to oral evidence is necessarily invulnerable. In Devries v Australian National Railways Commission, the joint judgment of Brennan, Gaudron and McHugh JJ. states (at 479):
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable'." (Emphasis added.)
A substantial degree of dependence on credibility is the foundation of this proposition. And then there are exceptions. The first of these is stated by way of a quotation from the speech of Lord Sumner in S.S. Hontestroom v. S.S. Sagaporack [1927] AC 37 at 47. The same part of his Lordship's speech is also cited in Abalos at 178. What Lord Sumner said was set in the context of his statement that the "course of the trial and the whole substance of the judgment must be looked at". If, in substance, the judgment does not depend upon the credibility of the witness, but upon inferences drawn from the surrounding circumstances, it cannot be said that the trial judge has used the advantage of seeing and hearing the witness; and if the trial judge rejects evidence (whether referring to it or not) because of inferences of this kind which the appellate court regards as misconceived, it may be held that "he ... has palpably misused his advantage", in the sense in which Lord Sumner used this expression. In Abalos, McHugh J. referred (ubi supra) to a passage from the speech of Lord Thankerton in Watt or Thomas v Thomas [1947] AC 484 at 488, in which a case where a trial judge's advantage "could not be sufficient to explain or justify the trial judge's conclusion" provided a further exception. Lord Thankerton also expounded Lord Sumner's reference to a trial judge's failure to take proper advantage of the opportunity to see and hear the witnesses as embracing cases where "the reasons given by the trial judge are not satisfactory", or where the failure "unmistakably ... appears from the evidence".
In Devries, the joint judgment of Deane and Dawson JJ. elaborates the point (at 479-481):
"An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The `value and importance' of that advantage `will vary according to the class of case, and, ... [the circumstances of] the individual case'. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence.
. . .
In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the `court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions'. The appellate duty in such a case cannot, in our view, be explained in any short exhaustive formula. It was correctly identified by Lindley M.R., Rigby and Collins L.JJ. in Coghlan v. Cumberland [1898] 1 Ch. 704, at pp. 704-705 in a passage which has been referred to with approval in many cases in this Court and `adopted as a governing authority' (Dearman v Dearman (1908), 7 C.L.R. 549, at p. 553, per Griffith C.J.). Their Lordships said:
`Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.'"
(I have omitted some footnotes in reproducing this passage.)
In my opinion, the crucial finding, in the present case, in respect of reliance did not depend to any substantial degree on the credibility of the witness. Indeed, there was no finding that the trial judge disbelieved the witness on any matter; and relevant cross-examination, except on a point on which the witness was expressly believed, was almost perfunctory. The trial judge's conclusion turned on his view of the inferences to be drawn from primary facts. Since this Court thinks the proper inference from the established facts, as found by his Honour, requires a different conclusion, it is our duty to give effect to that conclusion. Even if, contrary to my opinion, the finding on reliance were to be regarded as significantly dependent on an assessment of the appellant's credit, I would hold that the trial judge's advantage "could not be sufficient to explain or justify the trial judge's conclusion", and that it is clear the "acceptability [of his decision] has been destroyed by the revelation of ... serious and demonstrable error".
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.
Associate:
Date: 17 November 1995
IN THE FEDERAL COURT OF AUSTRALIA)
AUSTRALIAN CAPITAL TERRITORY ) No. AG 14 of 1995
DISTRICT REGISTRY )
GENERAL DIVISION
ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: DOUGLAS THOMAS RENNIE
Appellant
AND: THE COMMONWEALTH OF AUSTRALIA and THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondents
CORAM: BURCHETT, TAMBERLIN & KIEFEL JJ
PLACE: CANBERRA
DATED: 17 NOVEMBER 1995
REASONS FOR JUDGMENT
TAMBERLIN J:
In this appeal I agree with the reasons and conclusions of Kiefel J and with the remarks of Burchett J. However, I add the following observations.
On a fair reading of the whole of the judgment below I am of the opinion that the nature and extent of the duty of care owed by the Authority to the appellant was not correctly formulated. The duty held to exist was only a duty to act honestly. The correct position, in my opinion, was that the circumstances gave rise to a duty to take care. This led to an error of law in determining whether there had been a breach of duty.
After referring to Hedley Byrne & Co Ltd v Heller & Partners Limited [1964] AC 465 and Mutual Life and Citizens Assurance Company Limited v Evatt (1968) 122 CLR 566 (High Court) and (1970) 122 CLR 628 (Judicial Committee) his Honour said:
"I have difficulty in coming to a conclusion that the Authority was not vouching for the correctness of its opinions and was under a duty of care to do so. In all the circumstances, the Authority could have been under no higher duty than to act honestly." (Emphasis added).
On the facts of Hedley Byrne, the House of Lords decided that there was no duty to act reasonably to ensure that the credit reference was correct. The only requirement was to act honestly. There was no obligation, in their Lordships' view, to check the accuracy or factual basis in order to justify the giving of the reference. As Lord Morris said (supra) at 503, using the words of Pearson LJ in the decision below in Hedley Byrne, the bank had not undertaken,
" ... before answering an inquiry to expend time or trouble in searching records, studying documents, weighing and comparing the favourable and unfavourable features and producing a well-balanced and well-worded report."
Nor in that case could the recipient or its customers reasonably have expected such steps to have been taken.
Hedley Byrne is a landmark decision because it found that a negligent though honest misrepresentation could give rise to an action for damages for resultant financial loss. In that case there was no duty to check the reference because there was an express disclaimer. The disclaimer was short and clear. It stated that the reference was:
"For your private use and without responsibility on the part of this bank or its officials."
In the present case the Defence Force Retirement and Death Benefits Authority ("the Authority") was not obliged to vouch for the correctness of its statements. That would clearly be unreasonable. In expressing its view of the situation, the Authority was, however, under a duty to take reasonable steps to check the accuracy of views expressed. The advice required the interpretation and application of legislation which clearly called for legal expertise.
The 1974 letter of advice was cast in definite terms with no qualification or warning that reliance should not be placed on it without obtaining independent advice. Cf Lord Reid in Hedley Byrne at 486 as to the alternatives open to a supplier of information. A careful answer required qualification, warning or confirmation of the advice. The Authority was clearly on notice that the appellant would rely on it in making the significant decision whether to make an important
career transition at a relatively advanced stage of his engagement with the Army.
In these circumstances, more is required than to simply furnish an "honest" opinion. It was incumbent on the Authority to check the position.
His Honour at first instance concluded that:
".... although the duty of care existed there was no breach of the duty to give honest advice." (Emphasis added)
The argument for the appellant is not that the advice was wrong or dishonest, but that reasonable care was not taken before giving it.
Evatt's case (supra), made it clear that the duty of care extended to the giving of the advice as well as the furnishing of information: Barwick CJ at 572.
In Shaddock & Associates Pty Ltd v Parramatta City Council (No. 1) (1981) 150 CLR 225, Parramatta Council was held liable in damages because it furnished inaccurate information as to the existence of a proposal to resume part of the land in question. The information was given pursuant to a statutory inquiry made by the appellant. The fact that the inquiry was statutory in nature and that the Council was the principal repository of the information as to its road proposals reinforced the importance of taking care to check its accuracy. The observations of Gibbs CJ at 235, referred to by his Honour below, refer to the duty to exercise reasonable care to confirm that the information given is correct.
In this case the position is that the Authority must have known that the appellant expected to get a reliable response based on careful inquiry. This is different from the circumstances in Hedley Byrne.
In a more recent House of Lords decision, Spring v Guardian Assurance PLC (1995) 2 AC 296, their Lordships held that Guardian was under a duty to a former employee to take reasonable care in giving a work reference, which Guardian furnished in accordance with the rules of a life assurance regulatory body. The reference, in fact, was inaccurate and a prospective employer rejected the employee's application for employment. The reference had stated that the applicant could not be regarded as "honest". The trial judge found this was wrong and that reasonable care had not been exercised in the preparation of the reference. At p 319, Lord Goff said:
".... it is my opinion that an employer who provides a reference in respect of one of his employees to a prospective future employer will ordinarily owe a duty of care to his employee in respect of the preparation of the reference.... Furthermore, when such a reference is provided by an employer, it is plain that the employee relies upon him to exercise due skill and care in the preparation of the reference before making it available to the third party. In these circumstances, it seems to me that all the elements requisite for the application of the Hedley Byrne [1964] AC 465 principle are present. I need only add that, in the context under consideration, there is no question of the circumstances in which the reference is provided being, for example, so informal as to negative an assumption of responsibility by the employer."
In the present case there was no "informality" in the request for advice.
The relationship of the appellant to his employer and the circumstances of the inquiry were clearly such as to make out the necessary degree of "proximity". Cf Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520; and Bryan v Maloney (1995) 128 ALR 163 at 165-169 per Mason CJ, Deane and Gaudron JJ, 193-4 per Toohey J.
On the evidence, no confirmatory legal advice was sought prior to sending the letter. The "error" was only noticed after legal advice was sought in 1978 more than three years after the appellant transferred. No evidence was called by the Authority to suggest any relevant legal advice was obtained in relation to the particular circumstances of the appellant or indeed at all. The only legal advice in evidence was that obtained from Mr Temme, the Head of the Defence Legislative Branch in about February 1978. Mr Temme had been closely associated with the drafting of the 1973 Act.
The interrogatories further support the conclusion that no relevant legal advice was sought before the letter of advice was sent.
Accordingly, there was sufficient evidence of the failure to obtain any proper legal advice and of breach of the duty to exercise due care.
Reliance
As to reliance, the terms of the letter requesting the advice leave no room for doubt that the advice was intended to be relied on. There was an unqualified response. The subsequent transfer application by the appellant, four months later, affords strong evidence of reliance at least in the sense that the advice was one of the considerations which actuated his decision to transfer.
It is manifest from his 1974 letter that the appellant was vitally concerned to know the extent of any risk of financial detriment. He says, in his letter:
"I find myself in a situation where the economic implications of seeking further promotion could be unacceptable. I therefore cannot make a decision on transfer ... without obtaining additional information."
Throughout the letter he expresses a deep-seated concern with the financial implications of the transfer.
His Honour's conclusion that he was not persuaded that if the Authority had given the correct advice, the appellant would not have transferred is in my view, not the correct inference from the primary facts. Moreover, his Honour's conclusion does not preclude a finding that the letter was an operative factor in the appellant's decision. While there may have been additional considerations which together with the advice led to the decision to transfer, such as a desire for promotion, the appropriate inference from the evidence is that the incorrect advice set out in the letter, was a significant matter on which he relied in transferring. See Gould v Vaggelas (1985) 157 CLR 215; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
Loss
His Honour considered that there were two options which the appellant might have pursued to avoid all or some of the loss. First, he could have applied to be retransferred. Second, he could have applied for an extension of his retirement age.
The evidence does not suggest that either of these options had any prospect of success or that they could have prevented or reduced any loss to the appellant. Essentially, the availability of an option to diminish loss is a matter of mitigation rather than causation. The onus of establishing mitigation rests with the respondent.
Mere reference to the options as hypothetical possibilities is not an answer in any way to the applicant's claim. Cf Watts v Rake (1960) 108 CLR 158; Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 and Vandeloo v Waltons Ltd [1976] VR 77 at 83-85.
In any event, the two options were not available as of right to the appellant, but were matters which involved determinations based on the exercise of wide and general discretions which could be made by reference to a number of undefined grounds.
In the case of extension under s 27 of the Defence Act 1903, (Cth) the discretion is exercisable, at the highest executive level of government, by the Governor General. It is unfettered. There is simply no evidence as to what policies, factors or circumstances might be taken into account in reaching such a decision. No prediction could be made on the evidence as to what might happen if such an application were made. There was no evidence that such a discretion had ever been exercised in the past.
Likewise, the success of any retransfer application would ultimately depend on an exercise of discretion. There is no reference in the evidence to any previous instances of retransfer nor to any guidelines by which one might assess the prospect of retransfer.
There is no finding that either option had any prospect of being granted.
For the above reasons the submissions in relation to the two options should not be accepted.
There is substance to the appellant's submission that, where information as to records or instances of either of the two suggested options mentioned above being pursued, in particular cases, was peculiarly within the knowledge of the respondent, it is appropriate that any balance of persuasion in relation to these matters should rest on the Authority. The evidence of the appellant was that he did not know of these options and although his Honour expressed some reservations with respect to the appellant's evidence on this single point, he made no adverse finding as to the appellant's credit on this or any other matter.
This is not a case where anything turned on demeanour or on any advantage which the trial judge enjoyed over this Court on appeal. See Warren v Coombes (1979) 142 CLR 531 at 561; Italiano v Barbaro (1993) 40 FCR 303.
For the above reasons, I agree with the conclusions and orders proposed by Kiefel J.
I certify that this and
the preceding ten (10) pages
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 19 November 1995
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION No. ACTG 14 of 1995
On appeal from a Judge of the Supreme Court of the Australian Capital Territory
BETWEEN: DONALD THOMAS RENNIE
Appellant
AND: THE COMMONWEALTH OF AUSTRALIA and THE DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondents
CORAM: Burchett, Tamberlin, Kiefel JJ.
PLACE: Canberra
DATE: 17 November 1995
REASONS FOR JUDGMENT
KIEFEL J:
The appellant brought an action for damages said to have been suffered as a result of incorrect advice given by the Defence Force Retirement and Death Benefits Authority (the "Authority") as to the effect on his pension entitlements of his accepting an invitation to transfer to another Corps in the Army.
At the time of receipt of these advices in December 1974 the Plaintiff was a Colonel in the Australian Army, Royal Australian Electrical and Mechanised Engineers' Division ("RAEME"). He had been confirmed in that rank in August 1972. He was, in 1974, aged 48 years. The compulsory retirement age for an officer in RAEME was 57
years. If the appellant served until that time he would receive pension entitlements taking into account what were termed "detriment provisions" in the Defence Forces Retirement Benefits Scheme which, in general terms, permitted a member who was an officer to preserve the level of pension benefit the officer could have expected to receive, having regard to rank and retiring age for that rank as at 30 September 1972. The plaintiff's retirement was not distant and he was planning for it. He was concerned, if possible, to achieve promotion to Brigadier before retirement. Whilst there was no certainty about achieving it, he had been led to believe, through discussions with others, that his prospects were somewhat greater in the Staff Corps than would be the case if he remained in RAEME. He was anticipating an invitation to transfer to the Staff Corps when he wrote to the Authority on 8 November 1974 giving as background his belief that he must serve until his 57th birthday to maximise his pension entitlements and requesting advice as to the pension, expressed as a percentage of salary, which would apply to a Colonel retiring at 57 and the effect on the application of the "no detriment" clause if he were transferred to Staff Corps. A transfer to that Corps would reduce his compulsory retiring age to 55 years. He also sought advices as to the pension which would be payable to him if he were promoted to Brigadier in RAEME; if he were so promoted in RAEME and subsequently transferred to Staff Corps or a General List of Officers and if he were promoted to Brigadier in that Corps or whilst on the General List but after transfer from RAEME. In the letter he informed the Authority that he had been advised that preference for promotion would be given to Staff Corps Officers and that he could himself request a transfer to that Corps if an invitation were not extended to him. Appreciating, as he said, the amount of work required in producing answers for him he explained that:
"6. However, although only 48 years of age, and anxious to pursue my career to the highest attainable level, I find myself in a situation where the economic implications of seeking further promotion could be unacceptable. I therefore cannot make a decision on transfer to Staff Corps without obtaining additional information. An example of the problem is that if I lose the benefit of the "no detriment" clause by voluntarily reducing my retiring age from 57 to 55 years, I could lose two years earning potential approximately $20,000 allowing for pension, plus $50,000 in pension reduction over a possible twenty year period. All this is without allowing for inflation. My financial situation is not such that I can lightly throw away $70,000.
7. Because of the substantial amounts of finance involved it is requested that as clear and accurate a statement as possible be made on each of the above matters, as soon as possible."
The Authority responded by a letter dated 9 December 1974. The advice which it then gave, and which was wrong, was that if he transferred to Staff Corps he would on retirement at 55 receive a pension, expressed as a percentage of his annual pay at date of retirement, of 54.91 percent which is to say that he would be able to take advantage of the detriment provisions despite retiring two years earlier. The correct position, as the Authority later advised by letter of 15 June 1978, was that to qualify for a pension at that rate the appellant would have to be able to serve until age 57, which of course he was unable to do in the Staff Corps. The pension he would in fact receive was less.
On 7 April 1975, over three years before he was notified of the correction which had to be made, the appellant applied for transfer to Australian Staff Corps, and by his letter of that date advised the Department of Defence:
"1. Referee A invited an application to transfer from RAEME to Staff Corps, and stated that my likely position on the
regimental seniority of the Staff Corps list would be next after Gl. P.D. D'Arcy.
2. Although I have been advised that transfer to Staff Corps would result in a loss of pension of $733 per annum, in my present rank, I note that this loss would be virtually eliminated on promotion."
The reduction in pension referred to in the letter, and which the appellant was apparently prepared to risk, was said to represent some 4 percent less than he would have received had he remained in RAEME, whereas he explained in evidence, the true position was that he would lose something approaching 12½ percent. The mathematical accuracy of that is not critical for present purposes. It appears always to have been accepted that the difference was not insubstantial. Gallop J. who heard the matter gave judgment for the respondent. There were a number of bases disclosed in his Honour's reasons for a conclusion that the plaintiff had not made out his case. In an analysis of the elements of the cause of action sued upon, that the Authority had not breached the duty owed to the appellant was the first of them.
Duty of Care and its Content
His Honour did hold that the Authority owed a duty of care to the appellant in furnishing its advice and no issue was taken with that finding. His Honour expressed it in these terms:
"I am satisfied that there was, as between the plaintiff and the defendants, the sort of special relationship which gave rise to a duty of care on the part of the defendants to the plaintiff. The terms of the plaintiff's letter of 8 November 1974 to the Secretary of the Authority made it fairly plain that he was going to place some reliance on the answers he received. The defendants knew that, or should have known, and they supplied the opinion on the matters raised by the plaintiff accordingly".
At this point his Honour was determining whether it could be said any duty was owed by the Authority to the appellant in giving the advices. His Honour went on to deal with the question of the content of that duty as a distinct question. The two enquiries are however bound up together, a finding as to the former being applied to answer the question following. As Deane J. said in Hawkins v. Clayton (1988) 164 CLR 539, 579 the content of a duty is governed by "the relationship of proximity from which it springs".
Proximity is regarded as an essential part of the foundation of liability for negligent misstatement: The Council of the Shire of Sutherland v. Heyman (1985) 157 CLR 424, 496-498, 507-508; and see the further authorities cited in Italiano v. Barbaro (1993) 40 FCR 303 at 328, and particularly Gala v. Preston (1991) 172 CLR 243 at 253 where it was said (by Mason CJ. Deane, Gaudron and McHugh JJ.) that "(t)he requirement of proximity constitutes the general determinant of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid a reasonably foreseeable and real risk of injury". Proximity involves a consideration of the relationship between the party receiving the advice or information and the party requesting it: Sutherland, 461, per Gibbs CJ. In many cases the relationship will involve a degree of reliance by the recipient: Sutherland 461, 467, per Mason J., and in circumstances where the provider knows or is taken to know that reliance will be placed on what is said. What Mason J. said in Sutherland at 461 was cited with approval by Brennan J. in Nagle v. Rottnest Island Authority (1993) 177 CLR 423 at 440. Known reliance has been regarded as satisfying the test of proximity: Sutherland 461; San Sebastian Proprietary Limited v. The Minister Administering the Environmental
Planning and Assessment Act 1979 (1986) 162 CLR 340; Hawkins 545. His Honour found known reliance, which is to say, that at the time the advices were given reliance would be likely to be placed on them. Whether the appellant in fact relied upon them after they were communicated to him is of course a different question. If, as his Honour found, reliance would be placed upon the answers it can only have been on the basis that they were accurate. What the appellant enquired about, and to which he received direct answers, was the effect of a transfer on his pension entitlements measured and expressed exactly. Even if he had not himself referred to the need for accuracy, that this was obvious follows from the use to which he said he intended to put the information and from his Honour's findings above. The conclusion must then be that the Authority was required at least to take reasonable care in seeking out the correct information: L. Shaddock & Associates Proprietary Limited v. The Council of the City of Parramatta (1981) 150 CLR 225, 235 per Gibbs CJ. As Barwick CJ. held in Mutual Life & Citizens' Assurance Company Limited v. Evatt (1968) 122 CLR 556, 572-3, where the relationship of the parties is such that the speaker knows or ought to realise 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 for the latter to seek and act upon it, the speaker comes under a duty which his Honour summarised as one "to exercise reasonable care in preparing himself to speak in conveying information, in exercise of his judgment and in expressing the information or advice which he chooses to convey".
His Honour the trial Judge had referred to the passage from the judgment of Gibbs CJ. in Shaddock, 235 to which I have just referred. His Honour did not however
adopt that statement as descriptive of the nature and extent of the duty in the present case. The respondent submitted that one should infer his Honour had the passage in mind because it was earlier referred to in his Reasons and because of the later conclusion where his Honour expressed himself as not satisfied "that there was a failure to exercise reasonable care in the discharge of the duty to advise honestly". Whilst that tends to convey concepts of both a duty of honesty and a duty of care it is clear from what led to the statement that his Honour was speaking only of a duty to act honestly as that which was owed to the appellant. His Honour appears to have arrived at that view because he held the advices given by the Authority to have been mere "opinions". From that point his Honour reasoned that the Authority could not be said to vouch for the correctness of its opinions and that therefore the duty could be no higher than to give an honest answer. His Honour drew an analogy with the circumstance of the banker providing a reference as to credit-worthiness in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465 which prompted the observation by Lord Morris of Borth-y-Gest (504) that there was "much to be said" for the view that a "brief expression of opinion" on that matter ought require only a duty of honesty. Lord Hodson (512-3) was of a like view. In my respectful opinion there is a great difference between that situation and the facts of this case where the Authority was providing specific and detailed answers to questions as to the appellant's future income. It is true that the Authority's advices combined matters of fact, such as rates of pension, and opinion and in the latter respect it was necessary for it to form a view as to the interpretation of the provisions relating to pension entitlements. Moreover, as a matter of principle, there is no valid basis for distinguishing between information and advice when considering the question of the nature of the duty owed, as
Barwick CJ. explained in MLC v. Evatt, 572. In many cases what is conveyed will involve, as here, an overlap between the two categories and the possession of either accurate information or advice upon a matter may be equally important. Inaccuracy in either area may equally be relied upon and cause loss. A shortly stated opinion, such as their Lordships referred to in Hedley Byrne, may on its face convey that limited research has been undertaken and this might affect the reliance which can be placed upon it, but this did not form part of his Honour's reasoning as to the nature of the duty owed. The finding made by his Honour, that there was known reliance as to the "answers he received", in my view obliges the conclusion that the duty owed was with respect to whatever was conveyed by them, whether it be information or opinion or a combination of both. In my respectful view his Honour was in error in the definition of the duty owed, which could only have been one to take reasonable care to ascertain the correct information and interpretation of the provisions and in communicating those advices. It is not without importance that the question arises in relation to the Authority which administered the pension scheme, and should have had access to the necessary information. It might reasonably be expected that the Authority would take advice, which was available to it, upon any doubtful matter of legal interpretation.
Breach of Duty
The Authority at a later time sought legal advice as to the construction of the provisions which was to the contrary of the bases upon which it had advised the appellant. He was given the correct advice by letter dated 15 June 1978. It is to be inferred, in the absence of evidence to the contrary, that the Authority had not at the time the advice was
given to the plaintiff in 1975 sought legal opinion or taken steps to verify the view it had, which, it must have been appreciated was not the only possible view. That reference to a lawyer was necessary for a properly informed advice is tolerably clear. The Authority had not, in the face of a request for accurate answers, which were to form the basis of an important decision, qualified its advices or advised that they were but one view of complex provisions and one which was not in any event obtained by legal advice. In these circumstances it must be concluded that the duty owed to the plaintiff was breached.
Reliance/Causation
His Honour, it will be recalled, had found that the appellant's letter of 8 November 1974 to the Authority "made it fairly plain that he was going to place some reliance on the answers he received". Earlier in his findings of fact his Honour said:
"What attracted the plaintiff to join Staff Corps was not the lower compulsory retirement age of 55 but the increased prospects of promotion, the consequent increase in salary and hence increase in pension on retirement. He was prepared to forego some accrued pension entitlement of about four percent of final pay on retirement at 57 for the prospect of promotion".
These findings involve an acceptance of the appellant's evidence that he was prepared to risk about 4 percent in taking the transfer and in pursuit of a promotion to Brigadier and, it follows, the decision to transfer was based upon both these factors. His Honour did not find that the appellant would have risked more and the evidence would not have supported such a finding, since the appellant was not challenged as to his assertion that he would not take a risk of a 12½ percent reduction in pension. With this background I turn then to his Honour's later findings on reliance.
His Honour considered that, even if the correct advices had been given, the appellant would have transferred to the Staff Corps in any event. There were two reasons given by his Honour for this conclusion. The first, and it appears, most important of them, was that the appellant relied and acted upon his own interpretation of the legislation. The second was that the appellant was motivated by better prospects of promotion which would give him a higher salary for his remaining years of service and higher pension benefits.
The evidence does not, with respect, bear out the first of those propositions. A review of the evidence discloses that when the plaintiff spoke of having his own, firmly held view as to the entitlement provisions he was speaking of the period after the receipt of the letter of 15 June 1978 when the Authority advised him of the correct position. He did not, one might think understandably, accept it with alacrity since he stood to lose monies if it were right. By this time he had transferred to the Staff Corps and had, in the months preceding receipt of the letter, purchased a cattle property which he intended to operate on his retirement from that Corps at age 55 some three years hence. He thereafter attempted to prove the Authority's later opinion to be incorrect, though he was unsuccessful. But there was no evidence that he had his own opinion as to these matters in 1975 when he took the transfer. Whilst the terms of appellant's earlier letters might suggest he had received some legal advice, there was no evidence that he had. His Honour's earlier recitation of findings of fact did not include one that the appellant held any opinion in 1975. The findings consistently refer to the appellant refusing to accept the correction advised by the Authority in 1978 and at one point his Honour specifies the
period when the appellant "preferred to rely on his own interpretation of the law" as "from receipt of the correcting advice of 15 June 1978 until retirement on 31 May 1981 and since, ....".
The other reason for his Honour finding against the appellant with respect to reliance, namely that the appellant viewed the transfer as improving his prospects of promotion, and with the benefits that it would carry, was consistent with an earlier finding, drawn from the appellant's evidence, that he had nothing to gain "by going across" other than increased opportunity for promotion. But, of course, whilst it correctly states the positive advantages as a factor influencing the appellant, it takes no account of the level of detriment he was prepared to risk to pursue them, which had been the subject of a finding by his Honour. That a risk of about 4 percent was acceptable to the appellant is clear. He could not of course at that point have turned his mind to whether any greater risk, even one at 12½ percent was acceptable. But it remains the case that the risk that his pension might be as advised by the Authority was one the appellant was prepared to take and to that extent he was comfortable with it. It must therefore be seen as having played a material part in his decision to transfer, so that it caused him to alter his position, thereby exposing himself to a risk greater than he had anticipated, even if it were not the sole cause: March v. E & M H Stramare Pty Limited (1991) 171 CLR 506; Medlin v. State Government Insurance Commission (1995) 127 ALR 180 at 183-184.
Causation/Mitigation
The respondents submitted that even if that were the case nevertheless any loss suffered was not caused by the initial reliance because there were "options" open to the plaintiff which, had they been taken, would have negated his loss. They were, firstly, that he could have applied for transfer back to RAEME so that his maximum retirement age would have reverted to 57, as his Honour found. At the same time however, his Honour observed that the appellant's prospects of promotion would have been decreased by that course. Secondly, he could have applied for an extension of his maximum retirement age pursuant to s.27 Defence Act 1903 which provides that whilst the ages for compulsory retirement of officers shall be as prescribed, in special cases the Governor-General may extend the prescribed age of retirement for a period not exceeding two years. In so finding his Honour made the only observation unfavourable to the acceptability of the plaintiff's version of the facts, namely that he had some doubt about the truth of the plaintiff's evidence that he was not aware of those options, but that it was not necessary to make a firm finding.
A basis for this observation, from the explanation which follows in the reasons, was that the plaintiff had made plans for and wished to retire at 55 years, implying that the plaintiff may not have been interested in alternative courses which might, as his Honour said, have averted the consequences of his transfer. The evidence does not disclose, as his Honour appears to have accepted, that the correcting advices and the formation of the plaintiff's own view occurred prior to the acquisition of the farm, which is said to have taken place in "early" 1978 whereas the advices were given in May.
On the plaintiff's case he was committed to retirement at 55 years by reason of the arrangements he had made in purchasing the cattle property which he needed to render operational. But it is not necessary to determine the matter on a resolution of whether the plaintiff was in a position to take up either of the options. Rather the matter may be resolved by enquiring, firstly, whether the evidence disclosed they were a practical course which would probably have produced the result contended for, and secondly, who bears the onus of proving this.
The defendants submitted that it was incumbent upon the plaintiff to prove his loss and he could not do so here because these steps were not taken. Although employing the language of causation, the substance of the submission is that the plaintiff cannot recover that loss which he could have avoided. It is not one of an independent act of negligence on the part of the plaintiff which has intervened and prevented his reliance upon the advices in 1975 from producing some loss (with respect to the distinction between questions of causation, mitigation and contributory negligence: see McGregor on Damages, 14th ed. para 89). Neither plea was raised in the defence, but no point is taken as to this. The issue sought to be raised is clearly that of an alleged failure on the part of the plaintiff to "avert" the loss (as his Honour observed), and such an allegation must be proved by the defendant as Dixon CJ. in Watts v. Rake (1960) 108 CLR 158, 159 explained:
"The law of course places upon a plaintiff who sues in tort for unliquidated damages the burden of satisfying the tribunal of fact of the damages he has suffered both special and general and of the quantification in money that should be adopted in the sum awarded. That is the legal burden of proof which rests upon him throughout. Only in one respect is the burden of proof upon the
defendant and this is when he sets up matter in mitigation of damages. If it appears satisfactorily that damage in a particular form or to a particular degree has been suffered by the plaintiff as a result of the wrong but the defendant maintains that the plaintiff might have avoided or mitigated that consequence by adopting some course which it was reasonable for him to take, it seems clear enough that the law places upon the defendant the burden of proof upon the question whether by the course suggested the damage could have so been mitigated and upon the reasonableness of pursuing that course."
See also Monroe Schneider Associates (Inc) v. No. 1 Raberem Pty Ltd (1991) 33 FCR 1 at 17, 29 and the numerous authorities there cited.
The respondents called no evidence with respect to these matters. It was not shown that any other person had achieved a transfer back to their previous Corps at this late point in their career, and there was nothing to suggest that the circumstances of the plaintiff could be regarded as "special" and so qualify for an extension by the Minister. Indeed an inference open from the file note of discussions with a Senior Officer in the Army, who was also the Deputy of the Army Member of the Authority, is that neither course was realistically open since it was that officer's view that the appellant was "stuck" with his decision to transfer. The Authority at no time appears to have suggested to the appellant that he ought take the courses which it is now suggested he should have taken. At the least this suggests they were not, at the relevant time, viewed seriously as options.
Orders
What damage has been suffered by the appellant has not been the subject of findings by his Honour and, on the view I have taken as to the question of liability, it will be necessary to remit the question of damages for assessment. During the course of argument Counsel for the respondents did submit that the appellant may have suffered no loss when regard was had to the fact that retirement at 55 gave him the advantage of being able to pay out some loans, upon which interest was accruing, two years earlier and to the fact that he was able to earn an income from his cattle property at an earlier time. If there was a real issue as to this it would not be appropriate to enter judgment in favour of the plaintiff at this point. But that does not seem to be the case. By the schedule of loss to the appellant's accountant's report, and upon which there seems to have largely been agreement as to the accuracy of the base figures such as net pension difference, lump sum and the sum to be applied for future differences in pension, the appellant has shown a prima facie loss, and that is not taking into account any interest which might be assessed upon the past loss and whether that component ought to have added to it the amount for tax to be paid. The respondents may be able to argue for some amounts to be set-off, but it seems to me the evidence as it stands does not permit a conclusion that it could amount to any more than that and could actually produce a cancelling out of the appellant's loss otherwise shown. There is little evidence with respect to the loans paid out and the profit made by the production and sale of cattle in the two years. The only other apparent dispute as to items of loss appears to be whether the appellant is entitled to claim the costs he incurred in attempting to obtain a favourable determination in the Administrative
Appeals Tribunal concerning the interpretation of the entitlement provisions, upon which there may be argument as to whether he is entitled to it as having been reasonably incurred in an attempt to mitigate his loss. But it amounts to only some $1200 and would appear to have little effect on the outcome. In these circumstances it seems to me that the prospect of the respondents overcoming the whole loss shown by the appellant's evidence could not be seriously entertained in considering the orders that are now appropriate.
I would allow the appeal and in lieu of the orders below give judgment for the plaintiff for damages to be assessed and order that the defendants pay the costs of this appeal and the trial below.
I certify that this and the preceding fifteen pages are a true copy of the reasons for judgment of the Honourable Justice Kiefel.
Associate
Date: 15 November 1995
Counsel and Solicitors for
the appellant: Mr B Walker SC and Mr B Hull instructed by Clayton Utz
Counsel and Solicitors
for the respondents: Mr P Roberts instructed by Australian Government Solicitor
Date of Hearing: 23 October 1995
Place of Hearing: Canberra
Date of Judgment: 17 November 1995
Place of Judgment: Sydney
