FEDERAL COURT OF AUSTRALIA

Brewer v AAL Aviation Limited [2016] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

Introduction

1    These proceedings concern claims by three applicants who were employed by Trans-Australia Airlines (“TAA”) from the 1970’s, and then by Qantas Airways Limited (“Qantas”). The applicants each claim that the respondent, as the legal successor to TAA, is liable for TAA’s conduct in effectively blocking their entry into particular superannuation schemes available to them. Various causes of action are relied upon. The relief available to each applicant, if they succeeded, would no doubt be very significant for them personally. Initially, there was a larger group of applicants, but settlements were reached in the other cases and the Court was told that each of those cases would be formally discontinued.

2    For the reasons which follow, I have concluded that none of the causes of action for any of the remaining applicants succeed and the applications must each be dismissed.

The two airlines policy

3    In the period when each of the applicants commenced his employment with TAA, the Australian Government applied what was known as the “two airlines policy”, under which competition between TAA and Ansett Australia Limited (“Ansett”) was fostered but, at least on interstate Australian routes, other airlines were excluded. Concern by TAA about the maintenance of a “level playing field” will be apparent in some of the correspondence to which I will refer in due course.

4    One operating cost which, over the period of the applicants’ employment, became very significant for TAA arose from the need to provide employer contributions to the superannuation scheme applicable to TAA salaried and wages staff. Ansett had its own scheme which was less costly to it than the TAA scheme became to TAA. Initially, TAA was covered by superannuation schemes applying to federal public servants: first, the Commonwealth Superannuation Fund (“CSF”) established under the Superannuation Act 1922 (Cth) (“the 1922 Act”) and; later, the Commonwealth Superannuation Scheme (“CSS”) established under the Superannuation Act 1976 (Cth) (“the 1976 Act”).

5    As a response to TAA’s expression of concern about the cost of its own contributions to those schemes on behalf of its employees (especially by contrast with the cost to Ansett of its own scheme), in 1980 the Government closed CSS to new entrants from TAA and, later that year, permitted TAA to establish the Australian Airlines General Superannuation Plan (“AAGSP”) which became available to its employees in 1981. TAA employees were encouraged, but not required, to transfer to AAGSP. Unlike CSF and CSS (which were defined benefit schemes) AAGSP was (like the Ansett scheme) an accumulation scheme where the primary benefit upon retirement was a lump sum benefit rather than a pension with a reversionary spouse benefit.

6    Those matters will require further elucidation. 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. However, criticism of those decisions will not suffice to establish any of the causes of action. Again, further elucidation will be necessary.

7    To set an appropriate context in which to explain the circumstances of each of the applicants, and the nature of their causes of action, it will first be necessary to explain the position of TAA, the public service arrangements for superannuation, superannuation arrangements applying specifically at TAA and the various decisions, policies and practices which TAA developed to address what it saw as a funding crisis with respect to its superannuation obligations.

The applicants

Mr Innes

8    Malcolm James Innes emigrated with his wife from New Zealand to Australia in 1974. They settled in Perth.

9    From 1 July 1974, Mr Innes became employed by TAA as a Traffic Officer Grade 1 at the TAA Perth Office. The position was a clerical one concerned with selling airline tickets. In 1981, he transferred to a position at Perth Airport as a Despatch Officer. In 1994 he became employed by Qantas, as part of the transition (from 1992 to 1995) of that company taking over the operations and staff of TAA. He became employed by Qantas as a Load Controller and was relocated in that position to Melbourne Tullamarine Airport in 1999. He was retrenched from Qantas on 18 April 2012.

10    Mr Innes gave evidence that shortly after joining TAA he made enquiries about joining “Commonwealth superannuation”.

11    I shall, in due course, deal with Mr Innes’ evidence about the first, and later, enquiries. They were made to a more senior officer in Perth who was in a managerial sales position. They were not made to the Personnel Officer, or anyone in the Personnel section, even though it was with the Personnel section that Mr Innes dealt with when he applied for employment and was engaged and with which he would consult with about issues as a union representative. Mr Innes’ evidence was that he was told by workmates that the person he spoke to was the person who dealt with superannuation.

12    Mr Innes’ evidence was that he was given various reasons why he could not enter the Commonwealth superannuation scheme over the succeeding few years. His case was that the information he was given was wrong and misleading, that he relied upon it and that otherwise he would have pursued efforts to enter Commonwealth superannuation and would have retained his membership and preserved his benefits thereafter until he left Qantas.

Mr Hunter

13    Stuart Arthur Hunter became employed by TAA on 28 July 1975 as an Airframe Fitter at Essendon Airport in Victoria. He had an initial probationary period of three months.

14    On 8 December 1976, he was reclassified as an Airframe Mechanic, having attained the necessary additional qualifications for that position. In 1980, he transferred, in grade, to Melbourne Tullamarine Airport. He was periodically promoted (on occasions as result of continued study). In around 1992, he transferred to Qantas, as part of the company’s takeover of TAA. He was retrenched by Qantas from his position of Aircraft Maintenance Engineer on 9 December 2005 at 51 years of age.

15    Mr Hunter’s evidence was that he enquired about the possibility of joining Commonwealth superannuation in August 1975. His evidence was that he, and others who were with him, were told that membership was “by invitation only”.

16    Mr Hunter also deposed to another conversation a few days later when he was told by a fellow employee that “everyone is eligible to join” but that what he had been told earlier was nevertheless correct.

17    Mr Hunter’s case was that those responses were ones for which TAA was responsible, that they did not reflect the true position, that they were wrong and misleading and that, if they were not made, he would have pursued the question of entry to Commonwealth superannuation. He said he would have thereafter retained his membership and preserved his benefits until he left Qantas, accessing those benefits only upon his later retirement.

Mr Brewer

18    Kevin John Brewer commenced employment with TAA as a Reservations Clerk at Mascot, Sydney on 28 March 1977. In November 1977, he transferred to Sydney Airport as a Traffic Officer and later became a Load Control Officer. He was transferred later to Qantas after the purchase of TAA and, on 21 December 2006, was made redundant.

19    Mr Brewer’s evidence was that he approached the New South Wales Personnel Manager for TAA in early 1978, after transferring to Sydney Airport, and in a chance conversation, asked him about joining “Commonwealth superannuation” but was told the scheme was closed. He made no further enquiries.

20    Mr Brewer’s case also was that he was given wrong and misleading information which he relied on, that he would otherwise have entered Commonwealth superannuation, and that he would have retained his membership and preserved his benefits when he transferred to Qantas until he left Qantas.

Australian National Airlines Commission

21    The respondent began its existence as the Australian National Airlines Commission (“the ANA Commission”). It was incorporated under the Australian National Airlines Act 1945 (Cth) (“the ANA Act”). Later, by the Australian Airlines (Conversion to Public Company) Act 1988 (Cth) the name of the respondent became Australian Airlines Limited and it has since changed its name to AAL Aviation Limited. At all times relevant to the present proceedings up to 1995, the respondent traded as Trans-Australia Airlines, and was generally referred to, as I have done, as TAA. TAA was the Commonwealth Government’s airline and effectively enjoyed a shared monopoly with Ansett of major parts of the Australian domestic airline market under the two airlines policy to which I have already referred.

22    Section 6(1) of the ANA Act established the ANA Commission consisting of five Commissioners, including a Chairman and Vice-Chairman, all of whom were appointed by the Governor-General. By 1973, the ANA Commission consisted of seven Commissioners.

23    Hereafter, reference to the ANA Act should be understood to be to the provisions of the Act as at 1973, shortly before the engagement of each of the applicants, unless otherwise indicated.

24    Sections 17 and 18 of the ANA Act made provision for, and a distinction between, officers and employees. That distinction, in large measure, reflected a distinction in the departmental public sector between “permanent” and “temporary” staff, but it was not identical to it. When it comes to superannuation arrangements it is important to focus on the particular statutory arrangements made for TAA staff (and staff of other agencies) rather than those for staff in the departmental public sector.

25    Sections 17(2), (3) and 18 provided:

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.

26    None of the applicants claimed to have satisfied the requirements of s 17(3). Other material indicated that persons had not been appointed to the “Service of the Commission” from the 1960’s. In a later part of the judgment, I find that each of the applicants was a “temporary” (but full-time) employee engaged under s 18 of the ANA Act.

27    Section 31A of the ANA Act was inserted in 1973. It has a particular significance to which it will be necessary to return. It provided:

Transfer of superannuation provisions.

Inserted by No. 92, 1973, s.14.

31A.    The Commission shall not more than four weeks after this Act receives the Royal Assent and thereafter from time to time at intervals of not more than four weeks transfer the moneys representing provisions made by the Commission for staff superannuation from the accounts of the Commission to the Commonwealth Superannuation Board or to such other trustees as the Treasurer approves.

28    Royal assent was given on 24 August 1973, and the commencement obligation accordingly arose not later than 21 September 1973.

29    Sections 42 and 43 of the ANA Act gave recognition to the two airlines policy, which was underpinned by a premise that Ansett and TAA, as competitors, would receive equal treatment from the Government. As will be seen, a powerful plank in TAA’s representations to the Government, after the introduction of s 31A and after it was foreshadowed that public sector superannuation arrangements would be altered (as discussed hereunder), was that the two airlines policy itself was in jeopardy unless TAA was released from its ongoing obligations under Commonwealth superannuation arrangements.

Commonwealth superannuation arrangements

30    TAA was, as a Government-owned airline in the 1970’s, an “approved authority” for the purposes of Commonwealth superannuation legislation.

31    Mr George Hayes is a retired public servant who worked for a long period of time at the Government agency which was, when he began there in 1969, called the Superannuation Board, was subsequently named the Australian Government Retirement Benefits Office and then, later, was called ComSuper. Mr Hayes has an extensive knowledge of the administrative arrangements in place in the period to which the proceedings relate. Although Mr Hayes had no specific knowledge of the arrangements within TAA, I found his evidence to be helpful to understand the general arrangements in place. Specifically, I accept Mr Hayes’ evidence that TAA used the forms and other material supplied by ComSuper and that co-ordination of superannuation arrangements in approved authorities, as in government departments, was achieved through local Personnel sections. The powers of the Commissioner for Superannuation were delegated under the relevant legislation so that the administrative arrangements of approving individual employees to join a Commonwealth superannuation fund were the responsibility of the approved authority, although ComSuper and its predecessors retained the central task of advice and information.

32    That advice and information was available to agencies and departments in various forms, but in the period with which the proceedings were concerned there was no organised facility to provide advice to individual employees. It was expected, I infer, that they would seek advice from their own Personnel department, which could contact Mr Hayes or one of his colleagues if necessary.

33    The three principal ways in which advice was made available to departments and agencies was through the Superannuation Manual, circulars and requests for advice or information of the kind just mentioned. Mr Hayes said, in his affidavit evidence:

Manual, Superannuation Board Circulars and application forms

26.    The Manual was the ‘superannuation bible’. It provided detailed information about Commonwealth superannuation. Every personnel section would have had at least one copy of the Manual. We sent out updates to the Manual every 3 to 6 months. The updates covered things such as changes in the legislation, changes in the documentation we used and any changes in the ComSuper’s procedures. The updates were sent to the personnel sections and would include instructions telling the personnel section to take out pages x-y and replace with new pages x-y. We had an ‘address bank’ for the personnel sections, which was kept up to date. Although this was considered an important task, it was not one specific person’s job to keep the address bank up to date.

27.    ComSuper circulars were also sent to the personnel sections of the various departments and agencies. The circulars were sent out in advance of the Manual being updated. They were the main means by which ComSuper communicated changes about Commonwealth superannuation to employees in the personnel sections.

28.    The personnel sections also kept copies of application forms for temporary employees to join Commonwealth superannuation. …

34    Until 30 June 1976, Commonwealth superannuation was governed by the 1922 Act, mentioned earlier, and after 1 July 1976 it was governed by the 1976 Act. As I have already mentioned, the funds established by those Acts were known as CSF and CSS, respectively.

35    To become a contributing member of CSF, under the 1922 Act, and receive a pension on retirement, it was necessary to pass a medical examination. Failure to pass the medical examination resulted in refusal of pension benefits, although it remained possible to contribute to the “Provident Account” which provided a lump sum benefit upon withdrawal, including retirement.

36    Under the 1976 Act a medical examination was also required, but it had different consequences. Failure to fully satisfy the medical requirements did not result in exclusion from CSS, or the refusal of an eventual pension necessarily. Rather, the employee was issued with a “Benefit Classification Certificate” specifying any conditions that might affect the benefit upon invalidity or retirement or death, operative for 20 years.

37    Mr Hayes explained the difference between the two arrangements as follows:

MR DAVIS: For his Honour – would you just explain to his Honour at this point what a provident account is under the 1922 Act?---Yes. Under the Superannuation Act 1922, if you met the employment requirements – so it could be, say, you were a permanent employee of the public service or you met the requirements for an approved authority the necessary future employment requirements and you’re accepted as a member of the scheme, you then had a medical examination, and if you were, as they used to say in those days, in insurance terms, a first-class life, you entered the superannuation scheme without any restrictions. If the medical examination disclosed that you were unlikely to – because of existing medical conditions – unlikely to reach retirement at age 65, then you were put in what was called a provident account, which was a lump-sum scheme and not a pension scheme, which the other arrangement was.

…

MR DAVIS: Would you explain to the court what a benefit classification certificate is?---Right. Well, unlike the – under the Super Act 1922, where if you were not a first class life in superannuation – in insurance terms, you weren’t put into a separate account. You came into the overall superannuation scheme, but there are restrictions on your benefits if, as a result of your medical examination, conditions were found that made it unlikely you would be made an employee until retiring age. And these particular conditions were listed on a certificate and that certificate applied for 20 years. Now, if you retired or died because of conditions unrelated to anything on the certificate, then you got full benefits. Now, for example, if you were killed in a car accident, well, clearly there was no connection there. You got full benefits. If you were retired because of a condition on the certificate, then you received a lesser benefit depending on the number of years you had completed.

HIS HONOUR: Unless you got past 20 years?---Unless you got past 20 years, yes. Correct.

MR DAVIS: Now - - -?---In which case a certificate no longer applied. That’s correct.

38    Despite the difference in consequence, the medical examination was required as part of the arrangements for entry into either scheme, whether or not it had been necessary for employment. In the present case, none of the applicants had a medical examination for employment and so, in each case a medical examination would have been required to enter either CSF or CSS. The medical examinations were arranged by the relevant agency, but the results were sent to ComSuper or its predecessors.

39    Mr Hayes was asked about the administrative arrangements, to which I referred, including the Superannuation Manual and the circulars, and gave the following explanation:

MR DAVIS: … Now, these various documents and manuals, what was the function of them?---Manuals and circulars?

Yes?---Why did we have them at all?

Why was it necessary to send all this stuff to the employers?---Well, we, as the superannuation administrators, didn’t have any direct contact with either public servants or people in approved authorities or people in PMG directly. We – we needed a process whereby the employing agency, being the public service or an approved authority, identified people who were coming into the scheme, advised us who was coming into the scheme. We then set up records for them, and eventually paid benefits of some sort. We needed a process whereby if there was some information that had to get out to existing members or, indeed, potential members, it went through personnel sections and staff sections. We didn’t have a process for direct contact with – with people. I mean, today you would probably put it on the internet, for example, but in those days the process was we had to work through personnel sections and staff sections, because we simply didn’t know who was out there: who – who – who was potentially a member, who was becoming a member. And if someone was retiring we needed someone who got them to complete the correct form, checked it out and sent it into us. We didn’t know who was retiring. It was up to personnel sections to tell us.

So if somebody wanted to – if an employee wished to join Commonwealth Superannuation or wished to make an inquiry about joining, then what would be their first point of contact insofar as your experience is concerned?---Well, if you’re a public servant it – A followed B, but it was done through personnel sections. If you were a temporary employee or an employee on approved authority we would expect your first port of call was your personnel section, and – I mean, some – some organisations probably had liaison officers between staff and personnel sections. That was their own local arrangements. A – the – the people who had the information on superannuation down at the coal face were personnel sections or staff sections. I mean, it’s possible someone might have rung us up and said, “You know, I’m – I’m Bill Smith. I’m working for Australia Post. Can I become a member of the scheme.” And we would have said, “Well, what’s your background?” You know, “Tell us.” But we would say, “Okay. Well, you need to now go to your personnel section and get a form X, Y, Z completed, and then that form will come back through your personnel section.” But - - -

Did you have people that took inquiries from not the public so much, but from potential contributors? Did you have that?---In the very early days, no. Essentially, we were working on personnel sections. In my final days at ComSuper, yes, we did have inquiry officers in ComSuper, but, once again, we still would direct that person through the personnel sections, because there was a – the personal sections had to be involved in the process to get them into the scheme.

What was the position in the 1970s and 1980s?---We didn’t have them. We were relying entirely on personnel sections.

And the sorts of things that – and correct me if this is incorrect, but the sorts of things that personnel sections would have done, would they have had applications to join?---Yes.

Would they have answered inquiries? I think you said they would?---Well, they – they probably wouldn’t have answered inquiries on actual benefit payments. They would have probably either referred that to ComSuper ourselves, or suggested to the person, “You write to ComSuper,” because they – they probably didn’t have the expertise to tell Joe Blow precisely what his benefit was going to be if he retired in six months time, but if Joe Blow was a staff member and wanted to become a member of the scheme, that’s the sort of question we would expect them to be able to answer and give him the appropriate form to fill in.

And, similarly, to the extent that there was a medical examination required as a result of that, would that be something that was up to the personnel departments?---We would – we would expect the personnel department to arrange it, and if the medical didn’t turn up, we would go back to the personnel department and say, “Where is it? You know, arrange for so and so to be medically examined.”

Yes. And, similarly, with respect to people who are members of the scheme, I take it that contributions would have to be remitted to Commonwealth Superannuation?---Correct.

And who would be responsible for doing that?---The personnel sections, through their processes. …

40    There was one area in which the statutory conditions of entry into CSF under the 1922 Act were different for non-permanent public servants and employees of approved authorities. Permanent public servants were entered into superannuation automatically, with the same medical examination serving for both purposes (i.e. gaining permanent employment and entry into CSF). By 1952, non-permanent public servants could be deemed to be “permanent” for superannuation purposes if employed full-time and continuously for not less than three years and the Public Service Board certified that the “person’s employment is likely to be continued for a period of at least seven years” (1922 Act, s 4(5)(c)).

41    Employees of approved authorities might also be deemed eligible if full-time and “the approved authority certifies that the person’s employment is likely to be continued for a period of at least seven years” (1922 Act, s 4(6)(a)). There was no statutory requirement for three years prior continuous service. I shall refer later to an apparent practice or policy within TAA whereby such employees were invited to join CSF after a continuous two years of employment, although in practice the period seemed to have extended to three years.

42    It was argued in the proceedings by two of the applicants, Mr Innes and Mr Hunter, that they should be regarded as entitled to join CSF as early as the completion of any period of probation, without waiting for two or three years or to be invited, as none of those practices reflected any statutory condition.

43    However, I can see no reason, as a matter relevant to a certification that a person’s employment was likely to last at least seven years, why a practical qualifying period of this kind might not have been adopted. The certification related to the person, not the position which that person held. Some indication of stability in employment, and diligent application to required and assigned tasks, does not appear to me to be foreign or irrelevant to the certification which was required. None of the applicants had completed two years’ service with TAA before CSF closed.

44    Section 3(1) of the 1976 Act defined “eligible employee” to include:

“eligible employee” means–

…

(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;

45    “Permanent employee” was defined as follows by s 3(1):

“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;

46    Permanent employees were automatically entered into CSS. 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:

“temporary employee” means–

…

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

48    Sections 11, 12 and 13 of the 1976 Act made provision for temporary employees to be eligible employees in three circumstances, two of which are not relevant. Section 12 dealt with temporary employees who would be employed in a permanent capacity within 12 months and s 13 dealt with temporary employees employed under a term contract of not less than one year. Neither circumstance applied to any of the applicants.

49    Section 11(1) of the 1976 Act 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.

50    The “Commissioner” was the Commissioner for Superannuation who, as a matter of practice, delegated his powers. Mr Hayes’ evidence was that the powers were delegated to identified positions at approved authorities, rather than to named persons. His evidence was:

HIS HONOUR: Do you know anything about who were the delegates in employee authorities?---The way it operated, sir, was that the employing authority would nominate positions within their organisation. And the superannuation board, originally – later, the Commissioner – would delegate the power, under either the Super Act ’22 or the Super Act ’76, to particular positions in – in approved authorities, not – not to individual people, but to positions.

No, I understand. To the occupants of positions from time to time?---Yes. And – and if – if they changed the name of the position or they restructured the organisation somehow they needed to tell us and we would issue a new delegation to whoever is the – whatever was the new description of the position in the organisation that had these responsibilities.

51    Some features of s 11 might be noted. A request was necessary. It was necessary that the Commissioner be satisfied of likely employment for at least three years and certified to that effect. In addition, a medical examination was necessary. Section 16(2) of the 1976 Act provided:

Medical examinations and benefit classification certificates.

16.    …

(2)    A person who proposes to become, or becomes, an eligible employee shall undergo such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner requires.

52    Mr Hayes identified the relevant form (Form S20) which was in use for temporary employees of approved authorities under the 1976 Act. It contained four parts A – D. Part A contained a request as follows:

I … hereby request that I be accepted as an eligible employee under the Superannuation Act 1976. I understand that if I do not meet the required medical standard, my acceptance may be subject to the issue of a Benefit Classification Certificate and that my benefit or reversionary benefit under the Act may be reduced on medical grounds in the event of invalidity retirement or death.

53    Part B (for s 11 and s 12 employees) provided for certification by a delegate of the Commissioner that the employee (in the case of s 11):

… has been employed in a temporary capacity for a continuous period of not less than 12 months and that his/her employment is likely to continue for a further period of a [sic] least three years from the date of the above application

54    Part C is not relevant here. It dealt with s 13 and s 14 employees.

55    Part D allowed for a record of a contributing member, when superannuation deductions commenced and when the medical examination was to occur.

56    This form was to be retained by the Personnel section of the approved authority in its records.

57    Mr Hayes also identified an example of a typical schedule from TAA’s records (there were a number in evidence) whereby employing authorities transmitted details of a number of new contributors at the one time to ComSuper or its predecessors. Form SB17 was used for that purpose.

58    Form SB17, whereby employing authorities transmitted details of new contributors to the Superannuation Board (the predecessor to ComSuper) was adopted in November 1971. It was, nominally, 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.

59    In 1974, in the case of TAA, the Minister delegated his power of direction to the Staff Officer of TAA.

60    It is apparent that the day-to-day arrangements both before and after 1976 were under the control of employing authorities. It is also apparent that, after 1976, the only legitimate barrier to entry to CSS, in the case of a temporary employee with more than 12 months’ service, was a requirement of likely continued employment. However, some regard must also be paid to the need for the process to be activated. If a temporary employee received an invitation to apply to contribute to CSS, no doubt that was one way the process might be activated. Equally, I can see no reason why a temporary employee could not, after 12 months, ask for an application form from the Personnel office and submit it. Any necessary certification should be readily obtainable, or refusable. Processing time should be minimal in such a case.

61    Nevertheless, that was not the experience in TAA.

Superannuation arrangements in TAA

62    I earlier set out s 18 of the ANA Act. The ANA Commission had power to determine the conditions of employment of temporary staff employed under s 18 and those of officers under s 17.

63    In 1954, the ANA Commission made Determination No. 1 under s 17 of the ANA Act. In 1965, the ANA Commission made Determination No. 2. It dealt with officers pursuant to s 17 and temporary and casual employees under s 18. Determination No. 2 included General Orders, Departmental Manuals and Instructions. One form of General Orders was the Personnel Manual, which had already been issued under Determination No. 1 but which was expanded.

64    It was made plain that applicable industrial awards and agreements prevailed. Part 1, Section 1-4 of the Personnel Manual provided:

4.    Obligations under Industrial Awards and Agreements

Where the provisions of this Manual conflict with the provisions of any Industrial Award or Agreement affecting TAA staff, the provisions of the Industrial Award and Agreement shall, to the extent of the inconsistency, apply to these officers in lieu of the provisions of this Manual.

65    From 6 April 1970, the following arrangements were directed by the Personnel Manual 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.

66    As earlier indicated, from 1974 the Minister’s power of direction was delegated back to the Staff Officer.

67    These instructions applied at the time to the 1922 Act. In a memorandum to the Personnel Director on 19 May 1975, the then current practice was recorded as follows:

PRESENT SUPERANNUATION ACT 1922-1974.

    The existing Superannuation Act (1922-1974) provides that every employee shall be required to contribute to the fund from the date on which he becomes an employee (which relates to permanent public servants), or, in the case of a person who is deemed to be an employee within the meaning of Section 4 of the Superannuation Act, the date as from which he is deemed to be.

    TAA employees fit into the second category, i.e., deemed employees within the meaning of the act, and the authorisation for the Staff Manager of TAA to direct that persons employed by the Commission shall be deemed to be employees is attached (Appendix “A”).

    An over-riding requirement is that an employee shall not contribute to the fund (either Superannuation or Provident) until such time as he has undergone a medical examination and satisfied the health and physical fitness standards.

…

SERVICE OF THE COMMISSION.

    Under Australian National Airlines Determination No. 1 there is provision for permanency of employees under the conditions of Service of the Commission. Service of the Commission is available to officers provided such appointment is within approved Service of the Commission establishment and the officer has as minimum of six months service with the Commission. At the time of acceptance into service of the Commission an officer also became eligible for superannuation.

CURRENT PRACTICE.

    Entry into Service of the Commission has not been carried out since the early 1960’s. Superannuation eligibility has been on the basis of prescribed minimum service: –

and a recommendation as to satisfactory service and likely further employment of at least 7 years. As a general rule superannuation processing is some 12 months behind so that the average employee would be with TAA for 3 years prior to being invited to join the superannuation scheme.

68    It is likely that the deliberate practice of restricting entry for at least two years for ground staff continued under the 1976 Act because, from 6 May 1980, the following instruction also referred to a two-year qualifying period:

2.    1.    Employees who commenced or [sic] or after 1 January 1976 shall be entitled to become members of the TAA Ground Staff Superannuation Scheme after a period of not less than 2 years’ continuous service, but subject to the rules of the TAA Ground Staff Superannuation Scheme.

2.    Provided that employees who commenced employment between 1 January 1976 and 30 June 1980 and were deemed eligible employees under the Superannuation Act 1976 by the Delegate for the Commissioner of Superannuation shall continue to contribute to the Commonwealth Superannuation Scheme unless they elect to transfer to the TAA Ground Staff Superannuation Scheme.

69    In my view, at least after 1 July 1976, any instruction of this kind operated as a possible fetter upon entry to CSS. 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 and, to the extent relevant when I come to discuss the circumstances of the three applicants, I propose to ignore it.

70    The introduction of the 1976 Act created a financial problem for TAA, which came under increasing obligations to make provision for the employer funded part of the superannuation accounts of its employees. In a paper prepared for the ANA Commission by the General Manager of TAA in August 1976, the position prior to 1973, and from 1973 to 1976, was described. The ANA Commission had decided in 1946 to adopt the superannuation scheme under the 1922 Act for its ground staff. Under the CSF, employee contributions formed 2/7ths of retirement benefits and the employer liability was 5/7ths. In 1973, the fund Actuary determined a multiple of employee contributions necessary to meet this liability as 1.9 times the employee contributions. However, the General Manager’s paper recorded:

Part 1.    The TAA ground staff superannuation scheme up to 1976.

a)    Operation Prior to 1973. …

… TAA’s contributions were not invested but were used in the business, whilst employees’ contributions were paid to the Superannuation Fund for investment.

71    In 1973, two important changes were made, described by the General Manager as follows:

b)    Operation from 1973–76. In 1973 there were two significant changes made

i)    TAA was required to divest its employer’s fund and this fund was passed to the Commonwealth Trading Bank as Investment Manager. TAA continued all administrative work connected with the Fund.

ii)    The Superannuation Act was amended to provide for annual updating of pensions whereby the employer’s share of the pension (5–7ths) was raised at the 1st July each year by a factor 1.4 times the percentage increase in the C.P.I. or once times the rise in Average Weekly earnings, whichever is less.

To meet this new liability, the Actuary determined that TAA should increase its contributions to 3.5 times employees’ contributions and make an annual payment of $1.5m until the past liability (then $15m) was extinguished. The Actuary’s advice has not been followed and we have continued to pay into our Fund 1.9 times the employees’ contributions.

72    The introduction of the CSS, with the 1976 Act, made things worse. The General Manager said:

Part 2.    New Commonwealth Superannuation Scheme from 1st July, 1976:

…

TAA’s contributions have been estimated by the Actuary to be 20% of salaries, if annual updating is not to be provided for or 30% of salary to provide for updating, i.e. 6 times the employees’ contributions. So far TAA has decided to contribute the 20% only.

73    The General Manager provided a contrast with TAA’s direct competitor, Ansett:

Part 3.    Comparative Cost with Ansett Airlines of Australia:

It is not possible to determine accurately the annual cost of the superannuation scheme applying to ground staff in Ansett Airlines of Australia. It is known that the AAA scheme consists of an employee contribution of 5% of salary for a lump sum benefit of 13⅓% of average final salary (last five years) for each year of service. Actuarial advice is that the employer’s contribution would approximate 6.5% of salaries of contributors.

Of the total ATI staff in all its different enterprises 61% are members of the company’s scheme. For Ansett Airlines of Australia this figure is reported to be 70% of eligible staff.

Using these figures and TAA’s average salary per airline employee, the cost to Ansett of maintaining a fund for 70% of its eligible ground staff and flight engineers of Ansett Airlines of Australia for the year 1976–77 is estimated to be no more than $4m.

By contrast, only 45% of TAA’s eligible employees are members of TAA’s ground staff Superannuation Fund, because entry to the scheme has been restricted on the grounds of cost. The new Commonwealth Scheme, by permitting employees to join at a cost of no more than 5% of salary and eliminating the medical requirement, will be considerably more attractive and should TAA allow a freer entry to the scheme, some 70% of staff would most likely join.

The cost of $4m for Ansett Airlines of Australia for 1976–77 should therefore be compared with a TAA cost as follows:–

a)    With 45% of staff contributing –

b)    If 70% of staff contribute –

This highlights the major area of concern whereby the cost of ground staff superannuation to Ansett Airlines of Australia, covering 70% of its staff, is less than the very minimum contribution TAA must make under the Commonwealth Superannuation Scheme to cover less than half its ground staff.

(Emphasis added.)

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.

76    That scheme was established in 1980 (becoming available in 1981). The present proceedings are based on the contention that each of the applicants would have, and should have, joined CSS (or CSF) and that they would not have transferred to the new scheme for ground staff (AAGSP), as transfer was optional for those already in CSS.

77    On 2 February 1976, the Australian Government Retirement Benefits Office (a predecessor of ComSuper) advised that contribution levels in CSF were to be frozen at levels applying at 4 February 1976 to facilitate the change from CSF to CSS. This probably had the effect that new contributors were not admitted from that date. At least, that was how TAA applied the instruction. Indeed, TAA not only stopped entry into CSF in February 1976 but, despite the fact that CSS opened on 1 July 1976, entry into CSS was not permitted until February 1977 when, as TAA advised the Minister in that month, it conceded to staff pressure.

78    TAA advised the Minister on 26 August 1976 that:

•    The Commission has restricted entry to the scheme because of its high cost and this is causing friction with staff.

79    In February 1977, when it became impossible to block entry completely, the Personnel Manager of TAA instructed Personnel Officers in each State as follows:

To assist in the administration of Superannuation, it has been necessary to set a ceiling on the number of employees who will be accepted into the Scheme this calendar year, and an allocation is being made to each branch.

The allocation for [blank] is * for 1977.

In some branches this ceiling will be difficult to control because of the applications currently held and not processed which, in your case, according to information provided is ** . However, it is important that your allocation is not exceeded.

A suggested procedure for processing applications is outlined below:

1.    Initially concentrate on those persons who have more than 10 years of service whether they have completed applications or not. In your case there are *** employees in this category.

2.    Interview each of those persons outlining the details of the new Scheme and obtain an election from them as to their decision on joining or otherwise.

3.    Keep a register of those persons interviewed and their decision (yes/No.)

4.    Follow a similar procedure for all other applications currently held. Do not follow up those persons who merely indicated an interest but have not completed any documentation.

5.    It is important to maintain a balance between acceptances of those persons who have long service and those who have already submitted applications to join the Scheme.

6.    Whilst maintaining this balance you should ensure your allocation is not exceeded. If it is exceeded you will have to delay processing of some of your applications.

I appreciate that it will be difficult to control the enquiries that will result as a consequence of the above, but it is important that your allocation not be exceeded.

(The symbols (*, ** and ***) referred to information in a schedule at the end of the letter setting out numbers for each State.)

80    The then total permitted allocation was 251. There were 201 applications already held. In New South Wales and South Australia the existing applications exceeded the permitted allocation by a considerable margin. It might be noted that, as a matter of priority, attention was to be given first to employees with more than 10 years’ service, whether they had completed an application or not. There were 608 such employees.

81    However the stated priorities are considered, it was inevitable that many who had applied would be further deferred and those who had not yet completed an application faced a potentially extended delay. Like the policy and practice under the 1922 Act, this conduct was deliberate, calculated, motivated by financial self-interest on the part of TAA and its officers and likely to prejudice, perhaps severely, the interests of employees.

82    Eventually, pressure on the Government led to the establishment of the AAGSP, an accumulation fund rather than a pension scheme. At the same time, entry to CSS was closed completely. In a Minute prepared for the ANA Commission meeting on 25 February 1980, the General Manager set out the proposal about transfer of existing contributors to CSS:

Transfer of Existing Ground Staff –

For cost reasons, Department of Finance would like to see as many ground staff as possible transfer to a new scheme and th [sic] could be achieved by offering an incentive. On the other hand, transfers should be made at least cost to the Commonwealth scheme thereby reducing its deficiency.

83    The proposal cannot have been a secret. The Federated Clerks Union of Australia (“the FCU”) sent a number of S20 forms completed by persons wanting to enter CSS directly to the Commissioner for Superannuation, but it was told TAA would need to provide the necessary certification about likely future employment. On 11 June 1980, the FCU made a direct approach to the Personnel Manager, submitting a schedule of applicants. The letter referred to a further 85 applications lodged directly with “Branch Personnel Departments”. The letter was endorsed with a note that on 13 June 1980, the Secretary of the FCU was advised “verbally” that the Minister had instructed that no further applications were to be accepted. The FCU sought written confirmation of the advice, but that was withheld.

84    Effective on 1 July 1980, Statutory Rule No. 181 of 1980 closed the CSS scheme to employees of TAA (i.e. to new contributors) by adding to the classes of persons prescribed for the purpose of s 11 of the 1976 Act not to be eligible employees. However, the new scheme did not begin immediately. Its introduction was delayed by disputation and negotiations with the unions and the Australian Council of Trade Unions (“the ACTU”). The course of those negotiations verified TAA’s practice at that time of imposing a minimum two-year qualifying period for entry into a superannuation scheme. The new scheme was approved by the Minister on 8 December 1980. It was based on the Ansett scheme. Apparently, some incentives and entry benefits were negotiated with the ACTU in return for some form of undertaking that there would be no subsequent challenge to refusal of entry into CSS. No document directly evidencing an agreement of this kind, or representations to this effect, was put into evidence.

85    In the present proceedings, a submission was made that the suggested agreement raised an estoppel against the present individual applicants. The submission is untenable. I shall refer to it again later.

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.

88    Before I address the circumstances of the applicants I must, therefore, mention the causes of action on which they proceed.

Causes of action

89    In the cases of Mr Innes and Mr Hunter (who were employed on 1 July 1974 and 28 July 1975 respectively) it was pleaded that they were permanent employees within the meaning of s 4 of the 1922 Act and s 3 of the 1976 Act. The effect of the contention is that they were entitled to join CSF without the need for certification of likely employment for at least seven years, and without delay.

90    I have held that they were not permanent employees in the sense suggested. I am satisfied that only persons “in the Service of the Commission” were permanent employees of TAA and therefore entitled to automatic admission (subject to medical examination). Mr Brewer, who commenced employment on 28 March 1977 also claimed to have been a permanent employee but, for the same reasons, I am satisfied that he was not.

91    I will deal more fully with the circumstances of each applicant in due course but it is convenient to say at this point that I am not satisfied that it is more probable than not that, if they had each made an application to join CSF before 30 June 1976, either Mr Innes or Mr Hunter would have been entitled to certification of likely employment for at least seven years.

92    I have passed completely over an important matter to get to this point. The important matter is the need, as temporary employees, to have made an application of some kind to be recognised as eligible to contribute. However, on the assumption that such an application would have been made, neither Mr Innes or Mr Hunter had a particular claim at the outset of their employment to recognition of the likelihood that they would still be employed by TAA seven years thereafter. As I said earlier, the assessment required related to the person in question, not to the position or the presumed need for somebody to occupy it. Such judgments are not made in a vacuum. Although I am unsympathetic to the adoption of rigid procedures by TAA, such as a minimum waiting period or the need for an invitation, especially when (as here) they were procedures applied in company with an inexcusable denial of a legitimate right of access to superannuation, nevertheless it cannot be gainsaid that judgments were required and that such judgments might fairly and appropriately be based on past service and conduct to that point, as well as an estimate about the likelihood of the employee in question continuing to remain for seven years. That is to say, it would have been legitimate for TAA to form and act on its assessment of the likely stability and longevity of the employment relationship and to withhold certification unless really satisfied it was likely to last the required length of time.

93    It is not possible to be confident that in 1974 or 1975 that is a judgment which should then have been made in favour of either Mr Innes or Mr Hunter.

94    There are other matters to consider, but those conclusions are sufficient to defeat any claim based on the failure of either of them to enter CSF.

95    Attention may, for the most part therefore, be concentrated on the question of entry to CSS after 1 July 1976. Mr Innes had more than 12 months’ service at that point, and Mr Hunter did also shortly thereafter.

96    It would be sufficient to support a claim for damages (subject to limitation period arguments and other such obstacles) if I were to find that either of them, or Mr Brewer, was wrongly denied entry at any time before CSS closed – i.e. up to 30 June 1980. Calculation of damages would be affected by the imputed date of entry, which it would be necessary to find, but the basic case for each of the applicants is that they should have been admitted to CSS, and would have been if TAA had not breached its legal obligations to them.

97    Each of the applicants pursues a claim based on negligent misrepresentation, and negligence generally. Mr Innes and Mr Brewer claim misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) (“the TP Act”), now s 18 of the Australian Consumer Law (“ACL”) which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). Mr Innes and Mr Hunter pleaded unconscionable conduct which they claimed gave rise to an estoppel to the effect that the respondent could not benefit from its conduct and Mr Innes and Mr Hunter were entitled to be relieved of the consequences of any failure to act in their own interests. The legal foundation for this claim and its suggested practical consequence was not explained. No submission was addressed to it by the applicants. Mr Innes and Mr Hunter also have claims for breach of their contracts of employment. Mr Brewer has a claim for breach of statutory duty. It was not suggested that any multiplicity of claims would affect the calculation of damages.

98    A pleaded cause of action in deceit was not pressed.

Negligent misrepresentation

99    The applicants’ cases in negligent misrepresentation do not rely upon the giving of advice or information by someone whose business or profession it was to do so. Rather, the applicants say that information was given to them by various officers of TAA, which deflected them from pursuing the question of entry into Commonwealth superannuation, which advice should be sheeted home to TAA and which advice falls within the categories of advice or information which have been recognised by the High Court as being actionable in the way claimed.

100    There has been substantial debate in the High Court (and the Privy Council) about the existence and extent of a duty of care in circumstances where the giver of advice did not profess special skill or expertise. In L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 (“Shaddock”), Gibbs CJ said (at 230):

… It is now settled by the decisions in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. and Mutual Life & Citizens’ Assurance Co. Ltd. v. Evatt (High Court) and (in the Judicial Committee) that a person can be liable for financial loss resulting from a negligent mis-statement of fact or opinion, although the mis-statement was honestly made, and there was no fiduciary or contractual relationship between the parties. The question that is not settled by those authorities is what is the principle by which the courts are to determine whether a duty of care exists.

(Footnotes omitted.)

101    His Honour went on to refer to the judgment of Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 (“MLC”) and said (at 233-234):

I respectfully agree with the opinion of Barwick C.J. that there is no valid ground on which to distinguish between information and advice for the purposes of the rule in Hedley Byrne. Although the giving of advice must always necessarily require an exercise of skill or judgment, and the giving of information may not necessarily do so, a person giving information may be so placed that others can reasonably rely on his ability carefully to ascertain and impart the information. Other authorities support this view. … I can see no reason in principle why a person who, being possessed of special knowledge or means of knowledge, undertakes to impart information to another, and is aware that the other will act in reliance on the information, should be in a different position from a person who, being possessed of special skill, undertakes to advise another, knowing that the other will act on his advice. …

(Emphasis added.)

102    The requirement, in the cause of action, which I have emphasised presents particular challenges for each of the applicants’ cases. They bear 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 pursuing enquiries about a right to superannuation. In the circumstances of the present cases, that is a heavy onus to discharge on the skimpy and one-sided picture available from the evidence.

103    The present cases are ones, as the respondent’s counsel submitted, where the observations of McLelland CJ in Eq. in Watson v Foxman (1995) 49 NSWLR 315 (at 318-319) are 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. …

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.

105    In Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) (Dixon J emphasised (at 361):

… 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.

I will do the best I can with the material at hand, but there are important elements of each of the causes of action which are not easily established by “inexact proofs” (cf. Briginshaw at 362).

106    In Shaddock, Mason J (with whom Aickin J agreed) also referred to the judgment of Barwick CJ in MLC and said (at 250 and 251):

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 M.L.C. Case. I consider that this Court should now adopt Barwick C.J.’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.

(Footnotes omitted.)

107    The issue in Shaddock was whether a local council was liable to a developer for incorrect information which seriously affected the value of a proposed investment, by way of purchase. The High Court unanimously concluded that (at 255):

… The measure of recoverable damages for negligent mis-statement is the amount of money necessary to restore the plaintiff to the position he was in before the statement, subject to the loss being foreseeable. …

108    This also provides some problems for the applicants’ cases, because it would be necessary to enquire about what the position would be if the statements had not been made. 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.

109    I will explain further my conclusion that each of the applicants 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. 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.

110    In San Sebastian Pty Ltd v Minister Administering Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340, the High Court considered a case where statements were made by a council in a planning scheme. Different considerations arose than in a case where a request was made for information. The majority said (at 353-354 and 354-355):

Since Hedley Byrne there has been a tendency, discernible in the judgments of the Court of Appeal in this case, to regard liability for negligent misstatement as standing apart from the general principles expressed in Donoghue v. Stevenson with respect to the duty of care. There is a special problem in defining the circumstances in which a duty of care arises in the context of statements. One facet of this problem is that it is more difficult to apply the standard of reasonable foreseeability to the consequences which flow from the making of a statement than it is to apply that standard to the consequences which flow from acts. This is because damage flows, not immediately from the defendant’s act in making the statement, but from the plaintiff’s reliance on the statement and his action or inaction which produces consequential loss. A second facet of the problem arises from the propensity of negligent statements to generate loss which is purely economic. The recovery of economic loss has traditionally excited an apprehension that it will give rise to indeterminate liability. And there is also an apprehension that the application of the standard of reasonable foreseeability may allow recovery of economic loss of such magnitude and in such circumstances as to provoke doubts about the justice of imposing liability for it on the defendant.

…

… The special complications which arise in connexion with the imposition of a duty of care on the author of a statement can only be unravelled in a variety of factual situations. Decisions such as Hedley Byrne, Mutual Life & Citizens’ Assurance Co. Ltd. v. Evatt and Shaddock & Associates Pty. Ltd. v. Parramatta City Council [No.1] are therefore to be seen as illustrations of the general duty of care in its application to particular instances of negligent misstatement.

(Footnotes omitted.)

111    The majority went on (at 356-357):

In Evatt and Shaddock the misstatement on which the plaintiff relied was made in response to a request — in the case of Evatt for information and advice, and in the case of Shaddock for information alone, although the distinction between information and advice is an unnecessary and often difficult one to draw: Evatt; Shaddock. But there is no convincing reason for confining the liability to instances of negligent misstatement made by way of response to a request by the plaintiff for information or advice. The existence of an antecedent request for information or advice certainly assists in demonstrating reliance, which is a cornerstone of liability for negligent misstatement. However, such a request is by no means essential, though it has been suggested that instances of liability for misstatement volunteered negligently will be “rare”: Evatt; Lambert v. Lewis. The maker of a statement may come under a duty to take care through a combination of circumstances or in various ways, in the absence of a request by the recipient. The author, though volunteering information or advice, may be known to possess, or profess to possess, skill and competence in the area which is the subject of the communication. He may warrant the correctness of what he says or assume responsibility for its correctness. He may invite the recipient to act on the basis of the information or advice, or intend to induce the recipient to act in a particular way. He may actually have an interest in the recipient so acting.

(Footnotes omitted.)

112    In the present cases, however, those considerations do not apply. The applicants’ evidence was that they asked for particular, and specific, information.

113    In Tepko Pty Ltd v Water Board (2001) 206 CLR 1, the High Court again considered a case where a request for information had been made of a statutory authority with particular responsibilities in relation to matters the subject of the request.

114    Gleeson CJ, Gummow and Hayne JJ referred to the statements by Barwick CJ in MLC in two particular respects. Their Honours said (at [47]-[48]):

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 realise or the circumstances be such that he ought to have realised 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.”

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. …

(Footnotes omitted.)

115    The statement at [48] poses yet another problem for the applicants. They have no way of establishing the requisite degree of knowledge or appreciation on the part of those persons whose statements they claim forestalled any further action on their part to pursue the question of entry into a Commonwealth superannuation scheme. I shall discuss the conversations and their circumstances. They do not yield conclusions of this sort.

116    The point may also be seen in the observations of Gleeson CJ, Gummow, Hayne and Heydon JJ in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 (at [24]):

24        … The negligent misstatement cases like Mutual Life & Citizens’ Assurance Co Ltd v Evatt and Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] can be seen as cases in which a central plank in the plaintiff’s allegation that the defendant owed it a duty of care is the contention that the defendant knew that the plaintiff would rely on the accuracy of the information the defendant provided. …

(Footnotes omitted.)

117    I will return to address the causes of action in negligent misstatement further, by reference to the facts, after outlining the remaining causes of action.

Negligence generally

118    The applicants’ cases in negligence generally depend upon establishing a requisite duty of care on the part of TAA, through the persons relied upon as TAA’s agents. The case in negligence generally for each of the applicants is that he was relying on TAA to provide correct and timely information or advice about his eligibility for superannuation and that TAA owed him a duty of care to avoid causing foreseeable loss by failing to facilitate his entry into those superannuation arrangements.

119    Heerey J dealt with some similar issues in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 (“Mulcahy”). Although the facts are different, there are a number of similarities with the present claims. The facts are conveniently disclosed in the headnote to the report as follows:

The applicants were former employees of the Hydro-Electric Commission (the Hydro). The Hydro maintained a Retirement Benefits Fund Scheme established by the Retirement Benefits Act 1970 (Tas) (the 1970 Act). Under the 1970 Act membership of the Fund was limited to persons employed in a permanent capacity. Casual or temporary employees were excluded. The 1970 Act was amended in 1974 so as to permit temporary employees under certain circumstances to become members of the Fund, and specific regulations were made in 1982 for responsible officers to give temporary employees written notification of eligibility to join the Fund. Amendments were made to the 1970 Act to protect from liability responsible officers who had failed to notify persons of their rights to elect to become contributors. During 1992 many currently employed temporary employees elected to become members of the Fund and to take advantage of generous provisions which permitted them to purchase periods of non-contributory service. Persons who had been previously employed on a temporary basis sought to obtain the benefit of these provisions by applying to the Retirement Benefit Funds Board under s 87 of the Retirement Benefits Act 1982 (Tas). The Board took the view that persons who were not currently employed as temporary employees were not entitled to the benefit of the provisions. None of the applicants were then currently employed by the Hydro.

The applicants made numerous claims against the Hydro for breach of statutory duty, breach of contract, negligence, breach of common law duties, misleading or deceptive conduct and unconscionable conduct. The loss claimed was the loss of opportunity to receive benefits upon termination of employment provided for by the 1982 legislation. In broad terms the claims were either that the applicants had been wrongly not treated as permanent employees or that they were temporary employees who had not been made aware of their rights to join the Fund. The Hydro claimed that no action was maintainable against it by reason of the 1982 amendments protecting responsible officers from liability, and raised limitation defences against the claims in tort, contract, breach of statutory duty, and under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1990 (Tas). Fraud and mistake were relied upon in answer to the limitation defences.

120    In Mulcahy, Heerey J made an important point about the place of the law concerning negligence (and other torts) where a relationship is based on contract, including a contract of employment. The point was made after a discussion about whether a term in favour of those applicants should be implied as a matter of law into their contracts of employment obliging the employer to do certain things. I shall return to a proposition of that kind in the present case shortly.

121    Heerey J said, as to the claim in negligence (at 211):

In my opinion, there was no duty of care owed by the Hydro to the applicants, the breach of which would give rise to an action for damages for negligence.

Because each of the applicants and the Hydro was in a contractual relationship, the obligations of the latter are to be determined by the terms of that contract, whether express or implied. The approach of Lord Bridge in Scally at 303 is applicable:

“If a duty of the kind in question was not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence.”

122    Heerey J then acknowledged (at 211):

… modern decisions which hold that in the case of a professional retainer, such as solicitor and client, there is a duty owed in tort as well as contract: Hawkins v Clayton (1988) 164 CLR 539 at 574 per Deane J; Macpherson v Karin J Prunty & Associates [1983] I VR 573.

but went on (at 212):

… The Hydro was established by statute to generate and supply electricity and, subject to Parliamentary approval in each instance, to construct dams and other works for that purpose. It is no part of its function to give legal or financial advice to its employees or anybody else. Still less is there any specific statutory power or duty for such purpose.

123    I would not depart from this approach in the present case unless persuaded that it was demonstrably and plainly wrong. The applicants did not seek to make out any such case, even though the respondent relied expressly on the passage in Mulcahy last set out above.

124    As the respondent’s written submissions distilled:

361.    Two general duties of care are pleaded by the applicants:

(a)    A duty to exercise reasonable care to prevent financial loss to the applicants;

(b)    A duty of care to prevent the applicant suffering loss of Commonwealth superannuation entitlements.

(Footnote omitted.)

125    The applicants’ submissions placed particular weight on a statement of principle by McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [93]-[94], but that was a case where it was argued that a statutory authority owed a positive duty to exercise its statutory powers. That is not the present case.

126    Otherwise, the applicants’ submissions relied heavily on statements by the High Court in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 (“Brookfield”). That case did not concern obligations owed by a body established under statute to take steps in relation to the operation of a statute. Nor did it concern obligations owed by an employer to its employees. The High Court overruled a finding by the New South Wales Court of Appeal that the plaintiff (a builder) owed a duty of care to the subsequent purchasers. The case does not state definite principles upon which a liability for pure economic loss will be found. It does not provide a basis for success in the present case. Indeed, a number of observations go the other way. For example, Crennan, Bell and Keane JJ said (at [127]-[128]):

127        In Woolcock Street Investments, Gleeson CJ, Gummow, Hayne and Heydon JJ accepted that the general rule of the common law is that damages for economic loss which is not consequential upon damage to person or property are not recoverable in negligence even if the loss is foreseeable. Their Honours said:

“In Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad, the Court held that there were circumstances in which damages for economic loss were recoverable. In Caltex Oil, cases for recovery of economic loss were seen as being exceptions to a general rule, said to have been established in Cattle v Stockton Waterworks, that even if the loss was foreseeable, damages are not recoverable for economic loss which was not consequential upon injury to person or property.”

128        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.

(Footnotes omitted.)

and (at [132]):

132        These passages 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.

(Footnote omitted.)

127    I note finally that in Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221; (2013) 280 FLR 385 (“Meredith”) (where similar issues to the present case were dealt with by Refshauge J of the ACT Supreme Court), although a case of negligent misrepresentation succeeded on its facts a claim in negligence generally did not, consistently with Mulcahy which was referred to (see [479]-[563]).

128    As this claim cannot succeed on legal principles, it will not be necessary to address it further by reference to the facts.

Misleading or deceptive conduct

129    As I said earlier, Mr Innes and Mr Brewer claim misleading and deceptive conduct under the TP Act.

130    In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, the majority judgment (Mason CJ, Deane, Dawson and Gaudron JJ) stated (at 603-604):

… it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. …

131    Their Honours rejected the notion that discourse with employees “in the course of their ordinary activities” (at 604) or by way of an “internal communication by one employee to another employee in the course of their ordinary activities” (at 604-605) could fall within the reach of the TP Act, even when the representations relied upon occurred during obviously commercial activities – the construction of a building. The communications in question here in the present cases were not “in trade or commerce”. That is a necessary precondition for this particular cause of action.

132    In Mulcahy, Heerey J said (at 213):

In the present case the relationship between the Hydro and each of the applicants was that of employer and employee. There were no trade or commercial dealings between them in the relevant sense. I am bound by Nelson to reject this part of the applicants’ claim.

(see also Martin v Tasmania Development & Resources [1999] FCA 593; (1999) 163 ALR 79 at [77]; Murphy v Westpac Banking Corporation [2014] FCA 1104 at [903]).

133    I must take the same course.

Unconscionable conduct

134    Mr Innes and Mr Hunter pleaded unconscionable conduct on the part of TAA, which was pleaded to give rise to TAA being estopped from benefiting from its conduct. Their statements of claim each contended:

As a consequence of such unconscionable conduct, the Applicant is thus entitled to be relieved of the consequences of that failure to act in his own best interests and the Respondent should be estopped from benefiting from its conduct.

The pleaded contentions were not developed during written or oral submissions by the applicants.

135    The respondent’s written submissions answered this claim as follows:

372.    The applicants have failed to:

(a)    Identify the particular special disadvantage they are alleged to have laboured under such as to affect their ability to make a judgment as to their own best interests;

(b)    Explain how AAL knew, or ought to have known, of this special disadvantage;

(c)    Explain how AAL unfairly or unconscientiously took advantage of the applicants’ position.

136    Those submissions must be accepted.

Breach of contract

137    Mr Innes and Mr Hunter had claims for breach of their contracts of employment. The claims are based on pleaded implied terms of their contracts of employment to the effect that TAA would give correct advice and information about benefits of employment, and in Mr Innes’ case, that TAA would not impair his right to receive benefits under the 1922 Act and the 1976 Act.

138    In Mulcahy, Heerey J rejected claims of this kind, which were based (in that case at least) on a suggested implication by law which, in turn, rests upon the notion of “necessity”. Heerey J referred to Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (“Byrne”) (per McHugh and Gummow JJ at 452-453) and said (at 210-211):

… The RBF Scheme and the rights and obligations thereunder are established by statute. Employment contracts with those employers covered by the Scheme (if that be treated as a “class of contract”) can work perfectly well without the implication of the term contended for. There is not “necessity”, in the relevant sense.

139    The correctness of that approach was confirmed by the High Court in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169. There, French CJ, Bell and Keane JJ said (at [29]):

29        In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ emphasised that the “necessity” which will support an implied term in law is demonstrated where, absent the implication, “the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined” or the contract would be “deprived of its substance, seriously undermined or drastically devalued”. …

(Footnotes omitted.)

and (at [36]-[37]):

36        … In the end, while taking appropriate note of the decisions of State and federal courts, this Court must determine the existence of the implied duty by reference to the principles governing implications of terms in law in a class of contract. That requires this Court to determine whether the proposed implication is “necessary” in the sense that would justify the exercise of the judicial power in a way that may have a significant impact upon employment relationships and the law of the contract of employment in this country. The broad concept of “necessity” discussed earlier in these reasons may be defined by reference to what “the nature of the contract itself implicitly requires”. It may be demonstrated by the futility of the transaction absent the implication. It is not satisfied by demonstrating the reasonableness of the implied term.

37        The duty to co-operate satisfies the criterion of necessity explained in Byrne. The implied term of mutual trust and confidence, however, imposes mutual obligations wider than those which are “necessary”, even allowing for the broad considerations which may inform implications in law. It goes to the maintenance of a relationship. It appears, at least in part, to be informed by a view of the employment contract as “relational”, a characteristic of uncertain application in this context and not one which was advanced on behalf of Mr Barker. The implied term cannot be treated as a particular application to employment contracts of the duty to co-operate, which applies to contracts generally. That duty is directly related to contractual performance, which explains to some degree why it can arguably be characterised as a rule of construction.

(Footnotes omitted.)

and (at [41]):

41        Importantly, the implied duty of trust and confidence as propounded in Malik is directed, in broad terms, to the relationship between employer and employee rather than to performance of the contract. It depends upon a view of social conditions and desirable social policy that informs a transformative approach to the contract of employment in law. It should not be accepted as applicable, by the judicial branch of government, to employment contracts in Australia.

140    Kiefel J said (at [56]):

56        The term of trust and confidence recognised in Malik is one implied by law. It is intended to apply to all contracts of a particular class or description, namely contracts of employment. It may be distinguished from a term that it is necessary to imply to give business efficacy to a particular contract, which focuses on the form of a contract and its express and unique terms. Implication of a term by law involves “a search, based on wider considerations, for such a term as the nature of the contract might call for, or as a legal incident of this kind of contract”. In either case, a requirement for the implication of a term is that it be necessary in the respective senses which will shortly be discussed. A test of necessity does not appear to have been applied in Malik.

(Footnotes omitted.)

and (at [63]):

63        It is necessary in the first place to distinguish between an employee’s duty of trust and confidence, which the law has for a long time implied in contracts of employment, and the term recognised in Malik. The former is not concerned with obligations on the part of an employer, but with obligations of fidelity on the part of an employee to his or her employer, breach of which may justify dismissal. The term of trust and confidence recognised in Malik, on the other hand, imposes obligations on an employer not to engage in “trust-destroying conduct” which may sound in damages if breached.

(Footnote omitted.)

and (at [81]):

81        The conduct in breach of the term of trust and confidence to which Malik refers need not be destructive of the employment relationship in fact, so long as it is conduct of a “trust-destroying” kind. Since Malik, the courts have indicated that the following may be examples of such conduct: a wrongful suspension; a “capricious” failure on the part of an employer to offer the same, beneficial terms of redundancy; and the improper conduct of a disciplinary process.

(Footnotes omitted.)

and (at [109]):

109        In summary, the Employment Agreement between the appellant and the respondent does not require for its efficacy the implication of the term of trust and confidence for which the respondent contends. That term is not necessary given the provisions of cl 8. More generally, contracts of employment do not require such an implication for their effective operation.

141    Gageler J said (at [115]-[118]):

115        The reasons for judgment of Jessup J in dissent in the Full Court of the Federal Court demonstrate that the term of mutual trust and confidence in contracts of employment, now implied in law in the United Kingdom, ought not to be imported into the common law of Australia. Without repeating the detail of his Honour’s exhaustive analysis, the critical points highlighted by it can be summarised as follows.

116        First, the emergence of the implied term in the 1970s and 1980s, and then its confinement in 2001, were the product of particular statutory circumstances in the United Kingdom. Those statutory circumstances have no analogue in Australia. The emergence of the implied term was not capable of being explained in the United Kingdom, and would not be capable of being explained here, merely as the mutualisation of the employee’s duty of fidelity to the employer or as a principled development of the implied duty of co-operation between parties to a contract.

117        Secondly, framed as the implied term is in passive language, descriptive of the overall nature of the employment relationship, the prescriptive content of the implied term is not spelt out in its terms. This inherent uncertainty about what the obligation imposed by the implied term actually requires of the employer and of the employee gives the implied term, as Jessup J put it, “the potential to act as a Trojan horse in the sense of revealing only after the event the specific prohibitions which it imports into the contract”. The implied term has the potential in some circumstances to circumvent established limits of common law and equitable remedies for breach of more conventional terms.

118        Finally, but no less importantly, in its intersection with the law of unfair dismissal, the implied term would intrude a common law policy choice of broad and uncertain scope into an area of frequent, detailed and often contentious legislative activity. Commonwealth and State unfair dismissal legislation has produced, and has over time reproduced and adjusted, “a particular and carefully calibrated balancing of the conflicting interests involved namely, between preserving the expectations of employees on the one hand and enabling employers to create jobs and wealth, on the other hand”. Gleeson CJ observed:

“Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.”

Common law obligations in contract, like common law obligations in tort, ought not to be developed by courts other than in a manner that is sensitive to their interaction with legislation.

(Footnotes omitted.)

142    In the present case (unlike Mulcahy), it was not made clear whether the suggested implied term arose as a matter of law, or as representing the presumed or imputed intention of the parties (BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283). No implication of the first kind can arise for the reasons I have given. No implication of the second kind can arise because the suggested term is not necessary to give business efficacy to the contract of employment and it is not so obvious that it goes without saying.

143    The claims in contract cannot succeed. Further discussion of them is not necessary.

Breach of statutory duty

144    Mr Brewer’s claim of a breach of statutory duty cannot succeed either. Such a claim was rejected in Mulcahy and in Meredith. In Byrne, Brennan CJ, Dawson and Toohey JJ said (at 424):

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O’Connor v S P Bray Ltd, an examination of the statute “will rarely yield a necessary implication positively giving a civil remedy”. One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.

(Footnotes omitted.)

145    In Mulcahy, Heerey J said (at 207):

… Employers, whether in the public or private sector, are not under any obligation to give financial advice or look after their employees’ economic welfare in the way that they are obliged to take reasonable care for employees’ physical safety. …

146    I accept that statement as correct.

Conclusion

147    The result of the foregoing discussion is that only the causes of action for negligent misrepresentation offer any arguable basis for relief, and they face considerable obstacles at the outset.

148    Further discussion of those matters, in light of the factual positions, is now necessary. Discussion of the other causes of action is not.

Evidence about representations

149    It will be necessary to examine the detailed claims made by each of the applicants. Apart from the difficulties I have already identified, a fundamental task for each of the applicants was to establish damage. In Brookfield, Crennan, Bell and Keane JJ pointed out (at [124]):

124        A cause of action in negligence does not arise unless and until the plaintiff suffers damage. Damage is the gist of the cause of action in negligence. …

(Footnotes omitted.)

(See, more recently, Alcan Gove Pty Ltd v Zabic [2015] HCA 33; (2015) 89 ALJR 845 at [8].)

150    In order to establish damage, it was necessary for each of the applicants to establish, on the balance of probabilities, that if the statements to them had not been made (or perhaps if they had been given correct advice – i.e. that they were entitled to join Commonwealth superannuation) they would in fact have joined Commonwealth superannuation. Part of the task of assessing whether those contentions should be accepted will involve considering the quality of the statements made, who made them and in what circumstances and whether the applicants should reasonably have taken some other step to pursue their declared interest in Commonwealth superannuation. They must show that TAA, not them, was responsible for their failure to take up superannuation at that time.

151    As will be seen, I am not satisfied that any of the applicants has made out a case to that effect. For that reason, their cases cannot succeed. They cannot succeed either because, on the facts, they do not overcome the obstacles which I earlier identified arising from the principles concerning the cause of action for negligent misrepresentation.

Mr Innes

152    Mr Innes’ pleaded case was that, within the first six months of his employment, he approached Mr Graham Tibbs, the Sales Manager in the Perth city office of TAA and asked how he might join “the Commonwealth superannuation fund”. Then it was pleaded:

15.    In response to the first request, Mr Tibbs told the Applicant:

(a)    There are a limited number of positions available in the scheme;

(b)    The Applicant will be invited to join the scheme on the retirement of a member of the scheme;

and thereby further represented that eligibility to participate in Commonwealth Superannuation was by invitation only.

(the First Representation)

16.    Following the First Representation and until 1980, the Applicant made repeated enquiries with Mr Tibbs about joining Commonwealth superannuation.

Particulars

(a)    Prior to 1978, the Applicant would attend Mr Tibbs’ Office about twice per year.

(b)    After 1978, the Applicant would contact Mr Tibbs by telephone about once per year.

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

(the Subsequent Requests)

17.    In response to each of the Subsequent Requests

Mr Tibbs told the Applicant words to the effect of:

(a)    There are no positions available; or

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

(c)    The Applicant would have to wait his turn.

(the Subsequent Representations)

153    Mr Tibbs is no longer alive. There is no other person who was identified who might verify or contradict those assertions.

154    Mr Innes’ affidavit evidence 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 enquires 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.

155    The last sentence should be noted. No foundation was given in Mr Innes’ evidence or otherwise for the statement. No other support was provided for the matters referred to at paragraph 31 either. Apart from his conversations with Mr Tibbs, as he deposed to them, on Mr Innes’ evidence he made no further enquiries about entry into a Commonwealth superannuation scheme.

156    Mr Innes’ affidavit evidence went on:

44.    In about 1981 I overheard discussions between others who were in Commonwealth superannuation in the office to the effect that they had received notices that Commonwealth superannuation was closed to TAA employees, and that they could stay in the CSS or transfer to the TAA scheme. At that time I recall the issue was a hot topic of discussion between those who were in the CSS, and I also recollect being shown such a notice and reading it, although I cannot now recall the precise content. I do not recall who showed the notice to me but I do remember handing it back to them after I read it. This made me realise that I could not get into Commonwealth superannuation and I had to make my own arrangements for the future.

157    This reference is to the AAGSP scheme which was established by TAA to match the Ansett scheme. Contributors to CSS had an opportunity to transfer to AAGSP when CSS closed. A substantial number did so. AAGSP was an accumulation fund, rather than a pension fund, but it benefited from substantial contributions by TAA, like many other company schemes, and unlike private schemes being offered by life insurance companies.

158    In 1987, when employer contributions to occupational superannuation became a legislated standard in Australia (although at a level well below existing schemes like AAGSP), Mr Innes was obliged to become a member of AAGSP. He chose to become a non-contributing member, so that his account received only the obligatory contributions by TAA under the new standard.

159    In the meantime, Mr Innes took out life insurance with AMP in 1978 and then a further policy in 1981. His private policy contributions would be tax-deductible.

160    In 1995, Mr Innes’ non-contributory AAGSP account was transferred automatically to a part of the Qantas superannuation fund and he also commenced contributing to that fund at that time.

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.

162    The whole case depends, therefore, on the unqualified acceptance of the statements made in Mr Innes’ affidavit, set out above, coupled with the following assertions:

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.

163    Mr Innes’ evidence was that, to obtain his employment with TAA, he responded to an advertisement he saw on Saturday, 8 June 1974. He identified an advertisement on that date as probably the one to which he responded. The position advertised was a telephone sales position, involving shift work. Written applications only were to be made to the Personnel Officer in Perth. Mr Innes made a written application to the Personnel Officer. He was interviewed twice by the Personnel Officer, Mr John Boxshall, and another officer. Mr Boxshall had carriage of the interview and provided information about the role and about terms and conditions of employment, including the fact that there would be an initial six-month probationary period.

164    At the same interview on 1 July 1974, Mr Innes completed an application for employment on a form provided to him. By letter dated the same day, Mr Boxshall advised him that his application was successful, subject to a probationary period of six months.

165    On 8 February 1981, Mr Innes applied for a transfer from the Perth city office of TAA to the airport. The request was copied to the Personnel Officer. On 11 February 1981, the Western Australian Personnel Officer (then K. E. Moloney) acknowledged receipt of the request. On 26 August 1981, the Personnel Officer confirmed the transfer.

166    Those events post-date the suggested attempts to gain entry to Commonwealth superannuation, but they tend to confirm the picture which arises from all the other evidence, including Mr Innes’ own evidence, namely that staff and employment matters were the particular province of the Personnel sections and of the Personnel Officers. That extended to matters concerning superannuation. So much is confirmed by TAA’s internal directions and communications at the time.

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.

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.

170    The foregoing is the position which arises on Mr Innes’ evidence in chief. Cross-examination contributed further to it. First, so far as Mr Innes personally was concerned his evidence was:

MR LOCKHART: And so when there was some personnel issue of some sort concerning you or relevant to your job, you would go to speak to Mr Boxall about it?---Correct.

171    Secondly, Mr Innes was the FCU representative in the Perth city office from 1977 or 1978 to 1981. His evidence was:

MR LOCKHART: And I think you indicated there were in the order of about 100 people as an approximation of the number of staff in that office?---Yes.

And did that remain the case, broadly speaking, until you moved out to the airport?---Yes.

And as the union rep, did you from time to time field enquiries from staff about employment matters?---I would have done.

And you provided answers where you could?---Where I could.

And did you receive enquiries about superannuation in your capacity as union rep?---I probably did. I can’t recall it, but I probably did.

And do you recall who made such enquiries?---Newer staff members coming on. We – the company was recruiting quite rapidly in those days.

And – sorry, excuse me. Can you recall now what the, sort of, most common topics of – I withdraw that. Can you recall what were the most common areas of involvement of you as a union rep, what were the areas of main interest?---Common interest to the members, do you mean, of the FCU? Usually rostered shifts and such like.

And when such issues arose, did you go and consult with the personnel officer based at the Perth office?---I would have, yes.

That would be the usual course you took?---Yes.

Because it was the personnel officer who was able to speak for the organisation, as you understood it, about those employment matters. Correct?---Correct. Correct.

So you would go and see what their position was?---Yes.

172    I accept the following submissions made by counsel for the respondent:

234.    Mr Innes was well aware that he should speak to the personnel officer about employment-related matters. As Mr Innes conceded in cross-examination:

“And so when there was some personnel issue of some sort concerning you or relevant to your job, you would go to speak to Mr Boxall about it?---Correct.”

235.    Mr Innes was even the FCU representative for the entire Perth city office of TAA from 1977 or 1978 until 1981, and in this role he regularly consulted with the personnel officer based at this office.

236.    Despite this, Mr Innes made enquiries of Graham Tibbs, the sales manager, about superannuation. Mr Tibbs handled “corporate accounts”, not retail sales, and was therefore in an entirely different department to, and physically separated from, Mr Innes.

237.    According to Mr Innes, he made repeated enquiries of Mr Tibbs over the course of a number of years. At no time during any of the alleged discussions did Mr Tibbs provide Mr Innes with any information about the CSS. Mr Innes says that on each occasion it was “a very brief conversation”, and at no time did he ask Mr Tibbs where he was in the so-called “queue”.

238.    Despite being continually rebuffed by Mr Tibbs and being provided with no information about the CSS, including his place in the “queue”, Mr Innes took no steps to speak to Mr Boxshall, Mr Maloney or any other person in the personnel department in Perth about superannuation. Nor did Mr Innes make any enquiries of his supervisor Mr Ogborne as to who he should speak to about superannuation. Mr Innes apparently allowed this situation to continue for seven years, during which time he remained employed in the same position at the booking hall in TAA’s Perth office.

(Footnotes omitted.)

173    On Mr Innes’ affidavit evidence, and the pleadings, he first enquired about joining Commonwealth superannuation during the first six months of his employment – i.e. during his probationary period. It would not be surprising if any enquiry at this time, to whomever it was made, did not procure positive results. The relevant scheme at this time was CSF. It would be necessary not only to apply, but to have certification of likely further employment of at least seven years. I think I may assume that there was no realistic prospect of such certification at that time. During his cross-examination Mr Innes sought to depart from the terms of his pleaded case and his own evidence in chief to first suggest that he had made the first enquiry “about the end of that period” and then to say he had done so “within the first 12 months”. I would not accept, as I said earlier in these reasons, that it had been established that it was more probable than not that Mr Innes would have been admitted to CSF at any time before it closed.

174    In his evidence, Mr Innes said he was not conscious of any change in superannuation arrangements in 1976 when CSF closed and CSS began. His interest in Commonwealth superannuation was general, not specific. Even as FCU representative he took no steps to familiarise himself with the terms of CSS.

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.

176    Although it does not arise for decision, if he had made out a case to that effect 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.

177    I appreciate that to approach the matter that way inverts the normal onus, but superannuation is an employment benefit for employees which should not be (and should not have been) denied except for good, demonstrable and objectively supportable grounds. In particular, I reject the respondent’s submission (made in relation to CSF):

310.    The accordance of a residual discretion to TAA to make such a recommendation reflected a number of concerns, including the following:

(a)    Superannuation was a privilege to be accorded to long-standing and well-regarded employees;

and (made in relation to CSS):

323.    … the Commissioner would not have exercised his discretion to direct the applicants were eligible employees for the purposes of the 1976 Act. In exercising this discretion, the Commissioner was entitled to take account of the cost implications of admitting unlimited numbers of temporary employees to the CSS. …

178    Contrary to the respondent’s reliance on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (and other cases), in my opinion such a consideration, in the context of a valuable employment right, should have played no part in any decision. It should not have been a matter which was pursued, as it appears to have been, surreptitiously and covertly, with the intent of shielding TAA from financial cost at the direct expense of its employees.

179    Had Mr Innes made good his case in negligent misrepresentation I would have assessed his damages on the basis that he was entitled to join CSS on 1 July 1976, the freeze imposed by TAA notwithstanding.

Mr Hunter

180    Mr Hunter’s pleaded case was that he was told in August 1975 by the Human Resources Manager at Essendon Airport (Mr Noel Kent) and by his foreman at Essendon Airport (Mr Alan Sibble) that entry into Commonwealth superannuation was by invitation only and that, relying on those statements he waited upon an invitation (which was never extended to him). The pleadings say particularly:

17.    In or about August 1975, the Applicant enquired with Mr Kent about his eligibility to join Commonwealth superannuation.

Particulars

(a)    The Applicant was speaking to Mr Kent at the Essendon Airport.

(b)    The Applicant said to Mr Kent words to the effect of: “I understand I am eligible to join the government superannuation scheme, what do I have to do about joining?”

(the First Request)

18.    In response to the First Request, Mr Kent represented to the Applicant that he was entitled to join superannuation but was required to wait for an invitation to do so.

Particulars

(a)    Mr Kent said to the Applicant words to the effect of: “Superannuation is by invitation only. You have been here long enough to know better.”

(the First Representation)

19.    In or about August 1975, Mr Alan Sibble represented to the Applicant that he was entitled to join superannuation but was required to wait for an invitation to do so.

Particulars

(a)    The Applicant was speaking to Mr Sibble, the leading hand Roy Brown and the shop steward Jack Taig during a work break about work matters, including superannuation

(b)    Mr Sibble said to the Applicant words to the effect of: “Superannuation is by invitation only.”

(the Second Representation)

181    Mr Hunter’s affidavit evidence was that he responded to a job advertisement in early July 1975. He had an interview on 15 July 1975. He received a letter dated 21 July 1975 from the Personnel Superintendent telling him he was to be employed as an Airframe Fitter, commencing on 28 July 1975, with a probationary period of three months. He was instructed to report initially to Mr Kent in the Personnel Department at Essendon Airport. At this point Mr Hunter was 21 years old.

182    Mr Hunter’s evidence in chief, relevant to his pleaded case, was:

25.    I quickly became aware of what superannuation was through discussions with other workers, as the topic of superannuation came up in general conversation. Some of the airframe mechanics were in Commonwealth superannuation and they indicated to me that I could join that scheme. I quickly came to learn that TAA, as a government airline, offered membership to the Commonwealth government superannuation scheme, which was very beneficial for members. I also came to understand that I could apply to join the Commonwealth Superannuation scheme.

26.    In about August 1975 Frank Harrison, Mike Santoro and I decided to go and see the personnel manager with a view to joining the Commonwealth superannuation. Frank and Mike were Airframe mechanics, who had started at the same time that I started. We went to the personnel office at Essendon Airport and saw Noel Kent the personnel manager. I did the talking on behalf of the three of us. I said to Noel Kent words to the best of my recollection “I understand I am eligible to join the government superannuation scheme, what do I have to do about joining?” Mr Kent said to me words to the effect of: “Superannuation is by invitation only. You have been here long enough to know better.” I then asked “why” and he responded with “that is the way it works.” I found his attitude to be arrogant and unhelpful.

27.    Not long after the discussion with Noel Kent, I was sitting with the foreman Alan Sibble, the leading hand Roy Brown and the shop steward Jack Taig during a smoko break. My best recollection is that my colleagues George Rookes, Robert Rowley, Frank Faruggia, John Woodward and Anthony Coyle were also present. We were discussing superannuation and what I had been told by Mr Kent, and Mr Sibble said words to the effect of: “Superannuation is by invitation only.

…

30.    It was my understanding that any questions relating to employment conditions and benefits were to be directed to the personnel manager or his staff, and that is why I had gone to see Mr Kent. I accepted what he had told me as correct as I assumed he would know what he was talking about and, after the discussions I have referred to above, I could see no point in making any further enquiry concerning Commonwealth superannuation. I simply waited to be invited as instructed. There was no information given to me about Commonwealth superannuation nor were there any seminars or other information sessions regarding Commonwealth superannuation held at Essendon.

31.    If I had understood what Mr Kent had told me was not correct and that I was eligible to join Commonwealth superannuation after completing my probationary period, and without waiting for an invitation, I think I would have done something about it by making waves and enforcing my right to join Commonwealth superannuation. I would probably have also approached the AMWU to try and get some action. I would have pushed it as far as I could through legitimate channels.

183    The conversations deposed to occurred within a month of Mr Hunter commencing his employment, and during his probationary period. The Commonwealth superannuation arrangement in place at the time was CSF. As I have earlier indicated, in my view there was no realistic possibility of Mr Hunter obtaining at that time the necessary certification of likely employment for the next seven years or obtaining it in the remaining months before CSF was closed.

184    Mr Hunter gave no evidence that he made any enquiry about superannuation at any time after 1 July 1976 while CSS was open to employees of TAA. In his affidavit he said that he did not learn about AAGSP until 1986, when he received an invitation to join which he accepted. However, in cross-examination it became apparent that Mr Hunter knew about the AAGSP scheme in 1981 because there was talk on the shop floor about whether contributors to CSS should transfer to AAGSP. That was not the only respect in which Mr Hunter’s evidence in cross-examination differed markedly from his evidence in chief in his affidavit.

185    In his affidavit, Mr Hunter said that after his discussion with Mr Kent he had a further discussion during a smoko, where a number of employees were present when Mr Sibble, in effect, confirmed what Mr Kent had said. In his cross-examination, Mr Hunter said that the remarks attributed to Mr Sibble, during a smoko, in the presence of the other employees occurred before he saw Mr Kent, not after. Then he said he also spoke to Mr Sibble about an hour after he got back, during a work session, when the other employees were close by but not present. He characterised the sequence in paragraph 27 of the affidavit as a mistake, but adhered to the proposition that both conversations with Mr Sibble had occurred although he could not otherwise account for the difference between his oral evidence and his affidavit evidence.

186    Another curiosity was that, having volunteered that he appreciated before seeing Mr Kent that superannuation was “by invitation only” he said he went to see Mr Kent to see how long it would take to get an invitation, but then did not ask him that question, eliciting only the same information again which he did not, even then, pursue further.

187    A further inconsistency was that, although Mr Hunter repeatedly said early in his cross-examination that in 1975 he did not know what the level of contributions would be if he was admitted to Commonwealth superannuation, he later said that in fact he learnt that “a few months” after commencing employment. His explanation was that he learnt that from sources outside TAA but I find the attempted reconciliation between the two versions unconvincing.

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. His case for negligent misrepresentation cannot succeed for those reasons.

189    Furthermore, there are other matters which confirm that conclusion, and strengthen my reasons for it.

190    The alleged conversations took place at a time when Mr Hunter, on his evidence in cross-examination, had other plans than simply working at TAA. He was 21 years old, he was unmarried with no dependents and, as he put it:

--- I was trying to further my career, so I was looking at – so I started flying lessons. I was thinking of becoming a pilot, so I was putting my money towards that.

and:

MR J.R.J. LOCKHART SC: … Mr Hunter, you said yesterday that you were attempting to save money with a view to funding lessons for flying?---That’s right.

And you said that you were thinking of becoming a pilot?---That’s right.

And this you described as a priority for you?---Yes.

And is this something that you wanted to turn into a career?---I was hoping to, yes.

And what sort of planes were you expecting to fly for the purposes of a career?---Eventually start off in general aviation and hopefully move up into commercial, into air transport.

And by saying that, you weren’t necessarily considering limiting your options to just TAA, but whatever organisation was potentially able to offer you a job for - - -?---That’s right.

- - - pilot services?---That’s right.

and:

MR LOCKHART: And general aviation, by that you mean not flying passenger services aircraft but other types of aircraft?---Other types of aircraft. You could become a flying instructor or you could do passenger work on small scales.

Regional airlines?---Like, little regional and that, yes.

Small cargo planes?---Possibly, yes.

Private aircraft?---Yes.

So your ambition then was essentially, firstly to get your licence. Is that right?---Hopefully, yes.

Hopefully, yes. And then to start with what you call general aviation, correct?---Yes.

And then after putting in a considerable number of years of service, then you might hope to then start flying passenger aircraft. Was that your ambition?---Hopefully, yes.

Yes. Right. And in terms of your ambition ultimately to fly passenger aircraft, that would include flying aircraft for any airline that was potentially able to offer you a position. Correct?---That’s right.

Might have been TAA?---Yes.

Might have been Ansett?---Yes.

Might have been Qantas?---Yes.

Might have been any other airline that conducts passenger services in Australia, correct?---Yes.

Or overseas?---Yes.

191    This evidence is not consistent with Mr Hunter’s professed desire to start contributing to a superannuation scheme with a view to eventual retirement from TAA, 40 or so years later. At that time, superannuation benefits were not transportable as they are now. Entry into CSS, and early withdrawal, would have resulted only in return of contributions with interest.

192    I am not satisfied that Mr Hunter relied in 1975, or in 1976, upon any suggestion that he needed to wait for an invitation to refrain from joining CSS when he otherwise would have done so if he could. Nor am I satisfied that he was deflected from joining a scheme at any time before he did so in 1986.

193    It follows that Mr Hunter’s claim in negligent misrepresentation must also be dismissed. On this occasion, I have no material upon which I could make a finding of the kind I made in Mr Innes’ case that contributions to CSS might be imputed if the claim had succeeded.

194    I am satisfied that from 28 July 1976, Mr Hunter met the minimum qualifying period for CSS. I adhere to my earlier view that any application which conformed objectively to the entry requirements should not have been blocked by a failure to verify likely future employment for at least three years. However, in Mr Hunter’s case that would not represent even his own intention which I will assume would have been honestly stated if he was asked. Mr Hunter’s evidence was that he harboured ambitions to be a pilot from the age of 19 (two years before joining TAA) until he was 25 or 26. Mr Hunter would turn 26 on 6 March 1980. CSS closed to TAA employees on 1 July 1980, well before Mr Hunter’s 27th birthday.

195    I am unable to conclude, even if there was a case of negligent misrepresentation, that Mr Hunter suffered any loss from possible exclusion from CSS.

Mr Brewer

196    Mr Brewer commenced employment with TAA in its Mascot office, Sydney, on 28 March 1977. His pleaded case was that at some time in the months of December 1977 to January 1978, he spoke to the Personnel Manager for New South Wales (Mr Edward Eagleton) and thereafter relied upon what Mr Eagleton said and did not attempt to join Commonwealth superannuation. The pleadings were:

16.    During the period from about December 1977 to January 1978, during the Applicant’s first few months of employment at the TAA Domestic Terminal of the Sydney Airport, the Applicant enquired with Personnel Manager for New South Wales, Mr Edward Eagleton (the Representor), about joining Commonwealth superannuation.

Particulars

(a)    The Applicant approached Mr Eagleton at the Sydney Airport;

(b)    The Applicant asked Mr Eagleton words to the effect of: “What are the chances of me joining Commonwealth superannuation?

(“the Request”)

17.    In response to the Request, Mr Eagleton advised the Applicant that:

(a)    The scheme had closed; and

(b)    Mr Eagleton could not let him in. (“the Representation”)

18.    The Applicant continued to rely on the Representation and did not join Commonwealth superannuation.

197    The Commonwealth superannuation scheme in place at the time was CSS, which closed to employees of TAA on 1 July 1980.

198    The time at which the representations relied upon were alleged to have been made is a matter of central importance to Mr Brewer’s case. So is the nature of the conversation with Mr Eagleton and the circumstances in which it occurred. I will return to those matters.

199    In June 1977, after he commenced employment with TAA, Mr Brewer took out a life assurance policy with Legal & General through a friend who was a representative. In September 1981, he took out a further policy through the same friend. In November 1988, he took out a private superannuation policy with AMP through another friend.

200    Some short time earlier, in August 1987, Mr Brewer became a non-contributory member of AAGSP. This was obviously in response to the introduction of occupational superannuation throughout Australia. In effect, he was obliged to co-operate in employer superannuation contributions being made for his benefit. Although he disclaimed knowing about AAGSP before that time, it is telling in my view that Mr Brewer did not take up the opportunity, even then, to contribute directly on his own account. To this point he had a life assurance policy and perhaps a private superannuation policy with Legal & General. The first was surrendered when the AMP policy was taken up in 1988. Those private policies did not enjoy the benefit of additional employer contributions, although their premiums were both tax deductible (AAGSP contributions were not) and much smaller than AAGSP (which was 5% of gross salary). This history gives no objective support for a desire to take up superannuation within TAA. There is no other objective material or other evidence to support such a claimed desire either.

201    Mr Brewer’s affidavit evidence about his conversation with Mr Eagleton introduced an initial qualification to the pleaded timeframe. It made clear that the conversation was a single event and that Mr Brewer made no further enquiries. The further affidavit evidence was:

33.    I refer to paragraph 16 of my statement of claim, in which I said I went to speak to Mr Ted Eagleton in December 1977 or January 1978. On reflection, I believe it is more likely I went to see him in early 1978. In any event, shortly after I transferred to the airport, I saw Mr Eagleton, who was the Personnel Manager NSW, outside the Personnel Department in the terminal, and asked about joining Commonwealth superannuation.

(a)    I said to Mr Eagleton words to the effect of: “Do you mind if I have a word?” I then asked “What are the chances of me joining Commonwealth superannuation?”

(b)    Mr Eagleton responded with words to the effect of: “The scheme has closed and I can’t let you in.”

34.    I accepted that Ted Eagleton would know the correct position, and believed that the scheme was closed. As the Personnel Manager for NSW, I understood that Mr Eagleton had the final say on all personnel matters for TAA employees in NSW. At no time did Mr Eagleton tell me that he was not sure about the advice or to make enquiries elsewhere.

35.    I never joined Commonwealth superannuation and never made any further enquiries about joining Commonwealth superannuation. I relied on what Mr Eagleton had said.

202    This evidence in chief raises immediate questions. CSS was not closed in early 1978 and TAA had not frozen entry to the scheme even though it had set out to control entry to its own advantage. To accept the evidence on its face, and without qualification, would compel a conclusion that in this unplanned encounter Mr Eagleton told an outright lie. That would probably not suffice to justify or support further conclusions necessary to establish negligent misrepresentations, such as that Mr Eagleton knew the lie would be relied upon and appreciated the likely consequence if Mr Brewer did rely upon it.

203    Any departure from outright and unqualified acceptance of the version of events given in the evidence in chief would further weaken any prospect of establishing those elements of the cause of action.

204    However, those potential difficulties do not need to be pursued because I am satisfied that the objective material available is adequate to demonstrate that the evidence in chief is unreliable in important respects.

205    There were a number of instances where Mr Brewer’s affidavit evidence, or his oral evidence in cross-examination, was inconsistent with statements made by him at earlier times.

206    Mr Brewer’s affidavit was affirmed on 25 March 2015. For reasons not now important, an earlier signed statement dated 22 August 2012 was also tendered in evidence. The signed statement, like the pleading, identified the date of the conversation with Mr Eagleton as December 1977 or January 1978.

207    The affidavit gave a detailed account of the interview conducted with Mr Brewer when he applied to join TAA. The signed statement said Mr Brewer could not recall what was said at the interview.

208    In the affidavit, obviously with the benefit of a document annexed to his affidavit (a letter of 20 October 1989 after successful completion of a six-month probationary period), Mr Brewer said that on 4 March 1989 he was promoted to a particular position. In his cross-examination he said confidently that the promotion occurred in 1986 or 1987. He thought there was no probationary period. The affidavit had said there was a probationary period of three months for the promotion. However, when reminded of his evidence in chief in the affidavit, Mr Brewer adopted that version (three months) professing then to recollect it. The letter on which those matters were based (obviously reconstructions rather than recollections in both cases) indicated that the date of the promotion was 4 March 1989 and the probation period was successfully completed on 4 September 1989 (therefore six months).

209    Those matters, small perhaps in their own right, are enough to indicate that caution is required about purported recollections stretching back almost 40 years. As I said earlier, the observations of McLelland CJ in Watson v Foxman are pertinent.

210    When Mr Brewer was asked about his understanding of the benefits of joining the Commonwealth superannuation scheme which he professed to want to join at the time of his conversation with Mr Eagleton, his description of those benefits was quite inaccurate. The best he could do, apart from saying it was “solid gold” was to suggest it involved a payment in the vicinity of five times final salary. However, CSS was primarily a pension scheme, rather than principally an accumulation fund. Mr Brewer’s description was either invented to respond to the question or revealed a profound lack of understanding of what he said he was seeking at the time.

211    The claimed discussion with Mr Eagleton was neither preceded by, nor followed by, any other discussion or meeting with him. The meeting was not planned. In the pleading and in his affidavit Mr Brewer said he “went to see” Mr Eagleton, but that is not what happened. In cross-examination Mr Brewer explained that he (Mr Brewer) had been in a coffee shop at the airport, when he saw Mr Eagleton leave his office and decided to approach him. He agreed it was “just a chance meeting”. He gave no evidence that it reflected or gave effect to any decided purpose, except an interest he said he had developed in joining Commonwealth superannuation.

212    It was put to Mr Brewer directly that the meeting might have occurred “a couple of years later than 1978”, but Mr Brewer flatly denied the proposition. When asked when he first had an occasion to recollect the conversation, Mr Brewer said it was when he was “asked to do the initial affidavit”, which he then confirmed was March 2015. Perhaps that was a simple mistake, although the statement signed in August 2012 was not produced and tendered until the following day.

213    However, even that was not the first occasion Mr Brewer had ventilated the issue. On 6 June 2008, Mr Brewer provided a questionnaire response to a Commonwealth agency about the subject of superannuation benefits possibly forgone. Amongst the responses he gave was the following:

I APPROACHED MR TED EAGLETON, TAA PERSONEL [sic] MANAGER IN LATE 1970’S EARLY 1980’S WHO TOLD ME THAT THE TAA SUPERANNUATION WAS CLOSED AND UNAVAILABLE TO STAFF. APPROACHES BY FELLOW WORK COLLEAGUES RECEIVED THE SAME RESPONSE FROM THE PERSONEL [sic] DEPARTMENT.

214    There are some particular features of this information that bear reference. The scheme at this point was said to have been “unavailable” and not just to Mr Brewer but other staff as well.

215    In his cross-examination Mr Brewer gave the following evidence:

MR LOCKHART: Prior to the discussion you refer to, had you had any discussions with Mr Eagleton?---No.

So this was the first discussion you had with him?---Yes.

Did you have any discussions with Mr Eagleton after this discussion?---No.

It was just the one discussion?---Yes.

And Mr Eagleton told you, did he, that the scheme had closed?---Yes.

And had some of your fellow workers at around that time also informed you that that’s what they had been told?---Yes.

And who in particular do you recall said that? Or do you not recall?---No, I don’t recall which person in particular, but there were a few people that had received similar responses.

And was this around the time that you had your meeting with Mr Eagleton?---Yes.

and:

MR LOCKHART: Did you ask him when it had closed?---No.

I take it after this conversation that you went back and discussed what had occurred with your fellow workers?---I would have gone back and just mentioned it, yes.

And is that when they said to you that they had been told similar things?---I think I had heard it before and after in - - -

You had heard that before and after, had you?---Yes, in general conversations. That was one of the reasons that promoted me to – when I saw him, to go and ask him for my own benefit.

So you had heard already, had you, from colleagues, that the scheme had closed?---Yes.

And you wanted to go and confirm that with Mr Eagleton, did you?---Yes.

216    In my view, those surrounding circumstances are important. When they are taken into account with the whole of Mr Brewer’s evidence only one real conclusion is, in my view, available.

217    I will accept that a conversation with Mr Eagleton occurred. If so, I accept that it was a chance and unplanned meeting. I conclude that any such conversation occurred after CSS was closed to TAA staff – i.e. after 1 July 1980. Apart from a conclusion of an outright lie by Mr Eagleton to Mr Brewer, and serial lying to other employees, that is the only way to accommodate a factual scenario in which Mr Brewer and other staff were constantly told, at around this time, that Commonwealth superannuation was “closed”, as it then was, to TAA staff.

218    My earlier criticism of TAA practices and policies would not justify the finding which would be necessary for Mr Brewer’s evidence about the date of the conversation to be accepted.

219    I conclude that when Mr Brewer made his enquiry of Mr Eagleton it was not possible for him to join CSS. There was no negligent misrepresentation.

220    Even if I had accepted that the conversation occurred while CSS was still open to TAA staff, I would not have found any negligent misrepresentation nor that Mr Brewer had established any loss as a result of anything Mr Eagleton had said. Either would be fatal to the cause of action.

221    There would be no negligent misrepresentation because the test referred to earlier would not be satisfied. On the version of events given by Mr Brewer, Mr Eagleton could not be understood to have appreciated that Mr Brewer would make no further enquiry in an endeavour to better inform himself.

222    There would be no established loss because I am not satisfied that Mr Brewer was determined to pursue the question of entry into a superannuation scheme at that time, or indeed later, or that he had formed even a tentative purpose to do so. I am not satisfied that any enquiry he made of Mr Eagleton was anything but a casual enquiry in a chance encounter.

223    For similar reasons to Mr Hunter, it is not possible to state any conclusion about a possible, or likely, date of entry to CSS if all of the above analysis is discarded. I do not think Mr Brewer has demonstrated that he ever had an active desire to join a superannuation scheme of TAA as a contributing member, even in 1987. There is no basis to conclude that he would have joined CSS as a contributing member at any time it might have been open to him to do so.

Conclusion about causes of action

224    There is no cause of action established by any of the applicants in negligent misrepresentation. There is no other cause of action established by any of the applicants. Each of the proceedings must be dismissed.

225    The findings I have made to this point compel judgment for the respondent in each of the proceedings. I shall nevertheless deal with some additional matters out of deference to the comprehensive nature of the arguments, and in case some adjustment to the findings should be made on any appeal.

Estoppel

226    When AAGSP was introduced, CSS was closed to employees of TAA by Statutory Rule from 1 July 1980. However, AAGSP did not commence to operate at that time. It was formally approved on 8 December 1980, the deed (not in evidence) was (apparently) executed on 15 December 1980 and TAA did not commence to accept contributions until the following year.

227    During that period there were negotiations between TAA and various unions under the auspices of the ACTU, accompanied by stoppages and strikes. Indeed, TAA documents suggest that TAA was then prepared to make improvements to the arrangements for initial entry, although the basic philosophy of AAGSP (to match the Ansett scheme) was probably less open to debate. At the same time, TAA had an interest of its own in encouraging existing members of CSS to transfer to AAGSP.

228    The negotiations continued well into 1981. One area in which negotiations progressed was a proposal to recognise additional years of superannuation membership (up to 3 years) for those not offered superannuation after completion of the qualifying period. Under AAGSP, this was to be initially two years (rather than 12 months under CSS), apparently to give effect to TAA internal policy at the time. A memo from the Personnel Director to the Personnel Service Manager on 10 September 1982 recorded the understanding which was reached:

SUPERANNUATION – RECOGNITION OF SERVICE.

During discussions with the A.C.T.U. in August 1981, it was agreed that TAA would recognise, under certain conditions, past service of staff who had not been offered superannuation membership.

Recognition will be given to a maximum of three years for the purpose of calculating superannuation benefit for those people who were not offered superannuation after completion of the normal two-year qualifying period.

As an example :–

An employee with 3 year’s service at the time of joining the plan will receive one year’s past service recognition.

Employee contributions for that period of recognised service can either be paid by the employee at the time of joining the plan or be deducted from the final benefit payable at retirement.

229    On 11 October 1982, Personnel Officers were authorised to circulate the information and accept claims for the adjustment. However, approval for implementation in any particular case was required from the Personnel Service Manager. The adjustment was not available to those who transferred from CSS.

230    In the respondent’s final written submissions the following (and only the following) submission was made:

385.    AAL also relies upon an estoppel based on representations made to AAL by the ACTU in 1981 that if the trust deed and rules for the AAGSP were amended so that those still current employees who did not previously join the CSS would receive a credit of up to three years of prior non-contributory service for the calculation of benefits,296 the ACTU, its affiliated unions and the members of those affiliated unions would not make claims in relation to any alleged previous conduct by AAL regarding the entry of those employees to the CSS.

__________________

296 This offer of backdated service was taken up and awarded to Mr Hunter upon joining the AAGSP in 1986: Affidavit of Stuart Arthur Hunter Annexure SH-9

231    The representations in question were not established. Nor was any reliance on them by TAA. TAA had its own reasons for wanting to establish AAGSP. Indeed, by the time of the negotiations in 1981 the Government had, at the instigation of TAA, closed CSS to TAA employees from 1 July 1980 and the Minister for Transport (then the Hon. R J Hunt) had approved the establishment of AAGSP on 8 December 1980. TAA was not negotiating about future claims; it was attempting to negotiate an end to strikes and stoppages and resistance to the whole idea of a new (and probably less beneficial) fund.

232    The case in estoppel did not get off the mark in any sense. Moreover, the contention is legally misconceived at a number of levels.

233    It has been long established that federal unions are not the agents of their members; they act in an independent capacity as a representative of a class of present and potential members (R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers Union (1957) 97 CLR 71). Such unions do not fetter the rights of individual members, or potential members, by their conduct. The ACTU is even further removed. It is an umbrella organisation of which industrial unions are members, but it has no legal relationship, or privity, with individual union members, or potential members.

234    Perhaps, as part of the negotiations about giving credit for up to three years’ prior membership, the ACTU told TAA that neither it nor its members (the unions) would advise or encourage claims by individual union members arising from non-admission to superannuation at the end of the nominal qualifying period. Such an assurance might commit the ACTU and the unions to withhold financial support for any such claim or challenge, but it could not prevent an individual from pursuing a legal right of that kind. Not even a signed, sealed and delivered deed could do that because neither the ACTU, nor the unions, had the legal authority or capacity to compromise or give up individual rights in that way.

235    Recently, in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750 (“Tomlinson”), the High Court dealt with the “privity principle” enunciated by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271. In Tomlinson, the High Court referred with approval to a judgment of the New South Wales Supreme Court in Young v Public Service Board [1982] 2 NSWLR 456 (“Young”), which is a complete answer to the present argument about estoppel. In Tomlinson, the High Court majority summarised the effect of that case as follows (at [36]):

36        … There, government employees claiming a declaration that their employer, the Public Service Board, had not determined their ordinary hours of work were held not to be estopped by a contrary finding of fact made in the course of resolving an earlier dispute between the Board and an industrial association of which they were members. The reasoning of Lee J in support of that conclusion acknowledged that the industrial association had in that earlier dispute made a claim which it was in the interests of its members collectively to assert. The reasoning acknowledged also that the claim was one which would, if accepted, have resulted in an award which was made binding by statute on the employees as well as the Board. But it emphasised that the claim was made by the association in an industrial context in which members individually had no capacity to appear in or control the proceedings which resulted in the resolution of the dispute. The reasoning emphasised, in addition, that the employees were claiming the declaration sought in the later proceedings simply as employees of the Board, without regard to the industrial association or their membership of it.

(Footnotes omitted.)

236    Young was followed by Madgwick J (sitting in the Industrial Relations Court of Australia) in Eljazzar v BHP Iron Ore Pty Ltd [1996] IRCA 134; (1996) 65 IR 40 (also referred to in the judgments in Tomlinson with apparent approval).

237    The written argument I referred to above was not supported by the facts, nor by any legal argument. As I said before, the proposition is, in my respectful view, untenable.

Limitation periods

238    This is a complex issue. First, I should record that, in final submissions, a defence based on s 63 of the ANA Act (proceedings against the ANA Commission must be commenced within two years) was withdrawn. That was an appropriate concession.

239    The remaining limitation defences depend upon the various State limitation statutes which apply in the three proceedings – Limitation Act 1935 (WA) and Limitation Act 2005 (WA) (Innes); Limitation of Actions Act 1958 (Vic) (Hunter); Limitation Act 1969 (NSW) (Brewer).

240    Each Limitation Act requires proceedings to be commenced within six years, but the limitation bar may be suspended in some cases.

241    Under s 55 of the Limitation Act 1969 (NSW), for example, the limitation period is suspended if a cause of action is fraudulently concealed. The period of concealment does not count in calculating the limitation period.

242    Under s 27 of the Limitation of Actions Act 1958 (Vic) if a right of action is concealed by fraud, the period does not begin to run until the plaintiff could, with reasonable diligence, have discovered the fraud.

243    Under WA legislation, the position is not the same. The Limitation Act 2005 (WA) applies to causes of action occurring after the commencement of that Act, and s 38 permits extension of the limitation period, but that Act does not apply to the argument about the proceedings commenced by Mr Innes. The Limitation Act 1935 (WA) continues to apply to earlier accrued causes of action. It does not provide for suspension of the limitation bar in the case of fraudulent concealment.

244    The cases in deceit, as a cause of action, were abandoned during final submissions, but an argument about fraudulent concealment was preserved by the applicants as a means of countering reliance on the six year limitation period usually applying.

245    I shall address, in more detail, the question of when the particular causes of action arose, but the latest moment at which a loss may have crystallised is when each applicant left his employment with Qantas. Each applicant may, if originally a contributing member to CSS, have been entitled to take retirement benefits from the Qantas superannuation fund (QSP) on, or after, leaving employment with Qantas.

246    Mr Innes left Qantas in 2012 and commenced his proceedings in the following year. Mr Hunter left Qantas in 2005 and did not commence proceedings until 2015. His pleaded response to reliance on the limitation period of six years is that he would not have been entitled to take a benefit until he turned 55, in 2009. The proceedings were commenced on the final day of a six year period after Mr Hunter’s 55th birthday – 6 March 2015. Mr Brewer left Qantas on 21 December 2006, and commenced proceedings about two weeks within a six year period from that date.

247    If any cause of action arose earlier than departure from Qantas, or Mr Hunter’s 55th birthday, it will have arisen not later than 1995, when each of the applicants transferred to Qantas superannuation arrangements (employees’ membership with the AAGSP was transferred to QSP on or about 30 July 1995). If that is the case (a question to which I will return), Mr Innes’ proceeding is statute barred and Mr Hunter and Mr Brewer would need to claim the benefit of an extension for fraudulent concealment.

248    In my view, a claim of fraudulent concealment cannot succeed. The cases are each based on refusal of entry to CSS (or CSF). The facts and circumstances upon which the present proceedings are based were all discoverable at any time after entry to CSS was closed. Those facts and circumstances did not depend upon crystallisation of a loss, although it is crystallisation of loss which would give a cause of action and mark the beginning of the statutory limitation period.

249    Nor can it be said, in my view, that TAA fraudulently concealed any cause of action. The adoption of its policies and practices did not amount to such fraudulent concealment; that simply provides the material upon which the causes of action depend.

250    As a result, all applicants need to show that no cause of action arose prior to their departure from Qantas, and Mr Hunter needs to show that no loss occurred to him until his 55th birthday.

251    Mr Hunter’s case, like that of the other applicants, is that as a contributing member of CSS he would have elected in 1981 to remain in CSS and not transfer to AAGSP. Then, upon the transfer to QSP in 1995, he would (like about 94% of continuing contributory members of CSS then employed by Qantas) have elected to become a member of Division 4 of QSP and to take a Delayed Updated Pension (“DUP”). According to the expert evidence I shall refer to later, that latter assumption is a sound one. One consequence of such an election was stated in information issued to staff by Qantas at the time as follows:

A person who has opted for DUP may request payment of the benefit at any time after s/he has left the work force and attained 55 years of age. …

(Emphasis in original.)

252    Subject to the next argument to be considered, I am prepared to accept (there was no submission to the contrary) that according to the counterfactual scenario on which the argument proceeds, Mr Hunter’s cause of action would have occurred, at the latest, on his 55th birthday – i.e. no longer than six years before the proceedings were commenced.

253    The limitation argument which was really pressed, and to which the arguments about extension (if available) would be vital if it succeeded, was that each cause of action, if otherwise maintainable, would have occurred in 1995 when, on the counterfactual scenario relied on by the applicants, each would have been required to make an election about how to deal with CSS contributions, when they were required to transfer wholly to QSP.

254    The starting point for consideration of this argument is the judgment of the High Court in The Commonwealth of Australia v Cornwell (2007) 229 CLR 519 (“Cornwell”). In that case the plaintiff was negligently advised that he was not eligible to join CSF in 1965. He later joined CSS. When he retired his benefits from CSS were less than if he had joined CSF when eligible to do so. The majority judgment in the High Court held that the cause of action arose only on retirement, and not earlier. Passages where that appears are (at [18]-[19] and [37]):

18        Here, the economic loss which the respondent sustained was alleged to be the lesser benefit which he obtained on his retirement, this being worth less than it would have been had he not relied upon the negligent advice given to him in 1965. But to speak simply of a “retirement benefit” and its value is to obscure the nature of the economic loss involved. This does not turn upon proprietary or other rights or obligations created and governed by the general law, such as the indemnity granted by the respondent in Wardley, or the continuing financial obligations undertaken by the lessees in Murphy v Overton Investments Pty Ltd. What the respondent stood to enjoy upon “retirement” was an “entitlement” conferred by federal statute law. This “entitlement” was his “interest” in the sense used in the above passage from Wardley.

19        The significance attached to retirement on grounds of health, by retrenchment, for cause, upon death and for other reasons depended upon the terms of the particular legislation. 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. Hence the submission by the respondent that it was only upon his retirement that the relevant statutory contingency fell in upon which the respondent became entitled to a benefit which was limited or diminished and his cause of action first accrued.

(Footnote omitted.)

and:

37        Even if the respondent had joined the 1922 Fund in 1965, his pension entitlements thereunder would prior to the commencement of the 1976 Act still have been contingent upon meeting the statutory criteria set out earlier in these reasons. The respondent could have been assured that the amount of his actual contributions paid under the 1922 Act were secured to him by s 51(1) were he to resign or to be dismissed or discharged for any cause. But, beyond that, his entitlements were prospective and contingent upon the falling in at a future time of the statutory criteria. The same was true of the respondent’s position under the 1976 Act after 24 March 1987 and before his retirement seven years later, subject to the qualification that the amount of his actual contributions would no longer have been paid to him unless the conditions of s 80 were met.

(Footnote omitted.)

255    The respondent, however, relies on a case where Cornwell arose for consideration in the ACT Supreme Court and was distinguished: Innes v Commonwealth [2015] ACTCA 33 (“Innes”).

256    In Innes, the plaintiff claimed an entitlement to join CSF also, from which fund he would automatically have been transferred to CSS. In 1993, when he was 45 years old, the plaintiff accepted a voluntary redundancy. He claimed that he would, if a member of CSS at the time, have elected to defer payment of benefits under s 137 of the 1976 Act, have remained in the workforce until 60 years of age (2007) and only then would he have taken the CSS benefits to which he claimed he should have been entitled. He argued that his cause of action therefore arose in 2007 and not in 1993.

257    The Court of Appeal disagreed. Murrell CJ and Katzmann J (with whose reasons Penfold J also agreed) said (at [55]):

55.    The critical difference between Cornwell and the present case is that, as at the dates the Commonwealth contended the limitation period began to run, Mr Cornwell was not entitled to receive anything. Accordingly, he had suffered no ascertainable loss. In Cornwell the date when actual loss occurred was when Mr Cornwell became entitled to a statutory benefit. The first point in time when he became entitled to any statutory benefit was upon his retirement. That was because the statutory source of Mr Cornwell’s entitlement was s 55 of the 1976 Act which related to “standard age retirement pension[s]”. In contrast, the statutory source of Mr Innes’s entitlement was (relevantly) s 59 of the Act which provided for early retirement benefits. The statutory criteria or conditions (the contingencies) for an entitlement to arise in each case are different. While Mr Cornwell had to achieve the statutory retirement age before he was entitled to receive anything, Mr Innes was entitled to receive a superannuation benefit when he was deemed to have retired involuntarily from the Commonwealth public service. That he would have chosen to defer payment or receipt is beside the point.

(Emphasis in original.)

and:

60.    In summary, Mr Innes first suffered actual loss and damage when the statutory contingencies aligned so that, if he had been a CSS member, he would have been entitled to a (i.e. any) statutory benefit (Cornwell at [19]). Contrary to Mr Innes’s submission, the use of the indefinite article in Cornwell was no accident. Indeed, it is consistent with the position in Wardley. It is at the point at which actual damage is ascertainable that the cause of action will accrue, even if the loss would be greater at a later time. In this case actual damage is ascertainable as at 5 April 1993 because on that date Mr Innes would have had an entitlement to choose from certain options and, on the counterfactual, would have become entitled to superannuation benefits in accordance with s 59. His loss was the loss of the involuntary redundancy benefits which he would have received had he been a member of the CSS. It was not a negligible or minimal loss. The fact, assumed for present purposes, that Mr Innes, having chosen the benefits available under s 59, would have elected to defer payment of those benefits does not mean that his loss was only hypothetical or prospective. He had an entitlement. What he chose to do with it, including when he chose to be paid, is another matter. On 5 April 1993 all relevant statutory contingencies “fell in” and the cause of action was complete.

(Emphasis in original.)

258    In the present case, the respondent argued that in 1995 it was necessary for TAA employees, who remained members of CSS, to make a choice about their CSS entitlements. As a result, any loss occurred at that time, as in Innes.

259    On the evidence in the present case the choices in 1995 were:

(a)    a Delayed Updated Pension (DUP) and become a member of Division 4 of the QSP;

(b)    a Deferred Withdrawal Benefit (DWB) and become a member of Division 4 of the QSP; or

(c)    an Immediate Withdrawal Benefit (IWB) and become a member of Division 3A of the QSP.

260    If no election was made then an IWB was payable under (c).

261    Those arrangements were implemented by the Superannuation (Former Eligible Employees) Regulations (Amendment) (Cth), Statutory Rules Nos. 262 of 1993 and 236 of 1995. SR 1993/262 inserted Schedule 11 into the 1976 Act, which provided for the DUP. Regulation 15 in SR 1993/262 then implemented Schedule 11, in stated circumstances. Regulation 15 was superseded by SR 1995/236 Regulation 15B. Regulation 15B provided:

Application of Act to eligible employees affected by Qantas sale

15B.    (1)    In this regulation:

‘Qantas’ means Qantas Airways Limited or a company that is a subsidiary of that company;

‘relevant day’ means the day on which the Commonwealth ceases to have a controlling interest in Qantas;

‘the Act’ means the Superannuation Act 1976.

(2)    The Act is modified in accordance with Schedule 11 in its application to each person to whom this subregulation applies.

(3)    Subject to subregulation (4), subregulation (2) applies to a person who:

(a)    was employed by Qantas immediately before the relevant day; and

(b)    was an eligible employee immediately before the relevant day; and

(c)    ceased to be an eligible employee because the Commonwealth ceased to have a controlling interest in Qantas.

(4)    Subregulation (2) does not apply to a person:

(a)    who has made an election under section 137; and

(b)    unless the person has requested, before the end of 21 days after section 126A of the Act begins to apply to the person, that subregulation (2) be applied to the person by the Commissioner.

(5)    If a person makes a request under paragraph 4 (b) before the relevant day, subregulation (2) is taken to begin to apply to the person on the day after the person ceases to be an eligible employee.

(6)    The Act is modified in accordance with Schedule 13 in its application to each person to whom this subregulation applies.

(7)    Subregulation (6) applies to a person who:

(a)    was employed by Qantas immediately before the relevant day; and

(b)    was an eligible employee immediately before the relevant day; and

(c)    ceased to be an eligible employee because the Commonwealth ceased to have a controlling interest in Qantas.

262    Section 137 of the 1976 Act permitted a person who ceased to be an eligible employee to elect to preserve benefits under Division 3 of Part IX. This would correspond to a DUP under option (a) referred to above.

263    It appears from reg 15B(4)(b) that a DUP (i.e. Sch 11 as implemented by reg 15(2)), would only apply to those who made that particular election. Otherwise, if no election had been made under s 137 of the 1976 Act, the provisions of s 80 of the 1976 Act would come into operation upon a Qantas employee ceasing to be an eligible employee under the 1976 Act.

264    The various changes to the statutory arrangements for employees of TAA, after CSS was closed to them as new contributing members, were fully explored in supplementary submissions filed by the respondent.

265    Based upon its own analysis of the statutory regime the respondent first submitted that the loss (if any) of each of the applicants necessarily crystallised as and from 30 July 1995 (noting the 21 day limit from this date, for an election or request to be made), when the Commonwealth would have become liable to pay (even if at some time in the future in some of the possible circumstances) a benefit arising from contributions to CSS. The respondent also submitted that, in any event, “all the statutory contingencies fell in” with regard to a benefit under s 80 of the 1976 Act at that time. As in Innes (see also Henry v Commonwealth of Australia [2012] ACTSC 94; (2012) 264 FLR 381), the respondent submitted, an election to defer benefits did not affect the position.

266    Other arguments were advanced, based on the speculative possibility that a DWB may have been selected, and it would have been open for the applicants to leave their employment at the age of 55. On this reasoning, each of the applicants was also said to be statute barred (Mr Hunter by two days). I find this additional part of the argument unconvincing. It depends on speculative assumptions. The task at hand does not involve identifying one speculative possibility which might defeat the claims.

267    The first argument (based on crystallisation of a definite Commonwealth obligation of some kind), in my view, does not lead to any different outcome from the second (based specifically on s 80 of the 1976 Act) in the present case because, at the heart of the examination required is the need to identify accrued loss. That question cannot be answered in a vacuum, or by identifying a crystallised obligation to make some payment, unless it can be concluded that the payment could have exceeded the outcome in the real world, so that not only an entitlement, but also a loss, crystallised at that time. It is sufficient, therefore, to concentrate on the possibility of an entitlement arising under s 80 of the 1976 Act on 30 July 1995.

268    Section 80 provided that when a person ceased to be an eligible employee (otherwise than by death) and was not entitled to another benefit (e.g. a retirement benefit) the person would be entitled to a lump sum benefit equal to accumulated contributions – i.e. basic contributions and supplementary contributions together with interest at the fund earning rate (see s 3 of the 1976 Act).

269    The respondent argued, therefore, that all the statutory contingencies fell in, at least at this point – i.e. a potential loss crystallised. To this point in the analysis, I accept the force of that argument.

270    I would be bound to follow the authority of Innes. Special leave to appeal was sought from the High Court but was refused. In 1995, on the counterfactual scenario upon which each of the applicants rely, an occasion would arise to direct what should happen to existing accounts in CSS. One option was to reclaim the balance of the account. That was a default position if no other election for a DUP or a DWB was taken up. If a loss would have crystallised at that point then, on the authority of Innes, the cause of action arose then.

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.

272    In the end, therefore, the limitation defences would not have succeeded.

Assessment of damages

273    On the findings I have made, no occasion arises to assess damages. However, I shall indicate the view I reached on a number of issues which were debated in the proceedings which, I hope, would have permitted the necessary calculations to be made if it were necessary.

274    Two actuaries, David Heath of Cumpston Serjeant Pty Ltd and Tim Furlan of Russell Investments, gave expert evidence in the proceedings. I found their evidence to be most helpful. They co-operated in the preparation of a joint report after their own reports were filed and worked diligently to identify and narrow issues of disagreement. They provided additional calculations at my request. They gave their evidence concurrently and co-operatively. Their evidence was an example of the benefits of the practice often adopted in this Court of taking such evidence concurrently.