Mulcahy v Hydro-Electric Commission

BARRY MULCAHY AND OTHERS

v.

THE HYDRO-ELECTRIC COMMISSION

JUDGMENT

Federal Court of Australia

FEDERAL COURT OF AUSTRALIA

CONTRACT -  implication of term as a necessary incident of a definable category of contractual relationship - employment contract - whether implied term that employer advise board of superannuation fund or employee of employee’s right to elect to contribute to fund

EMPLOYMENT LAW - contract of employment - whether implied term that employer advise board of superannuation fund or employee of employee’s right to elect to contribute to fund

EQUITY - unconscionable conduct - Trade Practices Act 1974 (Cth) s 51AA - whether respondent Commission’s conduct in requesting Tasmanian Government to enact retrospective legislation to defeat potential causes of action against it constituted unconscionable conduct - whether imbalance of power amounts to special disadvantage - whether acting to protect one’s own interests unconscionable - whether unconscionable conduct gives rise to a claim for damages - whether relief available where unconscionable conduct not connected with a transaction in respect of which relief is claimed

LIMITATION OF ACTIONS - Trade Practices Act 1974 (Cth) ss 82(2), 87(1CA)(a) - Limitation Act 1974 (Tas) s 4(1)(a) - time of accrual of cause of action - failure to notify of right to elect to contribute to superannuation fund where legislation gives right to elect to contribute - whether cause of action accrues when applicant became aware of right to contribute - whether knowledge of right to sue essential ingredient of cause of action - whether cause of action accrues upon termination of employment - Limitation Act 1974 (Tas) s 32(1) - fraud or concealment of right of action - whether limitation period runs from date of discovering fraud or concealment - whether “fraud” involves moral turpitude

NEGLIGENCE - whether employer under duty to advise board of superannuation fund or employee of temporary employee’s right to elect to contribute to fund - whether general reliance relevant - employer not a public body with statutory duty to regulate activities which may cause loss or damage to members of public - whether continuing duty to advise after employment ceased - whether breach of duty - what constitutes sufficient notification of right to elect to contribute to fund- whether deliberate policy by employer to conceal right to elect - causation - whether employees would have elected to contribute if aware of right to elect

STATUTES - statutory powers and duties - breach of statutory duty - whether statutory corporation under duty to advise board of superannuation fund or employee of temporary employee’s right to elect to contribute to fund - Retirement Benefits Act 1982 (Tas) s 82A - Retirement Benefits Regulations 1982 (Tas) regs 24(1)(ab), (ac) - obligation of “responsible officer” to notify board of fund of appointment of employee and to forward necessary forms for medical examination to employee - whether legislation created a cause of action for damages for breach of statutory duty - whether duty exists where penalty is imposed for breach of statute or regulations - whether…