Tobin v Commonwealth

Case [2013] ACTSC 240

WILLIAM KEITH TOBIN V COMMONWEALTH OF AUSTRALIA
[2013] ACTSC 240 (16 December 2013)

TORTS – Negligence – negligent misstatement – pure economic loss – negligent misstatement proven – common law negligence – breach of statutory duty – decided in accordance with Meredith v Commonwealth (No 2) [2013] ACTSC 221

DAMAGES – damages for negligent misstatement – where the negligent misstatement lead the plaintiff to not join a public sector superannuation fund when eligible – where subsequent competing superannuation scenarios arose as a consequence – use of competing actuarial reports in the assessment of damages in these circumstances – turns on its own facts

SUPERANNUATION – Public service funds – availability of public service superannuation funds to ‘temporary’ Commonwealth employees under the Superannuation Act 1976 (Cth)

TAXES AND DUTIES – tax on a judgment sum – whether tax liability will be assessed on a judgment sum – same approach as Guy v Commonwealth [2013] ACTSC 128 – leave granted to apply for award of additional damages if liability assessed

Limitation Act 1986 (ACT)
Superannuation Act 1976 (Cth), s 11

Court Procedures Rules 2006 (ACT)

Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185
Commonwealth v Cornwell (2007) 229 CLR 519
Cornwell v Commonwealth (2005) Aust Torts Rep 81-779
Guy v Commonwealth [2013] ACTSC 128
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Tort Rep 81-692
Knight v Commonwealth [2013] ACTSC 238
Meredith v Commonwealth (No 2) [2013] ACTSC 221
Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287

No. SC 751 of 2008

Judge:             Refshauge J
Supreme Court of the ACT

Date:              16 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 751 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:WILLIAM KEITH TOBIN

Plaintiff

AND:COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Judge:  Refshauge J
Date:  16 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

  1. There be judgment for William Keith Tobin against the Commonwealth of Australia.

  1. The parties provide appropriate material in accordance with these reasons from which the damages payable can be quantified.

  1. The parties be heard as to costs.

  1. When he left school, William Keith Tobin, the plaintiff, commenced work with a dry cleaning business in Sydney, but when his son required medical attention in Canberra, he applied for a position with the Commonwealth Department of the Interior.

  1. In late 1973, he was interviewed at the head office of the Department, at Electricity House, London Circuit, Canberra City, and was offered a position as a forest worker.

  1. He started at a depot operated by the Department, the Uriarra depot, and he was offered and accepted a house at the nearby settlement for himself and his family.

  1. Mr Tobin says there was no discussion at his original employment interview about superannuation.

  1. He says that he was not informed later of any eligibility that he may have to join…

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Details
AGLC
Tobin v Commonwealth [2013] ACTSC 240
Case
[2013] ACTSC 240
Decision Date

CaseChat Overview and Summary

In the case of Tobin v Commonwealth, the plaintiff, William Keith Tobin, brought an action against the Commonwealth of Australia, asserting claims of negligence and breach of statutory duty. Tobin argued that negligent misstatements by the Commonwealth led him to forgo joining a public sector superannuation fund when eligible, resulting in pure economic loss. The dispute centred on the availability of public service superannuation funds to 'temporary' Commonwealth employees under the Superannuation Act 1976 (Cth). Additionally, the case addressed the issue of tax on a judgment sum and the potential for additional damages if tax liability were assessed.

The primary legal issues the court needed to decide were whether the Commonwealth had indeed made a negligent misstatement that caused Tobin to miss the opportunity to join the superannuation fund, and if so, what damages were appropriate. Furthermore, the court had to determine whether the tax on any judgment sum would be assessed and whether the plaintiff could apply for additional damages if such liability were imposed.

The court found that the Commonwealth had indeed made a negligent misstatement, which led to Tobin's economic loss. The use of competing actuarial reports was deemed appropriate in assessing damages, given the unique circumstances of the case. The court also ruled that the tax liability on the judgment sum would follow the same approach as outlined in Guy v Commonwealth [2013] ACTSC 128, allowing for an application for additional damages if tax liability were assessed.

The court granted judgment in favour of Tobin against the Commonwealth and ordered that the parties provide material from which the damages payable could be quantified. The matter was to be further heard regarding costs.

Orders

Orders of the court

1. There be judgment for William Keith Tobin against the Commonwealth of Australia.

2. The parties provide appropriate material in accordance with these reasons from which the damages payable can be quantified.

3. The parties be heard as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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