Corkhill v Commonwealth of Australia (No 3)
[2018] ACTSC 87
•6 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Corkhill v Commonwealth of Australia (No 3) |
Citation: | [2018] ACTSC 87 |
Hearing Dates: | 18, 19, 20 and 21 April 2016 |
DecisionDate: | 6 April 2018 |
Before: | Refshauge J |
Decision: | 1. There be judgment for the defendant. 2. Unless either party applies by written submissions within seven days for any other order, the defendant pay the plaintiff’s costs. |
Catchwords: | SUPERANNUATION – PUBLIC SERVICE SCHEMES – Availability of public service schemes to temporary Commonwealth employees – no statutory duty to inform every potentially affected employee as to their eligibility – Superannuation Act 1922 (Cth) – Superannuation Act 1976 (Cth) – Superannuation Act 1990 (Cth) TORTS – NEGLIGENCE – Duty of care – claim of negligent misrepresentation – whether alleged misrepresentation and negligence arose from representations about operation of superannuation schemes – claim not made out |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 34 Civil Law (Wrongs) Act 2002 (ACT), ss 45, 45(1)(a), 45(1)(b), 45(1), 45(3) Schools Authority Ordinance 1976 (Cth) Court Procedures Rules 2006 (ACT), r 50(2) Public Sector Superannuation Trust Deed, cl 6.2.3 of the Sch |
Cases Cited: | Ainsworth v Burden [2005] NSWCA 174 Alcan Gove Pty Ltd v Zabic [2015] HCA 33; 257 CLR 1 |
Texts Cited: | Australian Law Reform Commission, Evidence (Australian Government Publishing Service, Canberra; 1985) Interim Report No 26, v 1 R P Balkin and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) Jonathan Beach, “Indeterminacy: The uncertainty principle of negligence (2005) 13 Torts Law Journal 129 Peter Cane, “The blight of economic loss: Is there life after Perre v Apand?” (2000) 8 Torts Law Journal 246 The Hon Justice Peter McClellan, “Who is telling the truth? Psychology, common sense and the law” (2006) 80(10) Australian Law Journal 655 David Partlett in “Roaming in the Gloaming: the Liability of Professionals” (1992) 14 Sydney Law Review 261 Barry Price, Pioneers of the ACT Government School System (Archives ACT Research Guide, 2005) Jane Stapleton in “Duty and Care of Economic Loss: A Wider Agenda” (1991) 107(2) Law Quarterly Review 249 |
Parties: | Hazel Joan Corkhill (Plaintiff) Commonwealth of Australia (Defendant) |
Representation: | Counsel Mr R Douglas QC and with him Mr R Davies (Plaintiff) Dr A S Bell SC and with him Mr J Duncan (Defendant) |
| Solicitors Snedden Hall and Gallop (Plaintiff) Australian Government Solicitor (Defendant) | |
File Number: | SC 247 of 2009 |
REFSHAUGE J:
1954 was a significant year for Australia; the newly crowned Queen Elizabeth II paid her first Royal visit to this country. It was also a significant year for the plaintiff, Hazel Joan Corkhill, and for these proceedings, for, in that year, Mrs Corkhill married John Patrick Corkhill.
Mr Corkhill was later employed by the Commonwealth Government from 1957 until 1990, when he retired. He had been employed by various departments as a driver of lorries and buses but, later, mostly cars, and was classified as a temporary employee.
In her claim, Mrs Corkhill said that, soon after he began his Commonwealth employment, her husband made an inquiry about joining the relevant superannuation scheme conducted by his employer but was told, incorrectly, that he was not eligible. She also said that six years later he asked again but was then also incorrectly told that he was not eligible as he was a temporary employee. He did, however, later join when it became compulsory for all employers to provide superannuation for their employees.
Mrs Corkhill further says that, had he been given the correct advice, her husband would have joined a Commonwealth superannuation scheme and, on his retirement, would have elected to receive a pension as a result.
Mr Corkhill died in 2003. Had he been a member of a Commonwealth superannuation scheme, Mrs Corkhill said that, in the circumstances, she would have been eligible for a pension based on either 67 per cent of the pension Mr Corkhill would have been receiving at the date of his death (had he been a member of what was then called the Commonwealth Superannuation Scheme), or a pension calculated in accordance with the rules of the other scheme into which Mr Corkhill could have then been a member, the Public Sector Superannuation Scheme.
Mrs Corkhill said that, in providing the incorrect advice that it did through its servants or agents, the Commonwealth breached a duty of care that it owed to her.
As a result, she said that she had suffered loss and damages for which she sought to be compensated by the defendant Commonwealth in these proceedings.
Commonwealth Superannuation
The Commonwealth Public Service (later the Australian Public Service) superannuation schemes which provided benefits for its officers and employees were established under Commonwealth statutes. The first such Act was the Superannuation Act 1922 (Cth) (the 1922 Act). A new scheme was created in 1976 under the Superannuation Act 1976 (Cth) (the 1976 Act). A third scheme was established under the Superannuation Act 1990 (Cth) (the 1990 Act).
In Meredith v Commonwealth (No 2) [2013] ACTSC 221; 280 FLR 385, at 393-4; [23]‑[26], I described the various Commonwealth superannuation schemes and administrative arrangements for them as follows:
23.There were three Commonwealth superannuation schemes in operation during the employment of Mr Meredith. I shall refer to them all in this judgment as “a Commonwealth superannuation scheme”. They were as follows:
(a)The Commonwealth Superannuation Fund (CSF) was established by s 8 of the 1922 Act. Section 75 also established a Provident Fund, which was part of the CSF for employees who elected to join it or who, in circumstances set out in the 1922 Act, were otherwise ineligible to join the CSF but who could nevertheless join the Provident Fund. Section 120 established a Superannuation Board to manage the CSF by, inter alia, investing the moneys of the CSF (s 12), borrowing moneys for the CSF (s 16) and acceptance of medical suitability of an employee for membership (s 5).
(b)The Commonwealth Superannuation Scheme (CSS) was established by the 1976 Act which required eligible employees to pay fortnightly contributions (s 45) and provided for eligible employees’ benefits (Pt V). Section 17 provided for the appointment of a Commissioner for Superannuation who had responsibility for the administration of the Act, apart from the management of the Superannuation Fund, as established by s 40 and into which all contributions and other receipts received by the Commission were to be paid (s 53). The Fund was managed by a Trust established under s 28 as a body corporate (s 29). The Commission had power to direct that temporary employees be eligible to join the CSS (s 11). The CSS closed for new members in 1990.
(c)The Public Sector Superannuation Scheme (PSS) was established by the 1990 Act. It was established by s 4 of the Act under a Trust Deed required to be made in accordance with the Schedule to the Act. The Act’s first Schedule, which set out the form of the Trust Deed (s 4(2)), also established a Fund (cl 2(2)) and the rules for the operation of the PSS. Members were, inter alia, all permanent employees (s 6) and temporary employees who made an election to become members (s 8). Section 20 established the “Commonwealth Superannuation Board of Trustees No 1” (s 20) which became a body corporate (s 21). It was given power in its required form in the Schedule to administer the PSS and to manage and invest the Funds (cl 3). The Board, under the Scheduled rules, was to receive contributions payable by members (r 3.1.1) and by employers (r 3.2.1). It also had other powers, such as in relation to medical examinations of prospective members (r 1.2.1) and determination of whether they should be treated as limited benefits members (r 1.2.2). It had powers to make various other determinations under the Trust Deed. Section 29 of the Act established the position of Commissioner of Superannuation which was responsible for the provision of administrative services to the Board and actions taken by the Commissioner in the name of or on behalf of the Board were taken to have been done by the Board. The Trust established by the 1976 Act became also the investment manager of moneys in the Fund (s 31).
24.The administrative agency that managed the operations or provided relevant administrative support to the Boards, Trustees and Commissioners was known by various names, including Australian Government Retirement Benefits Office (from 1973), the Retirement Benefits Office (from 1990) and Commonwealth Superannuation Administration or ComSuper (from 1994). For ease of reference, I shall refer to the agency, where necessary, as ComSuper.
25.In 1986, the Australian Conciliation and Arbitration Commission in the National Wage Case June 1986 (1986) 14 IR 187 made provision for employers to pay a percentage of employees’ salary or wages into a superannuation scheme for the employee in lieu of a direct wage increase. Although challenged, this arrangement was upheld in Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufacturers (1986) 160 CLR 341.
26.Such payments were made on behalf of Commonwealth employees, it appears, from about 1988. In the absence of a superannuation scheme of which an employee was a member, the payments were made to a default scheme identified by the employer. In the case of Mr Meredith, that was the Australian Government Employees Superannuation Trust (AGEST).
The Provident Fund created by the 1922 Act was, strictly speaking, called the Provident Account and established under Pt V of that Act.
The three schemes described above were also, as is clear from the period of Mr Corkhill’s employment, noted above (at [2]), the schemes that were in operation while he was employed by the Commonwealth. I shall use the acronyms for the schemes as set out in this quotation.
Under Pt XII of the 1976 Act, members of the CSF were automatically transferred to the CSS from 1 July 1976, the date of commencement of that Act. Under s 46 of that Act, the amount of the contribution payable was set at five per cent of the salary of the contributor.
When the 1990 Act was made, contributors to the CSS were able to elect to join the PSS which it established; if no election was made, the contributor remained a member of the CSS.
The Statement of Agreed Facts admitted into evidence, which I set out below (at [43]), states as an agreed fact that when the recipient of a pension under either the CSS or the PSS died, a spouse is entitled to a pension, though at a reduced rate to that payable to the contributor, unless the former employee had, on retirement, elected to receive a lump sum benefit instead of a pension.
The Claim
Mrs Corkhill commenced these proceedings by Originating Claim filed on 24 February 2009. Attached, as required under r 50(2) of the Court Procedures Rules 2006 (ACT), was a Statement of Claim. That Statement of Claim was amended on 12 October 2015. As a result, the Commonwealth amended its Defence and Mrs Corkhill filed an Amended Reply to the Amended Defence. These pleadings have defined the issues for trial: Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 at 121-2; [28]-[29].
Many of the formal matters pleaded, such as the personal details of Mr and Mrs Corkhill, were admitted by the Commonwealth. Indeed, the Statement of Agreed Facts contained a good deal of those admitted facts. Such an approach is very helpful, especially, but not only, in complex litigation and the approach of the parties in this regard is to be commended and, indeed, emulated. That left, of course, a number of matters in contention, some seriously so.
Mrs Corkhill’s claim was for herself; she made no claim on behalf of her deceased husband. Whether he had had a claim of the kind for which the plaintiff, Mr Meredith, succeeded in Meredith v Commonwealth (No 2) was relevant but was not the claim that she made.
The claim by Mrs Corkhill was as follows. She claimed that in 1957 and 1963, Mr Corkhill approached persons who supervised him or were senior employees of the Commonwealth seeking to join a Commonwealth superannuation scheme. She claimed that he was told on each occasion that he was not eligible. Each of the persons approached were, it was said, in a position of authority over Mr Corkhill and each had provided advice to him during his employment, especially about the terms, conditions, benefits and obligations of his employment.
These persons were, it was said, agents of the Commonwealth or, at least, responsible to the Commonwealth for communicating to its employees specified information, namely details about the eligibility of the employees whom they supervised directly or indirectly to join a Commonwealth superannuation scheme. It was further said that each of these persons knew or ought to have known that Mr Corkhill was eligible to join such a scheme, was married, was seeking advice from them for the serious purpose of providing for his financial security and that of his wife, and that he was proposing to rely on the advice which, if incorrect, would cause him loss or damage. It was then claimed that it was reasonable for Mr Corkhill to rely on the advice he was given by them. It was further claimed that he gave the advice he received to his wife, Mrs Corkhill, which the supervisor or senior employee would have contemplated that he would do.
Mrs Corkhill then claimed that she and her husband had relied on this advice by refraining from making further inquiries about the eligibility of Mr Corkhill to join a Commonwealth superannuation scheme, accepting the truth of the advice and by Mr Corkhill not joining such a scheme.
The advice, it was further claimed, was incorrect as, under certain conditions, which it was also said that he would have met, Mr Corkhill was eligible to join a Commonwealth superannuation scheme; it was said that the advice had been provided negligently.
Mrs Corkhill claimed that, but for the negligence of those who provided the advice to Mr Corkhill, for which the Commonwealth was vicariously liable, Mr Corkhill would have applied to join a Commonwealth superannuation scheme and would have been admitted. She further claimed that, on his retirement, Mr Corkhill would not have taken his superannuation benefits as a lump sum but as a pension so that, on his death, she would have received a spouse pension. As a result, Mrs Corkhill said, she has suffered loss or damage.
This claim was based on a cause of action in negligent misstatement. For such a cause of action, see Meredith v Commonwealth (No 2) at 428-30; [384]-[390]. The Commonwealth denied any liability to Mrs Corkhill for this claim.
In addition to its general denial, the Commonwealth also denied a number of the factual assertions of Mrs Corkhill and asserted that it had taken reasonable steps to inform temporary employees of their rights under the various Commonwealth superannuation schemes, denying further many of the claims as to the extent of its duty to inform and assist such employees.
The Commonwealth also pointed out that there were limitations on the access that temporary employees had to Commonwealth superannuation schemes requiring them to meet criteria relating to continuous prior service, health, likelihood of further service, and that membership was subject to a discretionary decision of a relevant decision‑maker for each scheme. It was asserted that Mr Corkhill had no certainty that these matters would have been satisfied so as to have permitted him being admitted to any of the Commonwealth superannuation schemes.
Mrs Corkhill claimed, however, that Mr Corkhill’s health would, in all the circumstances, have been unlikely to have prevented him from being accepted into the CSF but, if so, would have permitted him to contribute to the Provident Account. So far as the CSS was concerned, any health problem would have resulted in a Benefit Classification Certificate which, in any event, would only have affected his benefit had he been forced to retire as a result of his lung disease, which was not, in fact, the cause of his retirement, and not prevented him from joining the CSS.
Mrs Corkhill also made on her pleadings, as amended, a claim in what was called in the proceedings “common law negligence”, that is a claim in negligence apart from the claim based on negligent misstatements.
The basis of this claim was that the Commonwealth was negligent in failing to discharge its duty of care to her, which it was claimed that it owed to her by reason of its knowledge of Mr Corkhill’s personal circumstances, including his marital status, and his wish to join a Commonwealth superannuation scheme, and its knowledge of the general ignorance or confusion of its officers, employees and agents about Mr Corkhill’s eligibility for membership of such a scheme together with the regular access it had to him, as well as Mrs Corkhill’s vulnerability by reason of her dependence on the information supplied by the Commonwealth and her reasonable reliance on that information.
It was claimed that the Commonwealth breached its duty of care by negligently failing:
· to inform or appropriately to instruct its officers, servants and agents as to the correct information about the eligibility of temporary employees such as Mr Corkhill to join a Commonwealth superannuation scheme and the correct criteria to be applied to any application by any such employee;
· to ensure that its officers, servants or agents disseminated that information widely and to give correct and timely information;
· to facilitate the due processing of applications by temporary employees for membership of a Commonwealth superannuation scheme; and
· to cease the dissemination of incorrect information.
In Meredith v Commonwealth (No 2) at 443-54; [479]-[563], I held that Mr Meredith could not show that he had such a cause of action in common law negligence. See also Reeve v Commonwealth [2014] ACTSC 1 at [9]-[10], [363].
At the trial, Mrs Corkhill abandoned the cause of action in common law negligence so as only to rely in these proceedings on that arising from the alleged negligent misstatement.
The Commonwealth pleaded in defence to Mrs Corkhill’s claim for negligent misstatement that Mrs Corkhill had a duty to protect herself and failed to do so, thus contributing to or causing any loss or damage she suffered. As I held in Knight v Commonwealth [2013] ACTSC 238 at [116], contributory negligence is available as a defence to a claim for pure economic loss caused by negligence, such as by negligent misstatement.
The pleaded acts of contributory negligence included a failure of Mrs Corkhill to make, or to cause her husband to make, inquiries about joining the CSF, to check the advice given about eligibility, to read material disseminated about superannuation and to take advantage of opportunities offered by the Commonwealth about Mr Corkhill’s potential eligibility to join a Commonwealth superannuation scheme.
Mrs Corkhill denied that she had failed to look after her own interests and further said that the Commonwealth was or ought to be estopped from claiming that she was guilty of contributory negligence. In the proceedings, neither party addressed the question of any estoppel and I do not need to address it further.
The Commonwealth also claimed that any losses incurred by Mrs Corkhill must be reduced by her failure to mitigate her loss because of:
· Mr Corkhill’s failure to seek to join either the CSF or the CSS or the PSS;
· not investing the contributions that would have needed to be paid to the Commonwealth superannuation scheme had he joined.
Mrs Corkhill claimed that neither she nor Mr Corkhill had any reasonable opportunity to invest the money referred to by the Commonwealth and also says that the Commonwealth should be estopped by its own conduct from making these claims of failure to mitigate her loss.
The evidence
The evidence was initially given by affidavit. There were extensive objections to the affidavits; some, I am pleased to say, were resolved by agreement between counsel, as evidence of the professional competence and diligence of the lawyers for the parties. I resolved those issues that could not be settled between the parties. I do not need to address the objections, my determinations or my reasons.
That did not apply, however, to a document which was tendered, being a questionnaire (the questionnaire) which Matthew Corkhill, the youngest son of Mr and Mrs Corkhill, completed from the direct information given him by Mr Corkhill in contemplation of him making a claim against the Commonwealth. Indeed, it was completed in the context of “a court case involving government workers who were denied Commonwealth superannuation called the Cornwell case”.
That case involved John Cornwell, a temporary employee of the Commonwealth between 1962 and 1994, employed as a spray painter by the Transport Section of what was initially the Department of the Interior. That Department became, between 1972 and 1983, the Department of the Capital Territory and then in 1983-4 the Department of Territories and Local Government, in 1984-87 the Department of Territories and 1987‑91 the Department of Arts, Sport, the Environment, Tourism and Territories. Self‑Government followed in 1992, when the ACT Department of Urban Services took over much of the municipal responsibility of these departments. Some remained with Commonwealth Departments. I shall simply refer to the workplace as the Transport Section.
Mr Cornwell also claimed that he had suffered loss from negligent misstatements made to him about his eligibility to join a Commonwealth superannuation scheme. He was successful in his claim: Cornwell v Commonwealth [2005] ACTSC 14; (2005) Aust Tort Reports 81-779. Appeals against the judgment for Mr Cornwell were ultimately dismissed by the High Court in Commonwealth v Cornwell [2007] HCA 16; 229 CLR 519.
The questionnaire was tendered for Mrs Corkhill and the tender vigorously opposed by the Commonwealth; I admitted it. Perfectly properly, Mr A S Bell SC, who appeared with Mr S Duncan for the Commonwealth, asked me to deliver reasons for admitting the questionnaire. I delivered my reasons in Corkhill v Commonwealth [2016] ACTSC 100. That set out my reasons adequately and I do not need to add anything, but, so far as is necessary or desirable, I incorporate those reasons in these reasons.
Statement of Agreed Facts
As noted above (at [16]), the parties agreed on a Statement of Agreed Facts which was tendered and admitted into evidence. It helpfully set out much of the background against which this case has to be decided. Accordingly, it is appropriate to set it out in full here.
The Statement is as follows:
1.The Plaintiff:
a) Was born [in] 1934; and
b) Is the wife of the late John Patrick Corkhill (the Deceased).
2.The Deceased died on 1 March 2003.
3.The Plaintiff sues the Defendant on her own behalf.
4.The parties agree on the general particulars of the employment of the Deceased as [sect out in the following table].
Date of Birth – John Corkhill
12 August 1927
Date of marriage to Hazel Corkhill
11 August 1953
Commenced Commonwealth employment with the Department of Works as a bulldozer driver
12 June 1957
Ceased employment with the Department of Works
Friday 31 May 1963
Commenced employment with the Department of the Interior, transport section, as a bus driver
Monday 3 June 1963
Promoted to coach captain
28 October 1974
Transferred to position of lorry driver
24 February 1975
Transferred to drive of light passenger vehicles
13 May 1977
Employment is transferred to the Department of Administrative Services, classified as a spare car driver
7 July 1977
Retirement from eligible employment
28 December 1990
Receives a cheque from the Defendant in the sum of $1,775.59 representing the 3% superannuation productivity payments made on his behalf
11 February 1991
The Plaintiff’s Commonwealth superannuation history
5. The Commissioner for Superannuation directed that the Plaintiff be treated as an ‘eligible employee’ under the Superannuation Act 1976 (the 1976 Act), and become a member of the Commonwealth Superannuation Scheme (CSS), on 27 April 1977.
6. A Benefit Classification Certificate (BCC) was issued in or about July 1977 in respect of the Plaintiff’s CSS membership.
7. On or about 24 August 1977 the Plaintiff wrote to the Commissioner for Superannuation to request that the BCC applicable to her CSS membership be revoked.
8. In or about November 1977 the Commissioner for Superannuation revoked the BCC applicable to the Plaintiff.
9. The Plaintiff elected to transfer from the CSS to the Public Sector Superannuation scheme (PSS), established by the Superannuation Act 1990 (the 1990 Act), on or about 24 June 1991.
10. The Plaintiff ceased eligible employment on 29 January 1996 and elected to receive her PSS benefit as a lump sum and a pension.
Commonwealth Employment of the Deceased
11. Throughout the period of the Deceased’s employment by the Defendant from 12 June 1957 until 28 December 1990, the Deceased was employed otherwise than in a permanent capacity, but was required by the terms of his employment to give the whole of his time to the duties of his employment.
The Deceased’s Eligibility to join Commonwealth superannuation
12. The Deceased was first eligible to apply to join the Commonwealth Superannuation Fund (CSF) on 12 June 1960 pursuant to section 4(5) of the Superannuation 1922 upon completion of three years of continuous service as a temporary employee.
13. Had the Deceased successfully applied to join Commonwealth superannuation when he was first eligible to do so, he would have:
a) been automatically transferred into the CSS upon commencement of that schemer on 1 July 1976 (pursuant to the 1976 Act);
b) been entitled to elect whether to remain in the CSS or transfer to the PSS on or about 1 July 1990; and
c) been entitled to make an election to receive a Commonwealth superannuation benefit upon cessation of eligible employment on 28 December 1990.
14. If the Deceased had been in receipt of a CSS pension at the time of his death on 1 March 2003, then the Plaintiff would have been entitled to receive a pension of 67% of the Deceased’s standard rate pension upon his death.
15. If the Deceased had been in receipt of a PSS pension at the time of his death on 1 March 2003, then the Plaintiff would have been entitled to receive a pension calculated in accordance with the PSS Rules.
16. If the Deceased had been a Commonwealth superannuation member upon ceasing eligible employment on 28 December 1990, and had he elected to receive a lump sum benefit, the Plaintiff would not have been entitled to receive a pension, lump sum, or any other payment relating to the Deceased’s Commonwealth superannuation membership upon his death in 2003.
Knowledge and conduct of the Defendant
17. At all material times during the Deceased’s employment with the Defendant, the Defendant knew or was able to ascertain the identity of the temporary and/or exempt employees working at the Department of Works (Works) and the Transport Section of the Department of the Interior (Transport), and:
a) with respect to such employees knew their;
ii. name;
iii. date of commencement of employment;
iv. occupation and employment position and status;
v. place of employment;
vi. residential or contact address; and
b) was in contact with such employees for the purpose of supervising their employment; and
c) was in fortnightly contact with such employees for the purpose of paying them their wages.
18. At all relevant times during the Deceased’s employment with the Defendant prior to at least 1985, there were members of staff of the Defendant employed in Payroll, Personnel and management positions who:
a) were of the opinion or belief that temporary and industrial staff were not entitled to join and contribute to Commonwealth superannuation;
b) held no belief or opinion about the matter at all; or
c) knew that temporary and industrial staff were entitled to apply to join Commonwealth superannuation.
19. At all relevant times during the Deceased’s employment with the Defendant, the Defendant:
a) was aware that temporary employees such as the Deceased were eligible to apply to join Commonwealth superannuation;
b) was aware that no officer of the Defendant within the Department of Works or Department of the Interior (or the departmental successor thereof) in the ACT responsible for giving advice as to pay and conditions and benefits (including superannuation) to inter alia, temporary employees, could reasonably have held the opinion that a person who held membership of and contributed to a private superannuation scheme was likely to have:
i. a better financial outcome;
ii. receive greater financial benefits;
than a person who had contributed an equivalent amount for an equivalent length of time to the CSF, CSS and/or the PSS.
In addition, the Commonwealth in its Amended Defence made a number of admissions on which Mrs Corkhill relied. It is, however, appropriate that they be dealt with in the course of describing the evidence where necessary.
Similarly, some of the answers set out in an affidavit filed by the Commonwealth in which it answered certain interrogatories administered by Mrs Corkhill were tendered and admitted; it is similarly appropriate to deal with those later where necessary.
I turn then to the affidavit and oral evidence.
Hazel Joan Corkhill
Mrs Corkhill made a substantial affidavit which set out the history of her relationship with her husband, the employment of both of them and their knowledge of and dealings with superannuation.
I do not need to repeat that which is included in the Statement of Agreed Facts unless necessary for the narrative. Mrs Corkhill also gave some additional oral evidence‑in‑chief and was cross-examined.
Mrs Corkhill deposed to her birth in 1934 and her marriage to Mr Corkhill in 1954, having met him about two years earlier.
She deposed in her affidavit that she and her husband jointly purchased a house in 1959, but in her oral evidence said that the purchase was actually made in 1967. The latter date accords with contemporary documentary evidence admitted into evidence. No explanation was given for this not insignificant discrepancy, even under cross‑examination, which somewhat undermines the reliance I can place on the detail of facts she asserts from the distant past.
They obtained a mortgage from the Commissioner for Housing. A copy of a letter from the Commissioner to Mr Corkhill setting out the terms of the mortgage was tendered and admitted into evidence. It showed the purchase price of the house was $9396 and the amount of the mortgage was $8926; he and Mrs Corkhill had provided $470 from their own funds towards the purchase price. The term of the mortgage was 45 years with an interest rate of 4.75 per cent and repayments were $40.08 per month.
The couple had five children, born in 1956, 1957, 1960, 1964 and 1966.
Mrs Corkhill also deposed to her husband’s employment history as she knew it, including what she had learnt from Commonwealth documents, made available to her and some of which were annexed to her affidavit.
When Mrs Corkhill met Mr Corkhill, he was working at the Yarralumla Nursery, but, in 1955, they moved to Nyngan in New South Wales to engage in share farming. The venture was, however, not successful.
The venture was a dairy farm and during the time they were there, they experienced two floods; they were unable to milk their cows during that time and so had no income then. Mrs Corkhill said, however, that they had some income after the floods and so they did not go into debt, but they had to use some of their modest savings.
After about three years, they returned to Canberra, but with few savings. They needed a reliable income and so Mr Corkhill sought employment. He gained employment with the Commonwealth Department of Works as a bulldozer operator commencing on 12 June 1957. He received a modest income from that work.
By 1960, they had three children; Mrs Corkhill was the primary carer and had not gained paid employment.
On 3 June 1963, Mr Corkhill moved to the Department of the Capital Territory where he was employed as a bus driver. There, his supervisors were Nelson Simpson, Leo Morrisey and Howard Tankey. There was, despite Mr Corkhill’s status as a temporary employee, no break in his continuity of employment by this transfer.
On 3 March 1977, Mr Corkhill joined the Department of Administrative Services as a car driver and remained there until he retired on 28 December 1990.
Shortly after commencing his employment with the Commonwealth, apparently in 1957, Mr Corkhill started additional employment as a cleaner at night. The work was regular, she said for five nights a week for “cash-in-hand” and he continued with this work so as to provide for the family until Mrs Corkhill returned to work in 1973.
Mrs Corkhill says that, subject to two matters, Mr Corkhill was healthy during his working life. He had initially coped with manual work well, and was only subject to the normal incidents of life, such as influenza, colds or occasional gastric upsets. He rarely took time off from work for illness and then only a short period. As can be seen below (at [69]), that was a rather optimistic assessment, especially just prior to his retirement, perhaps a further lapse of Mrs Corkhill’s memory for details of past events.
He was a heavy smoker, about a pack a day for 20 years, and, in about 1975, was diagnosed with cancer in his right lung. He underwent surgery and had tumours removed. The whole of the primary tumours were removed and no secondary tumours were discovered so that he regained good health and returned to work with the only disability being a reduced breathing capacity which did not impair his working.
In the Tender Bundle of Documents to which I refer below (at [239]), however, was included a report of a medical examination conducted on 6 May 1977, sometime after his operation. The application concerned his employment as a driver of a “Motor Omnibus”. The results of the examination was that he was considered “fit to drive a Commonwealth car but NOT an omnibus” (emphasis in original). He was found to have diminished “respiratory sound and resonance of the chest”.
Nevertheless, he returned to work and appeared to have had no medical difficulties until a couple of years later.
In about 1979, however, he received a further diagnosis of lung cancer, in his left lung. Again, he underwent surgery but again regained his health and returned to work. He did not suffer any further recurrence of lung cancer. There was, however, always a prospect of recurrence.
When he was 63, Mr Corkhill was offered a voluntary redundancy. Although he discussed it with Mrs Corkhill, it was his decision. Apparently because he only had two years before retirement, he decided to accept the redundancy.
He sought financial advice from a financial planner and, as a result of the advice he received, he accepted the redundancy, paid off the balance of the home loan and invested most of the rest. The interest from that investment provided good income. Taking the lump sum also gave him a flexibility to travel, which he and his wife did, and to assist their children. That flexibility was attractive to them.
Mr Corkhill then undertook some employment with the Fijian High Commission as a casual driver for at least two further years. This employment was arranged before he actually retired. It meant that he was able to take the lump sum redundancy and still have as much income as he felt he needed.
At the time of her husband’s retirement, Mrs Corkhill considered that he was in good health. His medical records produced by the Commonwealth, however, show that he had some serious problems between 1980 and 1987, including a duodenal ulcer that, untreated, could have been quite serious. It required hospitalisation. Mr Corkhill’s medical records show an intercostal nerve block, two bronchoscopies, two gastric ulcer gastroscopies and a panendoscopy between 1982 and 1987, and also other procedures including a revision of the thoracotomy scar and several biopsies.
There was no recurrence of his lung cancer. The records end at May 1987, showing no treatment after that date, which suggests that the problem was being managed. At the least there was no evidence of further serious health problems, despite ongoing risks.
Sometime after his retirement, however, Mr Corkhill developed cancer of the bladder and a melanoma developed on his shoulder. He was treated for both these conditions. His death was caused by respiratory failure not apparently connected with his lung cancer.
As to Mrs Corkhill’s employment, she was, when she first met Mr Corkhill, employed as a clerical assistant at the Australian National University in the administration area. She ceased work when they married. There was a prohibition under s 49 of the Commonwealth Public Service Act 1922 (Cth) for married women being eligible for employment in the public service unless the Public Service Board certified that they were “special circumstances which make her employment desirable”.
I pause to note that this provision was not repealed until 29 October 1966 by s 4 of the Public Service Act (No 2) 1966 (Cth).
Although Mrs Corkhill shared the work of the share farming with her husband, she did not return to paid employment when they returned to Canberra until 30 January 1973, when her youngest child was about six and a half years old. After returning to Canberra and until then, she was responsible for parenting and household responsibilities.
In 1973 she became a teacher’s assistant employed by the NSW Department of Education which conducted the government schools in the Australian Capital Territory. On 28 June 1973, she said that her employment was transferred to the ACT Schools Authority. While that Authority was established in 1976 by the Schools Authority Ordinance 1976 Cth) (later made an enactment of the ACT: s 34 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), it was preceded by the Interim ACT Schools Authority which first met on 10 October 2003 without any initial staff: see Dr Barry Price, Pioneers of the ACT Government School System (Archives ACT Research Guide, 2005) at p 324. It was, however, preceded by the Commonwealth Teaching Service established by the Commonwealth Teaching Service Act 1972 (Cth).
Mrs Corkhill’s letter of 3 November 1976, to which I refer later (at [78]), is addressed to the Personnel Officer of the “Interim A.C.T. Schools Authority” which was, I assume, her employer from June 1973.
Mrs Corkhill was initially appointed as a temporary employee from 30 January 1973. She says that, when she transferred in June 1973, she was told by a person whose name she could not recall, that, because she worked school hours, she could not join a Commonwealth superannuation scheme
She says that, in about 1976, she was told that she was eligible to join a Commonwealth superannuation scheme and she applied on 3 November 1976 by letter, a copy of which was in evidence. She later completed a formal application, underwent a medical examination and became a member of the CSS on 27 April 1977.
Mrs Corkhill was questioned about what happened when she found that she was eligible. She said that she “would have discussed her eligibility with [Mr Corkhill]”. She said that he told her that he hoped that she “would get in, not like him”.
She then said that she suggested to him that he try again to join. It was, however, suggested to her in cross-examination that she had not, in fact, encouraged him to re‑apply, but she said, “I’m sure I would have encouraged him”.
Further, Mrs Corkhill accepted that it was reasonable for Mr Corkhill to have made further inquiries after he knew that she had joined a Commonwealth superannuation scheme, but that he did not do so.
In answers to interrogatories administered by the Commonwealth, however, she answered “No” to the question “Did the plaintiff ever tell, encourage or suggest to the deceased, that he should make inquiries after the commencement of the CSS in order to determine whether he could elect to become a member of the CSS?” She accepted that her answer was an honest answer and was her recollection. In the light of this, and my concern about the reliability of her evidence, I prefer this evidence to her oral, rather speculative evidence.
Based on that, on the fact that, despite his commitment to superannuation, he did not join any private superannuation scheme, her description that he was particularly adamant about his wish to join a superannuation scheme is, as she admitted, something of an overstatement.
She contributed five per cent of her salary and she said that she considered that it “was not a lot of money for” her and her husband. She later increased her contribution but decreased it back to five per cent when Mr Corkhill retired.
Thus, by the time Mr Corkhill retired, Mrs Corkhill had been a contributor to a Commonwealth superannuation scheme for about 14 years which would provide her with an ongoing regular income when she retired.
When she retired, the house loan had been repaid and she had no immediate financial needs. She elected, however, to take half of her entitlement as a lump sum. She thought that she had done this was because of advice that she had been given, not through any need, including family need.
Mrs Corkhill was then eligible for a part age pension and Mr Corkhill was eligible for the age pension as well.
Mrs Corkhill said that, in 1990, presumably around the time the 1990 Act was made, she attended a talk about the PSS, the new scheme in which it was recommended members of the CSS move to join. She did so in 1991, though she could not recall the reasons for doing so. At the time, Mr Corkhill had already retired.
In her oral evidence, Mrs Corkhill said that she thought that superannuation “would have been a big help financially to herself and the whole family”, so that they would have “enjoyed a better lifestyle, would have had a better retirement financially”.
Mrs Corkhill said that, from the early 1960s she and Mr Corkhill spoke about Commonwealth superannuation with family and friends, some of whom were members of such a scheme and told them that “it was a good thing to get into”.
A cousin of Mrs Corkhill, Anthony Harriott, was also a work colleague of Mr Corkhill and worked at the Kingston depot of the Department of the Capital Territory in the Transport Section as a driver too. He was, however, a member of a Commonwealth superannuation scheme.
Mrs Corkhill said that she could think of no good reason why Mr Harriott would not have told Mr Corkhill that he had joined a Commonwealth superannuation scheme. No evidence was adduced by Mr Harriott, although an affidavit was made by him and filed but not read.
She said that, although he read The Canberra Times each day, Mr Corkhill did not mention to her that he had read anything about Commonwealth superannuation and she did not read anything about it.
She said that Mr Corkhill did not bring home from work any documents about superannuation and she did not find anything about it in his pockets when washing his clothes.
Mrs Corkhill knew that Mr Corkhill was a member of two unions, the Transport Workers’ Union and the Australian Workers’ Union, and that he attended Union meetings from time-to-time, but that he did not tell her any details of what was discussed and she did not see any Union newsletters which, she says, she would have seen if they had been delivered.
Mrs Corkhill deposed in her affidavit to Mr Corkhill’s attempts to join a Commonwealth superannuation scheme. She said that he was not aware of Commonwealth superannuation until he became employed in the Department of Works in 1957 but did not say how he became aware of it; she simply said that he had found out about it soon after he started work and complained that he could not join. This seems likely to have been in 1957.
Her recollection of his reports to her were as follows:
On more than one occasion, John came home to our house in Narrabundah after work and said to me words to the best of my recollection: ‘I asked the boss about joining super, he said no.’ On each occasion John would be disappointed about not being able to join. John told me that he accepted that his bosses would know the correct position.
It is a little odd that, if Mr Corkhill accepted that the person he asked would know the position and had given such a definite answer, he nevertheless kept on asking. It is not clear from Mrs Corkhill’s evidence whether he asked different people, though there is some reference to that in his answers in the questionnaire. Further, the evidence appears to be a somewhat truncated version of any conversation had with the person to whom Mr Corkhill directed his inquiry and not the exact words used; if it was the whole of the conversation, however, then no reason or explanation was given.
Mrs Corkhill says that, when Mr Corkhill transferred from the Department of Works to the Transport Section in 1963, he had spoken to Nelson Simpson who, she said, was “one of the bosses at Transport”. She says that Mr Corkhill had “spoken to Nelson about superannuation”. She did not say what, if anything Mr Corkhill told her about the conversation.
She said, however, that he told her this on more than one occasion. It appears that she meant that he had made more than one inquiry, the result of each inquiry then being reported to her, consistent with his answers on the questionnaire. She did say that Mr Corkhill “would bitterly complain” to her about not being able to join Commonwealth superannuation.
Mrs Corkhill did not refer to any other inquiries that Mr Corkhill may have made, for example, to one of the Unions of which he was a member, despite what he said in answers in the questionnaire.
She agreed that Mr Corkhill did not apply to the Australian Government Retirement Benefits Office, later called “Comsuper”, to join a Commonwealth superannuation scheme.
Despite, as Mrs Corkhill said in her affidavit, Mr Corkhill being adamant about how good it would be to join a superannuation scheme, he never contributed to a private one, that is a non-Government scheme, usually operated by insurance companies. In her oral evidence, Mrs Corkhill agreed, however, that her description of him being “adamant” was something of an exaggeration or a “quite … significant overstatement”.
It is not entirely clear from the evidence on what Mr Corkhill’s enthusiasm for Commonwealth superannuation was based. The Statement of Agreed Facts (at [19](b)) allows me to find that a contribution to such a scheme would have provided a better financial outcome and greater financial benefits than contributions to a private superannuation scheme, and I do so find but this was not an expressed justification of either Mrs Corkhill or, so far as it could be ascertained, Mr Corkhill. Her evidence was merely that they both considered it better than the age pension. Private superannuation did not seem to be discussed as an option or even a supplement.
As to their finances, Mr and Mrs Corkhill rented premises when they returned to Canberra in 1957 until they could purchase their own house. They saved the deposit of $470 and borrowed the balance as noted above (at [51]). They managed to save the deposit as well as raising their five children and meeting normal living expenses such as rent, food and electricity. It took them about a decade to do so.
They did not have a lot of luxuries but always “had enough”. Neither of them gambled but Mr Corkhill smoked heavily and drank socially.
Apart from the loan to purchase their house, secured by the mortgage, the only other time that Mr and Mrs Corkhill borrowed money was to purchase a motor vehicle.
Mrs Corkhill was asked some further questions about the finances of the family. She agreed that Mr Corkhill had “worked hard for many years really doing two jobs”.
This allowed them to have “a happy but frugal but modest existence”. They wanted to devote what income they had to the wellbeing and happiness of their five children and provide them with as many opportunities as they could. This was their priority.
While the only borrowings they had in addition to the house loan was the loan for the car, she agreed that it “would have” put some added strain on the family finances.
The ill-health Mr Corkhill suffered, as well as being devastating for Mrs Corkhill, put further pressures on the family finances.
There were, Mrs Corkhill agreed, quite significant pressure on the family finances in the 60s. The priority was on the children and their immediate happiness and well-being, including housing them securely, feeding, clothing and educating them and giving them as many opportunities as they could.
Mrs Corkhill accepted that, in the 60s, the family, though living within their means, was “stretched to the limit”. She was clear, however, that, if Mr Corkhill had joined a Commonwealth superannuation scheme, they would have tried to find the money to contribute. She did not know, however, how much would be required by way of contributions. This rather limited her ability to say whether they could actually have afforded it, though she asserted that the family had “made lots of sacrifices and I’m sure we would have been prepared to make more”.
Mrs Corkhill deposed that, in his retirement, Mr Corkhill was a member of the Retired Transport Workers’ Association with his former colleagues. Fellow members had advised him of the claim being made by Mr Cornwell to which I have referred above (at [39]-[40]). As a result, he was given the questionnaire to complete. He arranged for his youngest son, Matthew, to help him complete it.
In her further oral evidence, Mrs Corkhill was a little unsure about what she would have done had she been told by Mr Corkhill that he was eligible to join a Commonwealth superannuation scheme. Initially, she said that she would have encouraged him to join but was unsure about exactly what she would have encouraged him to do. Later she clarified that she would have encouraged him to seek further advice about joining the scheme so that, if there was further advice, he should “look into it”. The suggested actions were quite vague.
Mrs Corkhill was cross-examined. She was, unsurprisingly, nervous. She was asked some questions about conversations between Mr Corkhill and some of his former work colleagues concerning the advice that they had received concerning Commonwealth superannuation. Initially, she said, in answer to cross-examination, that she was not present during those conversations, but, when shown an earlier inconsistent statement, she changed her evidence to say that she was present. She did not, however, say what was said in them. It seems clear to me that there had been discussions between Mr Corkhill and his former work colleagues about the case being brought by Mr Cornwell and their own experiences.
It was suggested to Mrs Corkhill that her memory was not clear about events that happened many years ago. At first, she resisted the suggestion, saying that even events of 50 or 60 years ago, if important, would be remembered by her. She later accepted, however, that memory, especially of events long past, can play tricks. She agreed, also that her memory of events of the 1960s had been affected by her focus on what she had learnt many years later, especially by reading the questionnaire completed by Mr Corkhill. This is certainly consistent with the impression I had formed of her evidence.
There was a contrast between the apparent certainty of the evidence given in Mrs Corkhill’s affidavit and the degree of uncertainty and hesitation in her oral evidence. She admitted that the passage of time had affected her memory which was, quite reasonably and understandably, not clear about various matters, especially details.
Another difficulty with her evidence was in relation to the completion of the questionnaire. Mrs Corkhill said to me initially that she did not assist her husband to complete the questionnaire. She had, however, earlier answered an interrogatory where she referred to the fact that her “son Matthew and I assisted John to fill in a questionnaire”. She said that she thought that she actually meant by that answer that she was present when it was completed and that she had helped to obtain the document. That explanation does not resolve the contradiction for me.
She acknowledged, too, that the date of the purchase of her house set out in her affidavit was wrong, as noted above (at [50]), and agreed that this was another example of her memory being unreliable. She acknowledged that, even with significant events such as the purchase of their only owned home, remembering can be difficult and memory unreliable.
Mrs Corkhill was unsure about who had told Mr Corkhill about his asserted ineligibility for membership of a Commonwealth superannuation scheme, but did nominate Mr Simpson, whom she said, her husband had mentioned. This must have been during his employment in the Transport Section. She also, however, mentioned in cross‑examination, Mr Morrisey and Mr Tankey, though she accepted that she had said in her affidavit that Mr Corkhill told her that, apart from Mr Simpson, he “did not ask anyone else about superannuation”. She agreed that this was a further example of her memory of these events being confused and unreliable.
Mrs Corkhill agreed that the workplace of Mr Corkhill was “a workplace for the boys”. She did not explain whether this was one or both of the places where he had worked, but she agreed that Mr Corkhill did not tell her and she did not ask him much about what happened at work.
Though many of the people with whom Mr Corkhill worked were now dead, she had kept in touch with her cousin, Mr Harriott, who was also a work colleague of Mr Corkhill. She had seen him shortly before the trial.
Mrs Corkhill agreed that Mr Corkhill had never actually made formal application for admission as a member of a Commonwealth superannuation scheme as she did in 1976. He knew, however, that she was making that application, but did not take any step even after she had been admitted as a member. She had not suggested to him that he should also apply, even though she, like him, was a temporary employee at the time.
As noted above (at [95]), Mr Corkhill was a member of two unions, the Transport Workers’ Union and the Australian Workers’ Union, which Mrs Corkhill agreed were “strong unions” in the 1960s and 1970s to which, she assumed, he paid union fees. She agreed that these unions had “various officers who were trained and able to assist workers in relation to any needs they had”. She said that she could not recall Mr Corkhill ever telling her that he took up the issue of superannuation with either union and she said that she had not encouraged him to do so as it did not occur to her to do so; she said it was really a matter for him.
Mrs Corkhill was also asked in cross-examination about the questionnaire and said that she had no knowledge of what, if anything, Mr Corkhill had done with it after it had been completed. The questionnaire was tendered and admitted into evidence in these proceedings; it was the original document and no explanation was given as to where it had been since it was completed in 1997. She said that, with the original of the questionnaire, she stored the notes that Matthew Corkhill had made. When, however, it was put squarely to her that this meant that the original was not ever submitted to someone, she said that she was sure that it was submitted to someone, though she never identified who that may be. She later said that she could not recall whether it was submitted to anybody. She said that she did not take possession of it when it was completed, but could not recall what happened to it and how it came that she had it “for many years”. I am not satisfied that it was ever submitted to anyone. Certainly, Mr Corkhill did not start any proceedings as a result and there is no evidence from anyone to whom it was given.
The questionnaire
Mrs Corkhill relied heavily on the questionnaire completed by Mr Corkhill on 23 September 1997 which was, as pointed out by the Commonwealth, over 40 years since Mr Corkhill first became an employee of the Commonwealth after returning from the unsuccessful share farming at Nyngan.
I have referred to where Mr Corkhill obtained the questionnaire above (at [114]). Matthew Corkhill’s evidence on the assistance he provided is also set out below (at [153]‑[156]).
The significant parts of the questionnaire and the answers provided by Mr Corkhill are as follows:
H. Please set out in as much detail as you are able, what you were told in relation to your entitlement, or lack of entitlement, to join a superannuation scheme. Even though you will not recall the precise words used, please provide this information to the best of your recollection. Should you need to give this evidence in Court, the Court will recognise that your recollection will not be absolutely precise, but the Court will ask you to do the best you can.
Started Dept of Works 3 May 1957, told by supervisor/foreman that couldn’t join super fund, not eligible. I was advised to join Provident. I approached senior management and the AWU and was told the same thing – not eligible. Transferred to Transport Dept. in 1963 and told the same thing by senior management that I was not eligible for super. I applied but told that I was only a temporary employee and not permanent and so was not entitled to super. The TWU told me the same thing. In 1969 reapplied through TWU for super, but management still told me that I was only a temporary employee. I started paying super in 1983/84 when it became compulsory, as deducted from my salary – although still considered a temporary employee.
I.Who gave you this information?
Senior management, unions – AWU, TWU.
J. When were you given this information?
1957, 1963, 1969, Retired 1992, senior paymaster said details would be posted in regards to super.
…
M.If you were employed, what was your position at the time you were given the information?
1957 → dozer driver, 1963 → bus driver, 1969 → bus driver, 1992 → Ministerial driver
N.Did you seek the information, or was it given to you without any request from you?
I sought information on many occasions – I have mentioned the most obvious times.
…
P.Having received the above information, what, if anything, did you do relying on that information? That is, did it affect your decision in relation to superannuation in any way?
I wanted to pay super, but was told that I could not – I tried on many occasions but told that I was ineligible as I was a temporary employee.
Q.Did you at any time join a superannuation scheme?
No, except when it became compulsory.
R.If you did join a scheme, when did you join that scheme and what was the name of the scheme?
N/A – compulsory CSS – 1983/84.
…
V.Had you been given the correct information, would you have acted any differently?
Yes I would have paid super from 1957 until I retired, instead I only paid super from 1983/84.
W.If you would have acted differently, please set out how you would have acted had you been given the correct information.
I would have paid super from my first employment at Dept. Works 1957, as a deduction from my salary.
X.In your understanding now, how has any incorrect information affected, or is likely to affect, your situation?
Upon my retirement I would have been entitled to a better pension had I have been in a super fund for 36 years instead of only 10 years. My lack of contribution meant that I had to work longer than I might have if I had access to a super fund.
In answer to question V of the questionnaire, Mr Corkhill stated that he “only paid super from 1983/84”. This is a difficult matter about which, of course, Mr Corkhill could not be asked. Nevertheless, Mrs Corkhill was not aware of any payments that he made as superannuation contributions. Mr Corkhill may have meant by this answer to refer to his membership of a superannuation scheme when it became compulsory for employers to pay superannuation contributions. This is consistent with his answers to questions Q and R, though it was then a non-contributory scheme.
The details are incorrect. While non-contributory superannuation for employees had its genesis in the Statement of Accord between the Australian Labor Party and the Australian Council of Trade Unions in 1983, as explained in the National Wages Case – June 1986 (1986) 301 CAR 611, it took some time to implement.
While these changes through awards increased the superannuation coverage of employees under awards as they were amended, it was not until the commencement of the Superannuation Guarantee (Administration) Act 1992 (Cth) on 1 July 1992, that superannuation was made effectively compulsory for all Australian employees. Members of the Commonwealth public service appear to have all been covered before then and the parties agreed that this occurred in 1988.
The parties in this case accepted that Mr Corkhill was a member of the CSS from 1988. After notice to the parties (s 144(4) of the Evidence Act 2011 (ACT)), I took judicial notice of the fact that, when membership of a superannuation scheme became compulsory, it was not subject to a contribution by the employee but only by the employers, though in certain circumstances, employees could contribute.
Thus, the details given by Mr Corkhill, date, payment for membership, were wrong and this is relevant to an assessment of the evidence, but, contrary to the (admittedly somewhat uncertain) evidence of Mrs Corkhill, I do not consider that Mr Corkhill actually joined a contributory scheme in 1983 or 1984; I accept that his reference in answers to questions R and V were to his compulsory membership of the CSS from likely 1988.
It is also notable that, contrary to the assertions that, having been told that he was ineligible by his supervisor, Mr Corkhill simply accepted what he had been told, his answers to questions F, H, I, N and P shows that he made inquiries on “many occasions” and not only to senior management, but also to the unions of which he was a member. This is not the response of a person who accepts the advice of his supervisor as “gospel” as I note below (at [314]) was the way he was said to have treated what he was told.
Another example was the answer to question H where Mr Corkhill says he “started paying super in 1983/84”, which Matthew Corkhill agrees was inaccurate and that Mr Corkhill must have been mistaken.
I have also addressed a number of the other errors and inaccuracies of the answers given in the questionnaire when considering the evidence of Matthew Corkhill below (at [158]-[169]).
Mr Corkhill’s answer to question J was also incorrect, stating that he had retired in 1992, when, in fact, he had retired from Commonwealth employment in 1990. Whether he confused the extra years he worked at the Fijian High Commission as a casual driver is not clear. He could not, of course, be asked about it. The notes which Matthew Corkhill made as a preliminary to completing the Questionnaire, show “Retired 1992 – senior paymaster said details would be posted” suggests that it was, in fact, an error.
It seems to me that the questionnaire, which was a key element in the evidence for Mrs Corkhill, must be addressed with considerable caution. I shall address its evidentiary value further below.
Matthew Wallace Corkhill
Matthew Wallace Corkhill was the third son and fourth child of Mr and Mrs Corkhill, born in 1964. I will refer to him as Matthew Corkhill to avoid confusion and not intending any lack of respect.
In his affidavit, he deposed to being a Commonwealth public servant and member of the CSS.
His affidavit was mainly concerned with the completion of the questionnaire, but he also gave some evidence about the family life he enjoyed and his father’s health. It is convenient to address those matters initially.
So far as family life was concerned, Matthew Corkhill’s evidence was generally consistent with that of Mrs Corkhill and I do not need to repeat much of it. He was not cross-examined about this aspect of his evidence.
He recalled a happy family without financial or other strain. Of course, the direct events with which I am concerned happened before he was born and it seems unlikely that he would have been aware of the financial issues of which Mrs Corkhill gave evidence until perhaps the 1970s. Indeed, he said that his parents “did not talk about matters such as money and superannuation” in the hearing of the children.
Confirming what Mrs Corkhill said, he deposed that they, presumably the children in particular, “did not want for anything”. Matthew Corkhill, however, “generally did not get new clothes or toys as [he] had “hand me downs from [his] older brothers”. He confirmed his recollection of his father’s cleaning job at night, working from 7:30pm to about 9:30pm or 10:00pm, though, differently, his memory was of only “a couple of times a week”. He accepted in cross-examination, however, that Mr Corkhill was “effectively doing two jobs”.
After his father died, he learnt from his mother that she generally handled the family finances and she was “the budgeter in the house”.
Overall, I consider that Matthew Corkhill’s evidence of the family finances seem somewhat unjustifiably optimistic and did not change the picture that Mrs Corkhill’s evidence had painted.
As to his father’s health, he confirmed the health problem to which I have earlier referred above (at [62]-[65]).
He deposed that, prior to that, Mr Corkhill was fit and strong, playing with his children – football, “rough and tumble”, swimming, “bucking bronco” – and mowing the lawn together.
After he became ill, Mr Corkhill stopped smoking. He took six or seven months to recover from the surgery but later became active, including playing with his children and kicking the football.
There was some cross-examination about Mr Corkhill’s health. Matthew Corkhill acknowledged that the cancer incidents put a strain on the family emotionally but, confirming perhaps the limits of his knowledge to which I have referred above, he could not say whether it put a financial strain on the family. Matthew Corkhill agreed that the risk of the cancer re-emerging remained a real risk of which the family were conscious.
He also agreed that later Mr Corkhill had further surgery after the lung cancer operations. Matthew Corkhill agreed that when he retired he had pretty regular bouts of poor health though he remained reasonably active. I have set out these matters earlier (at [69]). Mr Corkhill also suffered from a long history of duodenal ulcers leading to hospitalisation.
Matthew Corkhill’s evidence, however, was mainly directed to the completion of the questionnaire. He recalled that Mr Corkhill had spoken of the case of Cornwell vCommonwealth and a mention of it in the Transport Workers’ Union newsletter. Matthew Corkhill was not sure from where Mr Corkhill obtained the questionnaire.
On 23 September 1997, Matthew Corkhill visited his parents and sat with his father to complete the questionnaire. Matthew Corkhill said that his father was angry that some of his mates were better off than him because they had retired with superannuation and he was frustrated that he had to complete the questionnaire to try to obtain what he felt he should have received during his employment with the Commonwealth. This suggests to me that some of Mr Corkhill’s fellow workers, also temporary employees of the Commonwealth, had obtained membership of a Commonwealth superannuation scheme as, indeed, had Mr Harriott. It is difficult to believe that, if they had, they would not have discussed it with Mr Corkhill, who seemed to present as committed to obtaining membership and asking about it quite frequently.
Matthew Corkhill explained the process they followed. He went through the questions and asked his father about the issues, making notes of what his father said. His notes, which he had given to his mother as noted above (at [126]), were in evidence. A curiosity was that additions to some answers in the notes had been completed in some cases with a different pen. The different pen seemed to be the one with which the questionnaire was completed, consistent with his explanation that the first pen may have run out of ink.
He said that the whole process took about three or four hours.
It was the first time that he had discussed these issues with his father who, he said, seemed genuine in his recollections.
Despite the questionnaire referring in question H to a request that the answers “set out in as much detail as you are able what you were told”, Matthew Corkhill said that he and his father curiously decided not to mention any names of people to whom Mr Corkhill spoke but to use generic position descriptions such as “supervisor/foreman”, which took account of different titles in different departments. Interestingly, there were no names on Matthew Corkhill’s notes either. The one name he did recall his father mentioning was Leo Morrisey, the pay officer. I deal with his evidence below (at [176]-[205]).
Matthew Corkhill said in cross-examination that Mr Corkhill had referred to names, though none were noted in the notes he made nor in the questionnaire. He said that he could not recall all of them but could remember some. He agreed, too, that, if he was trying to help Mr Corkhill to write a true and accurate account, the obvious thing to do, at least in the notes, would be to write down the names of the people to whom Mr Corkhill had spoken, especially as the notes were not going to be given to anyone, yet he did not do so.
Matthew Corkhill deposed that he understood that his father had made a series of inquiries, which he described as having “escalated”, receiving three “sets of advice”: foreman/supervisor, senior management and the Union, though he also referred to seeking advice from a person he described as the payroll clerk. He understood that his father made a number of requests, not just the three referred to in answer to question H. This suggests that he did not accept the advice initially given.
This is somewhat inconsistent with Matthew Corkhill’s statement that his father’s view was that “he [Mr Corkhill] had asked his boss and his boss said no and that was the end of the matter”. He seems at the very least to have asked the Union after that, suggesting that his boss’s advice was not “the end of the matter” and the answer to question N on the questionnaire that “I sought information on many occasions” is also inconsistent with that understanding. I am not satisfied that Mr Corkhill made only one inquiry or, indeed, only one inquiry at each workplace; the whole of the evidence satisfies me that he made multiple inquiries on a number of occasions.
Another curiosity was the reference in the questionnaire about Mr Corkhill’s retirement. He retired from the Commonwealth public service in 1990. In answer to question J, however, he said he retired in 1992. This seems a straight out error. Matthew Corkhill suggested by way of an explanation that this was because Mr Corkhill continued to work after retirement from Commonwealth employment when he obtained employment as a driver for the Fijian High Commission.
This is not entirely convincing for after “Retired 1992” in answer to question J appears “senior paymaster said details would be posted in regards to super” which could only reasonably refer to the end of his Commonwealth employment. This is both more curious and possibly explained by a reference in answer M to the positions he occupied which ended “1992 → Ministerial driver”. Certainly Mr Corkhill did drive ministers as a Comcar driver, but not after 1992. It seems unlikely that he would refer to his work with the Fijian High Commission as “Ministerial driver” but, in any event, if Matthew Corkhill’s explanation is correct, that was between 1990 and 1992, not after then.
Another example where Matthew Corkhill could have made the answers in the questionnaire accurate but did not do so was in the answer to question X where it refers to Mr Corkhill having a better pension if he “had been in a super fund for 36 years instead of only 10 years”. Neither of these periods can be reconciled with the facts that should have been known to Matthew Corkhill. The 36 years would mean Mr Corkhill would have had to have joined a Commonwealth superannuation scheme in 1954 (for a retirement in 1990) or 1956 (for a retirement in 1992), before he actually became a Commonwealth employee as was clear from the answer to question H entered on the questionnaire by Matthew Corkhill. As to the 10 years, that would have implied membership since 1980 (retirement in 1990) or 1982 (retirement in 1992) both of which dates were prior to that asserted in answer to question V which Matthew Corkhill also entered on the questionnaire. Matthew Corkhill’s only explanation was that “They were Dad’s words … That was what he wanted me to write down”, though he agreed in cross-examination that they made no sense. Matthew Corkhill, rather curiously, refused to accept that Mr Corkhill must have been confused to tell him to write that down but gave no other explanation.
These and other inaccuracies rather undermines Matthew Corkhill’s comments that he “tried to make the [questionnaire] as accurate as possible” and that he provided assistance at his father’s request as Mr Corkhill, too “wanted to make sure that it was true and accurate”. They undermine, too, the accuracy of the answers in the questionnaire itself.
It seems that his references to “accurate” meant for Matthew Corkhill an exact representation of what his father said rather than checking that the information Mr Corkhill gave him was itself accurate and not affected by the inevitable vagaries of memory, or affected by his conversations with former work colleagues, also retired.
This sat uneasily with Matthew Corkhill’s evidence as follows:
He [Mr Corkhill] was unsure about his memory about his finances and events over the previous 35 years, wasn’t he? That’s why he wanted you to help? --- He wanted me to make sure it was true and accurate of ---
So far as the earlier query in 1957, when Mr Corkhill was employed at the Department of Works, the evidence is even thinner. There is no identified person, though possibly the source of the alleged misstatement was Mr McCallum. The evidence tells me nothing about him, his access to Mr Corkhill’s personnel file, his knowledge of superannuation or his knowledge of his employees or their circumstances. Indeed, given what I have found about the accuracy of the answers given to Mr Corkhill, he, if it was Mr McCallum to whom the inquiry was directed, may well have known very accurately about Commonwealth superannuation schemes and the eligibility of temporary employees to join.
On the evidence, I cannot find that, in either 1957 or in 1963, that the persons who advised Mr Corkhill that he could not join a Commonwealth superannuation scheme knew or ought to have known that he would communicate the answer to Mrs Corkhill or, in the event that I am wrong about such knowledge, that such communication was for the purpose of Mrs Corkhill relying on it. The difficulties Mrs Corkhill had in showing any reliance on the alleged misstatements give added weight to this conclusion.
(d) Direct claim - reliance
Damage is, of course, the gist of the action in negligence: Williams v Milotin (1957) 97 CLR 465 at 474. The causal connection between the breach of the duty of care, making the misstatement negligently and the damage suffered so as to render the representor liable, is the reliance of the injured party on the misstatement and that reliance, which in Meredith v Commonwealth (No 2) at 434; [423], I called “adjustment reliance”, is reliance that must have caused the injured party to do or not do something which caused the damage.
In the case of Mr Corkhill, like Mr Meredith, he did not actually join a Commonwealth superannuation scheme. If that was caused by his reliance on the statements made to him, then there was adjustment reliance. I deal with that below.
That, however, does not apply to Mrs Corkhill, for she was, at least until later, ineligible to join a Commonwealth superannuation scheme for herself in either 1959 or 1963 and could not then, or at any other time, join her husband to such a scheme.
The question, then, is what she did do that altered her position in reliance on the alleged negligent misstatement?
I accept that Mr Corkhill communicated the advice that he had received, that he was not able to join a Commonwealth superannuation scheme, to Mrs Corkhill. That is clear from my findings above, though the reason given to him in 1963, namely that he was a temporary employee, may well not have been communicated to her. I accept that this omission, if it was omitted in the communication, was not fatal to her claim.
In her affidavit, Mrs Corkhill does not depose to any action she took or refrained from taking as a result of Mr Corkhill telling her of the advice that he had received.
In her oral evidence, however, she did address the issue to an extent. Her evidence was:
In your affidavit, you refer to various discussions you had with your husband in which he told you about matters pertaining to him joining superannuation. Do you recall that’s in your affidavit? --- Yes, I do.
I want to ask you to assume, and I’m not suggesting that it occurred, that at some point in time your husband John had have said to you that, contrary to what he previously thought, he may have been able to join the superannuation scheme. Can you just assume that for the purpose of my question, please?
--- Yes.
Would you have done anything in response to that? --- Not personally, but I would have encouraged him to do so.
What would you have encouraged him to do? --- I really don’t know.
…
MR DOUGLAS: … I understood you to say that you would have encouraged him to do something about it. I’m not too sure, did you say that? --- I think that’s what I said.
Are you able to say, against the background of the fact I’ve asked you to assume a certain fact, what is it that you believe you would have encouraged him to do? --- I would have encouraged him to seek further advice about joining the superannuation scheme.
Why would you have done that? --- Well, I think if there was further advice available he should look into it.
This is the highest that the evidence went. So far as adjustment reliance is concerned, however, there are two problems for Mrs Corkhill.
In the first place, the evidence in the answers Mr Corkhill gave in the questionnaire was that he did make further inquiries, so that the inference, that she did not encourage him to do so, did not cause him to cease making such inquiries. Indeed, he said that he actually “reapplied through TWU”, whatever that may mean.
Secondly, insofar as her failure to ask Mr Corkhill to make further inquiries was the extent of her reliance, it is not causative of her loss. There was no evidence of what, if anything, would have eventuated from any action that she could have taken, which she did not actually take.
Mrs Corkhill has not satisfied me that she did relevantly rely on the alleged negligent misstatement.
(e) Derivative claim – knowledge of the class of those affected
While this element is very close to the element of knowledge of communication which I have addressed in relation to the direct claim above (at [482]-[492]), it is a different element.
For the derivative claim, it is necessary for the maker of the allegedly negligent misrepresentation to have had in reasonable contemplation that Mr Corkhill will communicate the representation to Mrs Corkhill and that she will be injured.
In the absence of her direct reliance on the alleged misstatement, however, she became a second-line victim which, by implication from Perre v Apand Pty Ltd, is not a person to whom the maker of the alleged misstatement owes a duty of care.
For the reasons I have addressed in relation to the direct claim, I am not satisfied that the persons alleged to have made negligent misstatements to Mr Corkhill in 1957 or 1963 would or ought to have known that Mr Corkhill would communicate the misstatements to Mrs Corkhill or that she would detrimentally adjust her position in reliance on them.
(f) Derivative claim – Mr Corkhill joining a Commonwealth superannuation scheme
While I have found that the statements it is alleged were made in 1957 and 1963 were then made and, even though I found that the former was not a misstatement, it is appropriate to consider whether, had both been misstatements, Mr Corkhill would have actually joined a Commonwealth superannuation scheme. I shall first consider whether he would have joined had he been given accurate advice, then whether he would have been eligible and admitted as a member.
For Mrs Corkhill to succeed, she must show that, had the alleged misstatements not been made and Mr Corkhill had received correct advice, Mr Corkhill would have joined a Commonwealth superannuation scheme. If he had not, no matter any error in the statements, there would be no loss.
Mrs Corkhill says that superannuation was important to her and her husband. In so saying, she does not distinguish between the various forms of superannuation: for example, Commonwealth superannuation and private superannuation.
It is submitted for Mrs Corkhill that, had Mr Corkhill been given the correct advice, he would definitely have joined a Commonwealth superannuation scheme. This, it is said, is re-inforced by the commitment he had to his family and by the subsequent answers he gave in the questionnaire.
As noted above (at [288]-[290]), these assertions need to be supported by objective evidence or corroboration because of the circumstances in which the present evidence has been given.
The objective evidence gives no support to Mrs Corkhill’s claim. In the first alleged misstatement, Mr Corkhill was recommended to “join the Provident”, an Account established within the 1922 Act. He did not do so.
For someone said to be committed to superannuation to protect his family, it is also odd that, as is known, he did not take out any form of private superannuation even though the unchallenged evidence, including of Mr Cornwell, was that it was readily available at the Kingston depot.
Further, there were at least three occasions, though significantly later than the earlier inquiries he had made, when Mr Corkhill had an opportunity at the very least to make further inquiries or to make an application. These were: when Mr Harriott successfully joined a Commonwealth superannuation scheme, when Mr Hayes delivered (twice to fit in with shift work) superannuation seminars at the Kingston depot and when Mrs Corkhill herself joined the CSS. It is important to note that these events all occurred after Mrs Corkhill returned to work so that her wages would then have made payment of superannuation contributions somewhat easier to manage within the family’s financial affairs.
These opportunities significantly undermine the asserted commitment of Mr Corkhill to joining a Commonwealth superannuation scheme. They do not show a fierce determination to avail himself of the benefit that such a membership would provide.
Further concern is the evidence about Mr Corkhill’s financial situation. Mr and Mrs Corkhill had returned to Canberra after the unsuccessful farming venture with little by way of savings. The unchallenged evidence of Mr Morrisey is that the wages of bus drivers was relatively modest. Mr and Mrs Corkhill had a relatively large family. Mrs Corkhill was not working again until 1973, so Mr Corkhill was the sole wage earner. He had to take a second job to meet the needs of his family, which was three children under four by 1960 and five under 10 by 1966. Mrs Corkhill’s refreshingly honest assessment was that while they were able to meet the needs of the family, they had little by the way of luxuries. They took about 10 years to accrue the deposit for their home, they borrowed to purchase a car; their life was “frugal but modest”. Mrs Corkhill had no idea as to how much Mr Corkhill would have had to pay in contributions to Commonwealth superannuation.
When asked how the family could have paid for superannuation, she said that they would have found the money. That may have been possible, of course, but the description of their finances, while not disproving the possibility, certainly does not support that.
Mrs Corkhill’s ignorance of the costs of contributions reduces the value of her assertion that, as the manager of the family finances, she was confident that they could have found the funds.
I am not satisfied that Mr Corkhill, had he been given the correct advice about his eligibility for membership of a Commonwealth superannuation scheme, would have joined at least until Mrs Corkhill returned to work.
(g) Derivative claim – Eligibility of Mr Corkhill joining a Commonwealth superannuation scheme
In order to be accepted as a member of the CSF in 1957 and 1963, Mr Corkhill had at 1957 and 1963 to meet three requirements.
(a) He had to be subject to a discretionary direction by the Treasurer that he was an employee within the meaning of s 4 of the 1922 Act which required him:
(i) to have served as a full-time employee for a continuous period of not less than three years; and
(ii) to be subject to certification by the Public Service Board that his employment was likely to be continued for at least 10 years.
See s 4(5) of the 1922 Act.
(b) He had been subject of a medical examination which satisfied the Superannuation Board that his health and medical fitness justified his acceptance as a contributor. See s 5 of the 1922 Act.
Clearly, in 1957, Mr Corkhill would not have met the criterion at (a)(i) so I do not need to consider that further.
As to the 1963 alleged misrepresentation, he would meet criterion (a)(i). Had Mr Corkhill then been given the correct information and had he applied to join the CSF, I am satisfied that he could also have satisfied the Superannuation Board that, as required under criterion (b), his health and medical fitness justified his membership.
The matter of his future employment is more problematic. He had been employed as a bulldozer driver up until that time. He then became a bus driver until 1977, well after this period. He was, at that stage, untried in a role, which, though his driving skills would not be in doubt, required him to deal directly with the public, an area of work he had not previously experienced.
Further, there were about 200 bus drivers of which, at the time, Mr Corkhill must have been one of the newest. He had, of course, been continuously employed by the Commonwealth for six years. There is, however, no evidence about his conduct, aptitude or work capacity. I do not find that he had problems in this area, but there is no evidence to show some significant reason, such as exemplary conduct, that would justify a certification of future employment.
The process was that the Department of the applicant was required to advise the Public Service Board of the likely continued employment of the applicant.
In the case of Mr Cornwell, Mr Simpson had done so; as Mr Cornwell was the only spray painter at the Kingston depot, Mr Simpson had no difficulty in advising that his employment was likely to be indefinite. That was not Mr Corkhill’s situation.
Ms Amiel’s survey shows that in 1958-59, 40.64 per cent of applicants were rejected on the grounds that their future employment prospects were not accepted by the Public Service Board. That, however, reduced dramatically in 1960-61 to 6.67 per cent (though of only 45 applicants) but remained low in 1970-71 at 3.59 per cent (of 1336 applicants).
If the matter reached the Public Service Board, I accept that it would seem likely that it would have certified Mr Corkhill as having met the employment test, but I am by no means satisfied that he would have received the support of the Transport Section. The evidence as to whether Mr Simpson would have given him the required certificate is non‑existent and there is no basis on which I could make a reasonable inference.
Thus, I would not be satisfied that he would have been certified by the Public Service Board in 1963 or shortly thereafter as required by criterion (a)(ii). That may, of course, have changed over time so that by 1970 or so, it seems quite likely that he would have been accepted. Certainly, by the time Mr Harriott had applied, I am satisfied that, had Mr Corkhill applied, he would have been certified by the Public Service Board as required.
Thus, at 1957 and 1963, I am not satisfied that Mr Corkhill would have been found eligible to join the CSF. From 1960-3, I have no information to suggest that he would have been eligible or not, though, statistically, the evidence in favour of his eligibility on employment grounds is somewhat favourable.
I am satisfied that, had he applied, sometime years after 1963 and based on Ms Amiel’s table likely to be 1969-70, he would have satisfied the criterion for eligibility.
Finally, there was in the CSF a discretion in the Treasurer as to whether an applicant would be deemed to be an employee who could, then, be admitted to the CSF. This was based on s 4(5) of the 1922 Act which provided that if the criteria at [521] (a) and (b) were met, “the Treasurer may direct that the person be deemed an employee” and so eligible to become a member of the CSF.
It was submitted for Mrs Corkhill that I should read “may” as “shall” and that, in reality there was no discretion. This was said to be established in R v Bishop of Oxford (1879) 4 QBD 245 at 258 where Cockburn CJ, delivering the judgment of himself and Field and Mainsty JJ said
So long ago as the year 1693 it was decided in the case of The King v Barlow [2 Salk 609; 91 ER 516] that when a statute authorizes the doing a thing for the sake of justice or the public good, the word ‘may’ means ‘shall;’ and that rule has been acted upon to the present time. In Bacon’s Abridgment title Statute (I.), the rule is so laid down, as also in Dwarris on Statutes, p. 264. Speaking of facultative words, it is there stated that where a statute directs the doing of a thing ‘for the sake of justice’ or ‘for the public benefit’, the word ‘may’ shall be construed as ‘shall’ or ‘must;’ …
Such an approach would be supported in more modern times by decisions such as Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, where a provision that the Commissioner “may allow” a private company a rebate on taxation if satisfied of certain things had to be construed. The High Court held, contrary to the Commissioner’s submissions, that the power was entirely discretionary, that, if satisfied of the requisite matters, the Commissioner was obliged to allow the rebate.
Superannuation is, of course, a matter of benevolent legislation and saving for retirement is clearly beneficial and of benefit to the public because it reduces the reliance of retirees on the age pension; this reduces also the need for taxation to support it.
The issue, however, is not one of statutory construction but whether in fact the Treasurer in fact rejected some applications.
In Ms Amiel’s table, there are some which appear to be rejected based on the Treasurer’s discretion. There are, however, a very small number of them.
In my view, were Mr Corkhill to satisfy the medical and employment grounds, he would not be at all likely to be rejected by exercise of the Treasurer’s discretion.
(h) Derivative claim – pension
On the assumption, which I do not make, that Mr Corkhill joined a Commonwealth superannuation scheme, there is a further pre-condition to Mrs Corkhill succeeding in her derivative claim.
On his retirement, Mr Corkhill must have elected to take a pension and not a lump sum benefit. This, despite an initial suggestion to the contrary by Mrs Corkhill, applies to whichever scheme he joined.
In brief, if he had joined a Commonwealth superannuation scheme, namely the CSF, prior to the introduction of the CSS in 1976, then all members of the CSF became automatically members of the CSS as noted above (at [12]). He would have then been a member of the CSS.
When the PSS was established in 1990, Mr Corkhill could have elected to join that scheme; if he did not, then he would have remained a member of the CSS. Thus, at retirement, he would have been a member of the CSS or of the PSS.
The parties agreed on the possible benefits available to Mr Corkhill on his retirement. Those were, in the case of the CSS and the PSS, that he could access a pension only, a lump sum only or a combined pension and lump sum: see ss 55, 62 and 64 of the 1976 Act and clause 6.2.3 of the schedule to the Public Sector Superannuation Trust Deed. Under s 137 of the 1976 Act, he could defer access to benefits until certain events, the latest of which would be when he turned 65; s 138 of the 1976 Act (Correspondence SH&G 5 May 2016). It is only if he elected to receive a pension (only or combined with a lump sum) that Mrs Corkhill would, on his death, receive a pension as she now claims that she should have received.
The question, then, is whether Mr Corkhill would have taken a pension or a lump sum benefit on retirement.
At the time of his retirement, Mr Corkhill was subject to a voluntary redundancy arrangement, under which he was entitled to a lump sum payment for the redundancy.
At the time, Mr Corkhill sought financial advice and used some of the money to discharge the balance of the loan on the house and invested some of the balance. He and Mrs Corkhill used some of the balance also to travel. At the time, Mrs Corkhill had secure employment and was a member of a Commonwealth superannuation scheme, so that any lump sum they subsequently needed could have come from her superannuation, she being 56 at the date of Mr Corkhill’s retirement. Mr Corkhill also earned some income from his driving work with the Fijian High Commission.
Nevertheless, Mr Corkhill’s ill-health may suggest that he would have been better taking a lump sum, for he may not live long enough to enjoy the equivalent in a pension. He had had poor health from about 1980 until near to his retirement and there was, on the evidence, an acceptance that he had an ever present possibility of a recurrence of his lung cancer.
On the other hand, there had been no recurrence of his lung cancer before his retirement, over 10 years after the most recent occurrence.
While this may suggest, as did the Commonwealth, that a lump sum would be a financially prudent option, Mrs Corkhill was some seven years younger than Mr Corkhill and was apparently in good health. She had only joined a Commonwealth superannuation scheme in 1976, so a continuing part pension for her from Mr Corkhill’s pension entitlement would also be an attractive option.
These are competing considerations, but I am not persuaded that Mr Corkhill would have an immediate need for a lump sum on retirement which he was not necessarily well‑equipped to manage.
There was, accordingly, no pressing need for a lump sum benefit and I am satisfied that, had Mr Corkhill been a member of a Commonwealth superannuation scheme, he would have elected to take a pension.
Derivative claim – cessation of effect of any misstatement
As indicated above (at [515]), there were a number of opportunities for Mr Corkhill to have received accurate information in circumstances which would, in my view, have overcome any continuing reliance on the alleged misstatements.
Mr Harriott’s membership himself of the Commonwealth superannuation scheme is perhaps the most significant. There was no relevant difference between his employment situation and that of Mr Corkhill. Had Mr Corkhill been as committed to joining such a scheme as the evidence given by and on behalf of Mrs Corkhill attempted to show, it is inconceivable that Mr Corkhill’s cousin by marriage, with whom Mrs Corkhill had kept in touch and who was a good friend and work colleague of Mr Corkhill, would not have told Mr Corkhill that he had become a member of a Commonwealth superannuation scheme to which Mr Corkhill was said to be so committed to joining. Indeed, Mrs Corkhill accepted this.
Mr Harriott was available to give evidence. That he did not give evidence when he could have been called, entitles me to draw the inference more confidently that he did tell Mr Corkhill that he had joined the scheme. See Jones v Dunkel (1959) 101 CLR 298. There was no requirement for the Commonwealth to have called him, as it can reasonably be accepted from the facts that he is likely to be in Mrs Corkhill’s “camp”: Legal Practitioner v Council of the Law Society (ACT) [2014] ACTSC 13 at [250], though such an approach may be different in criminal matters, perhaps for understandable reasons: Rv Thomson(No 1) [2014] ACTSC 62 at [27]-[33].
This, combined with the seminars that, on the relevantly unchallenged evidence, Mr Hayes gave and which, if Mr Corkhill was as committed to superannuation as is suggested, it seems an almost irresistible conclusion that he would have attended, and then Mrs Corkhill joining herself seems to me all to break the nexus between the alleged misstatements and Mr Corkhill’s failure to join a Commonwealth superannuation scheme.
Mr Harriott’s application was made in 1975; Mr Hayes conducted his seminars in 1976; Mrs Corkhill joined the CSS in late 1976.
Even if the matter is left only with Mrs Corkhill’s successful application to join a Commonwealth superannuation scheme, she faintly conceded that, if Mr Corkhill was as adamant as she suggested that he was about himself joining such a scheme, he would, when she joined, have made further inquiries. He did not.
In my view, by 1975, Mr Corkhill knew that he was eligible to join a Commonwealth superannuation scheme and the effect of any misstatement was completely negated. See Meredith v Commonwealth (No 2) at 437; [439], 473; [714].
The consequences for Mrs Corkhill’s derivative action are not entirely clear. By the time Mr Corkhill would have qualified for benefits under a Commonwealth superannuation scheme, namely on his retirement, the effect of the alleged negligent misstatement had ceased. He would, at that stage, have suffered loss, had I found that, given the correct advice, he would have joined such a scheme, for he would have received lesser benefits. See Meredith v Commonwealth(No 2).
At this stage, however, Mrs Corkhill had no entitlement, for that only arose upon Mr Corkhill electing to take a pension benefit and not a lump sum benefit. At the time of this election, the effect of the alleged negligent misstatement had ceased.
That may mean that she had lost her claim as a result. If not, it would, of course, moderate her loss in the same way as the cessation of the effect of the alleged negligent misstatement would have moderated Mr Corkhill’s loss.
Neither party addressed this issue and I did not seek further submissions in the light of my ultimate findings. If I am wrong in those findings, then it may be a matter of law that needs to be explored.
(j) Derivative claim – contributory negligence
Neither party gave much consideration to the plea by the Commonwealth of the defence of contributory negligence. As I explained in Kalis v New [2017] ACTSC 334 at [432], such a plea by a defendant seeks to put in issue whether the plaintiff has discharged his, her or its duty to take reasonable care for himself, herself or itself.
In this case, the gist of the Commonwealth’s plea was that Mrs Corkhill really took no action to protect herself. She did not, for example, suggest that Mr Corkhill make another inquiry, that he actually apply or that he seek information from the Industrial Section. She was not asked much about this, but did agree that she had really taken no steps herself to prosecute the desire she said that they both had for superannuation.
I note, too, that Mrs Corkhill was really in charge of the family’s finances so that she could have set aside money which would otherwise be paid as a contribution to a Commonwealth superannuation scheme and either invested it or purchased a private superannuation policy.
These seem to me to be matters properly going to contributory negligence. Were I to find the Commonwealth guilty of negligence, then I would find that Mrs Corkhill was guilty of contributory negligence to a degree.
While commonly that is done by assessing a percentage of the damages to be awarded, this is arbitrary, though courts have become adept at setting a just percentage.
It seems to me that, in this case, the just way to do this is to reduce any damages that would be awarded by an amount that would have accrued to Mrs Corkhill were Mr and Mrs Corkhill to have purchased a superannuation policy from a private insurer with the amount that Mr Corkhill would otherwise have paid in contributions to a Commonwealth superannuation scheme had Mr Corkhill joined in about 1965.
Conclusion
For the reasons above, I am not satisfied that Mrs Corkhill has a claim on the Commonwealth. She has not made out her claim for a cause of action for what I have called the direct claim for negligent misstatements.
I am also not satisfied that Mr Corkhill would have joined a Commonwealth superannuation scheme even if he had been given the correct information.
There is, further, no claim of the kind I have called a derivative claim that Mrs Corkhill can maintain for the reasons I have set out above.
Accordingly, Mrs Corkhill’s claim must be dismissed.
| I certify that the preceding five hundred and seventy-three [573] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 6 April 2018 |
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