Commonwealth v Cornwell

The Commonwealth of Australia appealed to the High Court of Australia against a decision concerning the respondent, Mr Cornwell, and his superannuation entitlements. Mr Cornwell had commenced employment with the Commonwealth in 1962 and, in 1965, was negligently advised by his superior that he was ineligible to join the superannuation fund established under the *Superannuation Act 1922* (Cth). He did not commence proceedings against the Commonwealth until 1999, alleging that this negligent advice caused him to receive a lesser superannuation benefit upon his retirement in 1994. The central dispute revolved around when Mr Cornwell's cause of action for negligence first accrued for the purposes of the *Limitation Act 1985* (ACT).

The High Court was required to determine whether Mr Cornwell's cause of action for negligence accrued at the time he received the negligent advice in 1965, or at a later date, such as upon his retirement in 1994, or when he joined a new superannuation fund in 1987. This determination was critical to establishing whether his claim was statute-barred under the relevant limitation legislation. The court also considered whether the concept of concealed fraud under section 33 of the *Limitation Act 1985* (ACT) was relevant to the resolution of the case.

A majority of the High Court held that Mr Cornwell's cause of action did not accrue in 1965, nor was it necessarily and irretrievably sustained when the *Superannuation Act 1976* (Cth) commenced. The court reasoned that prior to his retirement, Mr Cornwell's superannuation entitlements were prospective and contingent upon the satisfaction of statutory criteria. Therefore, he did not suffer damage in the legal sense until these contingencies were met upon his retirement in 1994. Consequently, his claim, commenced in 1999, was not statute-barred.

The appeal was dismissed with costs, with a majority of the court finding in favour of Mr Cornwell. Callinan J dissented.