TORTS - Negligence - common law negligence - pure economic loss - no specific duty of care identified - claim dismissed on this cause of action

TORTS - Breach of statutory duty - whether s 4(5) of the Superannuation Act 1922 (Cth) or s 11(1) of the Superannuation Act 1976 (Cth) create a statutory duty - they do not - claim dismissed on this cause of action

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 - leave granted to apply for award of additional damages if liability assessed

Limitation Act 1985 (ACT) s 11

Repatriation Act 1920 (Cth)

Superannuation Act 1922 (Cth) ss 4, 5, 8, 12, 16, 75, 120,

Superannuation Act 1976 (Cth) ss 11, 17, 28, 29, 40, 45, 53, Pt V

Superannuation Act 1990 (Cth) ss 4, 6, 8, 20, 21, 29, 31, Sch 1, 2

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Mulcahy v Hydro-Electric Commission (1998) 85 FCR 248

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Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufacturers [1986] HCA 23; (1986) 160 CLR 341

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Sullivan v Moody (2001) 207 CLR 562

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1. There be judgment for Wayne Garry Meredith against the Commonwealth of Australia.

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

1. These reasons for judgment are divided into the following sections:

Impairment of legitimate pursuit of autonomous commercial interest

2. It may be hard to imagine with the current fact of universal, compulsory superannuation in Australia that it is within living memory that general knowledge and awareness of such a retirement provision was foreign, unusual and less that widely understood.

3. Superannuation was, largely, a matter for government employees, members of the military and well-paid private employees until relatively recently.

4. These proceedings concern an employee of a Commonwealth agency who commenced full-time work as a temporary employee working in an administrative agency then known as ACT Forests, within the Commonwealth Department of the Interior. I shall refer to this agency as "ACT Forests"; it may have changed its name from time to time, but it is convenient to refer to it in this way. It conducted a number of depots within the government forests around Canberra and provided accommodation at the depots as they were some distance from the Canberra suburbs.

5. The employee and plaintiff, Mr Wayne Garry Meredith, commenced with ACT Forests on 9 January 1966. He says that, during his working life, he made a number of inquiries about joining a relevant Commonwealth superannuation scheme but was advised he was not eligible.

6. That advice was not correct and, on 6 August 2007, he commenced these proceedings claiming damages. He pleaded three causes of action: negligent misrepresentation by officers of the Commonwealth, breach of a statutory duty owed to him by officers of the Commonwealth and common law negligence in breach by officers of the Commonwealth of a duty owed to him by the Commonwealth.

7. The proceedings were heard with other similar proceedings and concluded on 11 February 2010 when I reserved my decision.

8. As I have noted, Mr Meredith pleaded three causes of action. The Commonwealth defended each.

9. Mr Meredith's first claim was in negligent misrepresentation. He claimed that he was told on five occasions between 1966 and 1977 by persons in a management role within the Commonwealth that he was not entitled to join the relevant Commonwealth superannuation scheme. These persons were senior members of staff of the Department, more senior than he was, who each had a position of authority over Mr Meredith and who provided, and, as agents of the Commonwealth, had authority to provide, information or advice about Mr Meredith's terms, benefits and obligations of his employment.

10. Mr Meredith says it was reasonable to rely on the advice he was given and that he did rely on it, but that it was incorrect, as he was eligible to join such a Scheme and that the advice was provided negligently. But for the incorrect and negligently given advice, Mr Meredith says, he would have joined the Scheme and, as a result, he has suffered loss and damage.

11. The Commonwealth put these allegations in issue, including that he relied on the representations made to him, and says that it was unreasonable for Mr Meredith to have relied on the advice in the circumstances and that, despite having made the requests he did; it was unreasonable that he made no further inquiries. The Commonwealth further says that Mr Meredith's capacity to join the Scheme was subject to a decision that was purely discretionary and required him to pass a medical examination.

12. In reply, as well as putting these matters in issue, Mr Meredith said that if he had failed to pass the medical examination, he would have been eligible to join the Provident Fund under s 4 of the Superannuation Act 1922 (Cth) (the 1922 Act) and that the failure to make that available to him he has, therefore, still suffered loss and damage.

13. As to the second claim, Mr Meredith says that the Commonwealth administered relevant superannuation legislation, being the 1922 Act, the Superannuation Act 1976 (Cth) (the 1976 Act) and the Superannuation Act 1990 (Cth) (the 1990 Act), which meant that it exercised control over the procedures and policies which informed its employees about their eligibility to join or participate in a Commonwealth superannuation scheme and to facilitate its employees joining such a Scheme. The Commonwealth had, Mr Meredith further asserted, regular contact and means of contact with him and knew the details of his employment and employment circumstances. He further said that the Commonwealth knew and ought to have known that employees in the position of Mr Meredith were unaware of or confused about their eligibility to join a Commonwealth superannuation scheme or the criteria to be met for joining or participating in such a Scheme and that such employees were:

• not informed, routinely or at all, of accurate information about that eligibility, and

• had been misinformed and depended upon the Commonwealth's officers to provide that information of which they could not be expected to be aware, including as to the value of their entitlement to participate in such schemes.

14. Mr Meredith further said that the Commonwealth knew or ought to have known that many of its staff in supervisory or managerial positions were themselves unaware or confused about the eligibility of employees to apply to join a Commonwealth superannuation scheme and the criteria for eligibility and that they regularly received requests from the employees they supervised or managed about eligibility to join a Commonwealth superannuation scheme and gave incorrect information, including advising temporary employees that they were not eligible to join such schemes. He then said that the Commonwealth was aware that, as a result, temporary employees such as Mr Meredith were vulnerable to harm from this reliance upon incorrect information and the failure to provide correct information and were likely to suffer loss and damage as a result of not applying to participate in a Commonwealth superannuation scheme when legally entitled to do so.

15. These matters, he said, meant that the Commonwealth owed a duty to persons such as Mr Meredith to inform and instruct its employees about their eligibility to join such schemes and to ensure, by appropriate instruction or otherwise, that its staff gave correct and timely advice about these matters and to disseminate accurate and up-to-date information. He said that the Commonwealth breached its duty by failing to do these things and that, as a result of the breaches, he had suffered loss and damage.

16. The Commonwealth put these matters in issue in its defence. It also said that the superannuation schemes established by the various acts were not administered by the Commonwealth but by independent bodies; for the 1922 Act, the Superannuation Board, a body corporate, for the 1976 Act, the Commissioner for Superannuation, and for the 1990 Act also the Commissioner of Superannuation. It also said that, despite having no duty to do so, it did implement reasonable steps to inform its employees about their eligibility to join an appropriate Commonwealth superannuation scheme.

17. The third cause of action pleaded by Mr Meredith was a breach of statutory duty said to have arisen from the terms of s 4(5) of the 1922 Act and s 11(1) of the 1976 Act which were said to have a purpose of extending the Commonwealth superannuation scheme to temporary employees. It was said that this obliged the Commonwealth to inform employees such as Mr Meredith of their eligibility for such superannuation schemes and to take such steps as may be appropriate to effect that as well as to provide accurate information in respect of such schemes. Mr Meredith then claimed that the Commonwealth breached these obligations by failing to inform its relevant employees and take other specified steps to assist them to become eligible or to join such schemes. Had these breaches not occurred, Mr Meredith said, he would have applied to become a member of a relevant scheme the steps necessary would have been taken for him and he would have been entitled to the benefits of such a scheme. As a result, he said, he has suffered loss and damage.

18. Again, the Commonwealth put these matters in issue, relying also on the purely discretionary nature of some of the decisions that were required before Mr Meredith would become a member of any such scheme.

19. The Commonwealth also raised some answers to the whole of Mr Meredith's claim. The first was that it was barred by s 11 of the Limitation Act 1985 (ACT).

20. The second was that the Commonwealth said that, if Mr Meredith suffered any loss or damage for which the Commonwealth was liable, such loss and damage was caused by or contributed to by Mr Meredith because, for example, he failed to make adequate inquiries, failed to check the correctness of advice given him, failed to read material disseminated or otherwise available and the like.

21. The Commonwealth also answered the claim by asserting that Mr Meredith had failed to mitigate his loss.

22. In response to the argument under the Limitation Act, Mr Meredith, in reply, claimed that the action was commenced within the limitation period, and that such a defence was not available due to the decision of the High Court in Commonwealth v Cornwell [2007] HCA 16; (2007) 229 CLR 519. In relation to the allegation that Mr Meredith had failed to mitigate his loss, he claimed, in addition to denying the allegation, that he did not have a reasonable opportunity or capacity to make contributions in a manner that would have yielded a comparable sum to that to be earned from superannuation or that the Commonwealth should be estopped from asserting that the loss he suffered was caused or contributed to by any failure by him to mitigate his loss.

23. There were three Commonwealth superannuation schemes in operation during the employment of Mr Meredith. I shall refer to them all in this judgment as "a Commonwealth superannuation scheme". They were as follows:

(a) The Commonwealth Superannuation Fund (CSF) was established by s 8 of the 1922 Act. Section 75 also established a Provident Fund, which was part of the CSF for employees who elected to join it or who, in circumstances set out in the 1922 Act, were otherwise ineligible to join the CSF but who could nevertheless join the Provident Fund. Section 120 established a Superannuation Board to manage the CSF by, inter alia, investing the moneys of the CSF (s 12), borrowing moneys for the CSF (s 16) and acceptance of medical suitability of an employee for membership (s 5).

(b) The Commonwealth Superannuation Scheme (CSS) was established by the 1976 Act which required eligible employees to pay fortnightly contributions (s 45) and provided for eligible employees' benefits (Pt V). Section 17 provided for the appointment of a Commissioner for Superannuation who had responsibility for the administration of the Act, apart from the management of the Superannuation Fund, as established by s 40 and into which all contributions and other receipts received by the Commission were to be paid (s 53). The Fund was managed by a Trust established under s 28 as a body corporate (s 29). The Commission had power to direct that temporary employees be eligible to join the CSS (s 11). The CSS closed for new members in 1990.

(c) The Public Sector Superannuation Scheme (PSS) was established by the 1990 Act. It was established by s 4 of the Act under a Trust Deed required to be made in accordance with the Schedule to the Act. The Act's first Schedule, which set out the form of the Trust Deed (s 4(2)), also established a Fund (cl 2(2)) and the rules for the operation of the PSS. Members were, inter alia, all permanent employees (s 6) and temporary employees who made an election to become members (s 8). Section 20 established the "Commonwealth Superannuation Board of Trustees No 1" (s 20) which became a body corporate (s 21). It was given power in its required form in the Schedule to administer the PSS and to manage and invest the Funds (cl 3). The Board, under the Scheduled rules, was to receive contributions payable by members (r 3.1.1) and by employers (r 3.2.1). It also had other powers, such as in relation to medical examinations of prospective members (r 1.2.1) and determination of whether they should be treated as limited benefits members (r 1.2.2). It had powers to make various other determinations under the Trust Deed. Section 29 of the Act established the position of Commissioner of Superannuation which was responsible for the provision of administrative services to the Board and actions taken by the Commissioner in the name of or on behalf of the Board were taken to have been done by the Board. The Trust established by the 1976 Act became also the investment manager of moneys in the Fund (s 31).

24. The administrative agency that managed the operations or provided relevant administrative support to the Boards, Trustees and Commissioners was known by various names, including Australian Government Retirement Benefits Office (from 1973), the Retirement Benefits Office (from 1990) and Commonwealth Superannuation Administration or ComSuper (from 1994). For ease of reference, I shall refer to the agency, where necessary, as ComSuper.

25. In 1986, the Australian Conciliation and Arbitration Commission in the National Wage Case June 1986 (1986) 301 CAR 611 at 645 made provision for employers to pay a percentage of employees' salary or wages into a superannuation scheme for the employee in lieu of a direct wage increase. Although challenged, this arrangement was upheld in Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufacturers [1986] HCA 23; (1986) 160 CLR 341.

26. Such payments were made on behalf of Commonwealth employees, it appears, from about 1988. In the absence of a superannuation scheme of which an employee was a member, the payments were made to a default scheme identified by the employer. In the case of Mr Meredith, that was the Australian Government Employees Superannuation Trust (AGEST).

27. Mr Meredith commenced employment with the Commonwealth as a forest worker on 9 January 1966, when he was nearly nineteen years old. He had married a little less than a month earlier. He applied for the Commonwealth job at the suggestion of his brother-in-law. He said that, before applying for the position with the Commonwealth, he had discussed the benefits of government employment with his wife and that this included the possibility of superannuation.

28. After a period of probation, he and his wife were provided with a rental house at the Uriarra forestry depot outside Canberra and, later, at another settlement until their house was destroyed in the 2003 Canberra bushfires. He and his wife had four children. Mr Meredith took voluntary redundancy on 29 August 2001, when he was fifty-four years old.

29. Mr Meredith said that, when he initially applied for the position of forest worker, he attended at offices in South Building in London Circuit, Civic, and had an interview with the then Director of Forestry, who explained matters such as wages, his duties and a two-months probation period. He said he was told that, after the successful probation period, the job would be permanent. He said he was "given a starting ticket" but no other paperwork.

30. He gave details about his work and the other staff. He said that the Overseer of the depot where he worked was Mr Bill Bates. He understood that Mr Bates was the person to whom he should direct inquiries about his work, wages, requests for holiday leave, overtime and other employment related matters.

31. He described his duties but I do not have to set them out. He said that there was a practice of management briefings by the Ganger or Leading Hand outside the recreation room of the depot and any meetings took place at the end of each shift in the recreation room where changes in terms and conditions of employment were advised. There were noticeboards at the depot, one for rosters and fire rosters, the other for union notices, and which contained a calendar and a dart board.

32. After he had completed his probation successfully, his brother-in-law suggested that he should join the Commonwealth superannuation scheme. No-one had, up to that time, mentioned that to him.

33. Mr Meredith says that, in about April 1966, after he had completed his period of probation, he went to see the Overseer, Mr Bates, to ask him about joining a Commonwealth superannuation scheme.

34. He said that, to the best of his recollection, he said "I would like a form to join the government super, please give me a form or tell me how to join." He said that, to the best of his recollection, Mr Bates said, "[y]ou are not an eligible person. You are temporary and a blue collar worker". He cannot recall the whole conversation; other similar things may have been said.

35. While thinking this was unfair, Mr Meredith did not question that advice as he did not feel he was in a position to argue with it. He was mindful that he was a temporary employee and was concerned not to risk losing his job. He accepted what he was told.

36. At this time, his health was excellent and he considered, especially after what he had been told (see [29] above), that he had a long-term permanent position. He felt, too, that he could afford to pay a superannuation contribution; he recalls being able to save from his earnings. He also said that if he had been told that, despite being immediately ineligible, he would be eligible in three years, he would have applied at the earliest time he became eligible.

37. He was, at the time, a member of the Australian Workers Union (AWU). He spoke to some union delegates from other unions to complain about the unfairness of not being able to join superannuation; none of them ever told him that he was or would become eligible. Indeed, one union organisation said to him "[y]ou are not public servants and therefore you are not eligible to join".

38. He discussed the issue with Mr Bates again on at least two further occasions in the next two years but Mr Bates on each occasion confirmed that he was not eligible to join.

39. When Mr Meredith commenced employment, the Forester-in-Charge, Mr Ron Murray, was overseas. On his return, Mr Meredith decided to approach him, especially because he had heard that some forest workers at another depot were members of the Commonwealth superannuation scheme. His evidence was as follows:

I said to Mr Murray words to the best of my recollection: 'Why can't we forest workers join government superannuation?'

Mr Murray said words to the best of my recollection: 'You are not entitled to join as far as I know.'

I said: 'Why?'

Mr Murray replied words to the best of my recollection: 'You already know why'.

I then said to Mr Murray words to the best of my recollection: 'I have been told a couple of workers are in the scheme and I want to know what is the situation.'

Mr Murray then shrugged his shoulders and threw up his arms. I understood from that action that the conversation was over. From this conversation I understood that I would not be able to take this matter any further with Mr Murray. I concluded from this conversation that I was still ineligible to join the Commonwealth superannuation scheme and that this would continue for as long as I was a forestry worker.

40. In November 1969, Mr Meredith was promoted to Leading Hand and appointed as union representative, a position he held until 1972.

41. In late 1969 or early 1970, with other union representatives, he attended a meeting with Mr Mark Edgerly, ACT Director of Forests. After the meeting, he took the opportunity to speak to Mr Edgerley about superannuation. His evidence about that conversation was:

I said words to the best of my recollection: 'Now that I am a leading hand, am I permanent and able to join the super?'

Mr Edgerly replied with words to the best of my recollection: 'What information have you been given?'

I then responded to Mr Edgerly with words to best of my recollection: 'I've been told that I am not eligible to join because I am not permanent.'

Mr Edgerly then replied with words to the best of my recollection: 'There is no change to government super for you; you can't get in.'

42. In 1977, he was again promoted to the position of Ganger. Mr Bob Crutwell had replaced Mr Murray as Forester-in-Charge.

43. Mr Meredith said that the question of superannuation was frequently discussed by workers and himself around this time. He passed on to the other workers the information he had been told by Mr Bates, Mr Murray and Mr Edgerly. There was a general feeling that this was unfair.

44. At some stage, he made a further inquiry on behalf of his gang and he says he was again told by Mr Bates or Mr Gary Croston (Second-in-Charge assisting the Forester-in-Charge and, then later, the Forester-in-Charge), "[t]hey are not permanent public servants and it is a public service scheme".

45. He says that during the whole period of his employment at the Uriarra depot he did not see or hear any information advising that he was eligible to apply for a Commonwealth superannuation scheme, though from time to time private superannuation and insurance sales representatives visited the depot and spoke to employees.

46. In about February 1984, Mr Meredith was promoted to Overseer at the Pierce's Creek forestry depot. He did not see there any information about superannuation.

47. He said that he first became aware that he was eligible to join the Commonwealth superannuation scheme in about 1990 when two employees came from the ACT Forest's central office to Pierce's Creek to provide information about the changes to the superannuation arrangements. At about this time, he met a fellow forest employee who had been a member of a Commonwealth superannuation scheme during his employment.

48. In January 1991, soon after learning that he was eligible, he suffered a severe back injury which required him to take a good deal of time off work. He was concerned about the impact of the injury on his future ability to return to work and his ability to support his family. Thus, he concerned himself with issues of his rehabilitation and compensation rather than pursuing any inquiries about superannuation.

49. He did return to work and in July 1994 was transferred to the ACT Government's employ as a result of Self-Government in the ACT. He was not told at that time that he could join the then Commonwealth superannuation scheme nor was he given any information about superannuation.

50. In 1997, he suffered an aggravation to his back injury and had to take further time off work but, on return to work, had to perform part time duties as he had physical restrictions. Because of these matters, he did not make any further inquiries about his eligibility to join a government superannuation scheme.

51. On 29 August 2001, he accepted a voluntary redundancy. He said that he would have applied to access his superannuation when he turned fifty-five if he had been a member of a Commonwealth superannuation scheme from when he was first eligible.

52. During his employment, he did purchase insurance policies but eventually surrendered them as they did not seem worthwhile. He looked into obtaining private superannuation but thought the benefits were unattractive.

53. His evidence was that during his years of employment, he used his income to support his wife and four children. He and his wife put his savings into a credit union account maintained by his wife.

54. As to the insurance policies, his best recollection was that he surrendered them in the 1980s and that the larger policy realised a sum of about $5,000.

55. After he was made redundant, he was not allowed to receive a pension but received a Newstart allowance from Centrelink. Since 2004, he has been in receipt of a disability allowance of approximately $530 per fortnight.

56. He and his wife purchased their first home, a house at Sussex Inlet, in April or May 2003 for $120,000 and spent $50,000 to $70,000 on repairs to it.

57. Mr Meredith's wife was diagnosed with lung cancer towards the end of 2005 and died in mid 2007. Mr Meredith used the funds he had from the AGEST scheme, into which he had contributed, for costs associated with her treatment and for a motor vehicle to provide more reliable transport to access medical assistance for his wife in Wollongong and accommodation while there. It was also used for funeral expenses.

58. In cross-examination, Mr Meredith was challenged as to whether the affidavit he had made contained his words or were the words of his lawyers from information that he gave them. He was firm that they were his words and, indeed, nothing in the cross-examination led me to any other conclusion.

59. It was said, however, in the Commonwealth's submissions, that because some of the words of the conversation were "to the best of [his] recollection", despite him being insistent that the affidavit was "word for word" from what he had told his solicitors, I should treat his claim "with considerable caution". It seems to me, however, that this mistakes the evidence given by Mr Meredith. He was asked and answered that the words in the affidavit were his words rather than the words of his lawyers from information he gave them. He did not say in cross-examination that the words in the conversations quoted in the affidavit were necessarily verbatim the words used in the conversations many years ago.

60. I do not accept that Mr Meredith was asserting that the words in the conversations were necessarily the exact words said in those conversations; indeed, the affidavit is clear that they are simply "to the best of his recollection" and that is what he maintained in cross-examination.

61. Mr Meredith was also asked the reason for his conversation with the union organiser, one Mr Bill Spellman. His evidence was:

You've said, have you not, that after you spoke to Bill Bates early in your employment in 1966 you had some doubt about what Bill Bates had said? --- Yes, that's correct.

Isn't that why you spoke to Bill Spellman? --- I had doubts after I also spoke to Ron Murray and Mark Edgerley and then spoke to Bill Spellman.

All right, your recollection is that you spoke to Bill Spellman after you'd spoken to all of the others? --- That's correct.

Okay. And Bill Spellman said to you - and I'm quoting from paragraph 17 of your affidavit - 'You are not public servants and therefore you are not eligible to join'? --- That's correct.

You accepted what Mr Spellman told you? --- Yes because I'd already accepted that I wasn't - I could not join.

Yes, but you accepted what Mr Spellman told you because you didn't make any further enquiries after that, did you? --- No.

62. He did not, however, pass on to his fellow forest workers the contents of this conversation with Mr Spellman. When asked about that he said:

Well I believed after the last interview with Mark Edgerley I believed I couldn't join and I passed on - if people asked me because they knew I asked - other people asked - and it was little discussions in and around gangs why 'what happened to you when you asked'.

63. He also referred to his conversations with Mr Bates in the context of complaining to him about how unfair it was that he could not join the superannuation fund. At least one of these conversations, according to his evidence in cross-examination, was in a vehicle being driven by Mr Bates when they were driving around to see gangs at work.

64. In cross-examination also, he described Mr Bates as "my superior who was my boss and I respected him". He said that he did not know that Mr Bates was a temporary employee. Mr Meredith thought that, when he gained his promotion, he may have been considered "more permanent"; hence his further inquiries.

65. Mr Meredith also said in cross-examination that he spoke to other union representatives to complain that it was unfair he could not join a Commonwealth superannuation scheme, but that they were union representatives, not organisers such as Mr Spellman.

66. Mr Meredith was also asked questions in cross-examination about what happened after he learned in about 1990 that employees such as himself could join a Commonwealth superannuation scheme. This was when another forest worker, Mr John Reardon, told him that he had been in such a scheme for a number of years. Mr Reardon had not, however, told him before that that he was a member of the scheme. Indeed, he said that when he was told, he did not at first believe him.

67. As noted above, Mr Meredith later moved to the ACT Forests depot at Pierce's Creek as Overseer but said that, in the seven years he was there, there was not a lot of discussion about superannuation and the unfairness of not being able to join a Commonwealth superannuation scheme.

68. It was put to him in cross-examination that he had been told by Mr Richard Duffy in 1985 that Mr Reardon was a member of a Commonwealth superannuation scheme. He said he did not recollect it and, if it had happened, he would have approached Mr Reardon then.

69. He agreed that when Mr Reardon told him that he had been a member of a Commonwealth superannuation scheme for some years, he was very angry. He said he was planning to find out how to join the scheme but, when he had the serious back injury, he did not do so. He was off work for about twelve months altogether. He said he was not allowed to return to work into his old job. By January 1992, he was returning to work on a rehabilitation return-to-work programme over a period of time. He started on about three to four hours and it took him about six months to get back to work. He did, however, make a full recovery but had another medical problem in 1995, though it was not work related. He could not remember, however, how long he was off work on that occasion.

70. He agreed that, in 1997, he had a recurrence of his back injury in the middle of the bush fire season and was off full duties and never returned to his earlier position. He was involved in a gradual return-to-work programme, working part time initially at the central depot at Mount Stromlo. He thought that this was about 1999.

71. He then worked at the Murrumbidgee River Corridor after working at Griffith Library for about six months. He said, in cross-examination, that he did not talk to anyone else at work about superannuation at that time because "[t]here was too much going on at that time with rehabilitation" and because he had to "learn the new ropes" where he then became employed.

72. It was put to him that his two sons had joined a Commonwealth superannuation scheme as temporary employees but he said that he did not know at the time, although he later found out. He said that they did not discuss work at home.

73. He did not know that superannuation was governed by law or that there was a Superannuation Act. He also said that he did not read newspapers, although after about the 1990s he did read them perhaps once a month. He certainly did not read them between 1972 and 1974, and did not see any articles about superannuation published in The Canberra Times around that time. He gave the same answer in relation to articles in 1989 in The Canberra Times.

74. He was shown a document produced by the Industrial Section of the Department of the Interior headed "General Information for Employees" and said that he had never seen it. He was also shown a booklet entitled "Commonwealth Superannuation" published by the Superannuation Board in May 1967 and said that he had never seen it either. He was also shown a booklet, said to be orange in colour, entitled "Joining the Department of Territories - Conditions for Industrial Workers" published by the Department of Territories in about 1985. He said that he had never seen it. He did refer to an occasion where "a lot of books" had been thrown out from the Central Office at Mount Stromlo and there were a lot of different coloured books so he may have seen it then but he did not read it or look at it.

75. He also confirmed in cross-examination that he never took out private superannuation because he found it unattractive and insurance policies were better for him at the time.

76. He said that he earned other income during the time he was employed. He played football and was paid for that at about $20.00 per game which totalled about $80.00 per week. He was also employed hay carting, being paid $1.25 per hour. In re-examination, he added that he was allowed during his holidays to undertake contract tree planting. For the planting of pine trees, he was paid as a contractor. He could also do that work on a Saturday or a Sunday as overtime. He said that he used also to cut wood for $10.00 a tonne and cart the wood which would bring him in about $60.00 over a weekend. He noted that his wife also worked and that she saved money. He also earned overtime on occasions.

77. He was asked about the union of which he was a member, the AWU, and their portable superannuation scheme. He said that, at the time, he did not know about that and, although he received Union newsletters in the early days, probably the early 1970s, he then ceased to receive them. He said that even when they were received, they were not regular. He denied seeing any newsletters from the Union talking about its superannuation scheme and encouraging people to join it. He did not know the scheme existed.

78. In re-examination, he confirmed that his wife would also save money.

79. After he had given evidence, Mr Meredith was recalled and it was put to him in further cross-examination that Mr Bates could not recall any of the conversations that Mr Meredith said he had had with him. He was asked whether he was or could be mistaken and he said that he was not. He said that he remembered the conversations and confirmed that he had the conversations with Mr Bates. He said that "Mr Bates wanted to handle all the administration as far as wages, entitlements and rec leave and all that".

80. Mr Meredith agreed that Mr Bates did not have power to fire people.

81. It was also put to him that Mr Murray, in his evidence, had said that he did not recall the conversation alleged to have occurred (at [39] above) but, again, Mr Meredith confirmed that the conversations occurred and denied that his memory was faulty. He also denied that his recollection was "wishful thinking", noting that his recollection was probably stronger than Mr Murray's, "because it concerned [him]".

82. He denied that Mr Murray ever said to him that it was possible for him, Mr Meredith, to join a Commonwealth superannuation scheme. He denied that Mr Murray ever told him that he should seek information elsewhere and Mr Meredith re-affirmed what he had said in his affidavit.

83. In further re-examination, Mr Meredith said that he was informed that "all pay-related issues, holidays, sick leave, all that was to go through your Overseer". That was, for most of his employment, Mr Bates. He also said that Mr Bates did not tell him that he did not know whether Mr Meredith could join superannuation; he had said affirmatively that he could not, as he said "[y]ou were a blue-collar worker and not a permanent worker, a temporary public - temporary worker ".

84. Mr Robert Rough also gave evidence. He commenced as a forest worker with ACT Forests in February 1971 and recalls an occasion in about 1975-6 when he was working in a group for which Mr Meredith was the Leading Hand. He could not recall why, but they started to talk about superannuation and he remembered someone in the group saying "[y]eah, but you've got to remember you're a public servant". He said that, in response to this remark, somebody else said "[b]ut if we're public servants, why aren't we in super". He said that this question triggered a fair bit of discussion which went on for several days. He said things became heated because there was a feeling that the workers were being subject to unfair discrimination. He then said:

Okay let's not go any further with this. I am asking Wayne [Meredith], who is here, as our leading hand to go and ask if we are public servants why aren't we in government super.

85. He said that they asked Mr Meredith to make those enquiries and the next day they waited for him to go and see the Forester-in-Charge, Gary Crosten, and the Overseer, Mr Bates. He said that when Mr Meredith came out of the office his words, to the best of his recollection, were "[w]e aren't entitled to be in the Commonwealth superannuation scheme because we're blue-collar workers and not white-collar workers". He said that they accepted that because it had come from the Forester-in-Charge and Overseer and he did not hear about Commonwealth Superannuation again. He said that there was a noticeboard in the recreation room at the Uriarra Depot but he never saw any information on it about superannuation.

86. He was cross-examined and denied that he was wrong about the words spoken by Mr Meredith, who he assumed had been told that by Mr Bates or Mr Crosten because he had come from the office. He said that he had first been asked to remember this conversation about two or three years before he gave evidence, though he did recall an occasion in about 1989 or 1990 when he met an acquaintance from his time at ACT Forests and they discussed it. He was not, at the time, employed by the Commonwealth but he understood that there was talk about a possible claim against the Commonwealth for superannuation which had not been paid.

87. A few years later, he said there was a meeting to discuss such claims. He has not sued the Commonwealth in respect of superannuation.

88. He said that he was certain that the words quoted in his affidavit, referred to above (at [84]), were very clear because "the following days was an ongoing argument" involving all the members of the gang and he said that he clearly remembers the words used. Although the words he used in his oral evidence were not precisely the words he used in the affidavit, they were, as conceded by the Commonwealth, "pretty damn close", but he accepted that they might not have been exactly the words that were used; certainly they set out the gist of what was said.

89. Mr Rough said that he did not have other discussions with fellow employees because he accepted the answer that Mr Meredith had given him.

90. Mr Rough said that he did not recall ever getting a "Conditions of Employment" document or any pamphlet about superannuation. He also said that he did not join a private superannuation scheme while employed by the Commonwealth. His knowledge of superannuation and how important it was came after he left the Commonwealth and was working privately with his wife in a business. They then both took out private superannuation schemes. That was in about 1982.

91. He said that he was a member of a Union, but did not hear anything about superannuation from the Union. He saw a few Union newsletters but he did not read the local newspaper, The Canberra Times. He was conscious that he would be able to rely on the aged pension in due course.

92. Mr Rough further said in cross-examination that he did not know whether Mr Bates was a member of a Commonwealth superannuation scheme.

93. Mr Kevin Blake was also employed as a forest worker at the Uriarra depot in 1973 or 1974. He said in evidence that he recalled having a discussion with other forestry workers about Commonwealth superannuation and why they could not be part of a scheme. As a result of that discussion, he decided to go and ask about it. He went to see Mr Bates in his office at Uriarra and asked him "[w]hy can't we pay into super?" Mr Bates replied with words to the following effect "well you are not entitled because you are only casual. There are only four permanent workers here and the rest are casuals." He then returned to the other workers and told them what he had been told.

94. It was put to him in cross-examination that Mr Bates had sworn an affidavit saying that he had no recollection of that conversation. Mr Blake denied that he could be wrong and confirmed that the conversation occurred. He agreed that what he put in the affidavit was the gist of what was said, "same sort of meaning", though he could not recall the exact words. He said that the first time he had been asked to recall the details of the conversation was about five or six years ago from the time he was giving evidence in 2009. He agreed that he had claimed compensation from the Commonwealth for the same cause but it appears that no proceedings had been commenced.

95. He said that he was a member of a Union and that he may have discussed the superannuation with his Union representative but did not have a recollection of what he was told. He did say that he had had some memory difficulties after he had suffered a heart attack, though "some things I can remember".

96. He also said that, when he went to sign on at offices in Civic for his original employment, he was not given any papers. He did sign something, but did not get a "Conditions of Employment" document or any pamphlets. He then went to see Mr Bates and the only thing he was told was that "the work's hard" and that he was on probation.

97. Mr Blake said that after he was told that he could not join a Commonwealth superannuation scheme, he did not take out private superannuation or life insurance.

98. He said he really did not know anything about superannuation, but "the guys reckon it'd be good to be in". He did not know how much it would cost. He did not know whether his Union had a superannuation scheme. He said that he may have read a newspaper but could not recall the name of the paper. He also said that he did not think about receiving the age pension when he retired, although he knew that there was an old age pension. He was aware of noticeboards in the recreation room but had a poor memory of what the notices were. He was not aware whether Mr Bates was a member of a Commonwealth superannuation scheme and merely said, "what he said about superannuation well you have to believe him because he was the boss".

99. Mr Blake considered the appropriate term for himself at the time was "a forestry worker". He would have described himself as a casual but not as a temporary employee. He did not know that superannuation was governed by a law.

100. The next witness was Mr John Williams. He commenced work for ACT Forests in about June 1968. At the time, he was not provided with any documents or other information about conditions of employment. He said that he was not provided with any documents about superannuation at the time he commenced.

101. He recalled that, after some time, probably in 1973, there was a discussion amongst his fellow forest workers about superannuation. He then decided to see the Overseer, Mr Bates, about it and went to his office at the Uriarra depot. His evidence was

To the best of my recollection, I said: 'Am I eligible to join the Commonwealth superannuation scheme?'

Bill Bates, to the best of my recollection, responded with the following words: 'You are an industrial worker and you're not entitled to join the scheme.'

I believe he may have used the words, 'blue collar worker'. From his comment, I understood that whilst I remained an industrial, or blue-collar worker, I could not join the government superannuation scheme.

102. Mr Williams said he also had a discussion with the then Forester, Mr Cruttwell, around the same time. This was prompted because he had heard that Mr Bates may have been in a Commonwealth superannuation scheme and he wished to check his own eligibility. His evidence was:

To the best of my recollection, I said the following words:

'Why am I not eligible to join the government superannuation scheme when other industrial employees, such as overseers, are in it?'

To the best of my recollection, Mr Cruttwell responded:

'You are an industrial employee, not a permanent employee, and, therefore, you are not eligible to join the scheme.'

103. He then took out an insurance policy with a private insurer, but discontinued it in late 1973. In late 1974, he made a further inquiry of the Forester, then Mr Robert Williams. His evidence was:

To the best of my recollection, I again said:

Why can I not get into the government superannuation scheme?

Robert Williams simply replied with:

Because you're not eligible.

104. As a result, he took out a superannuation policy with a private insurance company in about 1986.

105. Mr Williams was cross-examined and denied that he could have been wrong about his conversation with Mr Bates, even though Mr Bates said that he had no recollection of it. He said that his memory was not defective even though he was remembering something that was thirty years ago. He said that he had been first asked to remember the conversation probably a couple of years before he was giving evidence. He said that the conversation had come up in passing in between. He said that he initially made a claim for compensation in respect of the advice given about superannuation but he let that lapse.

106. He agreed in cross-examination that the words used in his evidence were not "the exact words" but he said "they were fairly close".

107. He said that he did discuss superannuation with workmates from time to time. He acknowledged working with one forest worker who, he later found out, was a member of a Commonwealth superannuation scheme.

108. Mr Williams later said that he successfully applied for a public service position and joined the Public Sector Superannuation Scheme (PSS).

109. When he joined ACT Forests, he signed on in Civic. He signed a document which was tendered in evidence. It notes on it "received conditions of service pamphlet". He acknowledged that he was given some documents but he was not too sure what they were. He said he did not study them and he no longer had any copy of them. He said that the only thing he probably would have read would have been the starting time and where he was to report.

110. He was a member of the AWU but was not aware that the Union had a portable superannuation scheme. He did receive Union newsletters but did not see anything in them that he thought was applicable.

111. He denied that superannuation was not in front of his mind because, as he noted, he, in fact, did join a private superannuation scheme when he was told he could not join the Commonwealth one. He did not know that superannuation was governed by a Commonwealth law and said that he was aware of noticeboards at the Uriarra depot in the recreation room and the door of the Overseer's office. In re-examination, he said he did not recall seeing any information relating to superannuation on the noticeboards.

112. Mr Douglas Mitchell commenced working for the New South Wales Government as a forestry worker in 1974 and moved to Canberra in 1986, when he commenced with ACT Forests.

113. He recalled that, not long after commencing employment, he was part of a discussion within his gang about superannuation; one of the others told him that, as blue-collar workers, they could not join a Commonwealth superannuation scheme.

114. He recalled that, in the 1990s, he attended a meeting at the Stromlo depot where representatives of the Commonwealth superannuation agency visited and discussed the PSS. He subsequently completed documents and joined the PSS on 20 August 1996.

115. In cross-examination, Mr Mitchell was shown a document that he signed when commencing employment with the Commonwealth. A paragraph above his signature read:

After 12 months' service you will be covered by the Commonwealth Employees' Redeployment and Retirement Act 1979. You will also be eligible to apply to join the Commonwealth superannuation scheme.

116. At the time he joined the Commonwealth, he was a member of a private superannuation fund. He joined a Commonwealth superannuation scheme, the PSS, when he transferred to the ACT Government following Self-Government. He joined in 1996.

117. He said that Mr Bates always said that the forest workers could not join superannuation.

118. Mr Mitchell was a member of the AWU but did not know that it had a superannuation scheme. He did not receive newsletters from the Union. He thought he may have seen articles in the newspaper about changes to the Superannuation Scheme.

119. In re-examination, he said he did not read the document that he had signed when he joined the Commonwealth. His attention was not drawn to anything in the document.

120. He also said that, unlike New South Wales, where he would get information with his payslips, he never received anything from the Commonwealth about any superannuation scheme which is why, during or prior to his employment with the ACT, he did not join a Commonwealth superannuation scheme.

121. Mr Graeme Todkill said that he joined ACT Forests in 1979. He met with the forester, Mr Graham McKenzie-Smith, at the Uriarra depot where he was interviewed. In the interview, Mr McKenzie-Smith outlined various matters but mentioned superannuation and told him that he was not eligible to join a Commonwealth superannuation scheme. He said that, to the best of his recollection, Mr McKenzie-Smith said, "industrial workers are not entitled to join the Government Superannuation". He said that he knew from discussions with another forestry worker that blue-collar workers were industrial workers.

122. It was not until 1990 that he found out that he was able to join a Commonwealth superannuation scheme about the time that the PSS commenced. He attended a seminar and joined the PSS.

123. It was put to Mr Todkill that Mr McKenzie-Smith had sworn an affidavit saying that he had no recollection of the conversation referred to by Mr Todkill. It was put to him that he might be wrong about the conversation, but he denied that. He agreed that the conversation was a long time ago and said that he had only been asked to remember the conversation first when the possibility of proceedings was mooted. He said that he had not made a claim for compensation against the Commonwealth in respect of the advice that he had received.

124. Mr Todkill said that, although he had not made a claim, he was interested in making a claim but had been told that because he was still working he could not put in a claim until he stopped working.

125. Even though he had not joined a Commonwealth superannuation scheme, he had purchased an endowment policy in about 1979.

126. He was a member of the AWU but never saw any newsletters and did not know of the Union's portable superannuation scheme. He did not read newspapers and, indeed, had some difficulty in reading. The only knowledge he had about superannuation came from some managers at a few information sessions that he attended. He knew that there were noticeboards at the Uriarra depot but did not see anything on them about superannuation. He did not know that Commonwealth superannuation was governed by a law.

127. The next witness was Mr Troy Meredith, a son of the plaintiff. He commenced work as a forestry worker in September 1986. He told one of the members of his gang that he was going to ask to join a Commonwealth superannuation scheme and was told by that person, "[y]ou won't be allowed to join, I wasn't allowed". He had also been told by his Ganger that he was not allowed to join a Commonwealth superannuation scheme.

128. As a result, he went to see Mr Bates in his office at the Uriarra depot and said to him, "I would like to join super". Mr Bates responded, "[t]hey don't have super for blue-collar workers, you are not entitled to it".

129. Mr Troy Meredith said that he argued with Mr Bates about that on a number of occasions. But as he could not join, he took out a private insurance policy in 1987 through an insurance representative who attended the depot.

130. He said that in early 1991, a government representative came to the depot and held a meeting with workers, telling them that they could join a Commonwealth superannuation scheme and he joined the PSS in 1991.

131. In cross-examination, it was put to him that Mr Bates had sworn an affidavit saying that he had no recollection of the conversations. He said that he did not think he could be wrong about the conversation, even though it took place over twenty years earlier. He could not recall when he was first asked to remember the conversation, but probably about twelve months prior to giving evidence in 2009. He said that he had thought about the conversation since he had had it, although not "the exact words". He accepted that the words set out in his evidence were not the exact words Mr Bates used; he said there were "probably a few other words put in amongst them", but that his evidence was the gist of what Mr Bates said.

132. He said that he was not a claimant for compensation and he had chosen not to be. He did join a Commonwealth superannuation scheme in 1991. He said he did not have many conversations with his father about work but may have told him that he joined a Commonwealth superannuation scheme. He said that when he signed on he could not recall whether he was given a "Conditions of Employment" document. He was a member of the AWU and thought that he would have spoken to someone in the Union about eligibility for superannuation as it was a bone of contention. He did not receive any advice from the Union confirming what he had been told. He did not see any Union newsletters. He agreed that there were noticeboards at the Uriarra depot but did not read them. He did not read newspapers.

133. Mr William Tobin was a plaintiff in his own proceedings but his evidence was also heard in these proceedings.

134. He said that he lodged a written application for a position with the Department of the Interior in late 1973 and attended an interview at the head office of the Department. He was offered a position as a forest worker and directed to report to the Uriarra depot, which he did. He and his wife remained living at the Uriarra depot until 2003 when the Canberra bushfires destroyed their property.

135. He described his employment process. He attended a medical examination, obtaining "a clearance", and took the form to the head office of the Department where he attended a public access window. He spoke to a male clerk and presented the medical clearance. The clerk filled in details. He appeared in a hurry and told Mr Tobin that he was going off to morning tea. Mr Tobin said that the clerk showed him two places on the document to sign which he did and the clerk advised him that he would fill in the balance of the details and the paperwork would be sent to Mr Bates. He was directed to report to Mr Bates. He said that, as he left, the clerk pointed to some pamphlets in a stand against one of the walls and told him he could take them if he wished. Mr Tobin did not take any of the pamphlets. He did not subsequently receive any pamphlets.

136. He commenced work on 7 January 1974 and understood that his position was a full-time, ongoing one. He certainly intended to remain indefinitely employed by the Commonwealth.

137. He reported to Mr Bates on commencement and was told that he would be on the equivalent of a six-month trial.

138. He said that during his time as a forest worker, management would sometimes speak to the workers outside the depot at the beginning of the day. This appeared to be mainly about jobs for the day. Management would also communicate through the Leading Hands and Gangers and there were occasional union meetings or seminars (though he described these as "about redundancies etcetera"). He knew there was a noticeboard on the wall of the recreation room which sometimes displayed fire duties, rosters, information about the union, "some silly photos" and information about safety. He never saw anything about superannuation on the noticeboard.

139. In late 1974, after his six-month "trial" period had ended, he was talking to some other members of his gang awaiting a briefing. The question of superannuation came up and, while he did not recall the precise words, there was a discussion about it and the fact that it was a good thing to be a member. Questions were raised as to whether the workers were eligible and Mr Blake volunteered to go and ask Mr Bates about superannuation.

140. Mr Tobin said that after a few minutes, Mr Blake came back and said

Bill [Bates] said we are only here as casuals, the only people who are permanent are Bill [Bates], Tom [Bateup], Atillio [Padovan] and Ashley [Ritherdon]. They are able to join the super but we cannot get superannuation.

141. Mr Tobin said that this surprised him because he thought he was a permanent employee, but, because Mr Bates had said it, he assumed it was correct and there was no further discussion. He proceeded on the assumption that he was ineligible. As he had seen Mr Blake walk to the Overseer's office where Mr Bates had his office and saw him come back from that office, he believed the conversation took place with Mr Bates.

142. He referred to another conversation when he was a member of Mr Meredith's gang at a time when Mr Meredith was the leading hand. He said he was travelling with Mr Meredith and other workers in a forestry vehicle and the issue of superannuation came up.

143. One of the workers in the van recounted what Mr Blake had told them that Mr Bates had said, and Mr Tobin said that Mr Meredith commented, "Yes, I think that Bill, Tom, Padovan and Ash are the only permanents at Forestry". Mr Tobin said that, because Mr Meredith was a Leading Hand and "higher up in the hierarchy than I was", he trusted the information provided.

144. The next time he received any information about superannuation was in the mid-1980s when a member of his gang advised him that he had arranged for a private superannuation representative to attend at the depot and was invited to the meeting. Mr Tobin said that this was the first time it occurred to him that he could access private superannuation or insurance.

145. He attended the meeting but chose not to take out a policy as questions revealed there would be a penalty if he changed the fund or left the fund.

146. Mr Tobin was a member of the AWU from the time he commenced work until 2001. He was the union representative between 1985 and 2001. Before 1985, he received no information from the union about Commonwealth superannuation.

147. In 1986 he became a ranger at the Stromlo depot for ACT Forests.

148. He said that, in about September 1991, he was at a meeting to discuss whether rangers should become permanent public servants. There was, at the meeting, some discussion about whether that meant they would become public servants, and someone said that they would have to be members of a Commonwealth superannuation scheme. He stood up and said "[w]ait a moment now you're telling me I have to pay superannuation when before I was told I couldn't pay super."

149. He then joined the PSS and contributed 5% of his salary. He was required to undergo a medical examination which he successfully completed.

150. In cross-examination, Mr Tobin agreed that he had not had a conversation directly with Mr Bates and the information had come from Mr Blake and Mr Meredith.

151. Mr Tobin agreed that it was about 1996 when he was first asked to recall the conversation. He said that he had kept records but it appears that they were burnt in the Canberra bushfires.

152. He was asked about the meeting where he learnt about eligibility for superannuation and he said that it came as a shock that, officially, he first then knew that he could have joined a Commonwealth superannuation scheme. He did not wait long before joining; he joined straight away.

153. Mr Tobin said that superannuation was not a regular topic of conversation, though it might arise when a new forestry worker commenced or had finished their probation.

154. He said that he hardly ever received union newsletters and did not read union information. He said he could not remember reading The Canberra Times in his 25 to 26 years at Uriarra though he used to get The Daily Telegraph, mainly in the football season.

155. Another forestry worker, Mr Neil Freer, gave evidence. He had commenced employment in ACT Forests in 1984 and was placed at the Uriarra depot under the supervision of Mr Bates.

156. He successfully completed his probation in November 1984 and was appointed "full-time". He was told by the Leading Hand "[y]ou have a job for life now".

157. He understood that government superannuation would provide good benefits and asked his Leading Hand, "[w]hat do I do about getting into the government superannuation?"

158. The next day, his Leading Hand told him that "Bill Bates says that he has heard from higher up in government that we are not able to get into the superannuation scheme, as it is for public servants and overseers and not for us". Mr Freer said he was disappointed and, a few days later, saw Mr Bates and asked him "[h]ow come we cannot get into superannuation?"

159. He said that Mr Bates said to him, "[y]ou cannot join the scheme. I have been told by upper management that you are not eligible to join, as it is only available for public servants, bosses or white-collar workers".

160. He queried with Mr Bates why that would be the case now that he was permanent.

161. He also spoke to the representative of the Federated Engine Drivers and Fireman's Association (FEDFA) and the union representative for the Transport Workers Union. They confirmed to him that he had been told that forest workers could not join the superannuation scheme.

162. Later, he attended a meeting where a representative from an insurance company came out to sell insurance and superannuation schemes. He said that no-one at the meeting suggested that any of the forest workers were eligible to join a Commonwealth superannuation scheme. As a result, he took out a life policy and a group assurance policy.

163. Later, he was transferred to the ACT Government, working for Totalcare Industries Limited. He was told by an employee that he should be a member of a Commonwealth superannuation and immediately obtained the forms and joined the PSS in July 1998.

164. In cross-examination, he was asked about the statement in Mr Bates' affidavit saying that he had no recollection of the conversation recounted by Mr Freer. He denied "definitely" that he could be wrong; he said he remembered the day when he asked about it because he was not very happy that he was not eligible to join a Commonwealth superannuation scheme.

165. He was also asked about what he was required to sign after he had successfully completed his probation and he said that he had been sent to an office in Civic where he received "a green slip" with the start date and his name and address on it. He then reported back to the Uriarra depot and started work again.

166. He said that he used to buy The Daily Telegraph or The Mirror newspaper but that he did not see union newsletters. He knew about Commonwealth superannuation from friends of his mother who had worked in government jobs. His understanding was that government superannuation was "for public servants".

167. Mr Peter Seal commenced work for the Commonwealth government in 1967 in what was then known as the Postmaster-General's Department. He was not then a member of any superannuation scheme nor was he aware of superannuation.

168. He joined the Army as a volunteer in 1969, leaving in 1975. At the time, his brother and step-father both worked for ACT Forests and he applied for a position there. He was appointed as a forest worker on 9 June 1975, commencing initially at the Pierce's Creek depot but then transferring to the Uriarra depot.

169. A few months after commencing as a forest worker, he received a cheque from the Defence Force Retirement and Death Benefits Scheme, being a payout of his superannuation from that scheme.

170. As a result, he decided to make inquiries about joining the Commonwealth superannuation scheme and approached Mr Bates. His evidence was:

I said to Bill Bates, words to the effect:

'Am I able to join the government superannuation fund?'

He responded with words to the effect:

'You are not entitled to join the government super fund, as you are not a public servant, you are temporary employee.'

171. Sometime later he spoke with a union delegate who also confirmed his understanding that forest workers were not eligible to join the scheme.

172. He recalled that, sometime later, Mr Bates arranged for an insurance representative to come to the Uriarra depot to offer private insurance products. He signed up for such a product but discontinued it after two years.

173. In about 1985, he took leave without pay to become a full-time organiser with the union and, during that period, he was certain that the union was not aware that temporary employees were eligible for membership of the Commonwealth superannuation scheme.

174. He returned to government service in 1992, ascertaining that he was able to join a Commonwealth superannuation scheme, and did so immediately.

175. In cross-examination, he noted that he had been initially a member of the AWU but later joined the FEDFA for which he became an organiser.

176. His attention was drawn to the fact that Mr Bates had made an affidavit saying that he had no recollection of the conversation to which Mr Seal had deposed. He confirmed his own version.

177. He said that he was first asked to recall the conversation in about 1996. He was, at one stage, a claimant against the Commonwealth government, but did not presently have any court proceedings against the Commonwealth.

178. He accepted that the words he recounted were similar to those used but would not definitely assert that they were the exact words used; they contained the gist of the conversation.

179. He said that, while a union organiser, he did not seek legal advice about the entitlement of forest workers to superannuation.

180. He also said that he was not aware of a superannuation scheme conducted by the AWU and the only superannuation scheme for the FEDFA was a construction scheme for building sites.

181. He also accepted that there were other conversations in the workplace about superannuation and, while he did not agree it was a "hot topic", he said it was "a warm topic"; it was discussed.

182. He agreed that he took out a number of insurance products, although he was unsure about whether they would be classed as superannuation schemes. He did not continue with them because it became obvious to him after a period of time that the benefits being provided were minimal. He agreed that, when he did join a Commonwealth superannuation scheme, he paid 2% of his salary. He thought he had a choice at that stage of paying either 5% or 2%, and he paid the latter.

183. He agreed that he found out about the relevant Commonwealth superannuation scheme and his eligibility on or about 20 August 1992.

184. In re-examination, he explained that he elected to pay at the rate of 2% of salary because his wife was employed at the time; she was a member of a superannuation scheme, they had young children and, while his wife was employed, he did not see the need for a higher rate.

185. Another plaintiff in parallel proceedings, Mr Raymond Knight, also gave evidence and his evidence was heard in these proceedings as well.

186. Mr Knight gained qualifications as a spray painter and first became employed by the Commonwealth in 1977 when he sought employment with ACT Forests.

187. He filled out an application form and saw an officer of the Department of the Interior in Canberra following which he was told to report to the Uriarra depot. He recollected having an interview at the Uriarra depot with Mr McKenzie-Smith but said that there was only discussion about the job itself.

188. He said that the application for employment that he completed recorded that he received a document referred to as a "Conditions of Service" pamphlet, but he does not recall receiving any such paperwork and he had no understanding of any eligibility to join a superannuation scheme.

189. While working for ACT Forests, he, in common with most of the forest workers, resided at the Uriarra depot.

190. He confirmed the arrangements for communication of information that had been given by other witnesses.

191. He also recalled a discussion about superannuation in about April 1977 when a group, including Mr Rough and Mr Tobin, asked Mr Meredith to approach the Overseer to find out whether members of the gang were entitled to join a Commonwealth superannuation scheme. He recalled that later, perhaps the same day or the next day, Mr Meredith came back to the gang and said words which, to the best of his recollection, were as follows "[w]e are not eligible to join the fund because we are not public servants."

192. He said that he assumed that this was the correct position because the information must have come from Mr Bates, Mr Croston or Mr McKenzie-Smith.

193. As a result of that information, he made no further enquiries until he had a conversation with Mr Bates. He said that after about a year of work as a forest worker, he came to know Mr Bates pretty well. He recollects that he asked Mr Bates about joining a Commonwealth superannuation scheme and that Mr Bates said to him, to the best of his recollection "[y]ou are not eligible to join the fund."

195. In cross-examination, Mr Knight's attention was drawn to the fact that Mr Bates had sworn an affidavit saying that he had no recollection of having the conversation which Mr Knight said he had had with him. He denied that it was possible he could be wrong about the conversation but accepted that the exact words were not necessarily those used in his affidavit; they were the gist of it or words to that effect.

196. He agreed that he was first asked to recall the conversation in 1995, when fellow staff had put to him that they could have joined a Commonwealth superannuation scheme and he was asked to fill out a form saying what he believed. It led him to make the claim that he did.

197. He also agreed that there was discussion amongst fellow workers about superannuation and, while he said it would not have been "the top of the conversation", it was generally discussed. He said the discussion did die off a bit, but ebbed and flowed.

198. He knew later on that there were several members of the Commonwealth Superannuation scheme who were temporary employees, "senior industrials", but he did not know at the time he joined.

199. He also said that, while he discussed superannuation with Mr Bates, he did not ask him about whether Mr Bates was a member and, if so, how he was eligible.

200. He also said that he did not recall actually signing documents in the Canberra office of the Department when he joined at first, though he is aware of a document which suggests he received a "Conditions of Service" pamphlet. He did not, however, recall signing the document or taking any paperwork away with him, nor being given any pamphlets.

201. He had some private superannuation but he did not recall reading anything about superannuation. Newspapers were not delivered to the Uriarra depot and, while he came regularly into town, he did not see them, certainly not regularly. He had no memory of reading anything in the newspapers about superannuation or changes to superannuation laws.

202. He was, for most of the time he was working for ACT Forests, a member of the AWU but he did not receive newsletters. He did not read about any superannuation scheme operated by the Union.

203. He had conversations with various union officials, whom he had named, about Commonwealth superannuation and that he could not join. He said he was told that he was not eligible. He did not, however, seek advice from a lawyer, accountant or financial adviser.

204. He recalled a meeting in about 1995 when he found out that he could have joined a Commonwealth superannuation scheme even though he was a "temporary employee". He thought that the meeting was convened by the Union and addressed by Union delegates.

205. He thought that that meeting may have encouraged some people to claim against the Commonwealth for the failure to correctly advise about the eligibility for such employees to join a Commonwealth superannuation scheme.

206. He was asked some questions about who attended the meeting and who addressed the meeting but he could not recall.

207. Mr Clifton Stevens gave evidence that, in 1968, he applied for a job with ACT Forests and attended at the office at the Uriarra depot. He spoke to Mr Bates and applied for a job through him but did not sign anything and was not given anything to read.

208. He was later required to call into the office in Canberra to complete an application form but was not given any information about superannuation nor a "Conditions of Employment" pamphlet.

209. He also recalled discussion amongst fellow workers about Commonwealth superannuation and overheard rumours that some employees were apparently members of a Commonwealth superannuation scheme.

210. He said that the discussion raised his interest in the matter and he felt that it might be a good idea to have the security of superannuation, so he went to see Mr Bates in his office. He said to him words to the following effect "[h]ow do I get into superannuation?" and Mr Bates responded, to the best of his recollection, by saying "[y]ou cannot get into government superannuation as you are not a permanent employee. You have to be permanent to get in."

211. About a week later, an agent for an insurance company came to see him at his home. He was not sure how that was organised so soon after his discussion with Mr Bates. The agent said, "I heard you wanted to look at superannuation . You need the security of some superannuation". Mr Stevens agreed to sign up for a policy.

212. By reference to documents which evidenced his joining of the insurance company's superannuation scheme, he considered that the conversation with Mr Bates occurred shortly before 7 March 1972.

213. In cross-examination, he pointed out that, as soon as he learnt that he could join a Commonwealth superannuation scheme in 1996, he did so and did not hesitate.

214. He was referred to the fact that Mr Bates had sworn an affidavit which asserted that he had no recollection of the conversation but denied that he could be wrong about the conversation even though it occurred a long time ago.

215. He said that he was asked to recall the conversation in around 1996, when he and other employees in ACT Forests had a conversation about superannuation. It was in the context of a claim being made against the government for compensation in respect of superannuation. He had not yet made a claim against the government as he had not yet retired. It was his intention to issue proceedings if necessary once he retires.

216. He agreed that the conversation he recorded in his affidavit was not in the exact words that were used, but contained the gist of the conversation. He agreed that there had been other conversations about superannuation in the workplace, probably in the recreation room, such as during the lunch break and the like. He said it was not a frequent or common topic of conversation but happened from time to time.

217. He later moved to the Kowen Forest depot and then to the Stromlo depot and said that there was no talk of superannuation at those depots.

218. He said that when he signed on in Canberra, he signed a piece of paper but did not take any documents with him and did not receive a "Conditions of Employment" pamphlet. He was definite that he received no documents about superannuation.

219. He said that now and again he would read newspaper, but it was not really important to him and, when he did, it would probably be The Canberra Times or one of the Sydney papers.

220. He did not recall seeing anything in the newspapers about Commonwealth superannuation and he did not know that it was governed by a Commonwealth law.

221. He was a member of a union but dropped out after about two years. He had no discussion with union representatives or delegates or organisers about superannuation. He occasionally received union newsletters but he saw nothing in them about superannuation.

222. When, in 1996, he found out that he was eligible to join a Commonwealth superannuation scheme, he joined pretty much straight away.

223. He said that there was never anything on notice boards at the Uriarra depot about Commonwealth superannuation.

224. Mrs Sellars is the widow of a forest worker, Mr Athol Sellars, who commenced with ACT Forests in 1966. He remained permanently employed by the Department until July 1994 when he transferred to the ACT. In July 2001 he took a voluntary redundancy.

225. Mrs Sellars had a telephone conversation with Mr Bates after her husband had died.

226. Mrs Sellars said that she introduced herself and that Mr Bates remembered her husband. Her evidence continued:

Lorraine: Thanks Bill, I know it is hard trying to remember so far back, but you cannot remember anything about the men not being able to join the super, can you?

Bill: I seem to recall there was something about the men being temporaries and not being in the super. But just what it was is not clear now, and I think it was only hearsay anyway ... But I don't think I will be able to give [the solicitors for the plaintiffs] any information as I can't remember much because it was so long ago.

228. Evidence was given also by Mr Glen Tye who was employed managing workers' compensation issues when he joined the public service in 1973.

229. In about 1980 or 1981, he was promoted to the Department of the Capital Territory, successor to the Department of the Interior, as the Assistant Industrial Officer.

It was my clear understanding that the majority of industrial employees working in these areas were temporary employees or exempt employees, and were not eligible to seek membership of the Commonwealth superannuation scheme. I was concerned that employees who had, in some cases, been working for 20 or 30 years could still be considered temporary or exempt and not have access to the government superannuation scheme like permanent employees. However, from my discussion with other employees within the industrial section of the Department, it was my understanding that that was the view of those within the industrial section.

231. He indicated that, theoretically, workers could contact the office where he was employed but that, in practice, that rarely happened and workers "dealt through their supervisors who preferred to conduct matters from the depots". He had no recollection of workers ringing to enquire about superannuation or other matters as a matter of course.

232. He referred to a telephone conversation with Mr Geoff McVeigh in 2007, who had been concerned that, in about 1985 or 1986, employees were not fully informed of their entitlements. He referred to a handbook he had prepared and visits that he made to various work sites to provide the handbook.

234. Mr Tony Fearnside made an affidavit in which he deposed that he was Forester-in-Charge of the Stromlo Forest depot between late 1965 and 1971.

235. He recalled that, during this period, very few forest workers became members of a Commonwealth superannuation scheme. He deposed that the environment was such that it was assumed that "blue collar workers" were simply not interested in joining a superannuation scheme as they probably could not afford it.

236. His recollection was that he may have assumed that they were not entitled to join a Commonwealth superannuation scheme. He certainly did not encourage any workers to apply to join. He did not know of any other encouragement for them to join.

237. His knowledge of ACT Forests was that forest workers were very dependent on their supervisors for all information and direction about their employment.

238. Mr Fearnside's evidence was not challenged and he was not asked any questions in cross-examination.

239. One of the persons whom Mr Meredith asserted gave him incorrect advice was Mr Mark Edgerley, Director of Forests. He, however, had died before he could make an affidavit about the matters in the proceedings and so I had no evidence from him. Very properly, the Commonwealth submitted that I should treat the evidence of conversations with him with caution because he was not available to corroborate or deny them.

240. Mr Robert Hunt, a retired public servant, joined the Commonwealth Public Service in 1956, left for a short period and then rejoined in 1967, remaining until his retirement in 1999.

241. His employment was with the Establishments Branch of the Department of the Interior (which became the Department of the Capital Territory and later the Department of Territories and Local Government).

242. Part of the Establishments Branch was the Industrial Section, responsible for administering pay and conditions of temporary employees, who he said were also called "blue-collar" or "industrial" workers.

243. Mr Hunt said that most of the experience he gained was "on the job training". His work included periods of time as an industrial officer, serving as a link between industrial staff and management, and later as an inspector. He did not receive any training about superannuation.

244. During this time, he was a primary point of feedback for information coming from the depots where temporary employees were located. He said that he tried to visit one of the many depots in the Department each week though often he would arrive at a depot when the temporary employees were in the field.

245. His evidence was that new temporary employees were interviewed at the depot or on the work site and, if the person in charge agreed to employ them, they would attend at the industrial section in Canberra to sign up. Mr Hunt gave some evidence about what that involved.

246. He referred to a manual prepared by the Department but was unable to say whether it contained any information about the eligibility criteria of temporary employees for joining a Commonwealth superannuation scheme. He described the manual as more "an overarching thing to show this is the Department with all its different blocks". There was a proposal for a more detailed manual with processes but it "probably died" about the time that the Department of Interior was split up into various other Departments.

247. He did think that, in the Branch, there would have been a copy of the Superannuation Act or the Public Service Act. He did not recall being shown a copy of a superannuation manual when he commenced working, but he did process applications from temporary employees to join a Commonwealth superannuation scheme.

248. Mr Hunt said that the processing of applications for superannuation was mostly done when paper applications arrived; he could not recall anyone coming to the counter to fill out such a form. Indeed, he said that the practice was "to encourage ... the individual employees to sort of go through their supervisor initially ... [through their] overseer, area managers". He said that this "kept them in loops, and it also helped to educate them as well".

249. Mr Hunt could not recollect processing any applications to join superannuation from any forest worker employed at the Uriarra depot.

250. Mr Graham McKenzie-Smith gave evidence. He joined ACT Forests in 1972 initially as a temporary employee. He completed the course work component of his Masters degree and then returned to ACT Forests in late 1973. In late 1975 he was promoted to the position of Forester-in-Charge at the Uriarra depot until he resigned in mid-1981. He then returned in late 1991 as Chief Executive Officer of ACT Forests until early 1999.

251. He described the staff at the Uriarra depot as including about 25 employees with the Forester-in-Charge, the Second-in-Charge, one Overseer, and Gangers, Leading Hands, forest workers, truck drivers and plant operators. These latter workers would be organised into gangs to carry out their work, though they would not always be organised into the same gangs. These were, in summer particularly, supplemented by casual workers who were mostly students.

252. His role was to set the overall programme for work for the depot and for budgets and accounts, supervising the Overseer, with whom he would interview new employees, and liaise with other agencies.

253. The entire time that Mr McKenzie-Smith was at the Uriarra depot, Mr Bates was the Overseer.

254. Mr McKenzie-Smith became a member of a Commonwealth superannuation scheme in 1974 upon becoming a permanent employee. He said that he did not personally pay a lot of attention to his superannuation. He could not recall how he first found out that industrial employees (temporary employees) could join a Commonwealth superannuation scheme but he believed he was told that in about 1974. He did not know the exact details and, indeed, it seemed from his evidence that he was unclear about the Commonwealth superannuation scheme and also the Provident Fund available for those ineligible for the Commonwealth superannuation scheme. He said in his affidavit that he was aware of a number of people at the Uriarra depot who had joined the Commonwealth superannuation scheme as industrial employees. He named three people but one of them, whom he specifically identified, had not, in fact, joined until 1998.

255. Despite the evidence of Mr Hunt, Mr McKenzie-Smith said that it was not the responsibility of the Overseer (Mr Bates) to provide advice about superannuation. He described it as "a complicated issue" and suggested that queries should have been directed to "the Administration Section".

256. He said that he did not recall anyone ever asking him specifically about Commonwealth superannuation. He said that he remembered a meeting in the late 1970s where a group of about eight workers in the recreation room were on standby and started talking about superannuation. He said that a couple of the workers said that they were "in superannuation" and the senior workers "had a go at" the younger workers for not putting money into superannuation for their future.

257. Despite this, he said that, in his time as Forester-in-Charge, he was not aware of any temporary employee who applied for superannuation.

258. In relation to the allegations by Mr Knight and Mr Meredith, Mr McKenzie-Smith said that he had no recollection of Mr Meredith coming into his office in 1977 and making an inquiry about superannuation.

259. Mr McKenzie-Smith also said that he could not recall Mr Todkill speaking to him about superannuation nor telling him that "industrial workers are not entitled to join the Government superannuation". He said that he would not have told Mr Todkill that because he knew that they could join. He said:

[a]lthough I did not know the exact requirements I knew that temporary employees could join after a waiting period and after they had gone through the process.

260. It was curious that, in his affidavit, Mr McKenzie-Smith referred to "temporary employees" when obviously meaning the same as "industrial employees", even though in his oral evidence he said that he had "never heard them called 'temporaries'".

261. He also agreed that memory can be fallible especially after a period of thirty years.

262. Mr McKenzie-Smith said that, in the period up to 1981, it was not his job nor that of his Overseer, Mr Bates, to advise anyone to join Commonwealth superannuation. He did not tell the workers that, nor did he put up a notice referring any queries to be directed to administration or anything like that.

263. He said that superannuation at this period "wasn't the issue that it currently is" and suggested that people were not really interested in joining superannuation. He accepted that one of the reasons why no temporary employees at the Uriarra depot joined during his period there was that "[n]obody was told they could apply and nobody thought to ask the question". This, he thought, was the most likely explanation.

264. When put to him that some twelve workers from the Uriarra depot said that between 1966 to 1988 they were told that they could not apply and therefore did not, he said he was not aware of that evidence.

265. In relation to the meeting in the recreation room, he said, in his affidavit, nothing about his participation in the meeting, but in his oral evidence said that he "probably participated ... and probably said it [superannuation] was a good idea". He agreed that he did not attempt to put any such words into his affidavit; indeed, he thought that he had, but a fair reading of the affidavit implies that he was merely an observer rather than a participant at the meeting.

266. Mr McKenzie-Smith said that all industrial workers at the Uriarra depot were union members and that the unions were very active. He said that the workforce was highly industrialised. For each union, there was a union representative and usually a union organiser. He could not recall any union representative talking to him about superannuation.

267. He also referred to a notice board in the recreation room. It had a table under it. Notices were put on the noticeboard which had come from the "Administration Section" and booklets, magazines and brochures were placed on the table beneath it.

268. It was clear to me that, while Mr McKenzie-Smith was doing his best to remember, his memory was imperfect and on significant matters shown to be wrong.

269. Mr Ronald Murray joined ACT Forests in February 1958 as a forestry officer and worked from time to time at the Uriarra Depot, becoming Forester-in-Charge there in 1963. He, shortly after that, travelled to the United States and returned in September 1967. He said that, as a permanent public servant, he was required to join a Commonwealth superannuation scheme, which he did. He did not pay much attention to his own superannuation until near his retirement. He said that he was aware that an industrial employee had been assisted to obtain superannuation in 1960-61 by the person he shared an office with and, as a result, knew that it was possible for such employees to obtain Commonwealth superannuation.

270. He referred to the conversations that Mr Meredith said he had had with him about superannuation and the suggestion that he told Mr Meredith that he was not entitled to join.

271. He said that he did remember having conversations with Mr Meredith but did not recall the claimed conversation. He said he did not recall any conversations with Mr Meredith about Commonwealth superannuation. He also said that the response attributed to him was totally at odds with what he already knew about superannuation and that, if he had been asked whether forest workers could join, he would have said that it was possible.

272. Mr Murray said in cross-examination that, while Mr Bates would handle matters arising under awards, he did not think that he would handle matters such as superannuation, which was not part of any industrial award.

273. In his affidavit, however, Mr Murray thought that forestry workers could access Commonwealth superannuation "probably through the Provident Fund". He said that his understanding was that, if a forest worker had not passed the medical examination for the Commonwealth superannuation scheme, he could have joined the Provident Fund. It was clear, in his evidence, that he made a distinction between the Commonwealth superannuation scheme and the Provident Fund.

274. Mr Murray said that he could not remember discussing superannuation with Mr Bates although he could have done so. It certainly would not have been "a searching conversation".

275. There was an oddity about Mr Murray's evidence. Although he said that he had worked in 1960-61 to get an industrial worker superannuation (see [269]), he later said that he did not know that the worker had been admitted to the Commonwealth superannuation scheme until later when they were living next door and the worker's wife mentioned it to Mr Murray's wife.

276. It was suggested to Mr Murray that he may have misunderstood what Mr Meredith was saying, namely that he was asking about the Commonwealth superannuation scheme rather than the Provident Fund but he said that, to his mind, that was not so.

277. One further curiosity in the evidence of Mr Murray was that in his affidavit he said that he "would not have stated that it was impossible [for Mr Meredith] to obtain [access to superannuation]" even though Mr Meredith had not used the word "impossible".

278. He was obviously a little defensive because, having read Mr Meredith's affidavit, he said "my name was up there in lights of why he did not join a superannuation fund".

279. Having carefully considered Mr Murray's evidence, I am satisfied, on the balance of probabilities, that the conversation that Mr Meredith said he had with Mr Murray was generally in the terms stated by Mr Meredith. Mr Murray is alleged to have said "[y]ou are not entitled as far as I know", not a blanket statement. It is, I consider, quite possible that there was a misunderstanding about the Commonwealth superannuation scheme and the Provident Fund, the distinction between which, it seems clear to me, Mr Murray did not understand fully. It is clear that he had little understanding of the details of the eligibility of temporary workers and had not even known immediately whether the worker who was assisted had been admitted until sometime later. It may be that he responded to Mr Meredith's query in a mistaken way, which nevertheless gave Mr Meredith the impression he recounted in his evidence, reinforced by the answers he had received to other queries that he had made.

280. Geoffrey McVeigh also gave evidence. He joined the Department of the Interior in 1968 and, in 1977, was transferred to the wages/payroll area to assist with transferring industrial employee records to a computer-based payroll system.

281. In 1980, he became Controller of Wages, responsible for the payment of wages to all industrial employees within the Department, then known as the Department of Territories.

282. In 1985, he became the Industrial Officer with the Industrial Relations Section of the Establishments Branch. That Branch was responsible for providing advice to industrial employees, management, and the unions, particularly about industrial employees' conditions of service.

283. He said that by 1978, or 1979 at the latest, he knew industrial employees could join a Commonwealth superannuation scheme but that there was a certification required. His area was not responsible for completing that certification.

284. He also worked on the preparation of a booklet in 1985-86 setting out the conditions of employment for industrial employees working for the Department. He consulted with various union organisers, including Mr Spellman from the AWU and Mr Lamont from the Transport Workers Union.

285. The booklet, which was orange in colour, contained information about the eligibility of industrial employees to join Commonwealth superannuation. He thought about 1,500 copies of the booklet had been produced.

286. He also visited some workplaces of the Department in 1985 or 1986, although it does not appear that he visited the Uriarra depot.

287. In cross-examination, he said that, while he was involved in the preparation of the "orange booklet", he was not involved in the distribution of the booklet to any of the Department's depots.

288. An officer of the payroll section of the Department of Territories and Local Government, Ms Kim-Marie Ivans also gave evidence. She gave detailed evidence of the payroll section of the Department in the mid 1980s but it is not necessary to describe that, nor her description of how new employees were "signed up" and the induction process after she commenced in 1985. She gave evidence of her understanding of Commonwealth superannuation. She also gave evidence about the process by which blue-collar workers could apply to join. She remembered that "a lot of the workers changed their mind after receiving that form and told us that they no longer wanted to join". She also believed that a number of blue-collar workers did not join because they had private superannuation policies.

289. She recalled pamphlets about Commonwealth superannuation and that the payroll section would hand out such pamphlets to workers who came to the section to ask about Commonwealth superannuation.

290. In cross-examination, she indicated that, in her section, the terms "temporary employees" and "blue-collar workers" were interchangeably used. She also said that she would use the term "industrial employees".

291. She accepted that the Notice of Engagement attached to her affidavit was different from that which was attached to Mr Hunt's affidavit, obviously being an earlier version and which omitted a reference to the copy of a Conditions of Service document being attached.

292. She also accepted that employees would not always retain documents that they were given. She said:

You had some that were methodical [in] keeping records and they would ask for a copy of everything they signed. But in most cases that would just be something that we would put on their file. ... they wanted a job, yes, ... [s]o you'd just sign.

293. She also made reference to the "orange booklet", indicating that it was not specifically used for new employees but "we would give it to anybody who actually questioned their conditions". It was not sent out to all industrial staff; there had to be an enquiry.

294. She said that in the 1990s, when there was a change of payroll system "we made it clear to every industrial employee that there was a superannuation scheme". She said that they sent out a form stating that they were all members of a compulsory scheme and that this provoked some inquiries.

295. Mr George Hayes commenced employment with the Commonwealth in 1963 and, in 1969, joined what was then called the Superannuation Board, later named the Australian Government Retirement Benefits Office and then ComSuper. See [24] above. He said in his affidavit that he did not receive any formal training when he commenced with the superannuation agency but learned "on the job and from reading leaflets, circulars and the Superannuation Manual".

296. He said that, within a few weeks of commencing, he knew that temporary employees could join a Commonwealth superannuation scheme under certain circumstances which, at that time, required them to have had three years continuous Commonwealth employment and a certificate stating that the employee would be likely to be employed for a further seven years.

297. He noted that this changed when, for the CSS, the temporary employee needed only one year continuous employment and a certificate stating likely future employment for three years and then later, again, for the PSS, three months completed employment within the previous two years.

298. So far as he was aware, there was a lot of information available about Commonwealth superannuation and, at the time of the introduction of the CSS, he produced leaflets with the assistance of a journalist. There were about seven leaflets setting out general information.

299. He also conducted superannuation seminars. In the ACT, they were conducted when an Agency or Department requested them.

300. The Superannuation Manual was the "superannuation bible", according to Mr Hayes, providing detailed information about the Scheme. He said that every personnel section would have had at least one copy of the Manual. Updates were sent out every three to six months. He said that circulars were also sent out to personnel sections in advance of Manual updates.

301. ComSuper also received telephone inquiries from employees and Mr Hayes recalled occasionally answering calls from temporary employees. His experience was that temporary employees who wanted to join Commonwealth superannuation could have found out about their eligibility to do so. He was also aware, however, that there were temporary employees who did not wish to join.

302. He gave evidence about publicity surrounding the introduction of new schemes and, when such schemes were introduced, additional seminars were held.

303. Mr Hayes accepted, in cross-examination, that when he said that "many ... temporary employees joined Commonwealth Superannuation", he meant that it was not unusual to see cases where temporary employees joined and, of course, these were from all over Australia. It also, of course, included the period of time for which he worked for ComSuper, namely 1969 to 2002. He indicated that he was not be able to say whether employees worked at the Uriarra depot or not unless they specifically mentioned it in any of their forms.

304. He also accepted that ComSuper was dependent upon Departments and personnel sections to pass on information and have contact with employees. It was they, also, who invited ComSuper representatives to conduct seminars.

305. Mr Hayes noted that, at the time the PSS was established, members of the CSS had to make a specific decision to elect to join the PSS. If they made no election, they remained in the CSS.

306. He said that the information concerning that election was distributed through Departments and Agencies. Mr Hayes' view was that the decision to elect for membership of the PSS was a very personal one depending upon issues such as how the person saw their future. He thought that for many people it was a "pretty line ball" and you "had to take a view as to how you thought your career was going to pan out". It was, he said, "pretty personal".

307. He pointed out that a member of the CSS could, on retirement, take their productivity component and their member contributions as a lump sum with interest on the member contributions as well as a pension component which was the employer financed portion, which would always be indexed as a pension. In contrast, under the PSS, the whole of the account could be taken as a lump sum. Indeed, a pension under the PSS had to be purchased with the lump sum but the purchase was of a fully indexed pension. Thus, it was possible to have the result of a higher indexed pension in the PSS if the lump sum was substantial enough. That would have been greater than the pension possible under the CSS.

308. Mr Hayes confirmed that ComSuper depended upon each employer to facilitate applications from employees and to deduct contributions and send them to ComSuper. This information had to be provided by the employer. The employer was also required to arrange medical examinations if required. Thus, he accepted that the Scheme simply could not have worked without the assistance and the facilitation work that was required by an employer.

309. Another employee of ComSuper, John Jamson, also gave evidence. He commenced working in the Superannuation Board office in 1964 and remained there until he retired in 2003. He joined Commonwealth superannuation in 1966 on confirmation of his permanent appointment.

310. He knew that temporary employees were eligible to join a Commonwealth superannuation scheme though he did not recall receiving any specific training about that; he came to know it in the course of his employment. Indeed, his father-in-law and one of his wife's uncles were employed as temporary employees in the Department of the Interior and he encouraged them to join a Commonwealth superannuation scheme.

311. The pre-conditions prior to 1976 made it difficult for temporary employees to join a Commonwealth superannuation scheme but the eligibility criteria relaxed from 1 July 1976.

312. He noted that "[s]uperannuation was, and still is, a complex subject. Most people's eyes would glaze over when you talk to them about superannuation."

313. From the early 1980s until about 1995 or 1996, it was part of his job to conduct seminars about Commonwealth superannuation. He thought that he would have conducted several hundred in that period. Seminars were held in all States and Territories as part of a programme conducted by ComSuper or because the Department asked for a seminar. He recalled that sometimes unions organised such seminars.

314. He recalled being heckled at some seminars when temporary employees rejected joining Commonwealth superannuation because they had to pay 5% of their gross pay. Others did not want to join because they had private superannuation.

315. When he was in the Information Section, he received numerous calls from employees and staff clerks enquiring about various topics.

316. In cross-examination, he was asked about his relatives and indicated that they gave no indication that they had been aware of superannuation before he mentioned it to them.

317. He agreed that the provision of a certificate about security of future employment was a matter for the employer and ComSuper was not involved in that.

318. His evidence was similar to that of Mr Hayes and he confirmed that there were no seminars specifically for temporary employees, though sometimes seminars were held at workplaces where a large number of the employees would be temporary employees. He did not recall conducting any seminars for ACT Forests.

319. The Overseer at Uriarra, Thomas William Bates (referred to as Bill Bates), also gave evidence.

320. He commenced working with the Commonwealth as a forest worker in about 1947 and later became a Ganger at the Uriarra depot and also Overseer at the Pierce's Creek depot.

321. In the early 1960s he was promoted to Overseer at the Uriarra depot and remained in that position until about June 1992. He then was promoted to logging supervisor and retired in December 1996.

322. He believed that he was a temporary employee throughout his entire employment with ACT Forests.

323. He noted that in the 1960s there were about 60 workers at the Uriarra depot but, by the mid 1970s, that had dropped to about 25 workers with one Forester-in-Charge, one Second-in-Charge, one Overseer, Gangers, Leading Hands and forest workers. There were also plant operators and truck drivers.

324. His position as Overseer reported directly to the Forester-in-Charge and he was responsible for the day-to-day operations at Uriarra. He organised the workers into gangs and assigned tasks and during the day would visit the gangs to supervise work. He also wrote up worker's timesheets, checked and signed them and sent them off to head office in Civic. He said that it was rare for forest workers to go to head office in Civic but he would not have stopped them if they wished to do so.

325. He said that, because he supervised the workers, they would often ask him questions about their wages, whether they could have a day off or whether they were eligible for promotion. He would, with the Forester-in-Charge, also interview new employees and allocate overtime.

326. He became a member of a Commonwealth superannuation scheme in 1962. He recalled that, in the early 1960s through to the 1970s, there were a lot of private insurance salesmen who visited the Uriarra depot trying to get the workers to sign up to their schemes. They would hold meetings and talk to workers individually.

327. He himself did not like the sound of the private schemes and spoke to the Forester-in-Charge, whose name he did not state, and the Forester-in-Charge arranged for forms for him to complete in order to join the Commonwealth superannuation scheme. He undertook a medical examination and then joined.

328. He said he did not know the rules about who could join and who could not join and although he joined when he was a temporary employee, he did know why he was able to join. He did not receive any training about Commonwealth superannuation.

329. He confirmed the evidence given by Mr McKenzie-Smith about the noticeboard in the recreation room and the presence of the unions at Uriarra.

330. He recalled Mr Meredith and had read the evidence in his affidavit about the conversations stated by Mr Meredith to have been held with him. He did not recall the conversations; indeed, he said he did not recall ever having a conversation with Mr Meredith about Commonwealth superannuation. He did not know whether Mr Meredith was entitled to join or not and said it was not his job to tell him whether he could join a Commonwealth superannuation scheme.

331. He agreed that it was the practice for the workers to go through him to speak to the Forester-in-Charge, but if they asked a question and did not like the answer that he gave and said they wanted to speak to the Forester-in-Charge he would not have stopped them.

332. In cross-examination, Mr Bates said that he did not believe there was confusion in "the upper levels of forestry" about the eligibility of temporary employees to join a Commonwealth superannuation scheme.

333. He said that it was never discussed by "the Forestry hierarchy" as to what those persons thought about the eligibility of temporary or industrial employees to join a Commonwealth superannuation scheme and he never received any communication from those above him as to the eligibility of those employees. Indeed, he said he was not aware when he was the Overseer of any information from the industrial section of the Department regarding the eligibility of temporary employees to join a Commonwealth superannuation scheme.

334. Mr Bates said that Mr Murray never told him that he believed superannuation was available to forest workers through the Provident Fund.

335. Initially, Mr Bates said that he did not recall there being temporary workers at the Uriarra depot who were members of the Commonwealth superannuation scheme. While he was a member, he did not recall any other temporary or industrial workers who joined a Commonwealth superannuation scheme. He then acknowledged that, in all his years as an Overseer, he did know a number, however, and mentioned four names. He ultimately agreed that there were about five temporary employees at the Uriarra depot who were members of a Commonwealth superannuation scheme.

336. He also indicated that he was not particularly aware of a considerable interest in joining the Commonwealth superannuation scheme.

337. He was not made aware in 1976 of a concern that industrial employees were not being informed at depot level of their rights to join a Commonwealth superannuation scheme and did not consider it was his job to impart to them information about such things; any information that was circulated to him would be placed on the noticeboard.

338. Despite saying in his affidavit that he wanted some security for his future, he initially said in oral evidence that, when he was about thirty, he did not consider the need for security for his future. When the paragraph in his affidavit was drawn to his attention, he merely said "I didn't have any other insurance at that stage, and I thought that [the Commonwealth superannuation scheme] would be a good one to join".

339. He agreed that private insurance was "pretty big" and there was a lot of it around at the Uriarra depot. Representatives would ring him up and arrange to meet workers on site and he permitted them to do so.

340. He said, too, that he did know whether temporary workers could join a Commonwealth superannuation scheme. He denied that he could have said to the workers that they were not eligible.

341. He also recalled the telephone conversation he had with the widow of one of the forestry workers, Athol Sellars. He confirmed that he told her "I didn't know anything". He agreed with the terms of the conversation as given by Mrs Sellars.

I seem to recall there was something about the men being temporaries and not being in the super but just what it was it is not clear now and I think it was only hearsay anyway.

343. He denied that the problem to which he was referring was that, as temporaries, they could not be in the Scheme.

344. He was quite firm that he would not have told the employees that they were not eligible to join the Scheme.

345. He also said that he did not recall having a conversation with the lawyer for Mr Meredith.

346. He reiterated that he did not tell Mr Meredith that he could not join and said that it was "up to them what scheme they joined, what sort of insurance they took". He could not remember any conversations with workers. His position was "I just don't recall whether I had [those conversations] or not but I don't deny that they might have occurred". He agrees that, if the conversations occurred as alleged, that he would have provided wrong information. He did not feel any liability if Mr Meredith's case was successful.

347. He did not ever try to get a forestry worker to join a Commonwealth superannuation scheme. He never signed or approved an application for superannuation, ever.

348. He swore a further affidavit in which he denied recalling any of the conversations that were said to have been had with Mr Meredith, Mr Knight, Mr Tobin, Mr Blake, Mr Troy Meredith, Mr Mitchell, Mr Stevens, Mr Freer, Mr Seal, Mr Sellars, Mr Williams or Mr Rough.

349. He agreed that it was his role to advise workers about their entitlements but he did know whether workers were eligible or not. He never saw a notice encouraging temporary workers to join a Commonwealth superannuation scheme. He did not regard himself as a blue-collar worker or a white-collar worker but as an industrial employee.

350. He did not deny that the conversations with Mr Meredith may have occurred but he had no recollection of them.

351. He had no doubt that, once employed, Mr Meredith would be likely to have been employed for many years to come.

352. He also agreed that "to show you the ramp" was an expression he used meaning to terminate the employment of a temporary worker. He said he would use that phrase occasionally if, say, a worker were "acting up".

353. There were some conversations which he thought did not occur; they were the conversations with Mr Tobin and Mr Blake.

354. He did not recall any of the other conversations that were alleged.

355. The evidence of Mr Bates is highly central to this case. The Commonwealth says that, as Mr Bates was a temporary employee and as he was a member of the Commonwealth superannuation scheme, to have said to other temporary employees that they were ineligible for the Scheme would be to lie to them and that there was not sufficient evidence for me to make such a finding.

356. It does not seem to me, however, that the position is quite so black and white. Mr Bates gave some quite worrying evidence. After he had spoken to the widow of Mr Athol Sellars, the plaintiff's lawyer, Mr Richard Faulks, spoke to him. An affidavit of Mr Faulks was filed in reply to that effect and Mr Faulks was not cross-examined to suggest that the conversation had not occurred. Mr Bates, however, flatly denied that he had had that conversation with Mr Faulks. That raises a real question about the adequacy of his memory.

357. I also note that Mr Bates made it perfectly clear that he was not aware of the details of the Commonwealth superannuation schemes available while he was Overseer at the Uriarra depot. Indeed, he did not know how it was that he was able to join the Scheme. If there was a view generally amongst relevant personnel such as industrial officers that "temporary employees", or "industrial employees" or "blue collar workers" as they were variously called, were not eligible, as was the evidence of Mr Tye (at [230] above), it is not unlikely that Mr Bates had that view, despite his membership, which he did not understand.

358. Mr Bates further said that, so far as the conversations with Mr Meredith were concerned, he did not deny that they had taken place; he simply could not recall them.

359. Mr Bates also referred to arrangements whereby he would make contact with private superannuation providers and insurance representatives and invite them to speak to some of the forest workers. It is difficult to see why he would have done that unless the workers had made inquiries about superannuation and were told that they were ineligible.

360. Accordingly, I am not prepared to rely on the evidence of Mr Bates which does not seem to me to be sufficient to answer the allegations made by Mr Meredith and his witnesses.

361. The Commonwealth submitted that I should not rely on Mr Meredith's evidence. It submitted that "a high degree of very specific detail in a long-term memory is unusual".

362. It also submitted that Mr Meredith's memory, and, indeed, that of the other witnesses, especially those who were also plaintiffs, was in reality, no more than "a kernel of information comprising various workplace conceptions about inability to participate in Commonwealth superannuation".

363. This imperfect recollection and "coloured memories" were said to be exemplified and epitomised by the interchangeable use of expressions which are said not likely to have been used in the workplace to refer to forest workers, such as "industrials", "blue-collar workers", "temporaries" and "casuals".

364. Part of this, however, is undermined by the high level of consistency between Mr Meredith's oral evidence and his affidavit evidence. Whilst I accept that it is possible to learn evidence by heart or, indeed, to embed in memory a recollection which may not mirror exactly the events said to be recollected, I was satisfied that Mr Meredith was doing his best to remember genuinely what had been told to him.

365. Indeed, his evidence was not really contradicted by what was said by Mr Bates who, so far as Mr Meredith at least was concerned, admitted that, while he did not recollect the conversations, they could have occurred.

366. There is no doubt that the conversations were of more importance to Mr Meredith than to those to whom he was talking, Mr Bates, Mr Mckenzie-Smith and so on.

367. There were, as well, other matters referred to by Mr Meredith which supported his memory; for example, he recalled that he was speaking to Mr Edgerley about a union issue of travelling time when he raised the matter. This unsolicited recollection reinforces the view I formed that Mr Meredith was able to recollect some matters accurately even though they had occurred many years before.

368. It was also evident that few other forest workers, and indeed none gave relevant evidence, had an understanding that they, as forest workers, were eligible for membership of a Commonwealth superannuation scheme, despite repeated requests for information. Indeed, the fact that Mr Bates seemed quite oblivious of how he was able to become a contributor reinforces the fact that there was little knowledge of the eligibility of temporary employees for membership of a Commonwealth superannuation scheme.

369. Further, the fact that private insurance companies were invited to sell their products at the Uriarra depot is consistent with Mr Meredith's evidence. Indeed, the evidence of Mr Stevens is strongly supportive.

370. Despite the view I have formed of the evidence of Mr McKenzie-Smith, his evidence was, indeed, supportive of Mr Meredith's position. He agreed, for example, that he never took the opportunity to raise the matter of superannuation with Mr Meredith (even when sharing an office with him while Mr Meredith was acting as Overseer), he did not give any thought to the retirement welfare of those he was supervising and he never saw any notice at the Uriarra depot about the eligibility of temporary or industrial employees to apply for membership of a Commonwealth superannuation scheme.

371. Mr McKenzie-Smith further had really no information about eligibility requirements under the relevant Commonwealth superannuation law; he did not attend a seminar where the details of the scheme were spelt out and he was not aware while he was a Forester-in-Charge of any forest worker being informed of their eligibility.

372. This description was entirely consistent with the picture painted by Mr Meredith and consistent with the efforts he described to obtain some information about Commonwealth superannuation.

373. Mr Murray's evidence is a little more problematic. He had no recollection of the relevant conversation but stated that it was unlikely that it could have occurred as alleged by Mr Meredith because he knew of the assistance provided to another industrial employee obtain superannuation.

374. Unfortunately, his affidavit is silent on the situation of that employee. It does not say (though it may be implied) that the employee was a forest worker, nor precisely where he was employed. Again, it might be implied that the employee was employed at the Uriarra depot but that is not stated. It is also not clear when he learned that the employee obtained superannuation.

375. When this is put together with his statement that he "did not know any of the details such as the process involved or the conditions that might apply" for forest workers to join a Commonwealth superannuation scheme, the likelihood of some kind of conversation of the kind alleged by Mr Meredith becomes more likely.

376. The evidence of the various witnesses shows that, at the Uriarra depot, there was a high level of interest and concern amongst forest workers about superannuation. It is, then, at least odd that Mr Murray took no steps either to make himself familiar with the position so that he could ensure that the workers for whom he was responsible were fully informed or to arrange for an appropriate officer from either the "Establishments Branch" or ComSuper to advise.

377. Having carefully considered the position, I am not satisfied that Mr Murray's evidence undermined that of Mr Meredith. Given the lack of knowledge Mr Murray showed about the eligibility of temporary employees, including whether the worker who had been assisted, I am not satisfied that Mr Murray would have contradicted what Mr Meredith says he was told. That would make the conversation alleged by Mr Meredith consistent. I am satisfied that it occurred.

378. So far as Mr Edgerley is concerned, the position is a little more difficult because he was not available to give evidence. Given, however, the clear lack of knowledge that both Mr Mckenzie-Smith and Mr Murray showed about eligibility for Commonwealth superannuation and, having regard to the evidence of Mr Tye, I am satisfied on the balance of probabilities that the conversation Mr Meredith alleges occurred as suggested.

379. As a result, I am satisfied that Mr Meredith was advised by Mr Bates and, on the balance of probabilities, by Mr Murray that he was not eligible to join a Commonwealth superannuation scheme. I am further satisfied that this information was incorrect and that correct information could be accessed by both Mr Bates and Mr Murray.

380. I accept, too, the evidence of the other witnesses called by Mr Meredith as to the report by Mr Meredith to them of what he had been told.

381. Due to the conduct of the proceedings, it is not necessary for me to analyse all of their evidence in detail. I take into account that they were referring to conversations and events that occurred many years before they were formally first asked to recall them. There was, however, neither a suggestion nor any evidence of collusion amongst them and the reports were such that I am satisfied they were reliable.

382. Accordingly, it is necessary then to analyse the causes of action pleaded by Mr Meredith and I shall do so.

383. Mr Meredith was given information by Mr Bates and Mr Murray that he was not eligible to join a Commonwealth superannuation scheme. This information was incorrect. The persons who gave him that information were people in authority over him and who dealt with a number of aspects of his working conditions. They were people who could be expected to know either what the eligibility criteria were or, if they did not know, to know that there were people to whom Mr Meredith could be referred, to ascertain the correct position. So much is, on my findings on the evidence, plain.

384. The principles that a person who has relied on a statement made by another which was negligently made and which has caused economic loss was established by the House of Lords in Hedley Byrne & Co Ltd v Heller and Partners Ltd [1963] UKHL 4; [1964] AC 465.

385. In Australia the principle upon which this cause of action rests was stated authoritatively by the High Court in Mutual Life & Citizens' Assurance Co Ltd v Evatt [1968] HCA 74; (1968) 122 CLR 556 (MLC v Evatt), in which Barwick CJ articulated the cause of action as follows (at 571):

[T]he circumstances must be such as to have caused the speaker or be calculated to cause a reasonable person in the position of the speaker to realize that he [or she] is being trusted by the recipient of the information or advice to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access or to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment, in either case the subject matter of the information or advice being of a serious or business nature. It seems to me that it is this element of trust which the one has of the other which is at the heart of the relevant relationship. I should think that in general this element will arise out of an unequal position of the parties which the recipient reasonably believes to exist. The recipient will believe that the speaker has superior information, either in hand or at hand with respect to the subject matter or that the speaker has greater capacity or opportunity for judgment than the recipient ...

Then the speaker must realise or the circumstances be such that he [or she] 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 ...

Further, it seems to me 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.

386. The principles have been followed and restated in the High Court in decisions such as L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 1) [1981] HCA 59; (1981) 150 CLR 225 at 251 (Mason J), 256 (Aickin J) where this approach was adopted in preference to the narrow view of the Privy Council in Mutual Life & Citizens Assurance Co Ltd v Evatt [1970] UKPCHCA 2; (1970) 122 CLR 628. See San Sebastian Pty Ltd v Minister [1986] HCA 68; (1986) 162 CLR 340 at 356; Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at 16-7; [47].

387. The principles were helpfully summarised by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; (2003) Aust Tort Rep 81-692 at 63,653; [715] as follows:

The decision established that a duty of care in a negligent misstatement case exists to avoid purely economic loss if -

(i) the advice is required for a purpose which is known to the adviser when the advice is given;

(ii) the plaintiff relied upon the statement made by the defendant;

(iii) the adviser knows the advice will be communicated to the plaintiff either specifically or as a member of an ascertainable class in order to be used for the purpose;

(iv) that the adviser, expressly or impliedly, undertook the responsibility of exercising reasonable care in making the statement;

(v) it is expressly or impliedly known that the advice is likely to be acted upon without independent enquiry;

(vi) that the plaintiff, in reliance upon the statement, suffered loss.

388. As Brennan CJ said in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8; (1997) 188 CLR 241 at 252:

But, in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and that it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making the statement or giving the advice.

389. What is also relevant is whether the provider of information places any qualifications on the information provided, such as that it is given in good faith but unverified and that the inquisitor should confirm the information or it is otherwise qualified. See Rawlinson & Brown Pty Ltd v Witham (1995) Aust Tort Rep 81-341 at 62,412-3 (Kirby P). See also Commonwealth v Cornwell [2006] ACTCA 7 at [41]- [43]. This did not occur here.

390. It also appears that, once a negligent representation has been made, there is an ongoing obligation on the maker to correct the error in it if he, she or it discovers it to be false. In Brownlie v Campbell (1880) 5 AC 925 at 950, Lord Blackburn said:

[W]hen a statement or representation has been made in the bona fide belief that it is true, and the party who has made it afterwards comes to find that it is untrue, and discovers what he [or she] should have said, he [or she] can no longer honestly keep up that silence on the subject after that has come to his knowledge, thereby allowing the other party to go on, and still more, inducing him to go on, upon a statement which was honestly made at the time when it was made, but which he [or she] has not now retracted when he [or she] has become aware that it can be no longer honestly persevered in.

391. These legal principles were, probably inevitably, hardly in contention between the parties. Where there was controversy was in their application to this case.

392. The Commonwealth submitted that the case for Mr Meredith was flawed at five places. I shall deal with each in turn.

393. The Commonwealth relied on what Barwick CJ said in MLC v Evatt at 569, namely

The person giving the information or advice must do so willingly and knowingly in the sense that he [or she] is aware of the circumstances which create the relevant relationship ... It is this seemingly 'bilateral' aspect of the necessary relationship which, it seems to me, inclines the mind to the use of the expression 'assumption of responsibility' to describe the source of the duty of care.

394. Thus, it was submitted that it could not realistically be said that when, for example, Mr Bates was providing the information he did to Mr Meredith, he was doing so "willingly and knowingly in the sense that he was aware of the circumstances which create the relevant relationship". That is to say, it was submitted that it could not realistically be said that Mr Bates knew or ought to have known that the advice sought from him was likely to be acted upon by Mr Meredith without independent inquiry.

395. The Commonwealth submitted that it was not part of the duty of Mr Bates as Overseer to provide forest workers with information about their eligibility for Commonwealth superannuation.

396. The evidence of Mr Bates was that his role included:

(a) organising the works into groups and assigning tasks;

(b) visiting gangs during the day to supervise the work;

(d) checking and signing the timesheet once signed by a worker;

(e) attending at "head office" in Civic for various reasons including to check about a worker's pay or to check an order for supplies;

(f) assisting workers to go to head office, including providing them with a car to do so;

(g) answering questions about wages, leave (days off) and eligibility for promotion;

(h) with the Forester-in-Charge, interviewing new employees; and

397. His evidence in cross-examination was as follows:

In 1976 at Uriarra, at depot level, imparting information concerning those things was your job, was it not? --- What to do?

Impart information concerning compensation, superannuation, and leave entitlements? --- I don't know whether it was my - part of my job or not. I don't think it was.

You don't think it was your job to impart information about all of those things or any of those things? --- Any information that come out of I used to put it on the notice board.

Well we'll come to the notice boards. Mr Bates, but just enquiring about your job in 1976 as overseer at Uriarra? --- Yes.

Do you say it was no part of your job to impart information to industrial employees regarding compensation, superannuation or leave entitlements? --- It all used to come out on the letter form. I used to put it on the notice boards.

And by that, does his Honour infer that you assume it was part of your job and you considered that duty discharged by putting up notices? --- Putting it on the notice board, yes.

...

Well, was it your job at Uriarra to advise workers regarding payment of wages and conditions of service? --- That used to be told to them when they got their starting ticket in the office, they'd get their starting ticket and be told that they'd be going to do all sorts of forestry work.

I understand that they got a starting ticket, Mr Bates, and then they came to work - - - ? --- To me.

- - - at Uriarra? --- Yes.

And then their wages and conditions of service might change over the period that they were there, would they not? --- Sometimes, depends on what they were doing.

And whose job was it to tell them that those wages and conditions of service had changed? --- Probably me and the forester.

398. This evidence was consistent with the evidence of Mr Meredith in his affidavit where he said:

The Overseer of the Uriarra Depot was Bill Bates. I understood that the Overseer's role was to supervise the work of the gangs, timetable the rotation of workers and provide discipline. I understood from discussions with Ian Curry and Bill Bates that all enquiries relating to work, wages, requests for holiday leave and any matters relating to incorrect pay, overtime and standby for fire duty had to be directed through Bill Bates.

399. It seems to me that this evidence, in totality, is consistent with a reasonable person in the position of Mr Meredith seeking information and advice from Mr Bates about superannuation provided by the Commonwealth which, after all, is, whether technically or not, reasonably to be considered by a person such as Mr Meredith as part of the terms and conditions of his employment. This can be accepted from the fact that the "Conditions of Employment" document prepared in the Department for workers such as Mr Meredith (but apparently only randomly distributed) made express reference to superannuation.

400. This is also confirmed by the fact that a number of other witnesses also saw Mr Bates as the relevant person to ask about superannuation eligibility (Mr Stevens, Mr Seal, Mr Troy Meredith and Mr Williams). Indeed, Mr Williams asked not only Mr Bates but two Foresters-in-Charge under whom he worked.

401. Given the remoteness of the Uriarra depot, the preference explained by Mr Tye above (at [231]) that employees dealt through their supervisors and the fact that, on Mr Bates' evidence, the forest workers had to borrow a car from him to go to "head office", Mr Bates must have been the person that a forest worker would expect to consult on a matter such as superannuation.

402. I do not accept, either, that Mr Bates would not have known he was such a person. His evidence was grudgingly given, but leaves me with that clear conclusion.

403. That leads, in my view, to the inevitable inference that Mr Bates must have known that Mr Meredith was going to rely on his answer. That, in part, comes from the fact that Mr Bates made no qualification to his response (cf Rawlinson & Brown Pty Ltd v Witham) which would be expected were he not expecting that Mr Meredith would rely on it. Indeed, the evidence of Mr Murray supports this, where he says that, if he had been asked about superannuation, "[he] would have initiated enquiries to the Establishments Branch".

404. So far as Mr Murray and Mr Edgerley are concerned, there is no doubt that this relationship with Mr Meredith (and other forest workers) was such that the relevant relationship existed and they were clearly people who, from their positions, were reasonable recipients of such requests for information.

405. The Commonwealth relied on the obligation identified by Gibbs CJ in L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 1) at 231 that there is no duty "unless it would be reasonable for [the recipient of information or advice] so to rely and to act".

406. This requirement, as was acknowledged, overlaps with the first consideration. The Commonwealth submitted:

[I]t is submitted your Honour will need to consider whether the 'bilateral' aspect of the necessary relationship adverted to by Barwick CJ was present, in particular whether the giver of the information was, or should be taken to have been, aware that the recipient intended to act upon the information or advice without independent enquiry and whether the necessary, actual, reliance on the information or advice was reasonable in the absence of such independent enquiry.

407. The Commonwealth says that Mr Bates was not in such a position as to be aware that Mr Meredith would rely on the information he gave him without independent inquiry. It points, indeed, to the fact that Mr Meredith did make independent inquiry, of Mr Murray, Mr Edgerley and Mr Spellman.

408. That, however, is not determinative. The question is about whether Mr Bates owes a duty to Mr Meredith, not whether it may be negated by Mr Meredith taking other steps to confirm it or otherwise.

409. The information was given without qualification and without any suggestion that Mr Meredith confirm or verify it for himself. That is also relevant to an assessment of whether Mr Bates intended that Mr Meredith rely on the information.

The position Mr Bates occupied and his duties as I have summarised them above (at [396]-[398]) from the evidence seems to me to mean that Mr Bates did intend Mr Meredith to rely on them. I can see no other reasonable inference.

410. The forest workers were located well away from any human resources branch of the Department and were responsible to Mr Bates for the administration of their terms and conditions such as pay, leave, work task assignments and the like. It seems to me obvious in those circumstances that an incident of employment such as superannuation would be a matter about which they would at least first inquire of Mr Bates.

411. It seems to me clear, also, that it was reasonable to expect that, if Mr Bates felt that he was not either the right person of whom they were to make the inquiry or that he did not know the information, he would have said so and not offered up an opinion without such qualification.

412. In those circumstances, it is reasonable for Mr Meredith to have relied on the answer he received from Mr Bates.

413. The same is true for the information provided by Mr Murray and Mr Edgerley. The inference, in the case of those officers, can the more strongly be drawn given the position they occupied in the "hierarchy" of ACT Forests.

414. Thus, I am satisfied that what the Commonwealth described as the "bilateral" aspect of the relationship between Mr Meredith and Mr Bates, Mr Murray and Mr Edgerley existed. I am satisfied that these three gentlemen were, or should be, taken to have been aware that Mr Meredith intended to and would act (or not act) on the information given in each case.

415. In MLC v Evatt, Barwick CJ made a distinction between actionable statements and utterances "in the course of social intercourse with no thought of legal consequences". The Commonwealth submitted I had to be satisfied that this did not apply.

416. In the case of Mr Meredith, the first occasion when he was told that he was ineligible was in the office of Mr Bates shortly after he had completed his probation. There was nothing in the description of the encounter that suggested it was of the social character described by Barwick CJ. Indeed, it was specifically about business: he asked for a form to complete so that he could join the superannuation scheme.

417. The next two incidents were said to be "either in Mr Bates' office or in the field". It might be suggested that such conversations in the field were more like "social intercourse" rather than a formal response of the kind that would, if negligently made, bring legal consequences.

418. There seems to me to be two reasons to reject that reasoning. In the first place, they were in the context of Mr Meredith making a complaint about the unfairness of his exclusion from the scheme. It was clear that Mr Meredith wished to join a Commonwealth superannuation scheme and that he considered Mr Bates was knowledgeable about his eligibility. He was, after all, his superior and supervisor, and Mr Meredith, at that stage, had been employed for less than two years. There was no evidence to suggest that, even if these were all "in the field", they were merely social interactions; they had the kind of relationship that would mean this conversation was unlikely to have been a social interchange without legal consequence.

419. There is no question that the conversations with Mr Murray and Mr Edgerley and a number of those with Mr Bates were in a non-social context. In respect to Mr Murray, there was no suggestion in the evidence of a social relationship between him and Mr Meredith that would lead to such a characterisation of their meeting. Mr Meredith was seeing him formally to seek relevant employment information.

420. The Commonwealth suggested that Mr Meredith was making a complaint to Mr Murray and that, therefore, the information given lacked the necessary quality to attract legal liability. I do not accept that. The information was given as the answer to the complaint. It seems to me that this is one of the precise circumstances where it could be expected that there would be reliance; this was said to be the reason for the situation that was the subject of complaint.

421. That the response was "you know why" only means that Mr Murray was confirming the information already given to Mr Meredith. The shrug of the shoulders is simply an acknowledgement that Mr Murray has no responsibility for the situation and that there is nothing he can do about it. That it was a rather informal response does not take away from its character as a response on which Mr Murray expected Mr Meredith to rely.

422. So far as Mr Edgerley was concerned, the circumstances also made the nature of the conversation clear. Mr Meredith expressly asked to speak to him after a meeting and to raise the issue in the specific context of his promotion. This was not an occasion of social intercourse.

423. The Commonwealth submitted that it was necessary for Mr Meredith actually to rely on the information given to him. As it was put, not only must the giver of the information have known, or ought to have known, that Mr Meredith would act on it, but he must, in fact, have done so.

424. There is some difficulty here, as Mr Meredith failed to enter into a transaction. That is, his reliance on the negligently provided information, did not result in him entering into a transaction but rather that he refrained from joining a Commonwealth superannuation scheme in reliance on the information. Thus, it is put that I must find that the information was not only likely to lead, but that it in fact did lead, to him not joining a Commonwealth superannuation scheme.

425. The difficulty that the Commonwealth submits as presented is that such reliance endured for many years, indeed perhaps decades. That is not quite the position, for there could be relevant interruption where correct information came to the notice of the recipient of the information, which would reasonably bring the reliance to an end.

426. It does not seem to me, however, that, in an appropriate case, the receipt of information which leads a person not to enter into a transaction need to be regarded as having only limited temporal effect. There is no reason why it should not have an effect that lasts over time.

427. In the case of Mr Meredith, there are five issues relating to this question. The first is the matter of Mr Meredith learning that a forest worker, relevantly in the same position as he, had been a member of a Commonwealth superannuation scheme. This was Mr John Reardon.

428. Mr Meredith's affidavit evidence was as follows:

1. I first became aware that I could be eligible to join the Government Superannuation in or about 1990. About that time I learned of a meeting to discuss superannuation. My recollection is that two male employees came from the Forestry central office to Pierce's Creek to provide information about a changeover of superannuation schemes.
2. At the time of the 1990 meeting a fellow forest employee at Pierce's Creek, John Reardon, told me that he had been in the scheme during the period of his employment.

I asked John Reardon: 'How the hell did you get into that? (Commonwealth superannuation).

He said to me, to the best of my recollection: 'John Pearson' (who was the Forester at Pierce's Creek when he started) 'helped me to join'.

429. Mr Meredith was cross-examined about this conversation but the thrust of the cross-examination was that he did not take any action to seek further information or make further inquiries. This was because, it was put to Mr Meredith, "super wasn't on [his] radar then".

430. He agreed he did not ask anyone about the issue; he did not visit the head office or administration office for ACT Forests.

431. After Mr Meredith became Overseer at the Pierce's Creek depot, he had a conversation with Richard Duffy, a forest worker. Mr Duffy had been told by Mr Reardon, who was a member of a Commonwealth superannuation scheme, that he was a member. Mr Duffy's evidence in his affidavit was as follows:

1. In about 1985, I can recall having a conversation with John Reardon, who was a machinery operator in the carpenters' shop at Pierce's Creek. During the course of that conversation, John mentioned to me that he was a member of Commonwealth superannuation. He did not say much more about it, but what he told me concerned me, as I had previously been told that we were not eligible. I assumed that John would have had the same level of eligibility as me. I decided to speak to Wayne Meredith, who was the overseer at the time. This was soon after my discussion with John Reardon. I wanted to check if something had changed since I was last told that I was not eligible for superannuation.
2. I spoke to Wayne Meredith one morning at the carpenters' shop and said words to the best of my recollection: 'John Reardon has told me he is in the superannuation fund. I was previously told that we were not eligible. What do you think about it?' Wayne Meredith then replied with words to the effect: 'We're not entitled to it_._' I then said to Wayne Meredith, words to the effect: 'Could you find out about it?' Wayne Meredith told me that he would find out about it, and a few days later, he came back to me at the carpenters' shop at Pierce's Creek and I asked words to the effect: 'What did you find out about it?['] to which Mr Meredith replied with words to the best of my recollection: 'We are not entitled.'

432. Mr Meredith did not refer to this incident in his affidavit. He was, however, cross-examined about it. The cross-examination was as follows:

Well I want to ask you about Mr Duffy, because when you say that Mr Reardon told you in about 1990 that he'd been in Commonwealth - well super during his employment I want to ask you whether it wasn't, in fact, five years earlier in 1985 that he told you that? --- No. I didn't know until 1990.

Well is it the case then that Dick Duffy, now Mr Duffy you've just referred to - - - ? --- M'mm.

- - - told you in 1985 that Mr Reardon was a member of super? --- I don't believe Mr Duffy told me that because I don't recollect that. If he did I would've approached Mr Reardon then. But I don't recollect Mr Duffy saying that to me. I recollect him asking me is there any changes or something in government super because he knew he couldn't join or he had asked or something.

You can't tell his Honour what was in Mr Duffy's mind. But you say that you don't recall a conversation with Dick Duffy in 1985 when he might've told you that John Reardon was in super? --- Had a conversation with him but not - he didn't mention John Reardon.

So you don't recall a conversation with him in 1985 in the Carpenter's Shop at Pierces Creek? -- That's where it would've took place.

When he told you that John Reardon was in Commonwealth Super? --- Well I don't believe he told me that.

433. Mr Meredith was not asked about the information he gave to Mr Duffy nor to whom he had spoken before giving any further information to Mr Duffy.

434. Mr Duffy was asked questions about the conversations he had with Mr Reardon and Mr Meredith. The evidence was as follows:

Now, you understand that Mr Meredith doesn't accept that he had this conversation with you about John Reardon in 1985? --- I don't know.

Nobody's told you that? --- No.

Well, can I simply ask you then, is it possible that that conversation with Wayne Meredith about what John Reardon had told you, that conversation in the carpenter's shop could have occurred five years later, in 1990? --- No.

Absolutely not possible? --- No.

Absolutely not possible? --- Absolutely not possible.

And you're sure that it occurred? --- Yes.

And again after it had occurred, it was a case of you asking Mr Meredith to check? --- Yes.

So this conversation, like the one with Mr Bates, was effectively in two parts? --- Yes.

When Mr Meredith came back to you he said 'we're not entitled? --- Yes.

What did he say to you? --- We weren't entitled.

You didn't go back to John Reardon then and check it out further with him? --- No.

435. The Commonwealth submitted that this was "objective material" on which I should proceed with confidence.

436. I can accept that Mr Duffy was emphatically certain that the conversation occurred in 1985. He was, however, not asked about the terms of the conversation which was stated to be "to the best of [his] recollection". That is to say, he does not vouch absolutely for the precise words used.

437. The conversation between Mr Duffy and Mr Meredith recounted in Mr Duffy's affidavit is inconsistent with what Mr Meredith had stated in his affidavit in the sense that he accepted that, once he had knowledge of Mr Reardon's membership of a Commonwealth superannuation scheme, he "became aware that [he] could be eligible to join the Government Superannuation". If Mr Reardon's position had been made known to him in 1985, then that would have been the time when he was first made aware.

438. Having heard both witnesses and considered carefully the affidavit and oral evidence, I am not satisfied that either were not telling the truth. The only way I can make the evidence of both consistent is that while Mr Duffy did ask Mr Meredith to seek information about superannuation, he did not actually mention Mr Reardon's name. I am satisfied that this is what happened in this case.

439. This does mean, however, that I accept that Mr Meredith became aware in 1990 of his potential eligibility. I accept that his injury and rehabilitation intervened and that this was a reasonable basis for him not to have made further inquiries immediately, but this, in my view, would only have lasted until mid 1992 when, as I understand the evidence, he was back at work full-time (see [69]). By this time he knew that he was potentially eligible, contrary to what he had earlier been told, but took no further steps to apply or seek further information.

440. The second issue was the submission of the Commonwealth that Mr Meredith did not rely on the information he received from Mr Bates, Mr Murray or Mr Edgerley as he double-checked it with his union organiser Mr Spellman. The evidence about this was in short compass and has been recounted above (at [61]).

441. It was clear in Mr Meredith's evidence, however, that the major influence on his understanding as to his eligibility to join a Commonwealth superannuation scheme was the information he had from Mr Bates, Mr Murray and particularly Mr Edgerley. This was, he said, the information he passed on to other forest workers. These were the people to whom he made subsequent inquiries on behalf of Mr Rough.

442. The Commonwealth submitted that it was really Mr Spellman on whom he relied, particularly as he thereafter made no further inquiries on his own behalf. That was his evidence, but he did make further inquiries on behalf of Mr Rough and Mr Duffy and, it appears, he made those not to Mr Spellman but definitely to officers of ACT Forests senior to him on behalf of Mr Rough and, it would appear, probably to similar persons on behalf of Mr Duffy. In this event, the Commonwealth submitted, there is no reliance so far as the Commonwealth is concerned and so no cause of action against it.

443. I do not accept that; reliance is not limited to one person or the last person to whom a plaintiff speaks. It is a question of fact as to the person or persons on whom a plaintiff actually relies.

444. The principle is set out clearly in K R Handley, Spence Bower, Turner and Handley: Actionable Misrepresentation (Butterworths, 4th ed, 2000) at 118-9:

It is enough that the representation was an inducing cause, it need not be the only inducing cause. ... It is enough if revelation of the material facts might have given [the plaintiff] pause. If the misrepresentation was an inducing cause of the alteration of position, it is no answer that other causes contributed to producing the result. As Stephenson LJ said [in JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All ER 583 at 589]:

as long as a representation plays a real and substantial part, though not by itself a decisive part, in inducing a plaintiff to act, it is a cause of his loss and he [or she] relied on it, no matter how strong or how many are the other matters which played their part in inducing him [or her] to act

[citations omitted].

445. Indeed, as Wilson J, with whom Gibbs CJ agreed on this point, said in Gould v Vaggelas (1985) 157 CLR 215 at 236:

The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.

446. See also Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 413.

447. In Mbakwe v Sarkis [2009] NSWCA 330; (2009) Aust Torts Rep 82-036, Handley AJA, with whom Allsop P and Ipp JA agreed, had to consider a claim for negligent misstatement by the plaintiff's financial adviser, the defendant, which resulted in a loss when the plaintiff lent money to a property developer who shortly after was declared bankrupt.

448. The plaintiff had not only sought advice from the defendant but had met and discussed the loan with the developer who "made representations to the plaintiff to the same effect" as those made by the defendant.

449. The court had no difficulty in finding the defendant liable. It held that multiple reliance was possible, saying (at 63,677; [23]):

It was submitted that the plaintiff did not rely on the defendant's representations but only on those made by [the developer]. It may readily be accepted that the plaintiff relied on the latter, but this does not exclude reliance on the earlier representations by the defendant. The plaintiff was not cross-examined to suggest that he relied solely and exclusively on [the developer] and such a finding would be against all the probabilities. The evidence did not reveal any occasion on which the plaintiff rejected the defendant's advice.

450. While Mr Meredith was cross-examined about his reliance or Mr Spellman's advice, I accept that Mr Meredith did rely on what Mr Spellman had said, but I am not satisfied that he did not rely on that which Mr Bates, Mr Murray and Mr Edgerley, as Commonwealth officers, had told him. His evidence, which I accept, was that he passed on to other forest workers what the Commonwealth officers had told him.

451. The structure of Mr Meredith's affidavit suggests that, after he had spoken to Mr Spellman, he spoke again to Mr Bates, Mr Murray and Mr Edgerley. In his oral evidence, however, he suggested that he did not make any further inquiries for himself. Later, he said in oral evidence, however, that he spoke to Mr Edgerley last. That was suggested to be "a rationalisation to favour [him]" but it was, in fact, consistent with his affidavit.

452. Although Mr Meredith's evidence was unsatisfactory in some aspects, I am satisfied that the representations made by Mr Bates, Mr Murray and Mr Edgerley contributed to Mr Meredith accepting that he was not eligible to join a Commonwealth superannuation scheme and thus did not do apply to join.

453. Given the number of times he asked about the matter and the persons who he asked, I am also satisfied that he accepted that this was the position and that he made no further efforts to progress the matter. That, in my view, was reasonable for him to do until he received direct and, for him, clearly different information on which he could have acted, which occurred at least by mid 1992.

454. The Commonwealth also relied on an answer that Mr Meredith gave in cross-examination to suggest that Mr Meredith was not really interested in superannuation. The passage was as follows:

I want to suggest to you that your understanding back then about superannuation, be it private superannuation or government superannuation, is that it was an expensive luxury? --- No.

And one you decided you couldn't afford? --- No.

You knew that you had the old age pension to retire on? --- No.

Didn't you? --- No.

Didn't you know about the old age pension? --- I wasn't [thinking] about old age at that age, [pause] except for super.

455. It was submitted that the words "except for super" were "very much an after thought". I am sure that Mr Meredith was conscious that his references to the old age pension might, in the context of these proceedings, be regarded as prejudicial to his claim and that he answered as he did. That is understandable for a litigant.

456. I do not consider, however, that this was necessarily prejudicial. I need to look at all the evidence.

457. While at an important level there is a clear link between superannuation and the old age pension, I can accept that there is a distinction. Superannuation is an incident of employment to which an employer contributes.

458. Viewed through this prism, it is not so much an alternative to the old age pension as an entitlement that may make government service more attractive, despite some other distinctions, than private employment; more so at that time.

459. The circumstances under which Mr Meredith came to make inquiries about superannuation, the inquiries he did make and the evidence that the issue was a topical one at the Uriarra depot satisfy me that Mr Meredith was giving honest but not damaging evidence. I can readily accept that, in his late teens or early twenties, Mr Meredith was not thinking about the old age pension (namely in the context of retirement) but he was interested in superannuation (namely in the context of conditions of employment entitlements). I do not find that he was not genuinely interested in pursuing membership of a Commonwealth superannuation scheme.

460. The next issues relates to Mr Meredith's sons. One, Troy, gave evidence. His evidence was that Mr Bates had told him that he could not join a Commonwealth superannuation scheme but that, in 1991, he attended a seminar where he learnt that he could join and he did so in May that year. It appears that his other son, working at the Kowen Forest depot, also joined in March 1991.

461. By that time, of course, I have found that Mr Meredith had learned from Mr Reardon that it was possible for forest workers to join. Mr Meredith said he did not know whether his sons had joined a Commonwealth superannuation scheme or not. I do find that strange. Given that, in late 1990, he had learned he could join, I would have expected that he would have passed that information on to his sons. While it does cause me to scrutinise Mr Meredith's evidence with some care, it does not, in my view, undermine the case he makes that, prior to 1990, he did not know that he was eligible to join a Commonwealth superannuation scheme and that he had been led to that view by incorrect information given to him by Mr Bates, Mr Murray and Mr Edgerley.

462. The final issue under this heading was that Mr Meredith had no entitlement to rely on the information he had gained from Mr Bates, Mr Murray and Mr Edgerley for the length of his employment because of the information available to him through the media. A number of media reports from The Canberra Times reported:

• changes to the then scheme, including "[a]ll employees to be eligible to contribute" (15 July 1972);

• a proposal by a public servant to scrap the current superannuation scheme because of doubts about its competitiveness and the attractiveness of its benefits (14 December 1972);

• a summary of the report of the Treasury Committee on Superannuation, recommending a new scheme which would include as members temporary employees (9 May 1973);

• a report of the Administrative and Clerical Officers Association's consideration of a report of the Treasury Committee on Superannuation which recommended, inter alia, that temporary employees with 12 months service be eligible to join (11 May 1973);

• a report of proposals to Federal Cabinet following the Treasure Committee on Superannuation, with a reference to the report "widening the eligibility ... including ... many temporary employees" (12 March 1974);

• a report of pay cuts to public servants because of the structure of the Superannuation scheme, soon to be replaced (28 June 1974);

• an article by the Opposition spokesman on public service affairs putting the case for amending the superannuation scheme with a brief reference to the position of temporary employees being "improved" (12 June 1975);

• an article on the new superannuation scheme with a reference to it covering "all employees ... regardless of employment status (undated);

• another article about the new scheme with a reference to "big winners ... are ... casual employees", with access after three months service (16 October 1989);

• a brief report of the parliamentary debate on the new scheme which would "provide the opportunity of membership to all employees" (10 May 1990).

463. Reference was also made to newsletters of the Australian Workers Union, the union of which Mr Meredith was a member. Those extracts were:

• a front page article on "AWU Portable Super" reporting on a proposal for the establishment of such a proposal continued inside the newsletter (28 November 1976);

• a further report on the proposed scheme seeking views of members on various proposal and providing some further details (31 December 1975);

• another article on the proposed scheme seeking the views of members (30 January 1975);

• a large advertisement for the scheme, advertising a Life Insurance plan to AWU Portable Superannuation members (29 October 1976);

• a smaller advertisement for the scheme, inviting enrolment in the scheme (29 April 1977);

• an article about support for the AWU Superannuation Fund amongst forestry and hospital workers (30 June 1977)

• an article reporting on the first successful year of the AWU Fund (30 December 1977);

• an article about "an encouraging upsurge of interest" in the AWU Fund (28 February 1978);

• an article reporting on "strong support" for the AWU Fund (30 June 1978);

• an article about the AWU Fund and its benefits (31 July 1978).

464. These show that there was material available concerning superannuation, but the dates show that the material in The Canberra Times was by no means "saturation" in coverage. It was also not all in a format that was likely to attract the attention of the casual reader, even if interested in superannuation. References to temporary employees were included in the articles but hardly headlined and not emphasised.

465. Indeed, it required some close reading even to find references to temporary employees in some of the articles, which was certainly not the central thrust of any of them.

466. Mr Meredith's evidence, however, was that he "never got the newspaper". He did not read The Canberra Times until 2000. In answer to interrogatories, however, he said "from about the 1990s onward, I believe that I would read The Canberra Times from time to time". He added in his oral evidence that this would be about once a month. He said that he would not have seen the articles to which the Commonwealth referred.

467. This evidence was consistent with the evidence of other witnesses which showed that newspapers, especially The Canberra Times, were not widely available at the Uriarra depot.

468. As to the AWU newsletters, Mr Meredith said he had not received them for a long time.

469. He received them in the early 1970s but his receipt of them then ceased; they were no longer delivered apparently. Even when they had earlier been delivered, Mr Meredith said they were only received irregularly. As a union representative, he would have seen some but not all of them. He was sure that he did not see them from about 1975 onwards. Mr Meredith said he did not know that the AWU Portable Superannuation Scheme existed. Again, this was consistent with the evidence of other witnesses.

470. In the light of Mr Meredith's evidence, I do not consider that the media or union newsletter reports of superannuation are relevant to Mr Meredith's claim.

471. The fifth issue was whether Mr Bates, Mr Murray and Mr Edgerley were in breach of a duty in giving the information. That the information was erroneous was not enough. The duty is, of course, to exercise reasonable care. There does not seem to be a special duty of care in respect of negligent misstatements. In MLC v Evatt, Barwick CJ described the obligation (at 572-3) as follows:

It seems to me, therefore, that whenever a person gives information or advice to another, whether that information is actively sought or merely accepted by that other upon a serious matter, and particularly a matter of business, and the relationship of the parties arising out of the circumstances is such that on the one hand the speaker realizes or ought to realize that he [or she] is being trusted, particularly if he [or she] is thought by the other to have, or to have particular access to, information or to have a capacity or opportunity to exercise judgment or both as to the matter in hand, 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 seek or accept and in either case to act upon that information and advice the speaker, choosing to give the information or advice in such circumstances, comes under a duty of care both to utilize with reasonable care the information and sources of information at his disposal and to employ with reasonable care what capacity he [or she] has for judgment in relation to the matter and to exercise reasonable care in the expression of what he [or she] is prepared to convey by way of information or advice. If he [or she] chooses not to speak, he [or she] is not merely because of the relationship bound to make any inquiries. But it does mean that, if he [or she] is being trusted because of the sources of information at his disposal, and he [or she] speaks on the footing of the information which might then be available to him [or her], he [or she] will be in breach of his duty if he [or she] does not utilize these sources of information before speaking and if his communication is incorrect. But, it should be emphasized, the obligation of the speaker is no more than to use reasonable care in the circumstances. He [or she] is not in breach merely because his communicated information is incorrect or his proffered advice erroneous. Speaking in the relationship whose elements I have indicated does not mean that he [or she] warrants the accuracy of his utterance. He [or she] is merely required to exercise reasonable care in preparing himself [or herself] to speak in conveying information, in exercise of his judgment and in expressing the information or advice which he [or she] chooses to convey.

472. It seems to me that all three of Mr Bates, Mr Murray and Mr Edgerley breached the duty of care there outlined.

473. Mr Bates became a member of a Commonwealth superannuation scheme when he sought information from the Forester-in-Charge. He did not seem to understand the eligibility criteria that permitted him to join. His affidavit evidence was:

I did not know the rules about who could join or who could not join Commonwealth superannuation. I know that I joined Commonwealth superannuation when I was a temporary employee but I do not know why I was able to join.

474. Thus, he did have a source of information - the Forester-in-Charge whom he could have asked for Mr Meredith as he asked for himself. There is no evidence that he did so. He also admitted he did not know the eligibility criteria and so should not have made the statements he did. Indeed, in his oral evidence, he said that he received no information from his superiors about the eligibility of forest workers for superannuation.

475. It seems to me that it is clear that Mr Bates breached the required duty of care in giving the information he did give.

476. Mr Murray showed in his affidavit evidence no specific knowledge of the eligibility criteria for membership of a Commonwealth superannuation scheme for forest workers. He did, however, know that such advice could be sourced from the "Establishment Branch". He did not source that information. His oral evidence also showed he did not have a good understanding of the eligibility criteria for forest workers who asked to join a Commonwealth superannuation scheme. To offer advice, or confirmation, as he did with that limited knowledge and without seeking further information which he knew he could access does, in my view, amount to a breach of his duty.

477. Mr Edgerley was in an even more senior position. I am satisfied that he would clearly have had the means of finding the correct information without difficulty if he did not know it. I accept that he also breached his duty of care.

478. Accordingly, I am satisfied that the Commonwealth is liable to Mr Meredith as admittedly vicariously liable for the negligent misstatements made to him by Mr Bates, Mr Murray and Mr Edgerley, and on which he relied to his detriment.

479. Mr Meredith also claimed that the Commonwealth owed a duty of care to him generally, and by failing to

• inform him of his right to apply for membership of a Commonwealth superannuation scheme,

• to instruct its officers to provide correct information,

• to disseminate correct information to include employees in a Commonwealth superannuation scheme, and

• to cease the dissemination of incorrect information,

480. At issue, however, was whether there was a duty of care owed to Mr Meredith by the Commonwealth. One of the difficulties in approaching this issue is that Mr Meredith did not articulate the precise duty of care that he said was owed. This is not only important for a court tasked with identifying whether such a duty exists, but also because of the difficulty in avoiding an articulation that creates its own problems. As Gummow and Hayne JJ said in Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 at 487; [56]- [57]:

[T]he more specific the terms of the formulation of the duty of care, the greater the prospect of mixing the anterior question of law (the existence of the duty) with questions of fact in deciding whether a breach has occurred. On the other hand, the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined.

The present litigation was pleaded and conducted in such a fashion as to conflate asserted duty and breach of that duty and to make it inappropriate to decide on this appeal any issue respecting the existence or content of a duty of care.

481. This has been repeated in CAL No 14 Pty Ltd v Motor Accident Insurance Board (2009) 239 CLR 391, where Gummow, Heydon and Crennan JJ (at 406; [37]) warned against the too narrow formulation of a duty of care which "obscures difficulties in recognising the duty". As Hayne J said (at 418; [68]):

Because the duty relied on in this Court was framed so specifically, it merged the separate inquiries about duty of care and breach of duty. The merger that resulted carried with it the vice of retrospective over-specificity of breach ... The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of the events that had happened. Because the breach assigned was not framed prospectively the duty, too, was framed retrospectively, by too specific reference to what had happened. These are reasons enough to reject the formulation of duty advance in argument in this Court.

482. The current starting point for the identification of a duty of care is what the High Court said in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, which, in turn, built on what had been said in Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529. See also Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515.

483. In Fortuna Seafoods Pty Ltd v The Ship "Eternal Wind" [2008] 1 Qd R 429 at 437; [6], McMurdo P helpfully summarised the position as follows:

Caltex and Perre suggest that the determination of whether a defendant owes a claimant a duty of care not to cause mere economic loss will depend on a combination of factors including the reasonable foresight of the likelihood of harm; the defendant's knowledge or means of knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm; the claimant's vulnerability or whether they are unable to protect themselves from the foreseeable harm; whether the implication of a duty would impair the defendant's legitimate pursuit of autonomous commercial interests including the existence of any contracts between the claimant and defendant; whether the damage flowed from the occurrence of activities within the defendant's control; the closeness of the relationship between the parties and the existence of any other special circumstances justifying compensation. [footnotes omitted]

484. It was submitted on behalf of Mr Meredith that Higgins CJ had, in a similar case, Cornwell v Commonwealth [2005] ACTSC 14; (2005) Aust Torts Rep 81-779, found that there was negligence in failing adequately to advise the plaintiff (a temporary employee) of his entitlement to join a Commonwealth superannuation scheme. His Honour's finding would not bind me but the principle of judicial comity would require me to pay careful attention and appropriate respect to such a finding. I should only depart from it if I am concerned that his Honour is wrong.

485. I have carefully read his Honour's decision. His Honour was really concerned with the negligent misstatements made to the plaintiff. No general duty of care was identified or articulated. In my view, his Honour's decision does not affect any finding I should make about the existence of a general duty of care or otherwise.

486. It is appropriate to deal with the relevant factors.

487. The first mentioned is the reasonable foresight of the likelihood of harm. On behalf of Mr Meredith, it was submitted that the history of the various superannuation statutes shows that the Commonwealth was well aware that many temporary employees were unaware of their right to join a Commonwealth superannuation scheme and that they may as a result lose benefits.

488. The Tender Bundle contained a good deal of relevant material. It may be summarised as follows.

489. On 20 June 1949, Treasury considered it necessary to issue a circular request to "All Departments" requiring them to notify all temporary employees under the age of 55 years of their rights under s 4(5) of the 1922 Act to join the then Commonwealth superannuation scheme which the sub-section permitted after completion of five years continuous service which, in 1942, had been introduced as part of the criteria which then permitted temporary employees to join the CSF if they were likely to be employed "for an indefinite period".

490. It was recognised at this time that temporary employees were not applying for membership of a Commonwealth superannuation scheme until after age 55 "due to [their] ignorance of [their] rights under the Act". In 1945, the likely period of employment was reduced from "an indefinite period" to "at least ten years".

491. On 20 April 1951, Treasury wrote to the Victorian section of the Department of Supply (then headquartered there) urging that "in the matter of certification [of future service], employees should be given the benefit of any reasonable doubt".

492. On 11 December 1951, the Act was again amended to reduce the qualifying period of service to three years and the likely future service to seven years.

493. Then, on 2 September 1957, the Public Service Board (PSB), then the certifying authority, cautioned all Departments against inviting temporary employees to apply to join the fund, pointing out that membership would not automatically be extended even if the employee could be admitted to the Fund. This clearly reversed the previous, more benevolent, trend.

494. That advice was qualified further on 22 July 1958, with the PSB advising all Departments that they "might invite" temporary employees' attention to s 4(5) of the 1922 Act once they had completed three years continuous service, but only by means of a pro forma letter.

495. Nevertheless, it appears that there was no widespread take-up of that advice nor any consistency in approach. For example, in 1962-63, the Western Australian branch of the "PMG Department" trialled a method of notifying employees of s 4(5) of the 1922 Act on engagement and then on completion of three years service only if they fell within a "quota". What the "quota" was or how it was determined was not explained.

496. In April 1963, Mr L G O'Sullivan, a legal officer, wrote to the PSB warning that whilst the PSB was legally responsible for certifying the eligibility of temporary employees to join the CSF, by reason of their future continuity of employment, the PSB inspectors had assumed delegated responsibility for that function and had developed formulae for acceptance or rejection of employees so as to avoid the need for individual inspectors to take responsibility for estimating the future seven year period of service for any particular employee. Mr O'Sullivan warned that those formulae "may appear arbitrary to Treasury".

497. That opinion seems confirmed by an Inspector's memo of 20 October 1964 advising against adoption of the WA procedures because of the small number of s 4(5) applications with acceptance of applications being confined to "exempt staff", a reference to ex-Service personnel.

498. In 1969, the then Superannuation Board produced a Manual for use by Commonwealth officers responsible for implementing the then Commonwealth Superannuation Scheme, stating, inter alia

Temporary and exempt employees who have had not less than three years full time continuous employment, otherwise than in a permanent capacity, should be informed of the provisions of Section 4(5) of the Superannuation Act whereby they may be brought under that Act.

499. The advice of 1958 referred to above (at [494]) remained operational for many years, being listed in September 1972 in a List of Operative Circulars issued by the PSB on 12 September 1972.

500. On 22 September 1972, a memorandum to the Secretary of the PSB was sent by the Department of Prime Minister and Cabinet, the purpose of which was described as follows:

1. You asked that a note be prepared concerning the possibility of the Commonwealth as a good employer drawing to the attention of employees (particularly temporaries) their superannuation rights.

501. It made reference to the position of temporary employees. It referred to earlier instructions by the Superannuation Board requiring them to be advised of the relevant eligibility provisions and continued:

1. It is unlikely, in view of the need for a three year qualifying period, that departments would at present advise temporaries on commencement that after three years employment they may apply to become a contributor. I would also be doubtful that most departments are aware of Superannuation Board Instruction SB1/1.C.3(a), quoted above. There is therefore considerable doubt that the present procedures are adequate to ensure that temporary employees become aware of their superannuation rights by the time three years employment has elapsed. However, it is difficult to envisage a system that would ensure employees are advised of their rights at an appropriate time i.e. towards the end of the first three years of employment.
2. I would suggest that the reference to superannuation for temporary and exempt employees in Section 13 Sub-section E of the General Orders could usefully be expanded and that in advising departments of the amendment, attention be drawn to the advisability of introducing a procedure that draws to the attention of temporary and exempt employees their superannuation rights, towards the end of the third year of employment. A draft new General Order is attached.

502. My attention was drawn to a particular case where an officer in ACT Government employment sought to have himself recognised as an eligible employee from 1 July 1976. His claim was that, while other employees in a similar situation to himself were advised they could join a Commonwealth superannuation scheme, he was not informed; indeed, he said his supervisor told him that "temporary employees are not eligible to contribute". Under s 11 of the 1976 Act, temporary employees were eligible to apply if they had been employed for one year and if they satisfy the Commissioner of Superannuation that they are likely to be employed for at least a further ten years.

503. To concerned inquiries from the Commissioner of Superannuation in 1991, the Department responded:

It was practice to undertake information sessions at the department's depots with information and leaflets being left for those staff members unable to attend due to work commitments. Information passed on by fellow workers, supervisors or depot managers cannot be relied upon as it may have been misunderstood or misinterpreted. The added problem of communication is the fact that a number of the staff were from non-[E]nglish speaking backgrounds and could have confused the information.

One matter of concern is the belief that some of the line area staff were of the opinion that temporary and industrial staff were not entitled to contribute to superannuation.

504. On the basis of this evidence, there is no doubt that the Commonwealth was aware that from at least 1949 to 1991 that there were temporary employees who were not informed of their eligibility to join a Commonwealth superannuation scheme or had been given incorrect information about their eligibility.

505. That this could have led to harm is clear from the following formal admission made by the Commonwealth:

During the [period of Mr Meredith's employment], no:

1. officer of the Defendant at the workplaces [Uriarra and Pierce's Creek]; or
2. officer within the Department [of] Interior (or the subsequent names applicable to that department in the ACT); or

1. officer within the Department of Supply or the Department of Administrative Services in the ACT;

responsible for giving advice as to pay and conditions and benefits (including superannuation) to inter alia, temporary employees, could reasonably have held the opinion that a person who held membership of and contributed to a private superannuation scheme was likely to have:

(i) a better financial outcome;

(ii) receive greater financial benefits;

than a person who had contributed an equivalent amount for an equivalent length to time to the

507. The second factor is a determinate class of persons who are at risk of the foreseeable harm. This is where the issue of an unarticulated duty of care becomes problematic.

508. The nature of the duty will determine the class. Are all employees to be advised? Are only all those employees who have, by reason of their qualifying service, become eligible to be advised? Is the duty to advise employees of the availability of financial benefits in which case all employees would be within the class?

509. In any event, the class would be a subset of the total employees of the Commonwealth. This is a large group, but it is not indeterminate.

510. The third issue is the vulnerability of a member of the class to harm and whether they can protect themselves from such harm.

511. In Perre v Apand Pty Ltd, McHugh J described this factor as follows (at 225; [118]):

Cases where a plaintiff will fail to establish a duty of care in cases of pure economic loss are not limited to cases where imposing a duty of care would expose the defendant to indeterminate liability or interfere with its legitimate acts of trade. In many cases, there will be no sound reason for imposing a duty on the defendant to protect the plaintiff from economic loss where it was reasonably open to the plaintiff to take steps to protect itself. The vulnerability of the plaintiff to harm from the defendant's conduct is therefore ordinarily a prerequisite to imposing a duty. If the plaintiff has taken, or could have taken steps to protect itself from the defendant's conduct and was not induced by the defendant's conduct from taking such steps, there is no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk of pure economic loss.

512. See also per Gaudron J (at 202; [42]) where her Honour referred to a person suffering pure economic loss being "in no position to protect his or her own interests".

513. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd, Gleeson CJ, Gummow, Hayne and Heydon JJ said of the factor (at 530-1; [23]-[24]):

Since Caltex Oil, and most notably in Perre v Apand Pty Ltd, the vulnerability of the plaintiff has emerged as an important requirement in cases where a duty of care to avoid economic loss has been held to have been owed. 'Vulnerability', in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, 'vulnerability' is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. So, in Perre, the plaintiffs could do nothing to protect themselves from the economic consequences to them of the defendant's negligence in sowing a crop which caused the quarantining of the plaintiffs' land. In Hill v Van Erp, the intended beneficiary depended entirely upon the solicitor performing the client's retainer properly and the beneficiary could do nothing to ensure that this was done. But in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, the financier could itself have made inquiries about the financial position of the company to which it was to lend money, rather than depend upon the auditor's certification of the accounts of the company.

In other cases of pure economic loss (Bryan v Maloney is an example) reference has been made to notions of assumption of responsibility and known reliance. The negligent misstatement cases like Mutual Life & Citizens' Assurance Co Ltd v Evatt and Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] can be seen as cases in which a central plank in the plaintiff's allegation that the defendant owed it a duty of care is the contention that the defendant knew that the plaintiff would rely on the accuracy of the information the defendant provided. And it may be, as Professor Stapleton has suggested, that these cases, too, can be explained by reference to notions of vulnerability. (The reference in Caltex Oil to economic loss being 'inherently likely' can also be seen as consistent with the importance of notions of vulnerability).

514. It is submitted on behalf of Mr Meredith that persons who were temporary workers were vulnerable in the relevant sense. This was, it was submitted, because they were not informed of their eligibility or misinformed. They were also, it was submitted, dependent on the supervisors for information about their employment. Indeed, it was submitted further, that this dependence was encouraged.

515. The employer, it was submitted, had all the relevant information that was needed but it was, it appears, not passed on.

516. These facts may generally be accepted but are not sufficient in themselves to show vulnerability in the relevant sense. It seems to me that "vulnerability" means more than that a person who suffers pure economic loss is at risk or that they are dependent upon others. Were dependency alone the criterion, then Esanda Finance Corporation Ltd v Peat Marwick Hungerfords would have been decided otherwise.

517. The dependency must be such that the person who suffers pure economic loss has no reasonable method of protecting his or her or its own interests. It is important in this context to recognise that the law provides, through the principles relating to recovery for pure economic loss for erroneous information or other statements made negligently, a protection for those who seek to protect their interests and yet fail because of such negligence.

518. It may be, for example, that the negligent failure of the Commonwealth, if such it could be described to be, to ensure that Mr Bates, Mr Murray and Mr Edgerley had accurate and up-to-date information would have given Mr Meredith an entitlement to recovery had I not found, as I have, that these three gave their advice in a negligent manner. That is not for decision here.

519. The question is: was it reasonable for Mr Meredith to take steps which, absent negligent misstatement, would have enabled him to protect his own interests?

520. In my view it was. In my view, there was no vulnerability of Mr Meredith in the relevant sense. I say this for the following reasons.

521. There was material readily available to Mr Meredith in the "Conditions of Employment" document which alerted him to issues relating to superannuation. It does not seem to me to be unreasonable for an employee not provided with such a document to ask for and expect to be given such a document. There was no evidence to suggest that it was not readily available and clearly a number of employees received it. While it may be - and was perhaps recognised - that a good employer would ensure that such a document would be regularly provided to new employees, that is not the test for liability.

522. Further, there was no impediment to Mr Meredith making inquiries to his superiors about the issue. That the information he gained was wrong is resolved by his claim in negligent misstatement. The issue here is whether he had reasonable access to a source of information which, had it been able to provide accurate information, would have provided the necessary information.

523. There was no impediment disclosed on the evidence that prevented Mr Meredith from accessing the more expert or probably knowledgeable source of information of what was variously called "Establishment Branch", "head office" or the "pay office". Indeed, there seemed to be no impediment from him making inquiries of ComSuper directly, though I accept that he was never directed to them.

524. He was also able to and did access his union. Again, it provided incorrect information, but that is not the issue here. Were that incorrect information disseminated by the Commonwealth negligently to the union or indeed to Mr Meredith's superiors, the position may have been different, but that is not the position with which I am dealing.

525. Indeed, there was material tendered that showed that efforts were made to ensure that unions were knowledgeable and that correct information was disseminated as agreed with them. For example, following an agreement with the unions, including two relevant ones, the AWU and the FEDFA, a new "Conditions of Service" document was prepared and circulated under cover of a letter dated 10 October 1975 "for placement on notice boards and distribution to supervisors". It was also "to be issued to all employees recruited in future". It included the following information:

Superannuation/Provident Fund

After not less than three years, or previous employment involving membership of a Superannuation or Retirement Benefit Scheme, continuous employment and provided you are aged less than 58 years at the time, you may apply for admittance to the Commonwealth Superannuation Fund.

Application forms are available on request from the Industrial Sub-Section.

526. I accept that Mr Meredith was in a relatively isolated work position, living and working a reasonably significant distance from town and where newspapers, which might be expected to be informative, were scarce.

527. While Mr Meredith and other forest workers at the Uriarra depot were denied the relevant information because the information they sought and were given was incorrect, it is clear that this was not universal. A number of forest workers did have correct information - and did join.

528. The Commonwealth did submit that as superannuation was regulated by an Act of Parliament, its terms were accessible. This prompted a robust and highly disparaging response from Mr Meredith, with reference to Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1st ed, 1765) vol 1, 45-6 who referred to legislation as follows:

Because a bare resolution, confined in the breast of the legislators, without manifesting itself by some external sign, can never properly be a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is a matter of very great indifference ... Yet whatever way is made use of, it is incumbent on the promulgators to [notify the public] in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to snare the people.

529. With the Internet now making legislation so readily available, that comments may not have so much contemporary currency, but such access was not available in the 1960s, 1970s or 1980s and the Uriarra depot was somewhat isolated.

530. It does not seem to me that the availability of the legislation is an answer in itself.

531. I am, however, satisfied that Mr Meredith was not vulnerable in the sense in which that term is used to define a duty of care owed by the Commonwealth to him of a kind that he posited.

Impairment of legitimate pursuit of autonomous commercial interest

532. The next factor is whether the implication of a duty would impair the Commonwealth's legitimate pursuit of autonomous commercial interest. This is not relevant here.

533. The next factor is whether the damage flowed from the occurrence of activities within the Commonwealth's control.

534. At one level, the facts point to the Commonwealth being liable under this factor. The loss flowed from the erroneous statements made by officers of the Commonwealth. This, however, has been dealt with in the claim for negligent misstatement. The Commonwealth also was in control of the terms of the employment conditions under which Mr Meredith was employed, but these are not at issue.

535. The Commonwealth was in control of the dissemination of the terms and conditions of employment and of details of the superannuation scheme. The difficulty in evaluating that in this context is the relationship of employer and employee brings with it a high degree of control at various levels. See, for example, Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 301; [90].

536. Nevertheless, the Commonwealth did not and could not completely control the relevant flow of information. There was, for example, an important participant in this process in the form of Mr Meredith's union.

537. In Perre v Apand Pty Ltd, McHugh J made the point (at 229; [127]), that the concept of control "is simply another way of saying that the plaintiff is vulnerable to the defendant's conduct because the defendant controls the situation".

538. Thus, while the Commonwealth did have a significantly wide degree of control over the flow of information to temporary employees, it was not the only source of such information and could not control access to all relevant information, such as the legislation itself.

539. Mr Meredith relied also on the fact that the Commonwealth was in control of the process by which an employee became a contributor to a Commonwealth superannuation scheme, referring to "facilitating the requisite medical examination", "confirming the employee's compliance with the Act's pre-conditions", "communicating with the body responsible for administration of the relevant Commonwealth superannuation scheme" and "making ongoing payroll deductions for superannuation purposes".

540. I do not regard these as relevant to determine whether there was a duty of care, in particular as none of them were matters save perhaps the confirmation of statutory pre-conditions as to future likely service over which the Commonwealth had exclusive control. Medical examinations, deductions, communications can all be reasonably effected by an employee outside the structures of the Commonwealth's arrangements, even for a Commonwealth superannuation scheme.

541. Similarly, while the Commonwealth always had the capacity to inform each employee personally and individually of their eligibility to join a Commonwealth superannuation scheme, this was not something over which it had exclusive control.

542. While the Commonwealth exercised a significant degree of control, it does not seem to me that this factor favours the finding of a duty of care owed to Mr Meredith to avoid him from suffering pure economic loss.

543. The final factor is the closeness of the relationship between the parties. There is, clearly, a closeness between an employer and an employee. That proximity favours a duty, but I am not convinced that it overwhelms the other factors.

544. A factor militating against the finding of a duty of care is that the law of negligence should not "cut across other legal principles" as stated by Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody (2001) 207 CLR 562 at 580; [53].

545. To use the words of Sullivan v Moody (at 580-1; [54]):

The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told.

546. In that case, of course, the competing legal principle was defamation. Here, there are issues involving the contract of employment, as well as the cause of action in negligent misstatement, involved.

547. In this case, however, superannuation may well be involved with issues relating to industrial relations and the contract of employment. See, for example, Re Amalgamated Metal Workers Union of Australia; Ex parte Shell Co of Australia Ltd [1992] HCA 38; (1992) 174 CLR 345 at 356. The coherence of the law may require that a "voracious duty" (the Commonwealth's submissions) would offend against the req-uirement that the law be coherent. Thus, there may have been a relevant contractual term as found by the House of Lords in Scally v Southern Health and Social Services Board [1992] 1 AC 294.

548. See also Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 at 123-6; [242]- [250], 129-30; [262] (Crennan J); Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 342; [58] (Gaudron J).

549. In any event, this issue has been dealt with in this case under the law of negligence misstatement which is the appropriate way to resolve it.

550. Mr Meredith sought also to draw comfort from a line of authority based on Gorton v Commonwealth [1992] 2 Qd R 603 where the failure of an examining doctor to inform the examinee plaintiff that he had a medical condition that would have entitled him to a pension under the Repatriation Act 1920 (Cth) led to the Commonwealth being at risk of liability to the plaintiff.

551. There, the Court followed Hawkins v Clayton (1988) 164 CLR 539 where the solicitor for a testatrix was held liable for failing to find the executor of the testatrix's estate under the Will that the solicitors had prepared and retained and which led to damage to the estate.

552. It seems to me, however, that these are very different situations where the defendant in each of those cases had not merely knowledge but the only relevant knowledge of the circumstances which would, if disclosed, have prevented the loss. This is not the case here.

553. In those cases, vulnerability and control are strong, determinative factors leading to the imposition of liability. The cases are well able to be analysed on the same basis as I have earlier, where the difference with Mr Meredith's case would be stark.

554. The Commonwealth relied on the decision of Heerey J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170, where his Honour found (at 211-2) that the Hydro-Electric Commission did not owe its employees a duty to inform them of the availability of superannuation benefits that they may otherwise had enjoyed as a result of certain legislative changes.

Employers, whether in the public or private sector, are not under any obligation to give financial advice or look after their employees' economic welfare in the way that they are obliged to take reasonable care for employees' physical safety.

556. His Honour also relied on Scally v Southern Area Health and Social Services Board in denying any cause of action in tort. His Honour said (at 211):

In my opinion, there was no duty of care owed by the Hydro to the applicants, the breach of which would give rise to an action for damages for negligence.

Because each of the applicants and the Hydro was in a contractual relationship, the obligations of the latter are to be determined by the terms of that contract, whether express or implied. The approach of Lord Bridge in Scally at 303 is applicable:

If a duty of the kind in question was not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence.

557. His Honour referred to a statement of the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 107 and continued:

Lord Bridge then continued (at 303);

In the instant case I believe that an attempt to analyse the issue in terms of the law of tort may be positively misleading. If the question is framed in the terms of the law of negligence, it takes the form: did the employers owe a duty of care to employees to save them from economic loss consequent on a failure to purchase added years of pensionable entitlement in due time? The strong trend of recent authority has been to narrow the range of circumstances which the law of tort will recognise as sufficient to impose on one person a duty of care to protect another from damage which consists in purely economic loss. This induced Kelly LJ to say:

It would be contrary to the current inclination of the law to imply a term into contracts of employment enabling a claim by an employee for purely economic loss to be brought against an employer where no express term in those contracts provided for such relief.

I do not read the observations of Lord Bridge as inconsistent with modern decisions which hold that in the case of a professional retainer, such as solicitor and client, there is a duty owed in tort as well as contract: Hawkins v Clayton (1988) 164 CLR 539 at 574 per Dean J; Macpherson v Karin J Prunty & Associates [1983] VicRp 53; [1983] 1 VR 573.

Secondly, as counsel for the applicants frankly conceded, the concept of 'general reliance' as a foundation for the establishment of a duty of care is now no longer tenable in Australia in the light of the judgments of a majority of the High Court (Brennan CJ, Gummow and Kirby JJ) in Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330.

Thirdly, the cases in this area of the law of negligence are all concerned with public bodies who are given by statute a power or a duty to regulate activities which are a potential cause of loss or damage to members of the public. In Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 464 Mason J mentioned as examples: 'The control of air traffic, the safety inspection of aircraft and the fighting of a fire in a building by a fire authority'.

558. The decision was appealed to the Full Court of the Federal Court of Australia: Mulcahy v Hydro-Electric Commission (1998) 85 FCR 248. All grounds of appeal, apart from the trial judge's finding that the employees were not permanent employees, were abandoned. Thus, the above finding was not before the appeal court which dismissed the appeal.

559. The first instance decision of Heaney J was referred to with approval in the High Court in Commonwealth v Cornwell at 533; [42], though not on this aspect of the decision.

560. For Mr Meredith, it was submitted that the fact that there was a contract did not logically exclude a tortuous liability. While that may be correct, it does not mean that this is an appropriate way to draw a line as to otherwise indeterminate liability. For example, it would be very difficult to draw the "bright line" between issues such as eligibility for membership of a superannuation scheme and other aspects of related financial issues such as preservation of benefits on retirement (Henry v Commonwealth (2012) 264 FLR 381) or salary sacrifice for superannuation or other permitted payments. The formulation of the duty of care thus becomes an important issue to create a determinate liability.

561. Finally, Mr Meredith pointed out that the decision pre-dated the more recent formulation by decisions of the High Court, some of which have been referred to above, of the scope of the duty of care where a claim is made for pure economic loss. As it was pithily put "[t]he law has moved on since Mulcahy".

562. While I accept the thrust of that submission, it seems to me that my analysis above is supported by this decision which is part of the incremental growth process of the common law in this area strongly favoured in the High Court. See, for example, Perre v Apand Pty Ltd at 217-8; [94]-[99] (McHugh J). For myself, I do not see a basis for growth in this claim of negligence.

563. In the circumstances, I do not consider that Mr Meredith has a cause of action in negligence against the Commonwealth other than as already found in the claim for negligence misstatement.

564. Mr Meredith also submitted that the Commonwealth had a statutory duty under the 1922 Act and the 1976 Act towards him. The duty was pleaded as follows:

(a) During the currency of the Superannuation Act 1922:

(i) To inform temporary and/or exempt employees such as the Plaintiff that upon completion of three years continuous service they were eligible to apply to join Commonwealth Superannuation; and/or

(ii) To inform temporary and/or exempt employees such as the Plaintiff, upon completion of three years continuous service, that they were eligible to apply to join Commonwealth Superannuation; and/or

(iii) Appropriately certify that the employment of eligible employees such as the Plaintiff was likely to continue for the further period prescribed by Section 4(5)(c) of the Act and/or

(b) During the currency of the Superannuation Act 1976:

(i) To inform the Plaintiff that he may request the Commissioner to direct that he be treated as an eligible employee for the purposes of Superannuation under the 1976 Act; and

(ii) To inform the Commissioner that the Plaintiff was likely to continue to be a temporary employee for a further period of at least three years.

(c) Upon request, provide to eligible employees, such as the Plaintiff, accurate information as to:

(i) His entitlement to apply to join Commonwealth Superannuation; and

(ii) The procedures to be complied with to enable his application to be duly processed under the Acts; and/or

(d) Subject to the Acts, ensure that temporary and/or exempt employees such as the Plaintiff had the same access to Commonwealth Superannuation as permanent employees; and/or

(e) Provide information to temporary and/or exempt employees regarding their statutory employment benefits including entitlement to superannuation benefits, as without such information they could not be expected to be aware of such benefits and entitlements.

565. Mr Meredith's claim was made in the context of the history of superannuation legislation.

In 1942, the Commonwealth parliament embarked on an ambitious scheme to ensure that longstanding temporary employees who gave their lives in service of the Commonwealth would have the reward and security of a generous superannuation scheme in their retirement. It legislated to provide that they be entitled to participate in the established Commonwealth superannuation schemes, subject to a number of conditions which it laid down in the statute. Compliance with those conditions - and hence participation in the benefits so bestowed - could not be achieved by the temporary Commonwealth employee without each being made aware of them, and without the Commonwealth ensuring that they were given effect to, and implemented.

It was impossible for the statutory scheme to operate to bestow on the employees the security and reward intended by parliament without the Commonwealth, as employer, informing the employee of their eligibility and entitlement, and then, actuating the steps necessary to give effect to the Parliamentary intention.

In so enacting, the parliament simultaneously conferred a power on the Commonwealth as employer and imposed on it a duty to ensure that the power was exercised.

567. The sections of the relevant legislation on which the claim was based were set out in paragraph 24 of the Statement of Claim. That paragraph was as follows:

24. The Acts relevantly provided as follows:

(a) Section 4(5) of the Superannuation Act 1922 (as amended and in force at the material times up to 30th June 1976):

Where -

(a) a person employed by the Commonwealth otherwise than in a permanent capacity is by the terms of his employment required to give the whole of his time to the duties of his employment;

(b) that person has been so employed for a continuous period of not less than three years; and

(c) the Public Service Board or, on appeal from the Public Service Board, the Treasurer, certifies that that person's employment is likely to be continued for a period of at least 7 years;

the Treasurer may direct that that 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.

(b) Section 11(1) of the Superannuation Act 1976 (as originally enacted and commenced on 1st July 1976):

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 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.

568. These are critical, for, as Kitto J observed in Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 at 405:

[A]t the outset of every inquiry in this field it is important, in my opinion, to recognize notwithstanding the views expressed by some writers ... that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation

569. The history of the action for breach of statutory duty has been helpfully traced in R P Balkin and J L R Davis, Law of Torts (LexisNexis Butterworth, 4th ed, 2009) at 498-500; [16.2]-[16.9] where the learned authors describe the tort as "violation of interests protected by statute" because, as they say (at 497; [16.1]),

the emphasis has on the rights of the plaintiff which are alleged to have been infringed, rather than the duty imposed on the defendant, which is alleged to have been breached.

570. I do not need to recount the history there set out, though I note that the decision of the English Court of Appeal in Groves v Wimborne (Lord) [1898] 2 QB 402 was seminal in establishing the cause of action where an employee was injured by a breach of industrial safety legislation. In that case, Vaughan Williams LJ said (at 415-6):

[I]t cannot be doubted that, where a statute provides for the performance by certain persons of a particular duty, and some one belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty.

571. Thus, in O'Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 478, Dixon J said:

In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law ...Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.

572. The regulation there at issue, regulation 31(b) of the second schedule of the Scaffolding and Lifts Act 1912 (NSW), provided "Safety gear to be provided for all lifts excepting direct-acting lifts, and service lifts in which no person travels". His Honour continued (at 478-9):

The difficulty in applying this view to clause 31(b) of the schedule to the Scaffolding and Lifts Act 1912 arises from the fact that it is only one of many provisions widely differing in scope and character for the regulation of scaffolding and lifts. A great number of these provisions clearly does not create any private right. A civil remedy would be inappropriate to the duties prescribed by many of them and opposed to the general sense of many others. But I think that the nature of the specific duty imposed by clause 31(b) makes the general rule prima facie applicable and that the fact that side by side with it are regulations creating no private right is not sufficient reason for denying a civil remedy for a breach of clause 31(b).

573. Similarly, in Mallinson v Scottish Australian Investments Co Ltd [1920] HCA 51; (1920) 28 CLR 66 at 70-5, the High Court had said:

The rule applicable here is stated in Shepherd v. Hills as follows, viz., 'Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary'; and where the amount is liquidated the action of debt is appropriate (Hopkins v. Swansea). The obligation is none the less a debt because the statute gives no particular method of enforcing it (Booth v. Trail). In cases in which the statute contains no express denial of the right to bring an action, the proper course to adopt in order to determine whether it contains 'some provision to the contrary' within the meaning of the rule stated above is to consider whether it appears from the whole purview of the Act that it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist; and in determining this question it is material to consider whether the obligation imposed by the Act was designed to benefit a particular class of persons (e.g., employees) and to compel their employers to perform certain duties for their benefit (Groves v. Lord Wimborne). It is also material to consider whether the provision made by the Act for compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act. ...

I have equally no doubt that, where in a statute of this kind a remedy is provided in cases of non-performance of the statutory duty, that is a matter to be taken into consideration for the purpose of determining whether an action will lie for injury caused by non-performance of that duty, or whether the Legislature intended that there should be no other remedy than the statutory remedy; but it is by no means conclusive or the only matter to be taken into consideration for that purpose. If it be found that the remedy so provided by the statute is to enure for the benefit of the person injured by the breach of the statutory duty, that is an additional matter which ought to be taken into consideration in dealing with the question whether the Legislature intended the statutory remedy to be the only remedy. But again, the fact that the Legislature has provided that that remedy shall enure, or under some circumstances shall enure, for the benefit of the person injured, is not conclusive of the question, and, although it may be a cogent and weighty consideration, other matters also have to be considered.' Among the 'other matters' that have to be considered is the question whether the remedy provided is coextensive with the right given by the Act (Stubbs v. Martin).

...

In the present case the Act provides no means, or at any rate no reasonably effective means, by which the individual complaining of injury sustained in consequence of the breach of an award by a refusal to pay him the amount to which he is entitled thereunder can obtain any redress or compensation, unless these terms be regarded as satisfied by the imposition on the offender of a penalty to which the person injured is not entitled.

For these reasons we are of opinion that the Commonwealth Conciliation and Arbitration Act in no way restricts the rights of an employee to recover from his employer, by proceedings in a competent Court, the wages to which he is entitled in accordance with an award.

574. These principles have been extended and refined in subsequent decisions of the courts, in particular the High Court. Thus, in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 the Court set out the relevant principles on which the courts have thereafter noted. Brennan CJ, Dawson and Toohey JJ said (at 424):

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute 'will rarely yield a necessary implication positively giving a civil remedy'. One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.

[footnotes omitted]

576. More recently, the High Court has considered these matters in Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215. Gummow, Hayne and Heydon JJ said (at 253; [110]):

As noted earlier, the plaintiff had pleaded a claim for breach of statutory duty but that claim was not pressed at trial. Because s 10 of the Mental Health Act confers power but does not impose a duty to exercise the power, the abandonment of the claim for breach of statutory duty derived from that Act was inevitable and right. That is, the existence of such a cause of action is not to be inferred from 'a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed [or in this case authorised], the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation'.

[footnotes omitted]

577. Later, Crennan and Kiefel JJ said (at 263-4; [142]-[144]):

The requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty. The difficulty, in most cases, of discerning an intention on the part of the legislature, that a remedy be provided to the persons to whom the statute might be seen as directed, was referred to by Dixon J in O'Connor v S P Bray Ltd. His Honour observed that the legislature will rarely express such an intention. Resort has therefore often been had to presumptions or policy to supply the intention.

In cases where a statute provides significant and special measures for the protection of classes of persons or of property, the difficulty with ascertaining legislative intention may not be so acute, at least where it may be discerned that the legislature would have expected the powers to have been exercised in the circumstances which prevailed. Cases such as R v Deputy Governor of Parkhurst Prison; Ex parte Hague which state that an intention to protect individuals is not of itself sufficient to support an action for breach of statutory duty might be distinguished on this basis. The provisions in Pyrenees Shire Council v Day provide an example of a case where a legislative intent may have been inferred, although it was not necessary to resort to it in that case. There the plaintiffs did not rely upon breach of statutory duty to uphold the finding of liability, on the part of the Council, on the appeal to this Court, although they had pleaded that cause of action, in the alternative.

The existence of a power coupled with a discretion may not suffice for an action for breach of statutory duty. The statute must oblige the exercise of those powers in the circumstances which prevail.

578. Applying these principles to the statutory provisions referred to above (at [573]), I do not discern a duty of the kind pleaded by Mr Meredith in either provision. Indeed, in both, there is a discretion ("the Treasurer may"; "the Commissioner may") which would seem to be fatal to such a duty.

579. There would, of course, be a duty to consider any application made by a person for the exercise of the discretion and a duty to consider such application fairly. That, however, is not the duty alleged.

580. For Mr Meredith, it was submitted that the legislation was "designed for the protection of ... a limited class of the public". There is no doubt that the legislation is designed to provide benefits for temporary employees. That by itself, however, is insufficient to create a private right of action.

581. That the damage is pure economic loss does not negate any duty imposed by statute, as was made clear by Goff J in Inland Revenue Commissioners v Goldblatt [1972] Ch 498 at 504. That, again, does not create the duty; indeed, it is neutral as to whether there is such a duty or not.

582. Unfortunately, what has been submitted is not grounded in the statute. Thus, it was submitted for Mr Meredith as follows:

1. The claimants contend that the securing of a dignified retirement, free from the risks of poverty and associated ill health for persons who have given their working lives in the service of the nation, is a matter of importance, similar in policy significance to the securing of a safe and healthy workplace.
2. The means by which this is policy is achieved for the class of workers who have served in the employment of the Commonwealth is by the statutory schemes created by the Superannuation Acts in force since 1922 and extended to temporary employees in 1942.
3. The only way in which the objects of the Superannuation Acts could be achieved was by the employer of each worker (in each case, the Commonwealth) fulfilling the steps (or ensuring the fulfilment of the steps) set out in these Acts (from time to time) which ultimately gave rise to the receipt by the worker of superannuation benefits on retirement. Indeed no step could be taken without the Commonwealth as employer facilitating it. Equally, unless the Commonwealth as employer facilitated each step, the scheme could not be implemented and every worker would be denied benefits to which the legislature intended they be entitled.
4. Those steps included ensuring that all relevant staff (those likely to be consulted about the scheme in the ordinary course and their superiors) were aware of the relevant statutory provisions that affected its employees; the notification of relevant employees of their entitlement to participate in the Scheme (eg ss 11, 13 (1976)); certifying the necessary matters specified by the Acts as a prerequisite to participation (eg s 4(5)(1922)); completing the necessary paperwork (eg s 4(5)(1922)); facilitating the workers attendance at a medical appointment (eg s 16(1976)); and deduction and remittance of the employee's contributions from their salary (eg ss 45, 53(2)(1976)).

583. The sentiments in paragraphs 98 and 99 above are fine and good policy. It is another thing to see how it is expressed in the relevant legislation which, as I have noted (at [578]), gives a discretion to the relevant Commonwealth officer as to entry by temporary employees into the relevant schemes. It is also different, for example, from the scheme so far as permanent public servants were concerned where membership was compulsory. Indeed, currently, superannuation is compulsory. It is not clear to me that the objects of the 1922 Act and the 1976 Act are as set out in these paragraphs; even were that so, it is by no means clear to me that this is the object of s 4(5) of the 1922 Act or s 11(1) of the 1976 Act.

584. Then it seems to me that the submission in the quoted paragraph 100 (at [582] above) overreaches. It refers to matters that are not pleaded and not in issue in these proceedings, such as facilitation of medical examinations, certifying eligibility and deducting contributions. If these are what is intended, it is by no means clear to me that there is only one way that these can be effected: Any general practitioner can conduct a medical examination; payment can be made regularly through banks.

585. So far as the pleaded duties are concerned, there are other ways in which notice can be drawn as to the availability of superannuation. In highly unionised workplaces, such as the ACT Forests workplaces were, the part to be played by unions should not be underestimated, even if, in fact, they fall down on the job spectacularly, as in this case. The role of the media should not be discounted either, though that would be of limited value in the actual circumstances of this case.

586. Neither of these would guarantee 100 percent, complete coverage. Is that to be discerned from s 4(5) of the 1922 Act and s 11(1) of the 1976 Act? I cannot draw that conclusion. Neither section confers a relevant power or duty on the Commonwealth. It seems the argument is that, since these sections establish an eligibility, there must be inferred a duty to ensure that every person who may be affected is given personal notification of their eligibility. I am not aware of any principle of statutory construction that requires such an inference to be drawn. Nor was any authority referred to by Mr Meredith that would lead to such a conclusion.

587. Mr Meredith did refer to three decisions which were said to be "directly applicable". I shall deal briefly with each in turn.

588. In University of Newcastle v Chopra [1989] HCA 27; (1989) 63 ALJR 397, the respondent was employed by the University but declined to contribute to the State Superannuation Fund which required her to apply for an exemption which she never did. She later said that she would have applied to join the Fund if she could have taken up a lesser number of units.

589. The respondent later sought membership of the Fund but she was not admitted and commenced proceedings seeking declarations as to her entitlements as a contributor to and member of the Fund. The High Court held that she was not a contributor and had no entitlement to a pension.

590. Reference was made to the judgment of Mason CJ and Gaudron J, who were said to have "accepted that the statute imposed a statutory obligation upon the employer". The reference in Mr Meredith's submissions was obscure. I have read their Honours' judgment a number of times and do not understand to what reference was being made. The only duty to which their Honours referred (at 401-2 (Mason CJ and Gaurdron J); 407 (Brennan and Dawson JJ)) were:

(a) a duty of an employer to pay the contribution of an employee who was initially a contributor;

(b) a duty of the Board to consider and determine the status of an employee as a contributor upon receipt of a statutory report; and

(c) a duty on member employees to contribute to the fund.

591. As to the duties I have listed at (a) and (c), their Honours said (at 401):

The Act established the Fund as the central element of a compulsory scheme designed to provide superannuation benefits for a wide range of public sector employees. Every employee and every employer to whom the Act applied came under a statutory obligation to contribute to the Fund, unless the employee was exempted from that obligation in accordance with the statutory provisions. An employee who was not exempted had no option to step outside the Fund and was not relieved from making contributions. Nor was the employer relieved from making contributions in respect of the employee or making deductions from his earnings and paying them to the Board in the absence of such an exemption. Interest was payable on unpaid contributions and the Board was entitled to sue to recover them. Before 1972, the Board could sue an employee was perhaps open to question, but that is not a decisive consideration.

592. The following needs to be noted about this passage. In the first place, this is quite a different scheme to those available to Mr Meredith, which were not compulsory. Secondly, the duties are those of employers towards those who are members of the Fund, which Mr Meredith was not. Thirdly, none of the duties suggested by their Honours are those, or even like those, pleaded in these proceedings. Finally, none of the relevant legislation there considered was similar or analogous to that which is pleaded by Mr Meredith as the subject of these proceedings.

593. Neither of these have any relevance to Mr Meredith or the construction of the 1922 Act or the 1976 Act.

594. Toohey J also referred to the first duty I have identified and to a civil right of action for breach. His Honour said (at 411):

If an employer is derelict in its statutory duty to deduct the contributions of an employee from salary or to make its own contributions to the Board, no doubt the employee has an action in damages for any loss suffered thereby: Groves v Wimborne (Lord) [1898] 2 QB 402 at 407, 412-413, 415-416; Mallinson v Scottish Australian Investment Co Ltd [1920] HCA 51; (1920) 28 CLR 66 at 70-72; IRC v Goldblatt [1972] Ch 498 at 504.

595. This seems to me to be irrelevant to the case which Mr Meredith seeks to make.

596. The second decision was that of Cornwell v Commonwealth, where reference was made to the following paragraph in the decision of Higgins CJ (at 67,209-67,210; [79]):

There having been a breach of the common law duty to avoid negligent advice, it is not necessary further to consider a statutory duty. I note that the then Treasurer, Mr J B Chifley, when introducing the amendment resulting in s 4(5), made it clear that long-term temporary employees were all to benefit, and that was, from time to time, official policy. However, there came a time when policy dictated merely reacting to an employee's request. Nevertheless, if Mr Brown represented 'the' official view, then the Transport Section of the Department of the Interior was in breach of it.

597. At best, his Honour found there may have been a breach of "official policy", though his Honour did not decide whether there was even that. His Honour did not decide whether there was a statutory duty. The decision is of no assistance to Mr Meredith.

598. The third decision was Campbell v University of New South Wales (1992) 44 IR 56, where the plaintiff sought declarations that he had been a contributor to the State Superannuation Fund for the whole of his employment.

599. Mr Campbell's case was that he was, at all material times, a contributor to the Fund because he was an employee and, in the legislation, the definition of "contributor" was "ʽContributor' means an employee". The University submitted that he was never an employee.

600. Carruthers J held that, during the first part of Mr Campbell's employment, he was not an employee within the terms of the legislation, but that, for the second part, he was and was, for that period, entitled to recovery of the benefits he would have received had contributions been made to the Fund.

601. Again, this is of no relevance to Mr Meredith's case as he was not a member of a Commonwealth superannuation scheme to whom the Commonwealth owed duties which is what the identified duties in Campbell v University of New South Wales were. The case says nothing about duties to persons who were not members or contributors, whether payments were made on their behalf or not.

602. None of these decisions are of any assistance to Mr Meredith.

603. In the circumstances, there are no statutory duties owed to Mr Meredith of the kind he pleaded and, therefore, no breach of them.

604. As mentioned earlier (at [19]), the Commonwealth pleaded that Mr Meredith's claim was barred by the Limitation Act 1985 (ACT). That defence was overruled by the Court of Appeal in Commonwealth v Cornwell in a decision applicable to this case and binding on me. The Commonwealth did not press that defence, and it is to be disregarded.

605. Although pleaded, the conduct of the proceedings did not focus much on contributory negligence.

606. Mr Meredith made it clear that when he joined ACT Forests he "was given no paperwork". In answer to interrogatories, he said that he saw no pamphlets, brochures, circulars or booklets concerning superannuation. He said he did not regularly read any newspapers and after a while ceased getting union newsletters.

607. It cannot be sustained that Mr Meredith "failed to read or read adequately material disseminated by "[the Commonwealth]".

608. Mr Meredith admitted that he made no inquiries of the office in Canberra about superannuation. It appears that this is where such queries should be directed. He did, however, inquire of his superiors about the matter and was never directed to that office. Indeed, far from suggesting that he make further inquiries, the answers he received were apparently final and determinative, and from people who were his superiors and on whom, I have found, he was entitled to rely.

609. It cannot be sustained that he failed to make adequate inquiries.

610. Mr Meredith asked not merely Mr Bates about his eligibility but also Mr Murray and Mr Edgerley. Indeed, he also made inquiries of Mr Spellman. I do not consider he was obliged to look at the legislation.

611. It cannot be sustained that he failed to check the correctness of the advice he was given.

612. There were suggestions of seminars and other occasions when information about superannuation was made available. There was, however, no reliable information about such seminars or publications being provided at the Uriarra or Pierce's Creek depots while Mr Meredith was there until much later.

613. It cannot be sustained that Mr Meredith failed to take advantage of opportunities provided by the Commonwealth for advising employees in his position of their eligibility for superannuation.

614. As to joining the PSS in 1994, I have found that the causation ended in mid-1992 (see [439]) and so this is not relevant.

615. In my view, the plea of contributory negligence is not made out.

616. As I have found that Mr Meredith was negligently and culpably misinformed about his eligibility for entry to a Commonwealth superannuation scheme and as this caused him to refrain from joining such a scheme, thereby suffering loss, the final question is whether he is entitled to damages and the quantity of the damages to which he is entitled.

617. At the time Mr Meredith became eligible to join a Commonwealth superannuation scheme, a temporary employee was only eligible if:

(i) he or she had been a temporary employee of the Commonwealth for a continuous period of not less than three years under employment which required him or her to devote the whole of their time to the duties of their employment; and

(ii) the PSB or, on appeal, the Treasurer, had certified that his or her employment was likely to be continued for a period of at least seven years.

618. The Commonwealth submitted that it was unlikely that Mr Meredith would meet these pre-conditions because he was only 21 years old and had a bare three years total past employment history in an untrained industrial role formally described as temporary.

619. Further, it was submitted that the likelihood of him receiving the relevant certificate was slim.

620. It was submitted by the Commonwealth further that there was no proof of the necessary facts that Mr Meredith would have, immediately on becoming eligible, been admitted to the scheme.

621. Further, it was submitted that, at the date of his eligibility, he was unlikely to want to join as he was supporting a wife and two children under three with a third child born less than a year later. His wages were at the time $66.25 per week and superannuation was not common for working Australians.

622. Three questions arise as to whether any damage was caused to Mr Meredith:

(a) would Mr Meredith have joined a Commonwealth superannuation scheme even it correctly advised as to his eligibility?

(b) would he have obtained the necessary certification of future employment prospects?

(c) would he have successfully passed the medical examination?

623. There is no doubt that Mr Meredith had, as at 9 January 1969, met the three year pre-condition as to past continuous full-time service.

624. The Commonwealth's submissions on this issue were helpfully summarised as follows:

On 9 January 1969 Mr Meredith was a mere 21 year old and supporting a wife and two children under three. His third child was born less than a year after, on 9 January 1969 and a fourth about three years later. The wages figures attached to the agreed statement of facts show that as at 1 July 1969 Mr Meredith was earning a mere $66.25 per week. And this was a time when self funded retirement was not the norm for average working Australians. Superannuation would not have been 'on the radar' of workers 40 years ago.

625. It is clear from the evidence that Mr Meredith was at least persistent with his inquiries about whether he could join a Commonwealth superannuation scheme. To this extent, superannuation was "on his radar". While he did not know the cost to him, as no-one told him, I am satisfied that he would not have been so persistent if, when he discovered he was eligible, he did not join. That does not seem to me to be consistent with what I can take to be a reasonable inference.

626. Thus, the evidence is that Mr Meredith showed significant interest in Commonwealth superannuation. He sought advice about it for himself on at least five occasions from his supervisors and a union organiser. His affidavit evidence was that he would have joined as soon as he was eligible. He was not challenged on that in cross-examination.

627. I have already described this as more an incident of employment than necessarily a question of retirement provision (see [457] above). Thus, his youth would not necessarily mean Mr Meredith was unlikely to join.

628. As to having the funds, the evidence was that he supplemented his wages in various ways (see [76] above) which would have moderated the impost. In any event, at this time, he was paying insurance premiums in the 1970s (see [52] and [54]) which are unlikely to have been much different from the contributions he would have had to pay in superannuation contributions. In addition, Mr Meredith said that he did not drink alcohol, which would have given him a financial advantage over his contemporaries.

629. I accept that he could have afforded contributions to superannuation. Further, the fact that he did take out an insurance policy for a time showed that he was not unmindful of a need for protection and that he could afford such an option. The amount he received from playing football would have covered the superannuation contributions he would have been required to make in the first three years. By that time, Mrs Meredith had commenced work and she continued to work until 2000. Further, Mr Meredith was later paid extra income for overtime work.

630. Finally, when he retired, he clearly had funds available (see [56] above) which shows he had the ability to save, though this was, of course, many years after he would first have been eligible to join a Commonwealth superannuation scheme.

631. I am satisfied that Mr Meredith would have joined a Commonwealth superannuation scheme had he been provided at the time with the correct information.

632. The issue about future service is one which had exercised the Treasury since 1948 and it was generally favourable to a more generous application of the requirement. An analysis of the material in the Common Tender Bundle show this and shows that, by 1965, the PSB accepted that in the past its approach had been "too strict" and that the provisions of s 4(5) of the 1922 Act had "been applied rather more strictly than necessary".

633. This was supported by a table which showed that by 1970-1 of 1336 applicants, merely 3.59% had been rejected on employment grounds. This was also supported by the formal admission of the Commonwealth that it was not aware that any applicant who worked at, inter alia, the Uriarra depot who had been rejected for membership of a Commonwealth superannuation scheme.

634. Evidence was adduced that, in 1977, staff shortages were seen amongst industrial staff and that recruitment was a priority. Mr Meredith submitted that "there was no reason why only forest workers that [sic] applied themselves to their work would not have had sufficient security of future employment". This is supported by the oral evidence of Mr McKenzie-Smith as follows:

So having read that does that enable you to recall that about this time that there was a recruitment drive, if we could call it that, in forestry. They were positively seeking employees at that time? --- Yes. As it says it's the start of the planting season and it says that we're running less than establishment.

And he sees a need also to improve the quality and quantity of the industrial workforce? --- Yes.

May we assume from that and from your own knowledge as forester that a good - I will withdraw that - that a worker like Wayne Meredith would have had a job for as long as he wanted if he kept applying himself? --- Yes.

As he had done? --- Yes.

And as he continued to do under your command? --- Yes.

635. Mr Meredith said in his affidavit that the reason he applied for a job at ACT Forests was that it was "a secure job". He showed aptitude also by acquiring further skills. He said "[a]t this time my health was excellent and I viewed my job at Forestry long-term permanent employment."

636. Mr Meredith was told that, after completing his probation, he would be "permanent" (see [29] above).

637. This opinion of Mr Meredith's employment was shared by Mr Bates who said that it was his view that Mr Meredith had his job for as long as the duties were required and for as long as he fulfilled those duties (as at [351] above). He also said that the duties of a forest worker were likely to be required for as long as the Commonwealth owned forests. Mr Bates said that Mr Meredith fulfilled his duties "[r]easonably well", reflected in his eventual promotion to Ganger and Overseer. He was fit and strong. Mr Murray described him as "a nice young man" and "[a] good worker".

638. It is also relevant that, after his probation, Mr Meredith and his wife were moved into a house at the Uriarra depot that was provided for married couples. The comment of Mr Murray is relevant to this. He said

So the concept of temporary doesn't mean anything to you? --- Well, Wayne mentioned temporary in - I read his affidavit and he mentioned temporary in terms of when he was first employed he was employed as a temporary. But he was employed directly under that industrial award. The industrial award didn't make any provision for temporaries. He wasn't granted a house because we didn't put people into houses until we'd had a chance to see whether they fitted in with the community or if that something terribly wrong with them that we'd say - not that we'd cease your employment, but we wouldn't offer you a house.

That was a probation period, wasn't it? --- For housing, not for employment.

Yes, but for housing? --- For housing, yes.

639. I acknowledge that the turnover of temporary employees was acknowledged to be greater than for permanent public servants, but that is only a generalisation that has to be taken into account.

640. It seems to me that the demand for good workers in what was hard work carried out in isolation would be an encouragement to see suitable workers such as Mr Meredith as long-term prospective employees.

641. Clearly, under s 4(5) of the 1922 Act and s 11(1) of the 1976 Act, a certificate as to future employment prospects was required, certifying future employment for seven years into the future in one case and three years in the other.

642. While a discretion, as the certifier would have, cannot be circumscribed outside the terms of the discretion and the statute, it does seem to me that the evidence is relatively clear that a certifier acting in good faith would have provided the necessary certification.

643. I am satisfied that Mr Meredith would, in early 1969, have been likely to obtain the relevant certificate to provide eligibility for him to join a Commonwealth superannuation scheme.

644. There was no evidence that Mr Meredith had, prior to his employment, undergone such a medical examination. Indeed, for a temporary employee who could not join a Commonwealth superannuation scheme for at least three years, it would have been odd to require it. Given the lack of knowledge of many about the eligibility of temporary employees for superannuation, it is understandable that no medical examination would be required.

645. Mr Meredith deposed in his affidavit that his "health was excellent", as is attested by his continued employment in the hard work as a forestry worker for nearly thirty years. This evidence was not challenged by the Commonwealth.

646. The evidence was that, when employed, Mr Meredith was fit and strong. He not only carried out the hard work of a forest worker but also played football, undertook hay carting and wood chopping and also planted trees in his holidays.

647. I accept that in 1991, he had serious back problems though they seem to have been resolved in about eighteen months.

648. In my view, there is no reason to infer other than that Mr Meredith would have been found fit under the necessary medical examination.

649. I am satisfied that Mr Meredith would have passed a medical examination.

650. There is a discretion exercisable by the Treasurer (the 1922 Act) or the Commissioner of Superannuation (the 1976 Act), notwithstanding Mr Meredith meeting these eligibility conditions, which must be exercised before a temporary employee can become a member of a Commonwealth Superannuation scheme.

651. In all the circumstances, nothing was put to me as to any likelihood that such a discretion would not be exercised in favour of Mr Meredith had he met the eligibility criteria. I accept that the discretion would have been so exercised. That is plain from the evidence set out at [489] to [505] as to the attitude of the Commonwealth.

652. This is supported by an admission by the Commonwealth in answer to interrogatories. It was admitted that it was not aware of any temporary employee at any of the workplaces relevant to Mr Meredith who had applied to join a Commonwealth superannuation scheme and had been rejected. Therefore damage was caused to Mr Meredith.

653. As with other claims in negligence, such as causing personal injury, the purpose of an award of damages for the pure economic loss caused by a negligent misstatement is the same. That has been stated in the often cited passage of Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39:

I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he [or she] would have been in if he [or she] had not sustained the wrong for which he [or she] is now getting his [or her] compensation or reparation.

654. As McHugh J put it in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 at 54:

The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he [or she] would have been in if he [or she] had not sustained the wrong for which he [or she] is now getting his [or her] compensation'.

655. Expert actuaries were retained by both parties to provide assistance in determining the damages payable by the Commonwealth.

656. Mr David Heath, an actuary of Cumpston Sarjeant Pty Ltd, Consulting Actuaries, gave evidence for Mr Meredith. Mr Peter Martin, also an actuary, employed with the Australian Government Actuary, gave evidence for the Commonwealth. Both had appropriate qualifications and experience, and their expertise and entitlement to give expert evidence was not in issue.

657. Each of the actuaries prepared six scenarios which depended on a variety of features of which there was no certainty. Thus, there were a range of factors on which the parties agreed and on which there was disagreement. There was also disagreement between the actuaries on a number of issues.

658. Mr Meredith was born in 1947. He commenced employment with the Commonwealth on 9 January 1966. He became eligible to join a Commonwealth superannuation scheme (under the 1972 Act) on 9 January 1969. He ceased work, on being made redundant, on 29 August 2001.

659. The Commonwealth submitted that the period of eligibility should actually commence on 31 December 1985, that is, at the end of the year in which Mr Duffy says he told Mr Meredith that Mr Reardon, a forest worker, was a member of a Commonwealth superannuation scheme.

660. I also need to consider whether Mr Meredith would have:

(ii) transferred to the PSS from the CSS in 1990 or 1996 (the two "choices" campaigns);

(iii) maximised his contributions for any period of time; and

(iv) chosen to take his ultimate benefit as a lump sum or pension or combination.

661. As to the discretion of the PSB, I have no reason to believe, these two pre-conditions having been met, that it would be likely that the Board would not direct that Mr Meredith be deemed to be an employee within the meaning of the 1922 Act and have every reason to believe that it would so direct.

662. As to the period of eligibility, I am satisfied that it should commence on 9 January 1969. That is when he would have joined, in my view, had he been provided with the correct information. His loss, however, does not extend beyond July 1992 by which time he did know that he was eligible to join a Commonwealth superannuation scheme and by which time he had recovered from his disability such that he was in a position to consider his own superannuation needs and, if necessary, make his own inquiries.

663. The other issues relate to the assumptions that need to be made to quantify the damages. The first is whether Mr Meredith would purchase "age 60" units or "age 65" units. Significantly, however, "age 65" units are cheaper than "age 60" units.

664. The difference to the outcome is not large ($6,000 between the calculations of the two actuaries).

665. In my view, Mr Meredith is likely to have purchased "age 65" units; while I have found that he would have had funds to contribute to superannuation, I think money would not have been plentiful and he would have chosen the lesser contribution.

666. When the 1990 Act established the PSS, as noted above (at [22](c)), then members of the CSS had a choice as to whether to transfer to the PSS or to remain in the CSS, either by deliberate choice or by simply failing to elect to transfer to the PSS. As to what would happen when Mr Meredith had that choice, the picture is somewhat more complicated. As with the earlier case, Guy v Commonwealth [2013] ACTSC 128 at [41], the evidence "is, quite frankly, thin". As I there said

There is little about it in his affidavit and nothing in his oral evidence. That is not really surprising because it is a hypothetical matter about which an ex post facto opinion may be of limited value.

667. Mr Heath prepared a careful analysis which showed clearly that there was a financial benefit in Mr Meredith remaining in the CSS. His approach was set out as follows:

The usual form of retirement benefit under the CSS is not a lump sum, rather it takes the form of an indexed pension together with a lump sum. In order to compare the benefits between the CSS and PSS we have calculated appropriate CSS pensions at each age, together with the appropriate lump sum. For PSS, part of the above lump sum is convertible to a pension. For comparison purposes, we have made this pension equivalent to the CSS pension, and compared the remaining lump sum.

668. The calculations showed that, with an equal pension under both scenarios, for each of age 55, 60 and 65, the lump sum available to Mr Meredith under the CSS was substantially larger.

It should be noted that the figures above represent illustrative calculations in an attempt to chart a reasonable course of action for Mr Meredith if faced with the decision to transfer to PSS in 1990. Our earlier reports indicate that Mr Meredith's benefits would have been higher with no transfer to the PSS, however the calculations in those reports were done in a retrospective manner, with the benefit of hindsight. The above calculations are based on reasonable assumptions that would have been made at the time, rather than with hindsight. The calculations above appears to show that a transfer to the PSS would have financially disadvantaged Mr Meredith, and that this disadvantage was foreseeable at that time.

We also note that the advice above considers normal retirement benefits only. As our calculations in the report dated 16 November show, should Mr Meredith have taken a CSS benefit in the form of a deferred benefit it would lead to a higher amount than the retirement benefit. This is another advantage of the CSS which is not available to PSS members.

670. These really were submissions rather than opinions received as evidence.

671. Thus, Mr Martin also provided appropriate submissions. He said

CSS retirement benefits are, for all but a small number of people, likely to be higher in actuarial value terms than standard PSS benefits (that is, assuming 5% contribution rate in the PSS). It follows that, if the decision was to be made on that basis, then virtually no-one would have transferred.

672. He then referred to a number of relevant factors. The first of these was that, on resignation, PSS members could receive a return of their member component and retain a preserved employer component in the fund. A CSS member who resigned, however, did not retain an entitlement to a preserved employer component; such members had to preserve all their benefits to achieve this.

673. The PSS allowed its members on retirement to take their entire retirement benefit as an immediate lump sum, possibly a more attractive option to older members at the date of conversion. Further, PSS members on retirement could take all or part of their benefit as a CPI indexed pension, which would have an actuarial value at least 60% higher than the lump sum benefit.

674. Thirdly, there was a flexible contribution rate so that PSS members could contribute up to 10% of salary, though they could choose a contribution as low as 2%.

675. Mr Martin further noted that "[m]any members were not engaged with their superannuation". He acknowledged that there was likely to be some suspicion of the government's intention in establishing the new scheme and these forces may have led to an inertia against change.

676. He pointed out that there would also have been some "workplace-centric decision making" but I have no evidence of what approach applied at the workplace of Mr Meredith.

677. A senior Comsuper officer, Mr George Hayes gave some relevant evidence. He said

[F]or many people it was very line ball and for me personally I thought it was a pretty line ball. It wasn't - you pretty well had to take a view as to how you thought your career was going to pan out ... as I say it was pretty personal. I mean some people - see, if you stayed in the CSS you were going to get a benefit which was going to be pension and lump sum. In the PSS you could take all of your benefit as a lump sum or you could take - provided you took up to half of this pension you could pension and lump sum. Some people who thought they were, say, investment gurus probably thought I'm going to get hold of this lump sum and do fantastic things with it. But the general view was, I think, but I'm not - COMSuper was neutral on it ... the financial people in the press at the time, because there was a lot of information around the place. Their position was well if you - if you're in this situation, you're worried about the decision, stay in the CSS, but that wasn't COMSuper's position.

678. While there was quite a lot of negative comment in the press about the PSS, it does not seem to me that this would be a relevant factor in this workplace where the press obviously had little influence and that would have been unlikely to have flowed through to Mr Martin's "workplace-centre decision making."

679. Relevant factors in Mr Meredith's case include the following. He clearly had savings when he was made redundant, suggesting that he would not have made a priority of getting a lump sum at that stage. At the date of the required election (I assume 1 July 1990) his younger child was eighteen years old and his sons were working. His injury did not occur until about six months later.

680. I do not consider that Mr Meredith would have thought of himself as an investor; I formed the opinion he would have sought the security of a pension.

681. I am satisfied that Mr Meredith would have, in 1990, remained in the CSS.

682. The next issue is whether he would have maximised his contributions at any stage. There is nothing in the evidence to suggest that.

683. Finally, I consider that Mr Meredith would have taken his ultimate benefit as a pension. He had funds and was clearly looking for security.

684. As I have noted (at [657]), both Mr Heath and Mr Martin prepared reports which calculated six scenarios or used six methods to calculate the loss sustained by Mr Meredith. These scenarios were based on assumptions made as to some of the options available to Mr Meredith, such as whether he would take a pension or a lump sum and whether he would have remained in the CSS or transferred to the PSS.

685. None of the scenarios reflect what I have found, namely that from 1 July 1992, the negligent misstatements made to Mr Meredith were no longer causative of Mr Meredith's failure to join a Commonwealth superannuation scheme. I shall deal with that issue later.

686. Mr Martin helpfully analysed the differences between his report and that of Mr Heath so that I could consider them and decide which assumptions were supported by or more consistent with the evidence.

687. I note that the results of comparable calculations by both actuaries were not wildly dissimilar though the differences did lead to differences in outcome of over $100,000 in some cases.

688. I have already (at [663]-[665]) dealt with the question of whether Mr Meredith would have purchased "age 60" or "age 65" units, preferring the latter. I shall deal briefly with the other matters of discrepancy between the reports.

689. Mr Heath used a figure of $47,694 for Mr Meredith's final salary while Mr Martin used $44,306. In both cases, the figures were supplied by the solicitors who retained them.

690. A Statement of Agreed Facts was tendered. It showed that Mr Meredith's final salary was $47,694. That is the figure that should be used.

691. Mr Heath calculated the balance of Mr Meredith's AGEST account as $47,655 to which he added "penalty interest". Mr Martin estimated the balance as at $29,000 at age 55 to which he also added "penalty interest". Penalty interest was, in fact, pre-judgment interest under r 1616 of the Court Procedures Rules 2006 (ACT).

692. Mr Heath states that he based his calculations on payslips, presumably provided by Mr Meredith. On the other hand, it appears that Mr Martin based his calculations on the salary figures provided by the lawyers who retained him. I have noted above that these differ from the agreed calculations.

693. In the circumstances, I prefer the calculations of the accumulated AGEST account conducted by Mr Heath.

(c) Calculation of PSS scheme equity at retrenchment

694. Mr Martin suggested that Mr Heath had overestimated Mr Meredith's potential and hypothetical "actual" PSS entitlements by double counting his productivity contributions. This calculation was based on a method, it appears, that is inconsistent with the PSS fund rules. In the circumstances, it seems to me that the method consistent with the fund rules should be followed and, to that extent, the approach of Mr Martin is to be preferred.

695. Mr Heath assumed an annuity factor for the indexed pension of 16.430; Mr Martin assumed the factor at 14.770.

696. Mr Heath assumed an annuity factor for the non-indexed pension of 16.430; Mr Martin assumed the factor of 11.632.

I do not believe that it is appropriate to assume the same annuity factor for both a CPI indexed pension and a non-indexed pension. For example, a CPI indexed pension commencing at $10,000 p.a. has a higher value than a non-indexed pension of $10,000 p.a. However, assuming the same annuity factor would result in equal value being given to these two income streams.

698. The annuity factor is based on mortality and a discount rate. Mr Heath based his mortality on the population projections of the Australian Bureau of Statistics. He used a discount rate of 3% based on the decision of the High Court in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.

699. Mr Heath said he used the tables that he did because of the approval of them by the High Court. In Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498, the Court unanimously approved the use of "prospective tables" as preferable to "historical tables". Both were published by the Australian Bureau of Statistics. As Kirby and Hayne JJ, with whom, on this issue, Gummow, Callinan and Crennan JJ agreed, said (at 517; [70]):

The Court of Appeal held [(2006) [2006] NSWCA 25; 45 MVR 365 at 376 [55]] that 'it is appropriate for the courts to make their estimations on the basis of the best information available: the projected tables would appear to be a more accurate assessment of future trends than the historical tables'. There is no reason to doubt that the Court of Appeal was correct in its conclusion that the projected tables published by the Australian Bureau of Statistics were more likely to give an accurate estimate of future life expectancy than the historical tables published by the Bureau. That being so, it follows that the Court of Appeal was right to conclude that, despite the then prevailing practice in the courts of New South Wales, the primary judge should have used the prospective rather than the historical tables.

700. While the tables on which Mr Heath relied were approved, it seems to me that they were used because they were 'prospective rather than historical', but gave no special imprimatur to the particular tables of the Australian Bureau of Statistics.

701. Mr Martin seemed to rely on the Australian Life Tables which are the Life Tables published by the Australian Government Actuary.

702. These tables appear to be historical and, accordingly, I prefer the approach on that issue adopted by Mr Heath. To the extent that this approach differs to that I took in Guy v Commonwealth at [84], it is because that issue was not presented so clearly.

703. It does seem to me, however, that Mr Martin's comment identifies the correct approach, namely that it would not be appropriate to apply the same annuity factor to an indexed pension as to a non-indexed pension. To the extent that this is appropriate, the approach of Mr Martin is to be preferred, namely a different factor for the two types of pensions.

704. I could not tell from the evidence, however, how that difference was actually calculated. Should it become relevant, I shall consider it later.

705. As to the discount rate, I am persuaded that, as the pension is linked to movement in the Consumer Price Index and the actuary to the CSS applies the rate of 3.5%, this is the rate that should be applied.

706. For reasons that appear below, I do not need to address this issue.

707. Mr Heath applied pre-judgment interest under the Court Procedures Rules on the additional lump sum in relation to the pension scenario for the CSS between age 55 and the date of his calculation. That amounted to approximately $25,000. Mr Martin applied credit union rates of interest; that amounted to approximately $19,000.

708. It seems to me that Mr Heath's approach should be preferred.

709. Mr Meredith would, of course, have had the use of the contributions that he otherwise would have paid as contributions to a Commonwealth superannuation scheme, whether CSS or PSS.

710. Mr Heath assumed that the opportunity cost of these contributions which were not required to be made to a Commonwealth superannuation scheme would be best represented by applying building society rates. Mr Martin applied credit union rates.

711. Mr Meredith's evidence was that he put his savings into a credit union account that he and his wife conducted. It seems to me that these rates are the appropriate ones to apply in the case of Mr Meredith.

712. The Commonwealth submitted that Mr Meredith was not very likely to have actually joined a Commonwealth superannuation scheme when he first was able to do so. This, I assume, was on the basis that he was unlikely to have been prepared to pay the contributions because of his personal circumstances.

713. I reject that. Given Mr Meredith's persistence in seeking out whether he was eligible, it seems to me so unlikely as not to warrant consideration that if he found he was eligible, he would not have joined a Commonwealth superannuation scheme. This is supported by his actions in taking out various insurance policies.

714. I have, however, come to the conclusion that by 1 July 1992, a somewhat arbitrary date, but inevitably so, Mr Meredith knew that he was eligible because of the information he had received about Mr Reardon and his reaction to that information that he gave in evidence.

715. I have already found (at [681]) that Mr Meredith would not have transferred to the PSS and would have remained a member of the CSS in 1990.

716. The evidence also suggests, and I am prepared to find, that Mr Meredith would have, on redundancy, deferred accessing his benefits under the CSS until he turned 55. The evidence showed that he had some capital in addition to the redundancy payment he received and the advantage of deferral, which was only for a little over four months, would have accrued substantial benefits to him.

717. When he took his benefits, I accept that he would have taken an indexed pension for the employer component of his CSS benefits and a lump sum for the member and productivity components. The evidence shows that he was made redundant at a relatively early age, with no issues of ill-health that might suggest that he would have been better off with the whole of his benefits being received as a lump sum. While his back injury would have affected his employability, it was not life-threatening. It did, however, suggest that an indexed pension was a desirable benefit for his security.

718. His assets showed that he was able to purchase a home and he showed no evidence of seeking to invest a lump sum in a business venture or that he wanted to manage his own investments. He clearly had use for some lump sum payment, as his investment in his home made clear but a pension was clearly preferable.

719. Having made these findings, however, I do not consider that I have the actuarial evidence that permits me to quantify the damages that Mr Meredith should receive. It does appear likely that it would be along the lines of Mr Heath's scenario 4 but with some differences. The scenario would be as follows:

(a) he would have continued as a contributor to the CSS until 1 July 1992;

(c) he would have preserved his benefits in the CSS until age 55;

(d) he would have made no additional contributions though he would have received the statutory employer contributions from 1 July 1992;

(e) the employee contributions saved would have been only up to 1 July 1992; and

(f) there would be pre-judgment interest in accordance with the Court Procedures Rules from 29 August 2001 to the date of judgment.

720. The other criteria would be as I have found above and earlier in these reasons.

721. The question of whether the damages would be taxed was a live issue, whether as a capital gain or as income. Both parties made submissions about this, the Commonwealth submitting that the damages were not taxable on either basis and Mr Meredith submitting that they would be taxable. Mr Meredith further submitted that the damages should include a component to compensate him fully for any tax imposed other than that which would have been imposed if the receipts had been received in the ordinary way.

722. In Guy v Commonwealth at [90]-[93], I said:

1. The Commonwealth, however, referred to a number of cases where the Court did not rule on the issue but reserved leave to apply for additional damages in respect of any damages referable to income tax or capital gains tax. See Rabelais Pty Ltd v Cameron (1995) 95 ATC 4552; Turner v T R Nominees Pty Ltd (1995) 31 ATR 578; P M Sulcs & Associates Pty Ltd v Daihatsu Australia Pty Ltd [2001] NSWSC 798 at [114]- [119]. See also P M Sulcs & Associates Pty Ltd v Daihatsu Australia Pty Ltd [2008] NSWSC 683.
2. The Commonwealth submitted that it was appropriate to take the course adopted in those cases and reserve to the plaintiff leave to apply for additional damages should the award be assessed as liable to tax on any basis. At this time, argument would be permitted as to whether it is appropriate for there to be such an award and, if so, of what amount.
3. Mr Guy, through his counsel, suggested that such a proposal was apparently inconsistent with the "once and for all" principle (Namol Pty Ltd v A W Baulderstone Pty Ltd (1993) 93 ATC 5101) but nevertheless adopted the Commonwealth's proposal, which, his counsel submitted, "makes sense for a number of reasons".
4. These include that Mr Guy has the comfort of knowing that if the Commissioner of Taxation were to levy tax, he could return to the court to recover damages for any loss thereby occasioned. It also provides certainty to the court to know whether tax would be levied and, if so, how much would be levied, so as properly to provide compensation for what is at law required to be compensated_._

723. It seems to me that this is appropriate in this case also. I shall proceed in the same way.

724. As a result of the foregoing, I shall enter judgment for Mr Meredith on his claim in respect of negligent misstatement.

725. So far as damages are concerned, however, I shall invite the parties to provide me with appropriate material on which I can quantify the damages in accordance with these reasons. That would, desirably, be a report from an appropriately qualified actuary. Each party may wish to retain their own and provide separate reports. If so, I would wish that the actuaries confer to see if they could agree or, at least, narrow the extent of any disagreement.

726. The parties may prefer, however, simply to make submissions. Indeed, they may be able to agree on the quantity of the damages flowing from my decision.

727. Accordingly, I shall relist the matter in a few days to give the parties the opportunity to make submissions on how they wish to proceed.

728. I shall, also, hear the parties as to costs, though this may have to await the quantification of the damages.

729. I sincerely regret that the pressure of business of the Court has delayed the delivery of judgment in this matter. Nevertheless, I have read carefully the entire transcript and the exhibits tendered at the trial as well as my contemporaneous notes. I have also had detailed and comprehensive written submissions from the parties which I have also carefully read. These have resulted in a good recall of the proceedings and of the witnesses giving evidence, notwithstanding the passage of time.

I certify that the preceding seven hundred and twenty-nine (729) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the Applicant: Mr R Davis and Mr J Gordon

Counsel for the Respondent: Mr S P Estcourt QC and Ms C Dowsett

Solicitor for the Respondent: Australian Government Solicitor

Date of hearing: 18-19, 23-26, 30 November, 1-3, 8-11, 14 December 2009, 9-11 February 2010