RICHARD VINCENT DUFFY v COMMONWEALTH OF AUSTRALIA
[2013] ACTSC 239 (16 December 2013)
TORTS – Negligence – negligent misstatement – pure economic loss – negligent misstatement proven – common law negligence – breach of statutory duty – decided in accordance with Meredith v Commonwealth (No 2) [2013] ACTSC 221
DAMAGES – damages for negligent misstatement – where the negligent misstatement lead the plaintiff to not join a public sector superannuation fund when eligible – where subsequent competing superannuation scenarios arose as a consequence – use of competing actuarial reports in the assessment of damages in these circumstances – turns on its own facts
SUPERANNUATION – Public service funds – availability of public service superannuation funds to ‘temporary’ Commonwealth employees under the Superannuation Act 1976 (Cth) – application of s 3(3) of the Superannuation Act 1976 (Cth) – where an employee resigned but returned after a month – contract did not continue
TAXES AND DUTIES – tax on a judgment sum – whether tax liability will be assessed on a judgment sum – same approach as Guy v Commonwealth [2013] ACTSC 128 – leave granted to apply for award of additional damages if liability assessed
Superannuation Act 1976 (Cth), ss 3, 16, 66,
Superannuation Act 1990 (Cth)
McCarry G J, “Termination of Employment Contracts by Notice” (1986) 60(2) ALJ 78
Sappideen, Carolyn, Paul O’Grady and Geoff Warburton, Macken’s Law of Employment (Lawbook Co, 6th ed, 2009)
Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884
Birrell v Australian National Airlines Commission (1984) 5 FCR 447
Commissioner for Superannuation v Bayley (1979) 41 FLR 385
Emery v Commonwealth (1963) 5 FLR 209
Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498
Gunnedah Shire Council v Grout (1995) 89 LGERA 159
Guy v Commonwealth [2013] ACTSC 128
Inchiquin v Lyons (1887) 20 LR (IR) 474
Knight v Commonwealth [2013] ACTSC 238
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Meredith v Commonwealth (No 2) [2013] ACTSC 221
New South Wales v Paige (2002) 60 NSWLR 371
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Re Marshall and Commissioner for Superannuation (1992) 29 ALD 69
Re Rattray and Commissioner for Superannuation (1980) 2 ALD 979
Re Rowe and Commissioner for Superannuation (1987) 14 ALD 216
Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45
Re Wood and Commissioner for Superannuation (1989) 9 AAR 528,
Riordan v War Office [1959] 1 WLR 1046
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287
Tobin v Commonwealth [2013] ACTSC 240
No. SC 678 of 2005
Judge: Refshauge J
Supreme Court of the ACT
Date: 16 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 678 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:RICHARD VINCENT DUFFY
Plaintiff
AND:COMMONWEALTH OF AUSTRALIA
Defendant
ORDER
Judge: Refshauge J
Date: 16 December 2013
Place: Canberra
THE COURT ORDERS THAT:
There be judgment…
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- AGLC
- RICHARD VINCENT DUFFY v COMMONWEALTH OF AUSTRALIA [2013] ACTSC 239 (16 December 2013)
- Case
- [2013] ACTSC 239
- Decision Date
CaseChat Overview and Summary
The court examined the legal issues surrounding the negligent misstatement and whether it constituted a breach of common law negligence and statutory duty. The court also had to determine the appropriate measure of damages for the negligent misstatement, taking into account the use of competing actuarial reports and the impact of subsequent superannuation scenarios. The court was required to assess whether tax liability would be imposed on the judgment sum, following the approach in Guy v Commonwealth [2013] ACTSC 128, and whether leave should be granted to apply for an award of additional damages if tax liability was assessed.
The court found that the Commonwealth had breached its common law and statutory duties in providing advice to Duffy, and that the negligent misstatement had led to the plaintiff not joining a public sector superannuation fund when eligible. The court determined that the damages should be assessed using competing actuarial reports, taking into account the unique facts of the case. The court also found that the tax liability on the judgment sum should be assessed in accordance with Guy v Commonwealth [2013] ACTSC 128, and that leave should be granted to apply for an award of additional damages if tax liability was assessed.
The court ordered that there be judgment for Richard Vincent Duffy against the Commonwealth of Australia. The parties were required to provide appropriate material from which the damages payable could be quantified. The court also ordered that the parties be heard as to costs.
Orders
Orders of the court
1. There be judgment for Richard Vincent Duffy against the Commonwealth of Australia.
2. The parties provide appropriate material in accordance with these reasons from which the damages payable can be quantified.
3. The parties be heard as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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