I have not been given any figures for the current financial year. The current APS 4 salary, assuming a salary in the middle of the band, is approximately $44,000 net. His current salary net would be approximately $37,000. The difference is $7,000 per annum or $5,830 for the 10 months of the current financial year. Adding that figure to the figure for the period to 30 June 2007 gives a result of $63,267. Mr Gordon's damages will include that figure. Since all the calculations are on a net basis I believe it will not be necessary to gross up to allow for any tax payable by Mr Gordon. Should it be necessary, however, I would receive further submissions on this point.
103 In 2003 and 2004 Mr Gordon received $8030 from Centrelink which he will be obliged to repay. This amount will be included in his damages.
104 The future loss is problematical. At the outset, it must be noted that, unlike the typical common law claim, this is not a claim for loss of earning capacity. It is not alleged that what I have found to be the unlawful termination of employment had any effect on Mr Gordon's physical or mental capacity to earn income. Mr Gordon's case is based on the loss of a hypothetical career with the ATO leading to retirement at 55, 60 or 65. He postulates three possible levels, "Pessimistic", "Expected" and "Optimistic". On the most optimistic scenario, he ends up as an Assistant Commissioner of Taxation based in Canberra.
105 Both sides called actuarial witnesses, Mr Morley for Mr Gordon and Mr Byrne for the respondent. There was little, if any, dispute between those gentlemen as to the methodology of calculation including such matters as discount rates. The real problem is the validity of the assumptions underlying Mr Gordon's case.
106 Assessing what is likely to happen in the future, or would be likely to have happened had not something intervened, is not a matter of scientific demonstration or proof. Nor, unlike findings as to alleged past events, is it a case of all or nothing; 51 per cent probability win, 49 per cent probability lose: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643. Nevertheless, the circumstances in the present case make it extremely unlikely that Mr Gordon, had it not been for the termination in May 2003, would have pursued a successful career with the ATO until retirement, let alone at the level he suggests.
107 First, without wishing to be hurtful to Mr Gordon, the inescapable fact is that, for whatever reason, he is not a high achiever. On paper his qualifications are considerable. He has an honours economics degree and an MBA from good universities. He is a qualified accountant. He has almost finished financial planning qualifications. Yet the positions he has occupied up until now could be characterised as occupying a rank and salary towards the lower end of mid-level clerical/professional jobs. Professional men or women in their mid-forties should be at or approaching their peak in terms of earnings and professional status. If they haven't got very far by this stage, things are unlikely to improve to any significant extent.
108 Secondly, in the past Mr Gordon has not displayed any particular enthusiasm for a career in taxation. He did not persist with the ATO in his earlier career (see [14] above). Perhaps more importantly, in his recent job applications, both in the public and private sectors ([100] above), only one was tax-related. The rest appear to have been for employment in the funds management industry.
109 Thirdly, and connected to the last point, it seems that if Mr Gordon was truly interested in a long term career in tax he would have been better off in the private sector.
110 Mr Byrne was Managing Principal of one of Tasmania's largest accounting firms from 2001 until 2005. He said that in Tasmania it was quite difficult to find good qualified staff at all levels and for some firms this was still the case during 2007, particularly for experienced taxation staff. His firm employed staff from South Australia to fill vacancies.
111 In Mr Byrne's opinion, which was not seriously challenged, as a CPA with an MBA and at least five years in taxation services, given the shortage of tax professionals in Tasmania, Mr Gordon should have been readily employable with a career and salary prospects which could have at least matched if not well exceeded his expected career with the ATO. He could have expected a long career with one of Tasmania's larger accounting firms, that is to say ones with 25 plus staff (which I take to mean professional staff). A salary survey referred to by Mr Byrne included the following:
Taxation consultant, 6 plus years experience $50,000-72,000
Manager, 2-5 years experience $55,000-95,000
Director $90,000-140,000