Innes v Commonwealth

[2015] ACTCA 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Innes v Commonwealth

Citation:

[2015] ACTCA 33

Hearing Date:

12 February 2015

DecisionDate:

17 July 2015

Before:

Murrell CJ, Penfold and Katzmann JJ

Decision:

The applicant’s causes of action first accrued on 5 April 1993.

Category:

Separate question

Catchwords:

LIMITATION OF ACTIONS — Claim for damages for pure economic loss allegedly caused by negligent misstatements about employee’s entitlement to join Commonwealth superannuation scheme — whether statute-barred under Limitation Act 1985 (ACT) — when cause of action first accrued – when loss ascertainable

Legislation Cited:

Limitation Act 1985 (ACT) s 11(1), 30, 33, 36

Public Service Act 1922 (Cth) s 76W
Safety, Rehabilitation and Compensation Act 1988 (Cth)
s 21A(1)
Superannuation Act 1990 (Cth)
Superannuation Act 1976 (Cth) ss 3, 5, 55, 58, 58(3), 59, 62, 137, 137(1), 138, 138(2), 138(3), 139, 139(1), 139(2)
Superannuation Act 1922 (Cth) ss 43, 45, 46, 47, 48
Superannuation Legislation Amendment Act (No 1) 1995 (Cth)

Limitation of Actions Act 1974 (Qld) s 11(2)
Limitation of Actions Act 1958 (Vic) ss 23(1), 27, 27E, 27J, 27K
Dust Diseases Tribunal Act 1989 (NSW) s 12A

Limitation Act 1969 (NSW) ss 50C, 50F, 52, 55, 57, 60A, 60F, 62A, 62D

Cases Cited:

Comcare v Dunstan (2014) 221 FCR 274

Commonwealth v Cornwell (2007) 229 CLR 519
Hawkins v Clayton (1988) 164 CLR 539
Henry v Commonwealth (2012) 264 FLR 381
Scarcella v Lettice (2000) 51 NSWLR 302

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

Parties:

Barry Charles Innes (Applicant)

The Commonwealth of Australia (Other Active Party)

Representation:

Counsel:

Mr B Walker SC with Mr R Davis (Applicant)

Mr P Semmler QC with Mr M O’Meara (Other Active Party)

Solicitors:

Snedden Hall & Gallop (Applicant)

Australian Government Solicitor (Other Active Party)

File Number:

ACTCA 49 of 2014

MURRELL CJ and KATZMANN J:

1. Barry Charles Innes was an employee of the Commonwealth for some 30 years, from 1963 until he accepted a voluntary redundancy in 1993.  Upon satisfaction of the applicable statutory criteria, he was eligible to join the superannuation scheme established by the Superannuation Act 1922 (Cth) (1922 Act). Mr Innes never joined the scheme. He contends that the reason he did not join is that he was negligently informed by employees of the Commonwealth that he was ineligible for membership. In the principal proceeding he seeks damages from the Commonwealth for negligent misrepresentation and for breach of a common law duty of care to take reasonable steps to make its employees aware of their eligibility for membership of Commonwealth superannuation schemes. His claim is one for pure economic loss. The loss was characterised in the statement of claim as:

(a)his failure to join a Commonwealth superannuation scheme; and

(b)his failure to receive Commonwealth superannuation benefits upon and as a consequence of his retirement from the workforce which retirement, were it not for the Commonwealth’s negligence, he alleges would have occurred on 5 June 2007 — his 60th birthday.

1. Mr Innes commenced…