Innes v AAL Aviation Limited - [2017] FCAFC 202

FEDERAL COURT OF AUSTRALIA
Innes v AAL Aviation Limited [2017] FCAFC 202

Appeal from: Brewer v AAL Aviation Limited [2016] FCA 93

File numbers: ACD 12 of 2016
ACD 13 of 2016

Judges: TRACEY, BROMBERG AND WHITE JJ

Date of judgment: 12 December 2017

Catchwords:
SUPERANNUATION – Commonwealth statutory arrangements for superannuation – appellants claimed to have been wrongfully denied entry into Commonwealth schemes – whether employees were ‘permanent employees’ or ‘temporary employees’

NEGLIGENCE – claims for negligent misrepresentation – appellate approach to review of factual findings of trial judge – whether trial judge erred in finding that the essential elements of a claim of negligent misrepresentation had not been established

NEGLIGENCE – claims for negligence generally arising from representations about operation of superannuation schemes – duty of care for pure economic loss – whether one appellant had been vulnerable in the requisite sense to a want of care by the respondent.

LIMITATION OF ACTIONS – where negligence of employer alleged to have occurred in the 1970s deprived an employee of a future statutory entitlement to superannuation benefits – discussion of Commonwealth v Cornwell (2007) 229 CLR 519 – whether nature of benefits were distinguishable from those considered in Cornwell to be prospective and contingent and not capable of constituting loss

Legislation:
Australian Airlines (Conversion to Public Company) Act1988 (Cth)

Australian National Airlines Act 1945 (Cth) ss 17, 18

Evidence Act 1995 (Cth) ss 59, 62, 63

Superannuation Act 1922 (Cth) ss 4(6), 51

Superannuation Act 1942 (53 of 1942) (Cth)

Superannuation Act 1971 (46 of 1971) (Cth)

Superannuation Act 1976 (Cth) ss 3, 3(1), 11, 12, 13, 16(2), 25, 45, 53(2), 80, 111, 136, 137, 144A, 144B, 144C, 144D, 144E, 144F, 144G, 144H, Pts V, VI, IX

Statutory Rule 181 of 1980 (Cth)

Statutory Rule No 20 of 1952 (Cth) reg 4

Superannuation (CSS) Former Eligible Employees’ Regulations 1986 (Cth) reg 15B, Sch 11

Limitation Act 1935 (WA) s 38

Limitation Act 2005 (WA) s 13

Limitation of Actions Act 1958 (Vic)

Retirement Benefits Act 1970 (Tas)

Cases cited:
ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Briginshaw v Briginshaw (1938) 60 CLR 336

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185

Bryan v Maloney (1995) 182 CLR 609

Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529

Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Hawkins v Clayton (1988) 164 CLR 539

Hill v Van Erp (1997) 188 CLR 159

Innes v Commonwealth [2015] ACTCA 33

L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) (1981) 150 CLR 225

Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221; (2013) 280 FLR 385

Mulcahy v Hydro‑Electric Commission [1998] FCA 1780; (1998) 85 FCR 248

Mulcahy v Hydro‑Electric Commission [1998] FCA 605; (1998) 85 FCR 170

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628

Perre v Apand [1999] HCA 36; (1999) 198 CLR 180

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Warren v Coombes (1979) 142 CLR 531

Watson v Foxman (1995) 49 NSWLR 315

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515

Date of hearing: 8 and 9 August and 17 November 2017

Registry: Australian Capital Territory

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 296

Counsel for the Appellants: Mr R Douglas QC with Mr J Gordon (8 and 9 August 2017)
Mr R Douglas QC (17 November 2017)

Solicitor for the Appellants: Snedden Hall & Gallop

Counsel for the Respondent: Mr J Lockhart SC with Mr C Colquhoun (8 and 9 August 2017)
Mr B Walker SC with Mr J Lockhart SC and
Mr C Colquhoun (17 November 2017)

Solicitor for the Respondent: Johnson Winter & Slattery

ORDERS

ACD 12 of 2016

BETWEEN:
MALCOLM JAMES INNES

Appellant

AND:
AAL AVIATION LIMITED (ACN 008 642 886)

Respondent

JUDGES:

TRACEY, BROMBERG AND WHITE JJ

DATE OF ORDER:

12 DECEMBER 2017

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.

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

ACD 13 of 2016

BETWEEN:
STUART ARTHUR HUNTER

Appellant

AND:
AAL AVIATION LIMITED (ACN 008 642 886)

Respondent

JUDGES:

TRACEY, BROMBERG AND WHITE JJ

DATE OF ORDER:

12 DECEMBER 2017

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT
TRACEY AND WHITE JJ:

The appellants (Mr Innes and Mr Hunter) were employed initially by Trans‑Australia Airlines (TAA) and later by Qantas Australian Airlines Limited (Qantas). They ceased their employment as a result of retrenchments on 18 April 2012 and 9 December 2005 respectively.
Both appellants assert that they were given incorrect advice and information about their ability to join the advantageous superannuation schemes which had been available to employees of TAA until 1 July 1980, so that their superannuation entitlements are now less than they would have been. They brought separate claims against the respondent seeking damages on the basis of multiple causes of action, including negligent misstatement, negligence generally, misleading or deceptive conduct, unconscionable conduct, breach of their contracts of employment and deceit. Their claims, along with that of another former employee (Mr Brewer) were the subject of a single trial. All the claims failed: Brewer v AAL Aviation Limited [2016] FCA 93.
In their appeals to this Court, the appellants contend that the primary Judge erred in his conclusion on two of their causes of action, namely, the claims of negligent misstatement and negligence generally. They also contend that the Judge erred in his indication that, if he had been required to assess damages, he would have found that each had failed to mitigate his loss by not entering into the TAA Superannuation Scheme as at 30 June 1981.
By notices of contention in each appeal, the respondent contends that the primary Judge should also have found that the applicants’ claims were statute barred, because they were brought outside the applicable six year limitation period.
The parties
The respondent was created as an incorporated entity under the Australian National Airlines Act 1945 (Cth) (the ANA Act) as the Australian National Airlines Commission (the ANA Commission). In 1988, as a result of the Australian Airlines (Conversion to Public Company) Act 1988 (Cth), the respondent’s name changed to Australian Airlines Limited and has since changed again to AAL Aviation Limited. Until 1995, the respondent traded as Trans‑Australia Airlines and was commonly known as TAA.
Mr Innes commenced employment with TAA shortly after 1 July 1974 as a Traffic Officer in its Perth office. This was a clerical position concerned with the retail selling of airline tickets. In 1981, Mr Innes transferred to a position of Despatch Officer at Perth Airport and, in 1994, became an employee of Qantas when it took over the operations and staff of TAA. He became a Load Controller and relocated to Tullamarine Airport in Melbourne in 1999. Mr Innes was 61 years old at the time of his retrenchment.
Mr Hunter commenced with TAA on 28 July 1975 as an Airframe Fitter at Essendon Airport but about 18 months later was reclassified as an Airframe Mechanic. In 1980, he transferred to Tullamarine Airport and, in or around 1992, became an employee of Qantas as part of its takeover of TAA. Mr Hunter was 51 years old at the time of his retrenchment.
The superannuation arrangements
The appellants’ claims concerned three superannuation schemes which applied at different times during their employment with TAA. The first was the Commonwealth Superannuation Fund (CSF) which was in effect until 30 June 1976 established under the Superannuation Act 1922 (Cth) (the 1922 Act). This Scheme applied generally to Commonwealth public servants but was also available to some employees of an “approved authority”. By reg 4 of the Statutory Rule No 20 of 1952 (Cth), TAA was an “approved authority”.
The second was the Commonwealth Superannuation Scheme (CSS) established under the Superannuation Act 1976 (Cth) (the 1976 Act) which came into operation on 1 July 1976. It too was available to certain employees of an “approved authority”. Participants in the CSF automatically became participants in the CSS on its commencement on 1 July 1976. By Statutory Rule 181 of 1980 (Cth), the CSS was closed to new entrants who were employees of TAA with effect from 1 July 1980.
Later that year (15 December 1980), TAA established the Australian Airlines General Superannuation Plan (AAGSP). Entrance to that Scheme became available to TAA employees in 1981. The Judge found that, unlike CSF and CSS (which were defined benefit schemes), AAGSP was an accumulation scheme pursuant to which the primary benefit upon retirement was a lump sum benefit and not a pension with a reversionary spouse benefit, at [5]. However, the Judge also found that participants in the AAGSP did benefit from substantial contributions by TAA, unlike private schemes offered by life insurance companies, at [157].
Mr Hunter became a contributory member of the AAGSP on 7 February 1986. Mr Innes became a non‑contributory member of the AAGSP on 1 January 1987. In 1995, Mr Innes’ non‑contributory membership of the AAGSP was transferred to a part of a superannuation fund conducted by Qantas, and he commenced contributions at that time.
The 1922 Act distinguished between permanent public servants, on the one hand, and non‑permanent public servants and employees of approved authorities, on the other. Permanent public servants became a member of CSF automatically upon commencing their employment (which had been conditional upon them passing a medical examination). However, employees of approved authorities had to satisfy some threshold conditions and be deemed by ministerial direction to be employees to whom the 1922 Act applied. This was the effect of s 4(6) of the 1922 Act, which provided (relevantly):
(6)Subject to the next succeeding sub‑section, where a person employed by an approved authority is required by the terms of his employment to give the whole of his time to the duties of his office and –
(a)the approved authority certifies that the person’s employment is likely to be continued for a period of at least seven years;
…
the Minister administering the Act or other law by or under which the approved authority is constituted, or a person authorized in writing by the Minister so administering that Act or that other law to exercise his powers under this sub‑section, may, on the recommendation of the approved authority, direct that the first‑mentioned person be deemed to be an employee within the meaning of this section, and that person shall be deemed to be such an employee as from the date of the direction …
In short, three conditions had to be satisfied for an employee of an approved authority to become a member of the CSF: the employee had to work full‑time; the approved authority had to certify that the person’s employment was likely to be continued for a period of at least seven years; and the Minister (or the Minister’s delegate) had to direct that the employee be deemed to be an employee for the purposes of the 1922 Act.
In relation to non‑permanent public servants, the 1922 Act contained counterpart conditions but required, in addition, that the person have been employed for a continuous period of not less than three years. Despite there being no requirement for employees of approved authorities to have served a minimum period before becoming eligible, the Judge found that it had been the practice within TAA to invite employees to join CSS only after two years, and in some cases three years, of continuous employment, at [41].
A Form SB17 was adopted in November 1971 as the means by which employing authorities transmitted details of new contributors to the Superannuation Board. The form was addressed to the Minister administering the Act under which the approved authority was constituted and contained certification by the approved authority about satisfaction of the eligibility requirements, a recommendation to the Minister about entry to superannuation and a direction by the Minister to make the identified employees eligible. In 1974, the Minister delegated his power of direction to the Staff Officer of TAA in respect of TAA employees.
Under the 1976 Act, the threshold conditions for membership of the CSS were less onerous. Membership was automatic for eligible employees (s 45). The term “eligible employee” was defined in s 3(1) as follows (relevantly):
“eligible employee” means –
(a) …
(b) a person who is a permanent employee;
(c)a person who is a temporary employee and is specified in a direction given under section 11, 12 or 13;
…
Thus, a permanent employee was, by virtue of that status, an eligible employee whereas a temporary employee required in addition a direction under one or other of ss 11, 12 and 13.
The term “permanent employee” used in para (b) of the definition of eligible employee was defined in s 3(1) as follows:
“permanent employee” means –
(a) a person who is an officer for the purposes of the Public Service Act; and
(b)any other person employed by the Commonwealth or by an approved authority in a permanent capacity,
but does not include a part‑time employee who is not an approved part‑time employee.
The term “temporary employee” used in para (c) of the definition of “eligible employee” was defined in s 3(1) (relevantly) as follows:
“Temporary employee” means –
(a) a person who is an employee for the purposes of the Public Service Act; and
(b)any other person employed by the Commonwealth or by an approved authority otherwise than in a permanent capacity, but does not include –
…
The primary Judge held, at [46], that neither appellant was a permanent employee. He held instead that each was a “temporary employee” within the definition in s 3(1) of the 1976 Act, at [47]. Each appellant challenged the finding that he was not a permanent employee for the purposes of the 1976 Act and, in the case of Mr Innes, it will be necessary to return to this.
Of the provisions (ss 11, 12 and 13) which provided for a direction by which temporary employees could become eligible employees, the Judge considered that only s 11(1) was pertinent in the appellants’ cases. Section 11(1) provided:
Temporary employees likely to be continued in employment.
11. (1) Where–
(a)a person who is a temporary employee has, for the immediately preceding period of 1 year (whether or not the period commenced before the commencement of this Act), been a temporary employee, or a temporary employee and a permanent employee;
(b)the person requests the Commissioner to direct, under this section, that he be treated as an eligible employee for the purposes of this Act; and
(c)the Commissioner is satisfied that the person is likely to continue to be a temporary employee for a further period of at least 3 years after the date of the request or that, during that period of 3 years, the person is likely to become an eligible employee otherwise than by virtue of a direction under this section,
the Commissioner may direct that the person is, as from the date of the direction, an eligible employee for the purposes of this Act.
The “Commissioner” to whom s 11(1) refers was the Commissioner for Superannuation. As a matter of practice, the Commissioner delegated his or her powers to identified positions in approved authorities, rather than to named persons.
As can be seen, s 11(1) contained the following elements:
(a)a minimum period of one year’s employment by the person;
(b)a request by the person to the Commissioner to be treated as an eligible employee;
(c)the Commissioner’s satisfaction (relevantly) that the person was likely to continue to be a temporary employee for a further period of at least three years.
In addition, by s 16(2) of the 1976 Act, the person had to undergo such medical examination or examinations as the Commissioner required.
The primary Judge found, at [60], that the day to day arrangements with respect to both the CSF and the CSS were under the control of employing authorities such as TAA and that, after 1976, the only legitimate barrier to entry to CSS in the case of temporary employee with more than 12 months services was a requirement of likely continued employment.
Arrangements within TAA
The ANA Act had been amended from time to time, but the Judge applied its provisions as in force in 1973, at [23]. It was not suggested that he had been in error to do so. Sections 17 and 18 of the ANA Act distinguished between “officers” and “employees”. They provided (relevantly):
Appointment of officers
17. …
(2)The officers of the Commission shall constitute the Service of the Commission.
(3)A person shall not be admitted to the Service of the Commission unless–
(a) he is a natural-born or naturalized British subject;
(b)the Commission is satisfied, upon such medical examination as is prescribed, as to his health and physical fitness; and
(c)he makes and subscribes an oath or affirmation of allegiance in accordance with the prescribed form,
and shall not be appointed to a clerical office in that Service unless he has in open competition successfully passed the prescribed entrance examination:
…
Temporary and casual employees
18.The Commission may appoint such temporary or casual employees as it thinks fit, on such terms and conditions as the Commission determines.
There was no definition of “temporary employees” but they were not persons “in the Service of the Commission” within the meaning of s 17 of the ANA Act. The Judge found that each of the appellants was a “temporary” employee engaged under s 18.
The ANA Commission had power to determine the conditions of employment of both officers and temporary employees.
In 1965, the ANA Commission issued a determination (known as Determination No. 2). This determination dealt with officers pursuant to s 17 and with temporary and casual employees under s 18. It included some general orders, one of which was a Personnel Manual.
The Judge found that, with effect from 6 April 1970, the Personnel Manual directed the following arrangements with respect to superannuation:
1.        INCIDENCE
The following are the instructions regarding superannuation applying to employees of Trans-Australia Airlines with the exception of Pilots and Air Hostesses.
2.        SUPERANNUATION ACT OR MANUAL
Refer to Superannuation Act 1922/1965 or the Commonwealth of Australia Superannuation Manual for complete details.
3.        QUALIFYING PERIOD
3.1       Senior Staff
Those employees whose salaries are within the administrative salary ranges, the equivalent of, or above, will be eligible to apply to become contributors to the Superannuation Scheme after the completion of six months’ satisfactory service.
3.2       Sales Representatives
Sales Representatives will be eligible to apply to become contributors after the completion of six months’ satisfactory service.
3.3       Females
In special circumstances, females may be admitted as members of the superannuation scheme after two years’ service. Recommendations to have such employees included in the scheme should be submitted to the Staff Manager for consideration.
3.4       Junior Trainees
Junior Trainees will be eligible to apply to become contributors after the completion of six months’ satisfactory service.
3.5       Apprentices
Apprentices will be eligible to apply to become contributors upon the signing of the prescribed apprenticeship indentures.
3.6       Other Juniors (Male)
Juniors other than those nominated in 3.4 and 3.5. of this Section will be eligible to apply to become contributors after two years’ satisfactory service.
3.7       Other employees
All other employees not included in Sub-Section 3.1, 3.2, 3.3, 3.4, 3.5 and 3.6 of this Section will be eligible to apply to become contributors after the completion of two years’ satisfactory service.
4.        RECOMMENDATIONS
Once an employee is eligible to apply to become a contributor with the approval of the Branch Manager or Departmental Head, a recommendation may then be compiled. This will be on Form P.D. 48 “Superannuation Recommendation” and must be completed in detail.
5.        PROCEDURE
The completed Form P.D. 48, together with –
5.1       Medical report
5.2       Chest X-Ray
5.3       Evidence of age
5.4       Election – retiring age
will be forwarded by Personnel Officers to the Staff Manager for processing.
6.        MINISTER’S APPROVAL
Upon receipt of the Minister’s approval by the Staff Manager, advice will be given of:–
6.1       Approval
6.2       Effective date.
The Personnel Officer will then arrange for superannuation contributions to commence.

As can be seen, cl 3 in the Personnel Manual provided for qualifying periods to be served before an employee became eligible to apply to become a contributor to the CSF. At trial, it appears to have been common ground that both appellants were in the category of “Other Employees” for whom the qualifying period was two years satisfactory service (cl 3.7). Employees did not become contributors automatically upon the completion of the qualifying period. Instead, a recommendation had to be made supported by medical evidence and other information (cll 4 and 5). Clause 6 contemplated that the recommendation would be made to the Minister but, from 1974, the Minister’s power had been delegated back to a Staff Officer within TAA.
The primary Judge was particularly critical of TAA’s adoption of the two year threshold for “Other Employees”. He considered that it was part of a course of conduct in which TAA had engaged in relation to the superannuation entitlements of employees which was in its own interests and that it had, deliberately, not given effect to the statutory provisions concerning such superannuation.
The Judge noted that, at the time each of the appellants commenced his employment with TAA, the Australian Government had been applying the “two airlines policy” under which competition on interstate routes within Australia between TAA and Ansett Australia Limited (Ansett) was encouraged, but other airlines excluded. TAA had been concerned that the cost of its employer contributions to the CSF and CSS exceeded the corresponding cost to Ansett, so that it was not competing in a “level playing field”. The Judge found that the decision of the Australian Government to close CSS to new entrants from TAA with effect from 1 July 1980 was a consequence of TAA’s concerns in this respect, at [5]. The Judge was critical of a number of aspects of TAA’s conduct:
[6]TAA’s concern about the cost of its contributions to CSF and CSS, and its desire to have its own (less costly) superannuation fund for its employees, caused it to adopt policies and practices designed to control and curtail entry to superannuation by its employees. With a combination of hindsight and a more contemporary approach to the protection of employee interests, it is impossible not to be critical of the decisions taken, which owe much to the existence and operation of Australia’s two airlines policy. …
It was in this context that the Judge considered that the policy incorporated in the Personnel Manual issued in 1970 and continued throughout the 1970s (including after the commencement of the 1976 Act) of a threshold requirement for two years’ service operated as a fetter on employees’ access to the CSS. The Judge held, at [69]:
It does not reflect the statutory conditions for access to an important employment benefit. In my view, it was not legitimate to superimpose some further administrative requirement of this kind …
The Judge also referred to internal memoranda within TAA which indicated that deliberate decisions had been made to restrict entry to the CSF and CSS on the grounds of the cost to TAA. He then continued:
[74]The passage I have emphasised is disturbing. It appears to suggest that under the 1922 Act, employees had been denied an opportunity to make provision for their retirement which was available to them under Commonwealth legislation. The conduct was deliberate and calculated. It was done to save money. It was done to the future prejudice of employees.
[75]A number of possible alternatives were proposed to address the problem. None were adopted, but central to the thinking at the time was the desirability of creating a new scheme, similar to Ansett’s and no more expensive, and persuading existing employees to transfer to it. New employees would have no other choice.
…
[86]One thing which is clear from the history I have recounted is that TAA embarked on a deliberate course of conduct, over a period of some years at least from 1973 to 1980, designed to obstruct, frustrate and prevent entry into superannuation schemes established under Commonwealth statutes for the benefit of employees. The motivation was financial advantage for TAA. The result for employees was a financial prejudice, or potential prejudice, for them.
[87]I see no way to excuse what happened. However, a lack of excuse for exploitative (and perhaps even odious) conduct does not equate to legal causes of action for individuals even where, as here, they assert that the prejudice suffered by them was financially very substantial.
On the appeal, counsel for the appellants used the shorthand “Deterrent Scheme” to refer to the policies and practices which the Judge described. It is convenient to do likewise in these reasons.
Mr Innes’ claim
Mr Innes said that, shortly after commencing employment with TAA on 1 July 1974, he had made enquiries about joining “Commonwealth superannuation” by speaking to Mr Tibbs, then a Sales Manager in TAA’s Perth office. Mr Tibbs was responsible for corporate accounts and was not in any line of authority for Mr Innes. Mr Innes spoke to Mr Tibbs because he had been told by other employees that he “handled all superannuation enquiries in Western Australia”. Their first conversation was to the following effect:
Mr Innes: How do I join the Commonwealth superannuation fund?
Mr Tibbs:There are a limited number of positions available in the scheme. You will be invited to join on the retirement of a member of the scheme.
Mr Tibbs did not say anything to Mr Innes to indicate that he was not the appropriate person to provide the information which Mr Innes was seeking.
On the basis of this information, Mr Innes believed that he had no choice but to wait. Thereafter, he spoke to Mr Tibbs about twice each year about joining “the scheme”. On each occasion he was told that, although persons had left TAA, there were “no positions available” or “the position has gone to someone else who was ahead of you in the queue” or “you will have to wait your turn”. Mr Innes accepted these statements and took no further action.
Because he was keen to provide some financial security for his family, he took out a life policy with AMP in July 1978 and a superannuation policy in August 1981. Mr Innes joined AAGSP with effect from 1 January 1987 and on 30 June 1990 took out a second AMP policy.
Mr Innes’ case was that the information he had been given by Mr Tibbs was wrong and misleading and that he had relied on it to his detriment. His evidence was that, if he had been told by Mr Tibbs that he was eligible to join “Commonwealth superannuation”, he would have “taken all necessary steps to join”.
It was common ground at the trial that Mr Tibbs is now deceased.
Mr Hunter’s claim
Mr Hunter’s evidence was to the following effect. He learnt about superannuation from discussions with fellow employees shortly after starting at TAA. In particular, he was told by his fellow employees that “Commonwealth superannuation” was “very beneficial”. In August 1975, he and two other employees who had started at the same time as he had (on 28 July 1975) went to see Mr Kent, the Personnel Manager at Essendon Airport. He (Mr Hunter) was the spokesperson and a conversation to the following effect occurred:
Mr Hunter:I understand I am eligible to join the Government superannuation scheme, what do I have to do about joining?
Mr Kent:Superannuation is by invitation only. You have been here long enough to know better.
Mr Hunter:Why?
Mr Kent:That is the way it works.
Shortly afterwards, a foreman (Mr Sibble) told Mr Hunter and others during a smoko break discussion that “superannuation is by invitation only”.
A few days later, Mr Hunter had a discussion with TAA’s paymaster, Mr Sherburn, at a club at which they were both members. Mr Hunter told Mr Sherburn of his discussion with Mr Kent and asked whether what he had been told was correct. Mr Hunter said that Mr Sherburn responded with words to the effect “everyone is eligible to join Commonwealth superannuation”, that what Mr Hunter had been told by Mr Kent was correct, but that sometimes “it gets short circuited by applying through other means”.
Mr Hunter’s evidence was that he had accepted what he had been told and did not take steps to pursue joining Commonwealth superannuation. He said, however, that if he had known that what Mr Kent had said was incorrect, he would have done something about joining by “making waves” and would have “pushed it as far as I could through legitimate channels”.
The decision of the primary Judge
The primary Judge found that neither Mr Innes nor Mr Hunter was a “permanent employee” of TAA, at [47] and [90]. Further, the Judge held that, even if they had made applications to join the CSF before 30 June 1976, it is improbable that they would have obtained the necessary certification that their employment would continue for at least seven years (see [91]‑[93]). That fact meant, by itself, that Mr Innes and Mr Hunter’s claims with respect to the CSF failed. On his appeal, Mr Hunter accepted that this was so and did not pursue any claim with respect to the CSF.
It is evident that the Judge felt significant disquiet about the quality of the evidence presented by the appellants. He considered that the absence of an “objective” record and “satisfactory corroboration” made their cases “difficult”.
The Judge referred to the authorities indicating that liability for negligent misstatement depends on it being established that the speaker realised, or at least ought to have realised, that he or she was being trusted to give information or advice on which the other would act. His Honour found that the appellants could not establish “the requisite degree of knowledge or appreciation on the part of those persons who statements they claim forestalled any further action on their part to pursue the question of entry into a Commonwealth superannuation scheme”, at [115]. In this respect the Judge regarded it as significant that each of the applicants had failed “on their own evidence, to take the basic and most obvious step of making a formal or even focussed enquiry with their local Personnel Officer about a matter which was clearly, and obviously, in that domain” (at [109]). The Judge went on to explain the significance of that conclusion:
My earlier criticism of the policies and practices being adopted by TAA will not sustain an assumption in favour of the applicants that any enquiry would have been rebuffed, when no enquiry was attempted and no response was elicited.
In relation to the claim in negligence, the primary Judge applied the approach of Heerey J in Mulcahy v Hydro‑Electric Commission [1998] FCA 605; (1998) 85 FCR 170, which involved circumstances which were in some respects analogous to those of the appellant’s claims. It will be necessary to return to this decision.
In relation to Mr Innes’ individual claim, the Judge concluded:
(1)there was no objective support for Mr Innes’ assumption that Mr Tibbs was the appropriate person to approach on the question of superannuation, that Mr Tibbs had any responsibility for superannuation, or that Mr Tibbs would have realised that Mr Innes would rely on what he said, or that it was or would have been reasonable for him to do so, at [167]‑[168];
(2)these matters constituted insurmountable obstacles for Mr Innes’ case, at [168];
(3)any serious enquiry by Mr Innes should have been made to his personnel officer, at [169];
(4)Mr Innes had not actively pursued an interest in joining CSS or CSF, and did not make out a case that he would have pursued joining CSS or CSF but for the alleged misleading advice from Mr Tibbs, at [161] and [175];
(5)that if Mr Innes had made out his case, he would have been entitled to entry to the CSS from 1 July 1976 when it commenced, at [176].
In relation to Mr Hunter, the primary Judge concluded:
(1)there were inconsistencies in his evidence which suggested that his account was unreliable, at [188];
(2)that he had not established that he had pursued any interest in joining CSS or that conversations had occurred which had had the effect of denying him the opportunity to do so, at [188], [192];
(3)that Mr Hunter’s then ambition to train as a pilot made it unlikely that he would have intended continuing working at TAA and was inconsistent with his professed desire to start contributing to a superannuation scheme with a view to eventual retirement from TAA in some 40 or so years’ time, at [190]‑[191];
(4)that if Mr Hunter had made out his case, he would have satisfied the qualifying period for entry into the CSS on 28 July 1976, at [194].
Thus, the claims of Mr Innes and Mr Hunter failed.
The primary Judge addressed two further matters. First, he rejected the respondent’s claim that the appellants’ claims were statute barred because they had been commenced outside the six year limitation period fixed, in the case of Mr Innes, by the Limitation Act 1935 (WA) and the Limitation Act 2005 (WA) and, in the case of Mr Hunter, by the Limitation of Actions Act 1958 (Vic).
The Judge did not assess the damages to which the appellants would have been entitled, had their claims succeeded, although he did outline some elements of the approach he would have adopted in that event.
Issues on the appeals
The respective notices of appeal contained multiple grounds, several of which are common to both appeals. Many of the grounds are expressed in a discursive way. On our understanding, the notices of appeal raise the following issues:
(1)if Mr Innes was a temporary employee, did the Judge err in finding that, even if he had applied to join the CSF before 1 July 1976, it would have been (i) reasonable for TAA to have required some minimum period of service before certifying that he was likely to be employed for at least seven years; and (ii) improbable that TAA would have given that certification in time for him to have gained entry to the CSF? (Innes Ground 6 and 7). Mr Hunter did not pursue the corresponding grounds in his notice of appeal.
(2)in relation to the claims concerning the CSS, should the Judge have found that each appellant was employed in a permanent capacity? (Innes Ground 5; Hunter Ground 5);
(3)in relation to the appellants’ claims of negligent misrepresentation did the Judge:
(a)misdirect himself as to the elements of the tort to be established, and thereby err in law? (Innes Grounds 1 and 2; Hunter Grounds 1 and 2);
(b)err in law in finding that an insurmountable obstacle to the success of the appellants’ claims was their inability to establish that those on whom they relied knew, or ought to have known, that their advice would be relied on? (Innes Ground 12; Hunter Ground 12);
(c)err in his approach to the assessment of the appellants’ evidence, in particular, by saying that the appellants had “a heavy onus” and that there was no objective record or other satisfactory corroboration of the misrepresentations alleged? (Innes Grounds 3, 4 and 8; Hunter Grounds 3, 4 and 8);
(d)err in finding that Mr Innes had not established that Mr Tibbs was an appropriate person to approach and that it had been reasonable for him to rely on Mr Tibbs’ statements? (Innes Grounds 13 and 14);
(e)err in concluding that any serious enquiry by the appellants should have been made to their personnel officer, especially as, in the case of Mr Hunter, he had made such an enquiry? (Innes Ground 11; Hunter Ground 11);
(f)err in failing altogether to consider Mr Hunter’s evidence concerning Mr Sherburn? (Hunter Ground 13);
(g)err in failing altogether to address the appellants’ claims that TAA had an ongoing duty to correct the representations previously made which were incorrect? (Innes Ground 18; Hunter Ground 17);
(4)in relation to the appellants’ claims in negligence, did the primary Judge err in:
(a)failing to find that TAA did owe the appellants a duty of care to avoid causing them economic loss in relation to the superannuation arrangements? (Innes Ground 20; Hunter Ground 19);
(b)relying on Mulcahy to find that there was no duty of care? (Innes Ground 20; Hunter Ground 19);
(c)failing to find that the Deterrent Scheme and its implementation in relation to the appellants constituted a breach of the duty of care? (Innes Ground 19; Hunter Ground 18);
(d)failing to make the necessary findings of fact? (Innes Ground 21, Hunter Ground 20);
(5)on the issue of causation and reliance did the primary Judge err in:
(a)finding that Mr Innes had not established that he would have pursued an interest in joining the CSF or the CSS, that the conversations upon which he said he had relied had had that effect, and that he had been wrongly precluded from the CSS from at least 1 July 1976? (Innes Grounds 9, 10, 15, 16 and 17):
(b)the case of Mr Hunter in finding that, even at face value, Mr Hunter’s evidence did not establish that he would have pursued an interest in joining the CSS and that the conversations on which he relied had had the effect of denying him the opportunity to join CSS? (Hunter Grounds 9, 10, 11 and 15);
(c)the significance which he attached to Mr Hunter’s ambition to become a pilot? (Hunter Grounds 14 and 16);
(6)did the Judge err in finding that, if he had been called upon to assess damages, he would have found that each appellant had failed to take reasonable steps to mitigate his own loss? (Innes Ground 22; Hunter Ground 21).
In addition, the respondent claims, by notices of contention, that the primary Judge should have upheld its defences that the claims are statute barred.
Disposition of Mr Hunter’s appeal
In our view, it is not necessary to consider all these issues on Mr Hunter’s appeal as it is plain that the appeal must fail in any event.
As noted earlier, Mr Hunter’s claim was that he had accepted the accuracy of what he had been told by Mr Kent and Mr Sibble and that, if he had known that the information they had given him was incorrect, he would have pursued participation in the CSS. The difficulty for Mr Hunter on appeal arises from the fact that the Judge regarded his evidence with respect to the issues of reliance and causation as unreliable and in other respects as implausible. As to the unreliability of Mr Hunter’s account, the Judge referred to:
(1)the inconsistency in his evidence concerning when he had first learnt about the AAGSP, at [184];
(2)inconsistencies in his evidence concerning the sequence with which he had spoken to Mr Kent and to Mr Sibble, at [185];
(3)the implausibility of his account that he had approached Mr Kent to see how long it would take for him to receive an “invitation” to participate when he had not asked Mr Kent that question, at [186].
The Judge concluded at [188]:
Inconsistencies of this kind do not necessarily connote dishonesty or false evidence but they may suggest some unreliability. They do so in the present case. However, accepting Mr Hunter’s evidence about the conversations at face value, I would not conclude or accept that he pursued any interest in joining CSS, or that conversations before CSS commenced had the effect of denying him any opportunity to join CSS. …
The Judge also considered that it was implausible that Mr Hunter would have wished to pursue participation in the CSS in 1975 or 1976. When Mr Hunter commenced with TAA, he was 21 years old, unmarried, without dependants and had ambitions to become a pilot with a commercial air service (not necessarily TAA). To that end, Mr Hunter was putting his money towards flying lessons. He did not abandon his ambitions to become a pilot until he was 25 or 26 years old.
The Judge regarded this evidence as being inconsistent with Mr Hunter’s evidence that he had wanted, in 1975 and 1976, to start contributing to a superannuation scheme with a view to eventual retirement from TAA approximately 40 years later, at [191]. He said that the evidence concerning Mr Hunter’s pilot ambitions confirmed his conclusion that Mr Hunter had not pursued any interest in joining CSS. It is evident that the Judge considered that Mr Hunter would instead have wished to avoid having superannuation contributions deducted from his wage when he had the prospect of recouping only the accumulated contributions if he left TAA’s employment to pursue pilot training.

The appellate approach to review of factual findings of the present kind is that discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [27]‑[31]. The Court may interfere with the findings of a trial judge even though based on the judge’s assessment of the credibility of a witness who the judge has seen give evidence. However, generally the Court will do so only if it considers that there are incontrovertible facts or uncontested testimony indicating that a trial judge’s conclusions are erroneous or that the decision is otherwise glaringly improbable or contrary to compelling inferences.
Counsel for Mr Hunter first sought to demonstrate error in this case by a submission that the Judge had not taken into account Mr Hunter’s evidence of his discussion with the TAA paymaster, Mr Sherburn, in a conversation away from work and at a club. However, Mr Hunter had not made this conversation part of his pleaded case so that it was not necessary for the Judge to make findings concerning it. In our view, it cannot reasonably be supposed that the Judge overlooked this evidence as it was contained in the run of paragraphs in Mr Hunter’s affidavit to which the Judge referred expressly in his reasons.
Secondly, counsel submitted that Mr Hunter’s pilot ambitions were irrelevant. This was so it was said, because there was no suggestion that TAA or the Commissioner’s delegate had been aware of them and so could not have taken them into account in any decision concerning Mr Hunter’s participation in the CSS. In our view, this submission misses the point. The Judge did not refer to Mr Hunter’s pilot ambitions with respect to any decision to be made by TAA or the Commissioner’s delegate but instead with respect to whether Mr Hunter would have pursued participation in the CSS. It was a matter bearing upon Mr Hunter’s decision‑making and not that of TAA or the Commissioner’s delegate.
In our opinion, Mr Hunter has not shown any error of the kind which would warrant this Court interfering with the Judge’s credibility findings. Counsel for Mr Hunter conceded that his appeal must fail unless he could show error of this kind. In our view, that is the position. Accordingly, as indicated, it is not necessary to address the other issues concerning Mr Hunter’s appeal.
Mr Innes’ claim to participation in the CSF
Mr Innes’ first contention was that he had been inappropriately denied the opportunity to participate in the CSF. As noted earlier, the CSF closed on 30 June 1976 just under two years after Mr Innes had commenced employment with TAA. Had Mr Innes been a participant in the CSF on or before 30 June 1976, he would automatically have become a member of the CSS on 1 July 1976.
Section 4(6) of the 1922 Act had the effect that Mr Innes could have become a participant in the CSF before its closure only if (relevantly) TAA had certified that his employment was “likely to be continued for a period of at least seven years”, had recommended to the Minister that he be deemed to be an employee as defined in the 1922 Act, and the Minister had given a direction to that effect.
At the trial, Mr Innes argued that he should have been regarded as entitled to join the CSF on the completion of his six month probation period (in January 1975) and without having to complete two or three years’ service, as was the apparent practice of TAA. The Judge rejected that contention. His Honour considered that TAA could reasonably have regarded the completion of a “qualifying” period as a matter bearing on the certification that a person’s employment was likely to last at least seven years. That was because such a period would have enabled an assessment to be made of the stability of the employment and of the person’s diligence in attending to the required and assigned tasks, at [43]. It is implicit in the Judge’s reasons that he considered that TAA could have regarded two years as being reasonable as a qualifying period for this purpose.
Mr Innes contended on appeal that this finding was wrong. However, his submissions to that effect did not arise above assertion and did not identify any error in approach by the Judge.
In our view, no error has been shown in this conclusion of the Judge. Mr Innes’ failure on this issue is sufficient to indicate that his appeal insofar as it concerns the CSF must fail. Even had he been properly informed about the CSF, he cannot show that he would have become a participant in it before admission to it closed on 30 June 1976.
Was Mr Innes a permanent employee?
The question of whether Mr Innes was a permanent or temporary employee arose from the definition of “eligible employee” in the 1976 Act (set out earlier in these reasons), and because permanent employees were entered without further qualification into the CSS.
Section 3(1) of the 1976 Act, out earlier in these reasons, defined a “permanent employee” (relevantly) as a person employed by an approved authority “in a permanent capacity”. It also distinguished such an employee from a “temporary” employee who was defined as a “person employed … otherwise than in a permanent capacity”.
The Judge concluded that there was no evidence that either of the appellants was a permanent employee, giving brief reasons:
[46]… There is no evidence that any of the applicants was a permanent employee. For example, none was required to undergo a medical examination upon employment. They were certainly not persons “in the Service of the Commission” within the meaning of the ANA Act.
[47]I am satisfied, therefore, that each of the applicants was a “temporary employee” within the definition in s 3(1) of the 1976 Act …
The Judge’s reference to the “Service of the Commission” was a reference to s 17 of the ANA Act, set out earlier in these reasons.
Later, at [90], the Judge said that he was satisfied that only persons “in the Service of Commission” were permanent employees of TAA and therefore entitled (subject to medical examination) to admission to the CSS without the need for certification of likely employment for at least seven years and without delay.
The two factors on which the Judge relied were inter‑related because s 17(3) of the ANA Act provided that a person was not to be admitted to the “Service of the Commission” unless, amongst other things, TAA was “satisfied, upon such medical examination as is prescribed, as to his health and physical fitness”. The evidence did not indicate whether any such examination had been prescribed.
The evidence did indicate that the concept of “the Service of the Commission” had fallen into desuetude because, in the early 1960s, TAA had ceased appointing persons to the Service of the Commission. The Judge accepted at [26] that that was so and it is in any event confirmed by a memorandum from TAA’s Personnel Practice Superintendent to its Personnel Director dated 19 May 1975. The memorandum included the statement:
Entry into Service of the Commission has not been carried out since the early 1960s …
The establishment of officers as were originally approved by the Commission no longer has any relation to any overall staffing establishment …
The manner in which TAA had made appointments of staff since the early 1960s was not the subject of the evidence nor of findings by the Judge.
The second submission of counsel for the appellants was that, as the expression “employed in a permanent capacity” was used in the 1976 Act, the terms of the ANA Act did not control its meaning. The submission was that, irrespective of whether (relevantly) Mr Innes had been employed under s 17 or s 18 of the ANA Act, he had, as a matter of proper legal and factual characterisation, been employed in a permanent capacity for the purposes of the definition of eligible employee in the 1976 Act.
When the 1922 Act was first enacted, only permanent employees could participate in the CSF: see the definition of “employee” in s 4(1). The eligibility for participation in the CSF was expanded by the Superannuation Act 1942 (53 of 1942) (Cth) to permit persons employed by the Commonwealth other than in a permanent capacity to join. Such persons had to have had at least five years continuous service and their employment certified as likely to continue “for an indefinite period”. By the Superannuation Act 1971 (46 of 1971) (Cth), s 4(6) was inserted into the 1922 Act so as to permit persons employed by an approved authority to participate in the CSF. Section 4(6) did not distinguish between permanent and temporary employees. In order to participate in the CSF, employees of approved authorities had to have been required by the terms of their employment to give the whole of their time to the duties of their office and their employment certified as being likely to continue for at least seven years.
It is readily understandable that the primary Judge considered the terms of ss 17 and 18 of the ANA Act in determining whether the appellants were employed in a permanent capacity. They conceded on appeal that, for the purposes of that Act, their employment had to be in one or other of the categories contemplated by those sections and seemed to acknowledge that they had not been admitted to the Service of the Commission under s 17. Counsel submitted, nevertheless, that even if the appellants were temporary employees for the purposes of the ANA Act, they were employed “in a permanent capacity” within the meaning of that expression in the 1976 Act. As part of this submission, counsel contended at one stage that the term “temporary” in the ANA Act was not used in its usual sense of “short term” or “for the time being”.
In our opinion, the starting point should be the definition in the 1976 Act. The criterion in that definition is the capacity in which the person is employed rather than the categorisation of the employment by the approved authority. This is made evident by the reference in the definition of permanent employee to the position of persons employed by the Commonwealth. It contemplated expressly that the Commonwealth may have persons employed in a permanent capacity even though they were not officers for the purposes of the Public Service Act, thereby implying that regard may be had to the actual circumstances of a person’s employment. Accordingly, we consider that the question of whether Mr Innes was employed in a permanent capacity for the purposes of the 1976 Act is informed, but not controlled, by the forms of employment contemplated by the ANA Act. In particular, we consider that the emphasis for the purposes of determining the question arising under the 1976 Act should be on the circumstances of Mr Innes’ employment even if, in form, his appointment for the purposes the ANA Act was classified as temporary. The formal classification of the employment by ANA of Mr Innes should not, for present purposes, control the determination of whether he was employed in a permanent capacity.
We are confirmed in this view by the approach of Heerey J in Mulcahy in relation to a counterpart provision in the Retirement Benefits Act 1970 (Tas). Heerey J said, at 195:
The expression “a person … employed in a permanent capacity” is not a legal term of art, like “lease” or “partnership”. The words are ordinary English words which have to be construed and given effect to in the context of this particular legislation.
Later, at 196‑7, Heerey J noted three further features of the concept “employed in a permanent capacity”:
(a)the test of permanency or otherwise is to be applied at the date of engagement or at any subsequent stage at which there is an express agreement to vary the nature of the employment;
(b)the criterion is objective;
(c)lengthy service is not necessarily determinative of permanency.
In deciding that the employees under consideration in Mulcahy were not employed in a permanent capacity despite their subjective intention at the time of engagement to remain at the Hydro indefinitely and possibly for all their working lives, Heerey J took into account objective considerations, namely, that the business of dam construction carried on by the Hydro was not one which could be regarded as continuous and indefinite; that its construction workforce could be used only on projects approved by the Tasmanian Parliament; and that many employees did not wish to be other than temporary (thereby avoiding having a regular amount by way of superannuation contributions deducted from their wages).
The decision and approach of Heerey J was confirmed on appeal: Mulcahy v Hydro‑Electric Commission [1998] FCA 1780; (1998) 85 FCR 248.
We are not able to discern any indication in the evidence concerning Mr Innes’ appointment in 1974 to indicate that it was to be other than in a permanent capacity. Mr Innes made an application for employment using the pro‑forma application form issued by TAA. The pro‑forma document was of a kind which could be used for all manner of employees including flight crew and flight stewards. There was nothing on its face to indicate that the employment for which Mr Innes was applying was temporary in nature. Moreover, the pro‑forma document required Mr Innes to acknowledge a number of conditions of employment which were apt for permanent employment.
Perhaps of more significance is the letter of appointment sent to Mr Innes on 1 July 1974. By this letter, Mr Innes was informed that his application for the position of Traffic Officer had been successful; that his salary would be at the rate of $5,831 per annum; and that his appointment was subject to a probationary period of six months. There was no suggestion that Mr Innes’ employment was temporary or short term. Further, an internal TAA document indicated that Mr Innes was being recruited to replace another employee who had been “reclassified and transferred”.
We respectfully agree with the view of Heerey J in Mulcahy that the permanency or otherwise of a person’s employment is to be assessed as at the date of the engagement (in the absence of evidence of some later variation). This means that the course of subsequent events would not ordinarily bear on the question. We observe, however, that there would be some incongruity in a finding that Mr Innes had been a temporary employee of TAA throughout the period commencing on 1 July 1974 until at least 1994 when his employment was transferred to Qantas. We also consider that there would be some incongruity in the Court accepting that all employees engaged by TAA after the early 1960s had, for the purposes of the superannuation legislation, been engaged in a temporary capacity only, yet that seems to be a necessary consequence of acceptance of the respondent’s submissions.
We conclude that Mr Innes was a permanent employee for the purposes of the 1976 Act and, therefore, an “eligible employee”. Accordingly, his participation in the CSS had been mandatory.
Mr Innes’ claims did not include a claim that TAA had breached a statutory duty owed to him by TAA in failing to act on the basis that he had been employed in a permanent capacity and has not pursued on appeal any claim of breach of contract of employment. Such causes of action may have been difficult to sustain, for other reasons.
The claim of negligent misrepresentation
A person may be liable to another for the economic loss resulting from the negligent provision of information or advice. In L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) (1981) 150 CLR 225, Mason J with whom Aickin J agreed, referred, at 250‑1, to the judgment of Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628 and said:
According to the Chief Justice, whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realizes, or ought to realize, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give.
In this formulation there are several points to be noted. First, liability for negligent mis‑statement is not confined to those who carry on, or profess to carry on, a profession, business or occupation involving the possession of skill and competence. The Chief Justice, like the minority in the Privy Council, was in disagreement with the majority in the Privy Council who drew a distinction between those who bring, or profess to bring, professional knowledge or skill into the preparation of their statements and those who do not do so and are not expected to do so, the latter being under no duty of care in relation to their statements. …
…
I prefer the wider view to that expressed by the majority of the Privy Council in the MLC case. I consider that this Court should now adopt Barwick CJ’s statement of the conditions which give rise to a duty of care in the provision of advice or information. It will be noted that his Honour specifically equated the provision of information with the giving of advice, a conclusion which conformed to his Honour’s view that liability is not confined to those who carry on a profession or business.
(Citations omitted)
In Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, Gleeson CJ, Gummow and Hayne JJ referred to MLC v Evatt and said:
[47]The statement of principle by Barwick CJ in Mutual Life & Citizens’ Assurance Co Ltd v Evatt regained vitality after the consideration in Shaddock of the reasoning of the majority in the Privy Council in the Evatt litigation. In his judgment, Barwick CJ referred to various features of the special relationship in which the law will import a duty of care in utterance by way of information or advice. They were restated by Brennan J in San Sebastian Pty Ltd v The Minister. Two of the points made by Barwick CJ are of immediate significance for this appeal. The first is the statement that:
“the speaker must realize or the circumstances be such that he ought to have realized that the recipient intends to act upon the information or advice in respect of his property or of himself in connexion with some matter of business or serious consequence”.
The second is that:
“the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker. The nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker.”
[48]The first statement emphasises the need for caution lest a duty of care be imposed upon a party who has no appreciation of, and could not be expected to appreciate, the implications of making an error. ...
(Citations omitted)
See also Gaudron J in Tepko at [75] and ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 at [573]‑[577].
The primary Judge applied the principles stated in Shaddock and Tepko. In doing so, his Honour referred to the well‑known statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 that:
When the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
In a similar vein, the primary Judge referred to, and applied, the observations made by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318‑9:
Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration. …
The basis for Mr Innes’ claim

Mr Innes’ claim of negligent misrepresentation was based on the statements which he alleged had been made by Mr Tibbs, then the Sales Manager in the Perth city office of TAA. As noted earlier, he said that, commencing in the first 12 months of his employment, he had made enquiries of Mr Tibbs on several occasions about how he might join “the Commonwealth superannuation fund”. His claim was that on the first occasion Mr Tibbs had told him that there were a limited number of positions available in the CSF and that he would be invited to join the scheme on the retirement of a member of the scheme, thereby representing that eligibility to participate in Commonwealth superannuation was by invitation only.
Mr Innes said that thereafter he had periodically enquired of Mr Tibbs whether there was now a position “in Commonwealth super” and that Mr Tibbs had responded with words to the effect of “there are no positions available”, or “the position has gone to someone else who was ahead in the queue” or “he [the applicant] would have to wait his turn”.
Mr Innes’ evidence in chief concerning these conversations was provided by way of affidavit and was as follows:
31.After I first started working at TAA, I was speaking to fellow workers in general conversation when some of those workers, who were approaching retirement, asked me if I had applied to join Commonwealth superannuation. Those workers included:
(a)Patrick Tennant, Supervisor in TAA City Office;
(b)Geoffrey Jayger, Supervisor in TAA City Office; and
(c)Harold Childs, Honorary President of FCU in Western Australian and Traffic Officer at TAA.
This was the first time that I became aware of Commonwealth super. This topic came up regularly. They all suggested I approach Graham Tibbs. I was told by them that Mr Tibbs “handled all the superannuation enquiries in Western Australia,” or words to that effect.
32.After these discussions, in about the first six months of my employment, I decided to join Commonwealth superannuation and I approached Mr Graham Tibbs, the Sales Manager, at his office in the Booking Hall at the Perth TAA office. Mr Tibbs’ office was located upstairs in the same building where I worked. I went to his office, knocked on the door and spoke to him. I asked Mr Tibbs words to the effect of: “How do I join the Commonwealth superannuation fund?”
33.Mr Tibbs responded with words to the best of my recollection: “There are a limited number of positions available in the scheme. You will be invited to join on the retirement of a member of the scheme.” Mr Tibbs did not offer me any information about the scheme and did not suggest that he was not the appropriate person to talk to or refer me elsewhere. It was a very brief conversation. I was left with the distinct belief that I had no further option other than to wait.
34.I continued to press Mr Tibbs about joining the scheme but was repeatedly told the same story. Prior to 1978 I would go into Mr Tibbs’ office and make enquiries with him directly about twice per year. This is because people were retiring and I believed, given what he had previously told me, that the situation for me may have changed. When I was spending more and more time out at the airport, it was more convenient for me to contact Mr Tibbs by telephone, and I did so about once per year from 1978.
35.On each occasion I would ask Mr Tibbs words to the effect: “I understand that someone has left. Is there now a position in Commonwealth super?”
36.In response to my enquiries, Mr Tibbs would respond with words to the effect of:
(a)“There are no positions available;” or
(b)“The position has gone to someone else who was ahead of you in the queue;” or
(c)“You will have to wait your turn.”
37.On each occasion Mr Tibbs’ response was basically the same. On no occasion did Mr Tibbs suggest I make enquiries elsewhere, or suggest that he was not the right person to talk to about joining Commonwealth superannuation.
38.I accepted that Mr Tibbs would know the correct position, and that I would be invited to join Commonwealth super when a position became available. I understood that Mr Tibbs was responsible for all personnel matters of employees at the Booking Office.
Mr Innes’ evidence as to what he would have done had he been told by Mr Tibbs that he was eligible “to join Commonwealth superannuation” was set out in the following two paragraphs of his affidavit:
39.If I had been told by Mr Tibbs that I was eligible to join Commonwealth superannuation, I would have taken all necessary steps to join, I would have obtained and submitted an application to join, and followed it up to ensure it was processed as soon as possible.
40.From the time when I began at TAA and after I learned about Commonwealth superannuation I was keen to join because I was aware of the benefits the scheme provided. If I had been permitted to join I would have been able to contribute part of my salary towards Commonwealth superannuation as required. Even though I was supporting a young family, I was on a relatively high income compared to what I had been previously used to, and also received shift allowances. I had disposable income and would have been able to afford to contribute to the scheme as required.
The primary Judge did not make express findings as to whether Mr Innes had spoken to Mr Tibbs as he claimed nor whether Mr Tibbs had made the statements which Mr Innes attributed to him.
It is apparent that the Judge had misgivings about the reliability of Mr Innes’ account. He said that he was not prepared to give “unqualified acceptance” to the statements made by Mr Innes in [31]‑[40] of his affidavit, at [162]. The Judge referred more than once to a lack of objective evidence and of evidence which was corroborative of Mr Innes’ account, at [104], and, at [102], described the appellants’ evidence generally as “skimpy and one‑sided”. Specifically, the Judge did not accept Mr Innes’ evidence contained in [38] of his affidavit that he had understood Mr Tibbs to be “responsible for all personnel matters of employees” at TAA’s Booking Office. In this respect, the Judge accepted the submission of counsel for the respondent that Mr Innes had been well aware that he should speak to the personnel officer about employment related matters, at [172].
Nevertheless, we think it appropriate to proceed on the basis that the Judge did accept, or at least had been willing to assume, the correctness of Mr Innes’ evidence that he had spoken to Mr Tibbs within the first 12 months of his commencement with TAA and periodically thereafter. The content of those discussions will be the subject of separate consideration. We think it appropriate to proceed on this basis because, not only did the Judge not make an express finding to the contrary, but there had been no positive submission by the respondent at trial that Mr Innes’ evidence that he had had those discussions with Mr Tibbs was false, whether deliberately so or as a result of some process of reconstruction. On the contrary, several of the respondent’s submissions at first instance seemed to assume the correctness of Mr Innes’ evidence that he had approached Mr Tibbs about superannuation arrangements. Further, it seems inherently unlikely that, had Mr Innes been fabricating the evidence, he would have nominated Mr Tibbs as the person to whom he had spoken.
The basis for the Judge’s rejection of the negligent misrepresentation claim
It is evident that the Judge considered that Mr Innes’ claim of negligent misrepresentation should fail for three principal reasons.
First, the Judge held that Mr Innes had not established that Mr Tibbs was, or ought to have been, aware that he [Mr Innes] intended to act upon the information he provided, at [102], [115] and [168]. In the last of these paragraphs, the Judge said:
[Mr Innes] cannot show that Mr Tibbs had any responsibility for superannuation, that Mr Tibbs would realise that Mr Innes would rely on what he said, or that it was or would have been reasonable to do so. He cannot show that Mr Tibbs would appreciate the (alleged) implications [from] making an error in his statements.
Secondly, the Judge considered that it had not been reasonable for Mr Innes to have relied on what he was told by Mr Tibbs. As to this, the Judge said:
[167]There is no objective support of any kind to Mr Innes’ stated assumption that Mr Tibbs was an appropriate person to approach about the question of superannuation. I give no weight to the suggestion that he was told that some other people thought so.
[168]That difficulty is an insurmountable obstacle for Mr Innes’ case, although it is far from the only one. …
[169]Furthermore, whatever local role Mr Tibbs may have played (assuming that for this purpose) the Personnel Officer was an obvious and inescapable candidate for any serious enquiry about superannuation. No serious enquiry about the matter could be complete, in my view, without seeking information also from the Personnel section or the Personnel Officer.
Thirdly, the Judge held that Mr Innes had not established that he had suffered damage as a result of the statements which he attributed to Mr Tibbs. In this respect, the Judge noted that a “cause of action in negligence does not arise unless and until the plaintiff suffers damage” (Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 per Crennan, Bell and Keane JJ at [124] (Brookfield)). His Honour considered that, in order for the appellants to succeed, it was necessary for them to establish, on the balance of probabilities, that if the statements about which they complained had not been made or if they had been given correct advice, they would in fact have joined Commonwealth superannuation, at [150].
The Judge considered that Mr Innes had not established that matter, at [151], and said later at [175]:
I do not accept that Mr Innes actively pursued an interest in entering CSS (or CSF) or that he has made out any case that he would have pursued the matter but for the alleged misleading advice from Mr Tibbs.
In a similar vein, the Judge said at [161] that he could see nothing in Mr Innes’ history to support his claim that, in 1974 or at any time before the CSS closed to new entrants from TAA, that he had been “determined” to pursue the possibility of entering into Commonwealth superannuation. Again, the Judge referred to an absence of “objective support” for Mr Innes’ claim that he had had such an intention or desire.
There is a passage in the Judge’s reasons which may suggest a second strand of reasoning on this topic. The Judge referred to the necessity of assessing what the position would have been had the statements claimed by the applicants at first instance not been made and continued:
[108]The applicants assert that they would have continued their efforts to enter Commonwealth superannuation but that is far from a sufficient foundation upon which to conclude that those efforts would have been successful. Indeed, rather more application to the task would have been required than the applicants demonstrated.
(Emphasis added)
It is evident, however, that the Judge did not give effect to that reasoning of that kind. Instead, he found, at [176], that if Mr Innes had otherwise established his case, he would have been entitled to a favourable finding concerning participation in the CSS:
[176][I]f he had made out a case … he would be entitled to a finding that at least after three years’ service he might have expected to be given the necessary certification if TAA was not inappropriately manipulating and blocking entry into CSS for its own financial benefit. Indeed, I can see no reason why he would not have been entitled to entry from 1 July 1976, when CSS commenced. At that point, he had more than the minimum 12 months service to meet the qualifying period, there is no suggestion of unsatisfactory service (if that was relevant) and no suggestion that his employment would not be forecast to continue for at least three years.
The finding concerning Mr Tibbs’ appreciation
The Judge’s conclusion that Mr Innes had not shown that Mr Tibbs had, or should have, realised that he was being relied upon in the requisite way turned very much on his assessment of the evidence concerning Mr Tibbs’ responsibilities.
The evidence at trial concerning those matters came only from Mr Innes. He testified that Mr Tibbs was the Sales Manager with responsibility for corporate sales; that in that position he supervised the sales staff who attended to corporate sales; that Mr Tibbs’ office was on the Mezzanine Level of TAA’s Perth premises; and that Mr Tibbs had no responsibility for Mr Innes’ work (he being engaged in retail sales). Mr Innes’ evidence was that the only interactions which he had with Mr Tibbs were in relation to his superannuation queries.
The description by Mr Innes of Mr Tibbs’ role coupled with the evidence about the Personnel Department in TAA’s city office seemed, on its face, to make it improbable that Mr Tibbs would have had any responsibility for superannuation arrangements for TAA’s staff.
The matters on which Mr Innes relied for thinking that Mr Tibbs did have such responsibility were these:
(1)Mr Childs, the Honorary President of the Federated Clerks’ Union in Western Australia and a fellow Traffic Officer at TAA, had told him that Mr Tibbs was in charge of superannuation for staff in Western Australia and the person to speak to if he wished to join the scheme;
(2)other staff (apparently Mr Jayger and Mr Tennant who were supervisors in TAA’s city office) had told him the same thing;
(3)Mr Tibbs himself had confirmed that he was the person who dealt with superannuation in Western Australia.
Mr Innes’ evidence concerning what had been said by Messrs Childs, Jayger and Tennant was admissible because it provided the explanation for his having approached Mr Tibbs in relation to superannuation. However, because of its hearsay nature (s 59 of the Evidence Act 1995 (Cth)), that evidence could not be used to prove that Mr Tibbs did in fact have that responsibility. Although the Judge did not say so expressly, this appears to be the explanation for his statement at [167] that he would give “no weight” to Mr Innes’ evidence that others had told him that Mr Tibbs was the appropriate person to whom to speak. An alternative explanation would be that the Judge was not willing to accept Mr Innes’ evidence concerning what these men had told him.
That left only Mr Tibbs’ own statements, as reported by Mr Innes. Given that Mr Tibbs is now deceased, the statements which Mr Innes attributed to him were admissible: Evidence Act s 63, having regard to the terms of s 62.
It is evident, however, that the Judge considered that superannuation was more likely to be a responsibility of TAA’s Personnel Department. That was a natural inference. Furthermore, contemporaneous documents within TAA confirmed that that was so. The documents issued by TAA to its staff concerning superannuation emanated from its Personnel Department and provisions concerning superannuation were contained in its Personnel Manual (for which the Personnel Department had apparent responsibility).
Mr Boxshall, the Personnel Officer, also had an office on the Mezzanine Level of TAA’s Perth premises. Given that proximity, there was no apparent need for there to have been some delegation of functions from the Personnel Department to Mr Tibbs in his capacity as Sales Manager.
In addition, Mr Innes acknowledged that he had dealt with the Personnel Department in relation to other employment matters and, in his capacity as Union Delegate, had referred other TTA employees to that Department.
We referred earlier to the Judge’s misgiving about the reliability of Mr Innes’ evidence. In particular, the Judge’s rejection of Mr Innes’ claim that he had understood Mr Tibbs to be responsible “for all personnel matters” would seem to have undermined his evidence that Mr Tibbs had said that he was the person who dealt with superannuation.
It is convenient at this point to address some submissions by counsel for Mr Innes critiquing the Judge’s assessment of the evidence.
Counsel accepted that the evidence was “one‑sided” in the sense that the evidence of the events in question had come solely from the appellants, but submitted that the Judge had been wrong to disparage its quality on this account. We are not willing to accept that the primary Judge was using the term “one‑sided” in this sense. To do so would be to impute to the primary Judge the fairly basic error of discounting the value of evidence simply because it had been adduced by one party only. We think instead that the Judge was referring to the nature of Mr Innes’ own evidence, namely, that it comprised almost wholly his own oral account and was not supported by contemporaneous documents or by witnesses who were independent of him. In that sense it was one‑sided. In our opinion, this was an appropriate matter for the Judge to take into consideration. It reflects the common sense inference that, if Mr Innes’ account of his interactions with Mr Tibbs was correct, then it is likely that other employees of TAA in Perth would have had similar interactions with him. Yet Mr Innes had adduced no evidence from others to that effect.
Counsel for Mr Innes pointed to evidence that TAA had had a number of employees involved in its personnel, industrial relations or employee relation departments and seemed to suggest that it had been open to the respondent to call some of these. He submitted that the Judge had been wrong in failing to draw a Jones v Dunkel inference from the respondent’s omission to do so. However, the evidence did not indicate that these persons were any more available to the respondent than they were to Mr Innes himself and it is understandable that the primary Judge did not regard that submission as persuasive.
Counsel critiqued the Judge’s reference in [104] to an absence of an “objective record” and “satisfactory corroboration”. Counsel submitted that, insofar as this may be understood as a statement of law, it was an error because there is no requirement in cases of negligent misstatement that the statement be corroborated or written and, insofar as it may be understood as a statement of fact, the Judge had overlooked the evidence concerning the Deterrent Scheme. We would not readily impute the first of these errors to the Judge. Again, one would not readily suppose that the Judge had made such a basic error as to think that the law required corroborative evidence before a finding of negligent misrepresentation could be made. There is no indication to that effect at all in any of the authorities to which the Judge referred. We do not accept that part of the submission.
Nor are we willing to find that the Judge overlooked the evidence concerning the Deterrent Scheme. As already noted, the Judge made a number of criticisms concerning the conduct of TAA and his Honour had accepted the appellants’ submissions concerning the Deterrent Scheme. It is not readily to be supposed that, having done this, the Judge overlooked altogether his own findings. In any event, the Judge’s reasons indicate to the contrary. His Honour held that the “lack of excuse for [TAA’s] exploitative (and perhaps even odious) conduct does not equate to legal causes of action for individuals” (emphasis added), at [87]. Later, at [109], the Judge said:
… My earlier criticism of the policies and practices being adopted by TAA will not sustain an assumption in favour of the applicants that any enquiry would have been rebuffed, when no enquiry was attempted and no response was elicited.
We understand the Judge to have been holding in these passages that, even given his findings concerning the Deterrent Scheme, it was still necessary for the applicants, as individuals, to establish each element of their respective claims. At the least, these passages indicate that the Judge did not overlook his findings concerning the Deterrent Scheme.

The majority in Wardley concluded that where a plaintiff enters into a contract which exposes that person to a contingent loss or liability, loss is not first suffered on entry into the contract (at 532). At 533 and in support of that conclusion the majority reiterated (emphasis added):
The conclusion which we have reached is reinforced by the general considerations to which we referred earlier. It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred. Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered. These practical consequences which would follow from an adoption of the view for which the appellants contend outweigh the strength of the argument that the principle applicable to the cases in which the plaintiff acquires property (or a chose in action) should be extended to cases where an agreement subjects the plaintiff to a contingent loss. In such cases, it is fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled.
The observations made in Wardley as to the importance of determining the nature of the interest said to be infringed and the disadvantageous practical consequences which flow from a finding that loss has accrued when loss is not ascertained or ascertainable, were taken up and relied upon the majority in Cornwell at [16] and [17] (citations omitted):
[16]In Hawkins v Clayton, Gaudron J emphasised the importance for actions for negligence causing economic loss in identifying the interest said to be infringed, whether it be the value of property, the physical integrity of property, or the recoupment of moneys advanced. Thereafter, in Wardley Australia Ltd v Western Australia, Mason CJ, Dawson, Gaudron and McHugh JJ observed:
“To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of under compensation or overcompensation, the risk of the former being the greater.”
Their Honours also said:
“The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough.”
[17]In Law Society v Sephton & Co, Lord Mance said, with reference to Wardley, that he saw the attraction of an approach:
“the effect of which is that unless and until a remote contingency eventuates the claimant is not expected to issue proceedings which he would not normally issue or wish to issue unless and until that point arrives.”
Thereafter, at [18], the majority in Cornwell identified the nature of the economic loss which it was alleged Mr Cornwell had sustained. The loss alleged was the lesser CSS benefit Mr Cornwell obtained on his retirement as a result of the negligent advice given to him in 1965. The nature of Mr Cornwell’s interest (in the sense used in Wardley) was an “entitlement conferred by federal statute law”. The majority distinguished such an interest from “proprietary or other rights or obligations created or governed by the general law”. At [19] and at [37] the majority characterised Mr Cornwell’s CSS entitlements prior to his retirement as prospective and contingent upon the falling in at a future time of the statutory criteria upon which those entitlements depended. At [19] the majority said this:
What was only in prospect until the falling in of one or more of various contingencies, matured into actual loss only at the end of the respondent's service and upon the falling in of one or more of the statutory contingencies which had to be met for the respondent to be entitled to a statutory benefit.
Put another way, Mr Cornwell’s interest (in the sense used in Wardley) only crystallised and became capable of being infringed upon the falling in of one or other of the statutory criteria. At that time Mr Cornwell’s prospective entitlements became an actual entitlement and Mr Cornwell suffered actual loss.
Turning then to the facts of this case, the loss alleged by Mr Innes is of the same nature as in Cornwell being the loss of a CSS benefit on retirement. The nature of the interest is, just as in Cornwell, the entitlement to be payed a benefit under the 1976 Act on the falling in of one or other of the statutory contingencies.
In my view, just as in Cornwell, the interest here infringed was Mr Innes’ entitlement to a benefit conferred by the 1976 Act. That entitlement, whether provided under s 144B (age 65 retirement), s 144C (early retirement), ss 144D-F (invalidity) or s 144G (spouse and children) “depended upon the terms of the particular legislation” and “was only in prospect until the falling in of the various contingencies” (Cornwell at [19]). It is only at that time that the infringement of the interest of Mr Innes can be said to have “matured into actual loss” (Cornwell at [19]). Prior to that time, the entitlement was “prospective and contingent upon the falling in at a future time of the statutory criteria” (Cornwell at [37]). There is no relevant distinction as to the nature of the interest held by Mr Cornwell and that interest held by Mr Innes. Nor is a distinction to be found in the nature of the interference to which those respective interests were subjected.
The position may well have been different if the opportunity to elect for a DUP had crystallised the prospective contingent entitlements available under the 1976 Act, a circumstance akin to the position in Innes. But the election had no such consequence. Each of the entitlements available under the 1976 Act and provided under the DUP remained prospective and contingent upon the falling in at a future time of the statutory criteria provided by the 1976 Act. The fact that on making the election, the available contingent entitlements were narrower and excluded a s 80 return of contributions (a feature emphasised by the respondent) did not alter the prospective and contingent nature of the remaining entitlements. The opportunity lost to elect for the DUP was an opportunity to extend access to one or other of the several prospective and contingent entitlements. It was not an opportunity to convert a prospective entitlement into an actual entitlement.
Insofar as the respondent’s contention sought to characterise the interest infringed as a present entitlement to a future payment or a future revenue flow under the DUP, there is a short answer to that contention. The negligence of the respondent did not infringe any such interest because no such interest could have existed. Any proprietary or other right to or interest in a future payment or revenue flow remained prospective and contingent, at least until one or other of the statutory criteria for the payment of a benefit had been satisfied. As at 30 July 1995 no statutory criterion had been met by Mr Innes.
Insofar as the respondent’s contention was grounded in the loss as at 30 July 1995 of a chance or valuable opportunity, I do not consider that the matters relied upon by the respondent demonstrate an interest (in the sense used in Wardley).
On the assumption that each of the available contingent entitlements on the counterfactual were superior to the value of the monies not contributed to the CSS and held on the factual, the respondent characterised the opportunity said to have been lost as an opportunity for a guaranteed entitlement to a benefit. However, to adopt the reasoning in Wardley quoted at [265] above, “[t]he likelihood, perhaps the virtual certainty”, at the time that the opportunity was lost that there would be a benefit in the future did not transform the contingent benefits into actual benefits at that time. Therefore, any interest and thus any loss remained prospective. As the majority said in Wardley at 527 in the passage quoted at [267] above, detriment in a “general sense has not universally been equated with the legal concept of ‘loss or damage’”. That is so including because to compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable may be unjust.
I should add that the respondent was wrong to assert, as a point of distinction, that the High Court in Cornwell reasoned that there was a need to wait and see which of the contingencies fell in to know when a loss had occurred because in Cornwell a s 80 return of contributions remained a possibility. Nothing in the judgment of the majority suggests that the High Court so reasoned.
In any event, I find it difficult to see how, on the respondent’s argument, the guarantee of an entitlement more valuable than a s 80 return of contributions could form the basis of a relevant distinction with the facts in Cornwell. The respondent’s contention that loss accrued at the time of the 1995 election rests on a premise that, on the counterfactual, Mr Innes held some interest in his future entitlement under the DUP which was capable of being valued at the time of the 1995 election. If it were otherwise, the respondent could not say that Mr Innes had suffered a loss at that time. It was contemplated that the valuation of that interest would be approached on the basis of the relative likelihood of each contingency falling in applied against the relative values of those contingencies. That valuation process does not differ in any material way from the process that would be applied to the valuation of an interest in a future entitlement which included a s 80 return of contributions. Such a process is capable of taking into account the possibility of a net return of zero in the case of a s 80 return of contributions. However, significantly, the prospect of a zero return in combination with other valuable contingencies does not diminish the overall value of the interest to zero. The relative likelihood of the other “more valuable” contingencies falling in has the result that the net value of the interest remains positive and, on the respondent’s argument, is similarly capable of forming the basis of a loss for the purposes of the limitation period.
It follows that on the respondent’s argument, on the counterfactual, Mr Innes had a benefit of greater value than a s 80 return of contributions on entering the CSS. The same would have been true for Mr Cornwell. Yet the High Court did not rule that Mr Cornwell would have suffered loss on entering CSS. These observations point to the artificiality of the respondent’s fixation on the 1995 election as providing some point of distinction with the facts of Cornwell.
Furthermore, the assumption upon which the respondent’s contention relied and described at [277] above, was not substantiated.
In Cornwell, the High Court only briefly dealt with the idea that Mr Cornwell may have suffered a lost chance or commercial opportunity. At [38] the majority said this:
The respondent also correctly emphasised that his was not a “transaction case” where property was sold or acquired at a disadvantageous price, or the opportunity was lost of the lucrative exploitation of contractual rights or of some other commercial opportunity. The appellant submitted that the respondent's loss was “necessarily and irretrievably sustained” when the 1976 Fund commenced and replaced the 1922 Fund in the manner described briefly earlier in these reasons. However, whether in 1976 the respondent would have been better or worse off had he invested elsewhere the contributions he otherwise would have placed for units under the 1922 Fund arrangements is a matter of speculation. He could not be said, consistently with remarks in Sellars v Adelaide Petroleum NL, in 1976 to have sustained loss of a commercial opportunity which had some value, as a matter of the degree of probabilities and possibilities.
As I read that passage and in particular when read in the context of the majority’s reasons at [18] where the nature of the interest infringed was discussed and similar observations were made by the majority about the non-commercial nature of that interest, the first part of [38] acknowledges the view of the majority that a loss of a commercial chance or opportunity was not the relevant interest infringed by the negligence suffered by Mr Cornwell. The second half of the paragraph concludes that a loss of opportunity case could not be sustained. The latter conclusion seems to have been premised on the contrary presumption that the interest infringed on the counterfactual could have been a commercial opportunity. On that presumption, the majority held that whether Mr Cornwell was worse off on the counterfactual than on the factual involved speculation and was therefore not established.
Here too, whether Mr Innes was worse off by being denied the chance or opportunity to take up the DUP is a matter of speculation that has not been established on the evidence. Such a finding could only have been made on a forward looking assessment from the vantage of mid-1995.
For the factual, an assessment would have been required of the value of monies not contributed into the CSS through to mid-1995 (when contributions closed) together with the return on the investment of those monies. I will call that exercise A. In order to know whether those monies were, as at mid-1995, less valuable than the value of the DUP as an opportunity of value, would have entailed some forecast as to what rate of growth could be expected through to the time when a benefit under the DUP would be paid. I will call that exercise B.
For the counterfactual, to assess the value of the lost opportunity would have required, again from the vantage of mid-1995, an assessment of when a benefit would likely first be paid and which of the available benefits that would be. I will call that exercise C. Additionally, it would have been necessary to make an assessment as to the rate of pension that would likely be payable in the context of the operation of s 144H which provided for the final annual salary to be adjusted for CPI but only to the last day of employment in the workforce. For that, it would have been necessary to assess, again from the vantage of mid-1995, what would likely be the last day of employment in the workforce for Mr Innes. I will call that exercise D.
It is arguable that the primary judge undertook exercise A (see at [271], [296] and [297]) but the primary judge clearly did not undertake exercises B, C or D including because the nature of the case put by the respondent to him did not require it. Each of exercises B, C and D, by their nature, involve a high degree of speculation. On the findings made by the primary judge Mr Innes could not “be said, consistently with remarks in Sellars v Adelaide Petroleum NL [(1994) 179 CLR 332], [in mid-1995] to have sustained loss of a commercial opportunity which had some value, as a matter of the degree of probabilities and possibilities” (Cornwell at [38]).
Mr Innes relied upon [38] of Cornwell to submit that the many variables at hand render speculative the identification of loss as at mid-1995. To some extent, the submission is consistent with the views I have just expressed. However, in two respects, Mr Innes’ submission went further and for completeness I should deal with each.
First, Mr Innes submitted that an entitlement under those provisions which established the DUP will depend upon the content of the legislation at the time that the relevant contingency occurs and, like any other statute, the provisions in question are not fixed and may be amended. That argument seems to have been directed to the respondent’s contention that the DUP provided a present entitlement to a future payment and sought to draw a distinction between an entitlement founded in a commercial or private right with that based in a statutory right capable of being varied at the whim of Parliament. But, the distinction sought to be drawn is not so clear cut. A commercial or private right may not be conferred by statute but its value may nevertheless be dependent upon it and thereby is also capable of being at risk of legislative amendment. I agree, however, with Mr Innes’ alternative point that the prospect of legislative change over the particular subject matter in question adds to the basket of contingencies and thus the speculative nature of the assessments which the respondent’s proposition called for.
Second, responding to the contention that under the DUP Mr Innes would necessarily do better than a return of contributions, Mr Innes contended that one possibility under the DUP is that a former eligible employee could get no benefit at all not even a return of contributions.
In order to deal with the argument it is necessary to set out the terms of s 144A(2) and convenient to set out s 144B(1) and 144C(1):
144A   Delayed Updated Pension
…
(2)       Delayed updated pension is payable:
(a)to a former eligible employee who has reached the age of 65; or
(b)on request — to a former eligible employee on retirement if he or she is aged 55 or more; or
(c)on request — to a former eligible employee on retirement on the grounds of invalidity; or
(d)on request — to a spouse or child of a deceased former eligible employee, in accordance with Part VI.
…
144B   Benefits — age 65 retirement
(1)A former eligible employee entitled to delayed updated pension who retires at or after the age of 65 is entitled to age retirement benefits in accordance with Division 1 of Part V:
(a)that relate to the period of contributory service that ended on the day he or she ceased to be an eligible employee; and
(b)subject to adjustment (if any) under section 144H — as if his or her final annual rate of salary on ceasing to be an eligible employee is the final annual rate of salary on retirement.”
…
144C   Benefits — early retirement
(1)A former eligible employee entitled to delayed updated pension who retires at or after the age of 55 but before the age of 65 is entitled to early retirement benefits in accordance with Division 2 of Part V (except sections 60 and 62):
(a)that relate to the period of contributory service that ended on the day he or she ceased to be an eligible employee; and
(b)subject to adjustment (if any) under section 144H — as if his or her final annual rate of salary on ceasing to be an eligible employee is the final annual rate of salary on retirement.
…
Mr Innes’ submission was this (emphasis in original):
Sections 144B and 144C identify the entitlement prerequisites for receipt of a delayed updated pension by a former eligible employee upon “retirement”. Such provisions are quite explicit, namely that such employee must be one “who retires at or after the age of 65” (emphasis added), or in the case of s 144C “who retire at or after the age of 55 but before the age of 65” (emphasis added).
For example, in the case of s 144C, a former eligible employee who retires at age 57 falls within the entitlement prerequisite. However, a former eligible employee who retires at age 50, in one of the circumstances exemplified above in paragraph 4, is not a person “who retires at or after the age of 55 but before the age of 65”. Rather, such person is one, to adapt the statutory language, “who retires before the age of 55”.
Mr Innes’ interpretation would lead to perverse and bizarre outcomes. An employee who retired from the workforce a day after reaching the age of 55 would be entitled to a benefit but an employee who retired the day before reaching 55 years of age would be entitled to nothing at all, not even the age 65 retirement benefit on reaching 65 years of age. The policy that would give rise to an intent to implement such a scheme is not apparent. It would create an extreme disincentive—verging on a punitive disincentive—to retirement prior to the age of 55. Such a disincentive is not elsewhere manifest in the Act, as the existence of the DWB reveals (see ss 138(2)(c) and 138(3) of the 1976 Act). And, it is hard to imagine why the framers of Sch 11 would care whether persons who are no longer public employees and no longer entitled to contribute to the CSS scheme should withdraw from the workforce before or after the age of 55. Still less likely is it that it was intended to implement a regime that could very well destroy the retirement savings of former public employees because they happen to voluntarily leave the workforce (or be retrenched) at the age of (say) 54.

The absurdity, inconvenience, and improbability of the result of that construction render it the kind of construction that would be avoided by a court, if another construction were reasonably open: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
Another construction is reasonably open. In my view the word “retires” in s 144C(1) must be read with s 144A(2)(b) which relevantly provides that the early retirement benefit provided for by s 144C “is payable … on request – to a former eligible employee on retirement if he or she is aged 55 or more” (emphasis added). In that context “retires” is open to be read as not merely a reference to the employee withdrawing from the workforce but that it contemplates that the employee has at least reached the minimum retirement age of 55 years of age. On that construction, an employee who has both withdrawn from the workforce and reached the age of 55 may be regarded as having retired. When the word “retires” in s 144(C)(1) is so understood, the absurd results earlier referred to are avoided. It follows that Mr Innes’ construction should be rejected.
For those reasons the respondent’s notice of contention should be dismissed.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
Associate:
Dated: 12 December 2017

Appeal from:	Brewer v AAL Aviation Limited [2016] FCA 93
File numbers:	ACD 12 of 2016 ACD 13 of 2016
Judges:	TRACEY, BROMBERG AND WHITE JJ
Date of judgment:	12 December 2017
Catchwords:	SUPERANNUATION – Commonwealth statutory arrangements for superannuation – appellants claimed to have been wrongfully denied entry into Commonwealth schemes – whether employees were ‘permanent employees’ or ‘temporary employees’ NEGLIGENCE – claims for negligent misrepresentation – appellate approach to review of factual findings of trial judge – whether trial judge erred in finding that the essential elements of a claim of negligent misrepresentation had not been established NEGLIGENCE – claims for negligence generally arising from representations about operation of superannuation schemes – duty of care for pure economic loss – whether one appellant had been vulnerable in the requisite sense to a want of care by the respondent. LIMITATION OF ACTIONS – where negligence of employer alleged to have occurred in the 1970s deprived an employee of a future statutory entitlement to superannuation benefits – discussion of Commonwealth v Cornwell (2007) 229 CLR 519 – whether nature of benefits were distinguishable from those considered in Cornwell to be prospective and contingent and not capable of constituting loss
Legislation:	Australian Airlines (Conversion to Public Company) Act1988 (Cth) Australian National Airlines Act 1945 (Cth) ss 17, 18 Evidence Act 1995 (Cth) ss 59, 62, 63 Superannuation Act 1922 (Cth) ss 4(6), 51 Superannuation Act 1942 (53 of 1942) (Cth) Superannuation Act 1971 (46 of 1971) (Cth) Superannuation Act 1976 (Cth) ss 3, 3(1), 11, 12, 13, 16(2), 25, 45, 53(2), 80, 111, 136, 137, 144A, 144B, 144C, 144D, 144E, 144F, 144G, 144H, Pts V, VI, IX Statutory Rule 181 of 1980 (Cth) Statutory Rule No 20 of 1952 (Cth) reg 4 Superannuation (CSS) Former Eligible Employees’ Regulations 1986 (Cth) reg 15B, Sch 11 Limitation Act 1935 (WA) s 38 Limitation Act 2005 (WA) s 13 Limitation of Actions Act 1958 (Vic) Retirement Benefits Act 1970 (Tas)
Cases cited:	ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Briginshaw v Briginshaw (1938) 60 CLR 336 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 Bryan v Maloney (1995) 182 CLR 609 Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hawkins v Clayton (1988) 164 CLR 539 Hill v Van Erp (1997) 188 CLR 159 Innes v Commonwealth [2015] ACTCA 33 L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) (1981) 150 CLR 225 Meredith v Commonwealth of Australia (No 2) [2013] ACTSC 221; (2013) 280 FLR 385 Mulcahy v Hydro‑Electric Commission [1998] FCA 1780; (1998) 85 FCR 248 Mulcahy v Hydro‑Electric Commission [1998] FCA 605; (1998) 85 FCR 170 Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628 Perre v Apand [1999] HCA 36; (1999) 198 CLR 180 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Warren v Coombes (1979) 142 CLR 531 Watson v Foxman (1995) 49 NSWLR 315 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
Date of hearing:	8 and 9 August and 17 November 2017
Registry:	Australian Capital Territory
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	296
Counsel for the Appellants:	Mr R Douglas QC with Mr J Gordon (8 and 9 August 2017) Mr R Douglas QC (17 November 2017)
Solicitor for the Appellants:	Snedden Hall & Gallop
Counsel for the Respondent:	Mr J Lockhart SC with Mr C Colquhoun (8 and 9 August 2017) Mr B Walker SC with Mr J Lockhart SC and Mr C Colquhoun (17 November 2017)
Solicitor for the Respondent:	Johnson Winter & Slattery

JUDGES:	TRACEY, BROMBERG AND WHITE JJ
DATE OF ORDER:	12 DECEMBER 2017