Mulcahy, Brian & Ors v The Hydro-Electric Commission [1998] FCA 605

THE COURT ORDERS THAT: 1. All applicants file and serve within 14 days submissions as to the form of final orders, including orders as to costs. 2. The respondent file and serve submissions in reply within seven days thereafter. 3. Further hearing adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

CONTENTS Page I INTRODUCTION 1

1. The issues 1
2. Retirement Benefits legislation (a) Public Service Superannuation Fund Act 1905 ("the 1905 Act") 2 (b) Public Servants Retiring and Death Allowances Act 1925 ("the 1925 Act") 2 (c) Superannuation Act 1938 ("the 1938 Act") 3 (d) Retirement Benefits Act 1970 ("the 1970 Act") 5 (e) 1974 Amendments: RBF election for temporary employees; buy back of contribution 6 (f) Retirement Benefits Act 1982 ("the 1982 Act") 7 (g) Election under the 1925 Act 11 (h) Notification obligations of "responsible officers" 11 (i) 1989 Amendments: further buy back provisions 14 (j) Retirement Benefits Amendment Act 1993 ("the 1993 Act") 15
3. The "jackpot" 15
4. The Hydro's operations 18 (a) Construction activity 18 (b) Administrative structures 23 (c) Employment categories 24
5. The pleadings 25 (a) Statement of claim 26 (b) Defence 30 (c) Reply 31 II PERMANENCY 31

3. Employment history of the applicants 42 (a) Cooper 42 (b) Duggan 43 (c) Johnstone 44 (d) Mulcahy 45 (e) Vlagsma 46 (f) Williams 46
4. Conclusion on permanency 47 III THE ALTERNATIVE CASE - TEMPORARY EMPLOYMENT 48
5. Duty to advise applicants or RBF Board during 48 employment (a) Under statute 48 (i) Was there a right of action? 49 (ii) Was the duty imposed on the Hydro? 51 (b) Under contract 52 (c) In tort 55
6. Misleading and deceptive conduct 57
7. Continuing duty 58
8. Breach of duty (if owed) 59 (a) What the Hydro did 60 (i) Procedures 60 (ii) Head Office circular 65 (iii) Blue Book 66 (iv) Staff manual 71 (v) The Jack Russell meeting 72 (vi) RBF Seminars 75 (b) Conclusion 75
9. Causation (if breach of duty) 77 (a) Cooper 77 (b) Duggan 80 (c) Johnstone 82 (d) Mulcahy 84 (e) Vlagsma 93 (f) Williams 94 (g) Conclusion 98
10. Damages (if recoverable) 99 IV THE 1993 RETROSPECTIVE LEGISLATION 100
11. Construction 100 (a) The law 100 (b) "in respect of" 100 (c) "enactment" 101
12. Unconscionable conduct 102 (a) The law 102 (b) Negotiations with Government 103 (c) Special disadvantage 103 (d) Whether conduct unconscionable 104 (e) Unconscionable conduct as a cause of action 105 V LIMITATION DEFENCES 105
13. Accrual of causes of action 105
14. Fraud and concealment 107 VI SUMMARY OF FINDINGS 108 VII ORDERS 109 VIII ACKNOWLEDGMENTS 109

REASONS FOR JUDGMENT I INTRODUCTION

1. The issues The 194 applicants in this proceeding were formerly employees of the respondent, the Hydro-Electric Commission ("the Hydro"). Their employment terminated as a result of their retirement or retrenchment in the late 1980s or early 1990s. They claim that as a consequence of wrongful conduct by the Hydro they have lost the opportunity to obtain benefits under the Retirement Benefits Fund Scheme ("the RBF Scheme"). The RBF Scheme provided retirement benefits for employees of the Tasmanian Government and instrumentalities such as the Hydro. Permanent employees were obliged to join. From December 1974 onwards temporary employees could elect to join. The applicants say that they were in truth permanent employees, and not temporary as the Hydro contends. Alternatively, the applicants say that if they were temporary employees the Hydro wrongfully neglected to inform them of their right to elect to join the RBF Scheme and in some instances positively misled them as to such rights. This proceeding commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth). For a variety of reasons this procedure proved to be impracticable. Part IVA was abandoned and the proceeding has continued in the conventional way. However, the parties have agreed that six of the applicants are typical of various categories of applicants whose employment commenced and terminated at different times. Those times have legal significance for, amongst other things, limitation defences. By an order made on 27 June 1997 it was directed that the six selected applicants "... be approved as being generally representative of all applicants in this matter and a trial on liability and damages be held concerning the selected applicants in a manner intended to bind all applicants and the respondent in respect of the principles applicable to liability save any differing personal circumstances of the other applicants." Unless the context otherwise indicates, I shall hereafter use the expression "the applicants" as meaning the six selected applicants.
2. Retirement Benefits legislation I shall refer briefly to relevant aspects of successive legislation dealing with superannuation or retirement benefits (for present purposes there appears to be no legal significance in the use of one term rather than another). All legislation hereafter referred to is Tasmanian, unless otherwise indicated. (a) Public Service Superannuation Fund Act 1905 ("the 1905 Act") This Act established a Superannuation Fund for benefits for each "Officer", which was defined (s 2) to mean a person employed in any branch of the Public Service (unless engaged under a special contract) - "... whose employment shall, in the opinion, expressed in the prescribed manner, of the Board and of the Minister controlling the Department in which such a person is employed, be of a permanent character." In the same year the Public Service Act 1905 came into force. By s 3, the Act applied to "all persons employed in any capacity in the Public Service". No distinction was drawn between permanent and temporary employees. (b) Public Servants Retiring and Death Allowances Act 1925 ("the 1925 Act") This Act provided for payment out of Consolidated Revenue of retirement and death allowances for public servants. In the case of retirement on account of sickness, compulsory retirement due to age, abolition of position or services becoming unnecessary, or voluntary retirement after age sixty, the allowance was to be an amount equalling one month's salary for the first four years of service and one week's salary for every full year of such further period: s 3. Payments were also to be made to the personal representative of a public servant in the case of death: s 4. "Public servant" was defined to mean a person employed "in any position or capacity in the Public Service" other than a judge of the Supreme Court, a person remunerated by fees, allowance or commission, or a person not exclusively employed in the Public Service. "Public Service" was defined to mean "the Public Service of the State" and to include "any industry or undertaking carried on by or on behalf of the State". Hydro-electric operations at this stage were conducted by a Government department. The Hydro did not become a statutory corporation until 1929 with the passing of the Hydro-Electric Commission Act 1929. By s 2A, inserted by Act No 105 of 1977, a contributor under the 1938 Act or the 1970 Act (as to which Acts see (c) and (d) below) could, by notice given at least three months before retirement, elect to receive benefits under the 1925 Act in lieu of benefits or refund of contributions under the 1938 or 1970 Acts. Features of the 1925 Act which are important for the present case are: · it extended to temporary employees; · no contribution by the employee was required; and · the Act and the RBF Scheme were mutually exclusive in the sense that a person could not receive benefits under both. (c) Superannuation Act 1938 ("the 1938 Act") This Act created a superannuation fund for State employees. By s 3, "employee" was defined to mean any person of or over the age of fifteen years "... employed in a permanent capacity by or on behalf of the State in any department or branch of any of the services of the State or any undertaking carried on by or on behalf of the State, and includes any officer, the term of whose appointment is fixed by law, but excepting any person - i Whose employment is of a casual or temporary nature: ii Who is not required by the terms of his employment to give his full time to his duties: iii Who is employed as an agent only: iv Who is remunerated by fees, allowances, or commission only: v Who is a contributor to the Superannuation Fund established under the laws of the Commonwealth for the Commonwealth Public Service or who, having been such a contributor, has ceased to be so by reason of age or: vi Whose appointment is honorary - and excepting also the judges of the Supreme Court and the members of the Police Force for whose benefit the Police Provident Fund is applicable". By s 4 a Fund was established, into which were to be paid all contributions of employees, all payments by the Treasurer as provided by the Act, and all income from investment. Contributions were mandatory for employees (as defined); by s 18(1) it was provided: "Except as otherwise in this Act provided, every employee under the age for retirement shall contribute to the Fund as hereinafter provided." The contributions of employees were to commence, in the case of existing employees, on a day to be appointed by the Governor and in any other case "from the time of his [the employee's] appointment": s 18(3). Contributions were to be made by deductions from salary: s 19(1). The contributions were to be for units determined according to salary: s 20. Part V provided for Pensions and Benefits. Pensions were payable either on the employee reaching the age for retirement or on the employee's early retirement on the grounds of "invalidity not due to his own fault": s 28. Under s 29 a qualified pension was payable upon compulsory retirement due to the employee's position becoming unnecessary, or due to shortage of work, or upon voluntary retirement on reaching age 60 (male) or 55 (female). Contributions were repayable, but without interest, upon either termination of employment for any cause other than death, or termination under ss 28, 29 and 30. In the case of death, pensions were payable to widows (Pt V Div II) and children (Pt V Div III), but otherwise death before retirement resulted in contributions being paid to the employee's personal representative or to such person as the Board might determine, again without interest: s 31. Part VI of the 1938 Act dealt with the 1925 Act. By s 43(1) of the former, no right or benefit under the 1925 Act was to accrue to any employee (i.e. permanent employee - see above) in respect of any period of service after the commencement of the 1938 Act and the provisions of the 1925 Act were not to apply to any employee appointed after the commencement of the 1938 Act. By s 48(1) an exception was made in the case of an employee who at the commencement of the 1938 Act had completed thirty years' service and had attained the age of sixty years. Such a person was given a right to elect to retain the gratuity provided by the 1925 Act but could thereafter take no benefit under the 1938 Act and could not be "compelled or permitted" to contribute under the latter Act. Since no permanent employee could obtain a benefit under the 1925 Act there might be hardship in relation to such employees who were rejected as contributors under the 1938 Act on medical grounds. Section 43 of the 1938 Act was amended in 1943 to enable such persons to continue to be eligible for a benefit under the 1925 Act. The dichotomy between, on the one hand, superannuation or retirement benefits legislation and, on the other hand, the 1925 Act, was retained throughout the time with which this case is concerned, although, as will be seen, subject to some further qualifications. The observation can be made that although the 1925 Act was, from 1938 onwards, primarily for temporary, as opposed to permanent employees, the temporary employment contemplated was by no means transitory or short term. Such employment had many of the characteristics of permanency, and certainly was employment for a long time. Leaving aside sickness, death, redundancy and the like, the primary benefit required not only service for at least four years, but reaching the age of sixty. Thus Parliament recognized that "temporary" employment in the public sector could last for a full working life. Although the 1938 Act extended to State undertakings such as the Hydro, it was at heart a superannuation scheme for public servants. In the case of public servants the criteria of permanency presented no difficulty because it was simply a question of whether the particular person had been gazetted: see Public Service Acts 1905, s 67; 1918, s 95; 1923, s 51. The distinction between temporary and permanent employees under a Public Service Act was important for the purposes of security of tenure. Temporary employees could be dismissed at any time; dismissal as a permanent employee was hedged with substantial restrictions: see 1918 Act ss 51 and 70; 1923 Act ss 31(11) and 26. (d) Retirement Benefits Act 1970 ("the 1970 Act") This Act introduced a new scheme to be administered by a Board called the Retirement Benefits Fund Board ("the Board"). The definition of "employee" in s 2(1) was for present purposes in substance the same as that in the 1938 Act. A person had to be employed "in a permanent capacity" and the definition excluded any person "whose employment is of a casual or temporary nature". Contribution by an employee was mandatory: s 21. Contributions were payable by deduction from salary: s 24. Contributions for new employees were to commence from the day on which he was appointed "to the position by virtue of which he is an employee": s 23(1)(b). Contributions were to be 5.5 per cent of salary or, at the election of the employee, 2.75 per cent: s 25(4). A pension was payable where a contributor retired on obtaining retirement age, or elected to retire within five years of attaining that age, or retired on the ground of invalidity not due to his own fault: s 26. The annual pension on retirement was to be one sixtieth of the employee's average salary in the three years preceding retirement multiplied by the years of service: s 26. "Service" was defined to mean the period during which the person contributed to the Fund: s 2(1). On resignation before retiring age, contributions were refundable, but without interest: s 29. Rights and benefits for contributors ceased to accrue under the 1925 Act after the appointed day (1 July 1971) and the 1925 Act did not apply to a person who became an employee on or after the appointed day, save for those unable to satisfy medical examination: s 62. (e) 1974 Amendments: RBF election for temporary employees; buy back of contribution By the Retirement Benefits Act (No. 2) 1974, effective 19 December 1974, s 2AA was inserted in the 1970 Act. Sub-section (1) provided that a person who was not an employee but was employed in a temporary capacity could elect to become a contributor if during the past twelve months he had been continuously employed in a temporary capacity, and a certificate was issued by the appropriate authority stating that he was "likely to remain in employment for at least three years". Sub-section (4) provided: "On the making by a person of an election under this section he shall be deemed to become an employee within the meaning of this Act and to remain such an employee for so long as he is employed in a temporary capacity or as an employee." Sub-section (5) provided: "For the purposes of this section a person shall be deemed to be employed in a temporary capacity if he is employed in such circumstances that had he been so employed in a permanent capacity he would have been an employee within the meaning of this Act ... ". A contributor by virtue of s 2AA was not to be entitled to benefits on retirement unless he had completed three years' service: s 28A. The 1974 amendment also introduced a new s 25A which provided for what came to be referred to as "buy back" of contribution. The buy back scheme operated as follows. The contributor could give notice to the Board that his length of service be increased by the period specified in the notice: sub-s (1). That notice had to be given within three months of the commencement of s 25A or on the employee becoming a contributor for full benefits: sub-s (2). The contributor had to be at least age thirty: sub-s (3). The request was to be accompanied by a medical certificate to the effect that the person was not likely to be rendered incapable before retirement age of performing his duties: sub-s (5). The Board was to obtain from an actuary an opinion as to the amount of the actuarial equivalent of the additional total pension benefit that would be derived under the Act for the period of service so increased: sub-s (6). The employee would then pay to the Board either in a lump sum or in such other manner as the Board might approve the amount stated in the actuarial opinion. The right to buy back did not apply to a contributor who was an employee by virtue only of s 2AA. However if he became an employee (i.e. permanent employee) otherwise than by the operation of that section he could make a request within three months of becoming such an employee: s 25A(4). (f) Retirement Benefits Act 1982 ("the 1982 Act") This Act replaced the 1970 Act. In relevant respects it was not substantially different from that Act. The definition of "employee" in the 1982 Act was more complex in that it referred specifically to a number of Government instrumentalities. Relevantly, "employee" was defined in s 3(1) as: "a person who has attained the age of 15 years and who is - ... (b) employed in a permanent capacity by the Hydro-Electric Commission". The exclusion of temporary employees is contained in s 4: "4 This Act does not apply to - (a) a judge; or (b) a person - (i) whose employment is of a casual or temporary nature (not being a person to whom paragraph (k) of the definition of 'employee' in section 3(1) relates [i.e. student nurses at certain specified hospitals])." Other sub-paragraphs under (b) cover much the same categories as those excluded in earlier Acts - agents, persons employed by fees and commissions, Commonwealth superannuation contributors etc. The right of election for contribution by temporary employees, introduced in 1974, was continued. The right could be exercised where there had been twelve months' continuous employment and the employee obtained a certificate of likely employment for a further three years: s 5. An additional right was given to those who completed four years' continuous employment but were unable to obtain such a certificate: s 6. The following provisions of the 1982 Act corresponded to those in the 1970 Act already mentioned. The Board constituted under the 1970 Act was to continue in existence: s 10, as was the Fund: s 20. Contributions for existing contributors or new employees remained mandatory: s 23(1). Contributions of an employee were to commence "on the day on which he is appointed to the office or position by virtue of which he is an employee or on the day on which he is accepted by the Board as a contributor for full benefits or limited benefits, whichever is the later day": s 25(1)(b). Other provisions refer to discretionary powers of the Board to in effect waive medical requirements: ss 23(5) and (6). Contributions were fixed by s 28 and schedule 3. Rates were set as a percentage of salary as follows: percentage 40 years' service higher rate 5.50 40 years' service lower rate 2.75 35 years' service 8.00 30 years' service 11.00 Section 29 continued the "buy back" provisions introduced by the 1974 amendments, although this right was still not available to temporary employees who became contributors as a result of election: s 29(5). Part V prescribed the pensions and other benefits payable. Basically the qualification was the same as under the 1970 Act, i.e. retiring, attaining retiring age or within five years thereof, or retiring at any time on the ground of invalidity not due to the employee's own fault: s 30. There was provision for pensions for employees retiring between age 55 and 60: s 32. The rate of pension was to be calculated in accordance with schedule 4. The formula therein worked by reference to average annual salary in the twelve months preceding retirement, the length of "service" (i.e. the period during which the employee contributed: s 3(1)) and a factor dependent on the rate of contribution (40 years' service higher rate or lower rate, 35 years' service scheme or 30 years service scheme). Section 35 governed refund of contributions where an employee resigned without becoming entitled to a pension. The "prescribed sum of money" was payable. By s 35(4), a contributor to the 40 years' service scheme only recovered contributions. A contributor to the 35 and 30 years' service schemes recovered: (i) that part of his total contribution which he would have paid if he had always been a contributor to the 40 years' service scheme; and (ii) the amount of the balance of his contributions (being the amount attributable to the 35 or 30 years' service scheme) together with interest at a rate to be determined by the Board from year to year, but not less than 3.5 per cent. (By Act No. 21 of 1987 a new s 90A was inserted which conferred a general right to interest where persons were entitled to refunds of contribution. Interest was to be at a rate determined by the Board on actuarial advice and was to accrue from 1 April 1987.) In relation to the 1925 Act, s 72 of the 1982 Act continued the effect of s 62 of the 1970 Act, i.e. no rights or benefits were to accrue to an employee under the 1925 Act after 1 July 1971 and the 1925 Act was not to apply to a person who became an employee from 1 July 1971 onwards. However, ss 72(3) and 73 preserved rights under the 1925 Act for employees who could not obtain the necessary medical certification and also persons who made an election under s 2A of the 1925 Act. Sections 87 and 88 conferred certain powers on the Board. Those sections relevantly provided: "87(1) Where the Board is satisfied, after such inquiry as it thinks necessary, that a person has, otherwise than through his own fault, lost or ceased to be entitled to a right, privilege, or benefit under this Act to which he was otherwise entitled or might have obtained, and that it is equitable that he should be allowed to have the enjoyment of the right, privilege, or benefit, the Board may, with the approval of the Minister, permit the person to exercise the right or grant to him the privilege or benefit, notwithstanding that the time prescribed for doing any act in relation to the entitlement may have expired. (2) The Board may, in the exercise of its powers under sub-section (1), impose such conditions and requirements as it may think just and as the Minister may approve. ... 88(1) Where, by reason of a mistake or an omission of an officer of a department or an authority of the State or by reason of an accident, the name of an employee has not been communicated to the Board and the employee has reached the age for retirement, or has died while still an employee without having contributed to the Fund, a pension is payable to or in respect of that employee in accordance with this section. ... (6) Where, as the result of any mistake, omission, or accident, a person who is an employee within the meaning of the Act of 1970 immediately before the first commencement day [1 July 1982] had made no contributions under that Act or the Superannuation Act 1938, that person shall be deemed to have become an employee within the meaning of this Act on such date, not being a date before the first commencement day, as the Board may determine." These provisions substantially reproduced earlier provisions as follows: 1982 Act 1970 Act 1938 Act (amended 1944) s 87 s 77 s 70 s 88 s 78 s 71 (g) Election under the 1925 Act Acts No. 50 of 1983 and 49 of 1984 provided that existing and new employees could elect whether they wanted to be eligible under the 1925 Act. Failure to elect was deemed to be an election not to be included. The reason for this was that under s 82AAT of the Income Tax Assessment Act 1936 (Cth) taxation deductions could only be obtained for premiums for private superannuation schemes if a taxpayer was not a beneficiary of an employer scheme. The 1925 Act was considered to be such a scheme. (h) Notification obligations of "responsible officers" For many years regulations (and later statute) imposed an obligation on "responsible officers" to notify the entity administering retirement benefits legislation and employees of rights and obligations in relation to contribution. By reg 31 of the Superannuation Regulations 1945 the "responsible officer" of each department or instrumentality was to notify the then Board upon the appointment of an employee and to forward the necessary forms for medical examination. "Responsible officer" was defined to mean "the officer to whom is assigned the duty of conducting the superannuation business of the department, branch, or instrumentality". Similar obligations were imposed by reg 22 of the Retirement Benefits Regulations 1971 and reg 24 of the Retirement Benefits Regulations 1982 ("the 1982 Regulations"). The Retirement Benefits Amendment Regulations 1985 inserted new regs 24(1)(ab) and (ac) in the 1982 Regulations to require notification in respect of temporary employees who had rights to elect under ss 5 or 6 of the 1982 Act. The regulations as amended provided that the responsible officer of a department, branch or authority - "(ab) shall, as soon as a person employed in that Agency, State authority, or branch is entitled to elect under section 5 (1) or 6 (1) (a) of the Act to become a contributor or as soon as a person becomes employed in that Agency, State authority, or branch as provided in section 6 (1) (b) or (c) of the Act - (i) notify that person, in writing, of his eligibility to elect to contribute to the Fund; and (ii) deliver or forward to that person an election in accordance with Form 11; (ac) shall, if a person to whom paragraph (ab) applies makes an election in accordance with Form 11, immediately - (i) deliver or forward that election to the Board; (ii) notify the Board, in writing, of the date of his birth, the date of his appointment, and the salary assigned to the office or position held by him; and (iii) deliver or forward to that person the forms furnished by the Board in respect of the certificate of medical examination and particulars of birth respectively to be supplied to the Board by that person." Form 11 was in these terms: "FORM 11 Regulation 24 (1) (ab) Tasmania Retirement Benefits Act 1982 ELECTION UNDER SECTION 5 (1) OR 6 (1) OF ACT To the Retirement Benefits Fund Board, Hobart. I understand that I am a person eligible to become a contributor to the Retirement Benefits Fund pursuant to *section 5 (1)/ * section 6 (1) of the Retirement Benefits Act 1982. I am employed -- *(a) in the ..................................................................................; (Name of Agency) *(b) in the ..................................................................................; (Name of State authority, not being an Agency) *(c) in the ................................................................... Branch of ...................................................................................... (Name of Agency) *(d) in the ....................................................................Branch of ....................................................................................... (Name of State authority, not being an Agency) The rights available to me under the provisions of *section 5/*section 6 of the Retirement Benefits Act 1982 have been explained to me by the responsible officer of the above *Agency/*State authority/*branch and I hereby elect to become a contributor to the Retirement Benefits Fund subject to my undergoing a satisfactory medical examination. Dated this day of 19 . ................................................. Signature. Witness to signature .................................... Address of witness ..................................... *Strike out if inapplicable." In the 1982 Regulations "responsible officer" was defined to mean (reg 3(1): "... the officer of a department, branch, or authority to whom is assigned the duty of conducting the business in connection with retirement benefits of the department, branch or authority". By Act No. 56 of 1989 these obligations were inserted into the 1982 Act itself. "Responsible officer" was defined as follows (s 3(1)): "'responsible officer', in relation to an Agency or branch, means - (a) the person employed in that Agency or branch to whom is assigned the duty of conducting the business of the Agency or branch in relation to the Fund; or (b) where that duty is not so assigned, the head, or person in charge, of the Agency or branch". A new s 82A(1)(a) required the responsible officer to notify the Board "upon the appointment of a person as an employee" (i.e. a permanent employee: s 3(1)). By s 82A(1)(b) and (c) obligations to notify the Board and the relevant person were imposed in respect of persons entitled to elect under ss 5 or 6. In substance the terms were the same as reg 24(1)(ab) and (ac) of the 1982 Regulations. (i) 1989 Amendments; further buy back provisions By Act No. 56 of 1989 a new s 3(4) was inserted into the 1982 Act: "(4) Where- (a) throughout a period that ended before the first commencement day [1 July 1982] a contributor was - (i) an employee within the meaning of the Act of 1938 or the Act of 1970; or (ii) a person who was not such an employee by reason only that the employment of that person was not employment in a permanent capacity; or (iii) a person of a kind referred to in section 27(1)(a) [student teacher, cadet or other trainee]; and (b) the contributor did not, in respect of that period - (i) make contributions under the Act of 1938 to the Superannuation Fund; or (ii) make contributions under the Act of 1970 to the Fund; and (c) the contributor, by notice in writing given to the Board, elects that that period, or a specified part of that period, be regarded, for the purposes of this Act, as service - the Board may, subject to subsection (4A), declare that period, or part period, to be a period that shall be regarded as service for the purposes of this Act." Sub-section (4A) provided that a declaration by the Board was to be subject to the contributor paying a "special contribution" which was to be calculated in accordance with sub-s (4B). The latter provided a complex formula based on the contributions which would have been paid under the 1938 and/or 1970 Acts. (j) Retirement Benefits Amendment Act 1993 ("the 1993 Act") This Act made amendments to the 1982 Act which are important for the present case. Provisions were inserted in s 82A dealing with liability in respect of failure of a responsible officer to notify a person of a right to elect to become a contributor. The new sub-ss (6), (7) and (8) were as follows: "(6) No action lies in respect of the failure by a responsible officer of an Agency or branch - (a) to notify a person that the person is entitled to elect to become a contributor; or (b) provide the person with a form of election - as required under this section or a corresponding previous enactment. (7) Subsection (6) applies in respect of a failure referred to in that subsection that occurred before, on or after the day on which that subsection commenced notwithstanding that proceedings have been instituted and are pending on that day. (8) The enactment of subsection (6) does not affect any judgment of a court made before the day on which a Bill for the Retirement Benefits Amendment Act 1993 was presented to the Parliament." Section 87 was amended to exclude an exercise of discretion in favour of persons who had ceased to be employees. A new sub-s (1A) provided: "(1A) The Board must not exercise its powers under subsection (1) - (a) so as to allow a person who, at the time the Board makes a determination under that subsection, is not an employee or is not a person referred to in section 5 (1) or 6 (1) to become a contributor; or (b) so as to allow the date on which a person referred to in paragraph (a) became a contributor to be varied."
3. The "jackpot" It will be convenient at this stage to refer to a complex interaction of legislation, administrative decisions and general perceptions which resulted in what counsel for the Hydro referred to as a "jackpot". By 1992 a means had become available for Hydro employees (whether temporary or not) who were facing retrenchment to buy back extensive years of service and receive large payouts on retirement, typically of the order of $60,000 or more. All of the applicants in the present case (not only the six selected applicants) are Hydro employees whose employment terminated before the availability of the "jackpot" became widely known and who therefore missed out on those benefits. Counsel for the Hydro contends that the awareness of losing a large benefit has fundamentally flawed and coloured the applicants' evidence. The validity of this contention needs to be considered later in relation to the individual applicants' evidence. But for the moment I shall do no more than outline the circumstances which gave rise to the "jackpot". As already noted, the legislation had since 1944 contained provisions conferring a discretionary power on the Board to allow an "employee" to become a contributor retrospectively where his or her name had not been communicated to the Board by reason of mistake or omission of an officer of a department or an authority, or by reason of an accident; s 88 is the relevant provision in the 1982 Act. However these sections only allowed employees to become retrospective contributors back to the date of commencement of the applicable Act. Thus s 88(6) of the 1982 Act prohibited the Board from deeming a person to have been an employee from a date prior to 1 July 1982; s 3A(2) of the 1970 Act (inserted by Act No. 113 of 1974) made a like provision in relation to that Act. Section 87 of the 1982 Act and earlier equivalents gave to the Board a general discretionary power in relation to a "person" who had lost a right, privilege or benefit otherwise than through his own fault. This clearly extended to persons employed in a temporary capacity who, as has been seen, were excluded from the definition of "employee". However in administering the Act the Board took the view that if permanent employees could not get retrospectivity back to a period beyond commencement of the applicable Act (1 July 1982 in the case of the 1982 Act), the same limitation should apply to temporary employees. On 12 February 1986 Cosgrove J handed down his decision in Re Goodwin [1986]Tas R 6. Mr Goodwin had commenced service with the Hydro as a cadet engineer in 1943 and began superannuation contributions in 1949. Cosgrove J held that the commencement date of his service for the purpose of calculating his entitlement under the 1982 Act was 1943. This meant that Mr Goodwin received benefits for which he had not contributed. As a result, the 1982 Act was amended by Act No. 56 of 1989 which came into operation on 21 December 1989 (see Part I Section 2(i) above). The Secretary of the Board, Mr Garry Fletcher, deposed in this proceeding (CB21/18) that the Bill for the 1989 amendment was amended in the course of its passage through Parliament without the Board being consulted. It may be that the amendment produced unintended consequences. In any event, about a year after the amendment, an employee of the Department of Construction relied on it to buy back service shortly prior to taking redundancy. This opportunity gradually became known during the latter part of 1992 and, in the words of Mr Fletcher (CB21/19): "the RBF Board received many applications from temporary employees to elect to contribute pursuant to Section 5, 6 and 87 of the 1982 Act. Having been accepted as contributors, the new contributors exercised the rights granted under Section 4 of Act No. 56 of 1989 to purchase periods of non contributory service." (See also CB2/55, 3/249, T948). There were some 600 applications. The power given by the 1989 amendment only applied to a "contributor". If a person had not been a contributor at all, he or she had to obtain an exercise of the Board's discretion under s 87 which, in the practice the Board adopted, required the person to assert that he or she had no knowledge of his or her entitlement to elect to become a contributor. Once a temporary employee had obtained the Board's exercise of discretion to be treated as a contributor back to 1 July 1982 he or she could then, as of right pursuant to s 3(4), buy back service to the commencement of his or her temporary employment. Of course contributions had to be paid for (s 3(4A)), but the Board allowed that payment be paid by way of set-off at the time the redundancy payment was taken. No cash outlay was required. In 1992 the Board also received a number of applications from persons no longer employed. Mr Fletcher deposed (CB21/19): "In considering these applications the Board expressed the view that it was doubtful that these persons were covered by Section 87 as they were no longer eligible to contribute. The persons were advised of the Board's reservations and invited to submit evidence supporting the view that the Board could consider their applications under Section 87. No evidence was ever received by the RBF Board." Such persons, including the applicants in the present case, missed out on the "jackpot".
4. The Hydro's operations (a) Construction activity The legal history of Hydro-Electric operations in Tasmania commences with the Complex Ores Act 1909 which authorised a Victorian company called The Complex Ores Ltd to take water from the Rivers Shannon and Ouse for generating electricity. Details of subsequent events are set out in the judgment of Crisp J in Rollins v The Hydro-Electric Commission [1953] Tas SR 42 at 45 et seq. By the Hydro-Electric Purchase Act 1914 the Tasmanian Government acquired the undertaking of an assignee of The Complex Ores Ltd and, in the words of the High Court in Launceston Corporation v The Hydro-Electric Commission (1959) 100 CLR 654 at 660, "... the development, management and control of an undertaking of great importance to the State ... before 1929 was the responsibility of a department of State, viz. the Hydro-Electric Department." In 1929 the Hydro was established as a body corporate by the Hydro-Electric Commission Act 1929. The long title described that Act as: "AN ACT to provide for the Establishment of a Commission to manage and control the State Hydro-Electric Works; and to provide for State Control of all Waters in Lakes, Falls, Rivers, and Streams, and to vest such control in the said Commission; to empower the said Commission to regulate the use of such Waters in certain cases." By s 21 the State hydro-electric works were vested in the Hydro. By s 26 the Hydro was to have the management and control of the State hydro-electric works and of the existing Hydro-Electric Department. By s 27 certain powers were conferred on the Hydro. Section 27 provided: "It shall be lawful for the Commission for and on behalf of the State to - I. Construct, operate, manage, control and generally carry on the State hydro-electric works, and carry on and conduct any business whatsoever relating to the generation, transmission, distribution, and sale of electrical energy, and carry out any purpose in relation thereto which the Commission may deem desirable in the interests of the State: ... V. Appoint, discharge, and determine the salaries, remuneration, and allowances of all officers, clerks, workmen, and servants whom the Commission may deem necessary to carry on the State hydro-electric works or otherwise for carrying out the purposes of this Act; ...". Section 28 provided that no new hydro-electric works should be constructed by the Hydro unless and until the monies therefore had been voted by Parliament. Section 29 provided that before any vote was submitted to Parliament for new hydro-electric works a report was to be furnished by the Commission to the Minister setting out a number of matters including the nature of the works, estimated costs, annual revenue etc and "the opinion of the Commission as to the necessity or desirability of the works, together with recommendations and a resumé of the reasons on which such recommendations are founded." By the Hydro-Electric Commission Act 1944 the Hydro as constituted under the 1929 Act was to continue. Provisions substantially identical to ss 27, 28 and 29 of the 1929 Act were contained in ss 15(2) and 16(1) and (2). The Hydro and its predecessor Department constructed some 30 Hydro-Electric dams and power stations over a period of 80 years from 1914. The construction of dams generally involved the following steps: construction of a tunnel, the building of a small dam upstream of the proposed construction area, diversion of the river from the small dam through the tunnel, the building of another dam downstream of the construction area to prevent water from flowing back into the construction area, the removal of loose rock and rubble from the valley walls and river bed, construction of a footing to connect the dam and the valley walls and floor, and finally the closure of the diversion tunnel so that the lake fills. Construction of the power station usually took place while the dam was being built. This involved the construction of tunnels and/or channels through which the water flowed, and the installation of turbines and generators. The movement of labour from one project to the next was described by Mr Brian Hoyle, an engineer with substantial experience in the Hydro Construction Division, in the following terms (CB2/97-98): "There were [sic] a core of construction employees whom [sic] went from scheme to scheme especially at staff levels. Within the engineering field we would try and transfer the skills from one site to allow for the most efficient building of a new dam site. As one scheme was finishing another scheme was commencing so there was a balancing of skills required at different schemes. Different stages of schemes required different skills. Road Makers would first commence building roads to the dam sites. Road Makers would be progressively followed by Tunnellers, Concreters and other Tradesmen and award workers to build the dams. Work would then commence on building the Power Stations and finally Electrical Tradesmen would move in and install the electrical machinery. By the stage the Electrical Tradesman [sic] had moved in the Earth Movers and road workers were generally commencing on the next Hydro Scheme. It would take approximately 10 years to complete a Hydro Scheme. This procedure had occurred throughout my time at the Hydro. During my service at the Hydro the Mersey Forth and Lower Derwent Power Scheme commenced in the 1960's followed by Strathgordon in the 1960's, and early 1970's followed by the Pieman Scheme in the mid 1970's. In the early 1980's the Gordon below Franklin Scheme commenced and was replaced by the King and Anthony Scheme which continued until the early 1990's." In terms of the engagement of a construction workforce in the years with which this case is concerned, the following developments took place in the following years: Middle Gordon 1968 to 1980 King River Stage 2 1983 to 1992 Gordon Machine No. 3 1986 to 1990 Pieman 1974 to 1992 Mersey Forth 1964 to 1975 Wayatinah 1963 to 1969 Meadowbank 1963 to 1966 Poatina 1963 to 1966

The figures for the total construction workforce in the years 1963 to 1992 were as follows (CB16/5): 1963 1720 1964 1840 1965 1965 1966 2087 1967 2262 1968 2434 1969 2423 1970 2338 1971 1943 1972 1966 1973 1647 1974 1421 1975 1145 1976 1121 1977 1144 1978 1315 1979 1385 1980 1397 1981 1530 1982 1532 1983 1639 1984 1669 1985 1828 1986 1998 1987 1688 1988 1315 1989 1052 1990 1024 1991 958 1992 767 Although the applicants themselves had long periods of service, there was a substantial turnover among wages employees as a whole. From 1961 to 1992 the average figure was 39 per cent per year (CB16/2) and probably higher in the construction workforce (T1211). The broader social, economic and political setting in which Hydro construction took place over these years is described by Kerry Pink in his monograph "Through Hell's Gates: A History of Strahan and Macquarie Harbour" (3rd ed, 1997, at 65): "By the early 1980s Tasmania had 23 hydro-electric power stations with an annual generating capacity of about 1,000 megawatts - the biggest hydro-electric system in Australia. In a little over 50 years virtually all the State's major lake and river catchments had been harnessed by the HEC - Great Lake, the Derwent, South Esk, Mersey-Forth, Middle Gordon and Pieman rivers - and Tasmania with a population of 450,000 was producing about 10 times more power per capita than any other State. The HEC and its continuous programme of hydro-industrialisation, seen as vital to Tasmania's industrial development and economic stability, had traditionally enjoyed the unqualified support of successive Tasmanian Governments. With a staff of 2,000 and some 4,500 wage employees the HEC maintained an on-going programme with one major scheme nearing completion, one in the early stages of construction and one on the drawing boards. Yet in the 1980s, despite its huge power output, Tasmania had the highest rate of unemployment in the country. A number of economists and academics who were not necessarily conservationists began to question the validity of the assumption that the availability of more cheap bulk power would assure Tasmania of more industries, more jobs and a stronger economy." The end of the Hydro as a constructor of major hydro-electric works began in the mid to late 1980s. In 1983 Federal legislation, upheld by the High Court in the Tasmanian Dam Case (1983) 158 CLR 1, stopped the Gordon below Franklin scheme. Two smaller schemes, the King and Anthony, were later completed but by 1986 it was realized that there would be no work on future dams. There was no further potential for hydro-electric schemes which were viable in terms of the quantity of electricity produced as against the cost of construction. At the same time there was a questioning of the actual potential for electricity consumption. By the late 1980s and early 1990s redundancies on a large scale were occurring, giving rise to the claims with which this case is concerned. (b) Administrative structures The Commission itself consisted of the Commissioner and four part-time Associate Commissioners. Apart from the Commissioner's Private Secretary, the Director and Staff of the Planning and Public Affairs Group, the organisation was divided into five branches: Secretarial, Civil Engineering, Electrical Engineering (also known as Design), Power (also known as Operations) and Distribution (also known as Retail Supply). The Civil Engineering Branch was responsible for the investigation, design and construction of all civil works involved in power developments and allied projects. It was divided into four divisions: Construction, Design, Architectural and Investigation. Construction personnel were also called field personnel. The Personnel Department was part of the Secretarial Branch. It was headed by a person in a position variously entitled from time to time Personnel Superintendent, Personnel Manager and Manager - Human Resources. Responsible to the Personnel Superintendent was a Senior Industrial Officer and Assistant Industrial Officer. All the foregoing were stationed at the Head Office of the Hydro in Hobart. Further down in the hierarchy were Works Industrial Officers who were stationed in towns near Hydro construction sites, and in particular at Tullah on the West Coast. From the mid-1980s onwards the Hydro engaged in considerable restructuring, which is not relevant for present purposes. (c) Employment categories Relevantly Hydro personnel were categorised as: (a) (i) Staff or (ii) Wages (or "Award") and (b) (i) Permanent or (ii) Temporary. Staff personnel could be either Permanent or Temporary. A person could only be appointed as Staff with the Commissioner's approval and upon signing a Head Office engagement form. Persons appointed as Permanent Staff received a letter notifying them that the appointment was probationary and terminable on one month's notice. Permanent Staff were required to contribute to superannuation. Their appointment also had to be confirmed by the Commissioner, and they received a letter to that effect. Temporary Staff received a letter notifying them that the appointment was probationary and terminable on two weeks' notice. By contrast, a person engaged as a Wages employee did not need either approval or confirmation by the Commissioner, did not sign a Head Office engagement form and did not receive any standard form letter as to engagement. Staff employees generally enjoyed more privileges than the Wages employees, such as more sick leave and annual leave. The Staff and Wages employees were housed separately and had separate messes. The organisational structure had a vaguely military appearance, with Staff corresponding to Officers and NCOs and Wages or Award employees to Other Ranks. Within the Construction Division, professional staff such as engineers, geologists or surveyors were generally classified as Permanent Staff. The Temporary Staff generally consisted of supervisors, foremen and tradesmen. In terms of security of tenure, appointment to Permanent Staff was not all that permanent. Permanent Staff could be terminated on one month's notice: Hydro-Electric Commission Rules 1939, r 30A(1). The 1952 and 1978 Rules contained like provisions: rr 41(1) and 40(1) respectively. Temporary Staff could be terminated on two weeks' notice: 1939 Rules, r 30A(2), or on such notice as the instrument of appointment specified: r 41(2) of the 1952 Rules and r 40(2) of the 1978 Rules. In fact letters of appointment always specified two weeks. Wages employees were terminable on one week's notice: r 30A(3) of the 1939 Rules. The 1952 Rules and 1978 Rules probably did not apply to Wages employees as they are not officers within the meaning of these Rules. However Labour Engagement Forms specified that the engagement was weekly. Pay for Staff, both Permanent and Temporary, was by annual salary reviewed annually. Wages employees were paid at an hourly rate each fortnight. Hence there were Timekeepers at each workplace. Categorisation as permanent or temporary appears to have had no real significance other than in relation to superannuation or retirement benefits. There was a degree of circularity. Sometimes a permanent employee was described as one who was entitled to superannuation. 5. The pleadings (a) Statement of claim In its final form the applicants' statement of claim alleges that each of the applicants was employed in a permanent capacity by the Hydro, and therefore that each of the applicants was an employee as defined in the 1982 Act, that each of the applicants Cooper, Duggan, Johnstone, Mulcahy and Williams was an employee as defined in the 1970 Act and that each of the applicants Duggan, Mulcahy and Williams was an employee as defined in the 1938 Act. Alternatively, each of the applicants is said to have been employed in a temporary capacity. By par 9 it is alleged that the Hydro was under duties (referred to as "the specific statutory duties") under the successive Superannuation or Retirement Benefits Regulations and the 1982 Act to advise the relevant Board that the particular applicant was a permanent employee, or alternatively to advise the Board and each of the applicants that he was a temporary employer entitled to elect to become a contributor. A duty to provide each of the applicants with any necessary forms is also alleged. By par 10 it is alleged that the Hydro breached the specific statutory duties by failing to advise the relevant Board or the applicants of their right to elect or provide them with the necessary forms. By par 11 it is alleged that pursuant to reg 19 of the Hydro-Electric Commission Rules 1978 "... any officer of the respondent was under a duty ... to comply with, and give effect to all Acts, regulations, rules and instructions made or issued for his guidance which included the 1982 Act and Regulations and the 1970 Act and Regulations and the 1938 Act and Regulations". This duty is referred to in the pleading as the "general statutory duty". By par 12 it is alleged that in breach of the general statutory duty the Hydro failed to comply with such Acts and regulations. The breaches relied on are the same as those pleaded in par 10 in respect of the specific statutory duties. Paragraphs 13 and 14 plead causes of action in contract. By par 13 it is alleged that there were implied terms in each of the contracts of employment in substance that the Hydro would disclose to each applicant his obligation to become a contributor, provide necessary forms, inform the trustee that each applicant was a permanent employee and ensure the provisions of the relevant statute and regulations were complied with. Alternatively it is pleaded that there were implied terms that the Hydro would advise each applicant of his right to elect to become a contributor, provide him with the necessary forms, inform the trustee that the applicant was a temporary employee and ensure that provisions of the relevant statute and regulations were complied with. (The terms "trustee" and "Board" are used interchangeably. Nothing turns on this.) Paragraph 14 alleges that in breach of the implied terms the Hydro failed to make the disclosures and give the information etc referred to. Paragraphs 15 to 18 plead causes of action in negligence. By par 15 it is alleged that the applicants relied upon the Hydro, as it knew or ought to have known, to disclose, inform and advise them of the full range of benefits available to them as employees of the Hydro in respect of their employment. In particular to inform them that as permanent employees they were obliged to contribute to the RBF Scheme, or alternatively, as temporary employees, they were entitled to elect to participate in and contribute to the RBF Scheme. Paragraph 16 alleges that the Hydro assumed responsibility as regards each and every applicant to inform him of these matters. Paragraph 17 alleges that by reason of the matters pleaded in pars 15 and 16 the Hydro was under a duty to each applicant to exercise reasonable care to advise him of the benefits available, not to represent to any applicant that he was not obliged to contribute, not to create a belief in any applicant that he was not obliged to contribute, and to disabuse any incorrect belief that he was not obliged to contribute. Alternatively, the Hydro is said to have been under a duty to exercise reasonable care to inform the applicants of the benefits available to them as temporary employees, not to represent to them that they were not entitled to contribute, not to create a belief that they were not entitled to contribute and to disabuse any incorrect belief in the applicants that they were not entitled to contribute. All those duties are collectively referred to as "the common law duties". Paragraph 18 alleges breach of the common law duties by (a) failing to inform the applicants of the full range of benefits available to them as employees of the Hydro and in particular that as permanent employees they were obliged to contribute to the RBF Scheme, (b) representing by conduct and by silence that they were not obliged to contribute (referred to as "the first representation"), (c) creating a belief that they were not obliged to contribute and (d) failing to disabuse an incorrect belief that they were not obliged to contribute. Particulars are given, including in relation to some of the applicants' specific allegations of their being informed that they were not eligible for superannuation. Under the heading "Particulars of Silence" it is alleged that the Hydro "had adopted a policy whereby it would not advise employees which it classified as temporary of their entitlement to contribute to the RBF Scheme". Alternatively, it is alleged that the Hydro failed to inform the applicants that as temporary employees they were entitled to elect to contribute and represented by conduct and silence that they were not entitled to contribute (referred to as "the second representation"). Under the heading "Particulars of Silence" in relation to the second representation it is alleged that the Hydro adopted a policy whereby it would not advise employees which it classified as temporary of their entitlement to contribute to the RBF Scheme. Paragraph 19 alleges that at the time of making the first representation the Hydro intended and well knew, or ought to have known, that the applicants would rely on the first representation and be induced thereby to refrain from applying to contribute to the RBF Scheme. Paragraphs 20 and 21 plead a cause of action in misleading and deceptive conduct in trade or commerce constituted by the first representation. Paragraph 22 alleges that the Hydro intended that the applicants would rely on the second representation. Paragraphs 23 and 24 allege misleading and deceptive conduct in trade and commerce in respect of the second representation. Paragraph 25 alleges that the Hydro bore "continuing duties" after the discharge of the applicants' employment contract to inform them of their rights under the 1982 Act and not to represent to them that they had no rights under that Act. Paragraph 26 alleges breaches of the continuing duties, including a "continuing representation" which, by silence represented to the applicants that they held no rights or entitlements under the 1982 Act. Paragraphs 27 to 29 allege that the continuing representation in relation to former employees was misleading and deceptive conduct in trade and commerce and that each applicant relied on such representation and believed himself to have no rights or entitlements under the 1982 Act. Paragraphs 30 to 33 allege unconscionable conduct. By par 30 it is alleged that between 9 November 1992 and 13 August 1993 the applicants were under a special disadvantage in dealing with the Hydro. The applicants allege that the Hydro was aware that they potentially or actually had claims against it, that the Hydro was familiar with the way such claims were litigated whereas the applicants were not, that none of the applicants had obtained independent advice, that the Hydro "enjoyed a close and working relationship with the Government of Tasmania whereas the applicants did not", and that the Hydro shared a common financial interest with the Government of the State of Tasmania but the applicants did not. By par 31 it is alleged that in or about November 1992 the Hydro requested or reached an agreement with the Executive Government of the State of Tasmania that retrospective legislation to defeat any of the applicants' claims would be drafted and introduced into the Parliament of the State of Tasmania. Paragraph 32 alleges that in so doing the Hydro was engaged in trade and commerce. By par 33 it is alleged that the conduct of the Hydro was unconscionable both in equity and contrary to s 51AA of the Trade Practices Act 1974 (Cth) ("Trade Practices Act"). Paragraph 34 alleges a contravention of s 53B of the Trade Practices Act. This was not pressed at trial. Paragraph 35 alleges that in consequence of the various causes of action the applicants have lost the opportunity to receive the benefits upon termination of employment provided by the 1982 Act. They are also said to have lost the opportunity to make a decision to continue to accrue or maximize their superannuation entitlements by not terminating their employment. They have thereby suffered loss and damage. Paragraph 36 is a claim for interest. Paragraph 37 is a claim for exemplary damages which alleges that the policy of the Hydro to classify permanent employees as temporary was "deliberately designed to injure their economic interests" and that since at least 1975 the policy of the Hydro not to advise employees whom it regarded as temporary of their entitlement to elect to contribute to the RBF Scheme was deliberately undertaken so as to reduce operational costs of the Hydro notwithstanding that, to its knowledge, the policy directly injured the economic interests of the applicants. It is further said that since at least November 1992 the Hydro acted deliberately so as to deny the applicants their statutory entitlements by recourse to retrospective litigation. (b) Defence Subject to some minor qualifications as to dates, the Hydro admits that the applicants were employed by it. It denies that they were employed in a permanent capacity and says that each applicant "was engaged by the Respondent as a temporary employee and remained so engaged and classified throughout the periods of his employment". The Hydro admits that pursuant to the 1982 Act the applicants were entitled to elect to become contributors to the RBF Scheme upon satisfying the requirements of ss 5 or 6. Paragraphs 9 to 37 of the statement of claim are denied. The Hydro pleads that no action is maintainable against it by reason of s 82A(6) and (7) of the 1982 Act (i.e. the retrospective amendments introduced by the 1993 Act). It further pleads that any claims under the Trade Practices Act are statute barred under s 82(2) of that Act, not having been commenced within three years of the date when the causes of action accrued. As to the claims under the Fair Trading Act 1990, (this Act is not specifically mentioned in the statement of claim but is subsumed under the reference to misleading and deceptive conduct in trade and commerce) it is pleaded that they are based on events which occurred prior to the commencement of that Act on 19 December 1990. In any event, so far as the Fair Trading Act allows proceedings to be instituted over three years after causes of action have accrued, its provisions are said to be inconsistent with s 82(2) of the Trade Practices Act and therefore void pursuant to s 109 of The Constitution 1901 (Cth). In the alternative the Hydro relies on s 4(1)(a) of the Limitation Act 1974 and says that the claims founded in tort or contract or for breach of statutory duty were statute barred after the expiration of six years from the accrual of the causes of action. The Hydro also relies on terms imposed by the Court when leave was granted on 27 June 1997 to file and serve the statement of claim in its final form (that earlier pleading being dated 4 April 1997). By those terms it was directed that in respect of any claims which do not arise out of the same facts or substantially the same facts as those pleaded in the statement of claim dated 4 April 1997 to which the Hydro pleads a statutory limitation defence, the date of commencement of the proceedings shall be 4 June 1997. Paragraph 44 alleges contributory negligence by reason of the applicants failing to enquire as to, obtain and read a Hydro employees' handbook, failing to make an election to become a contributor, failing to approach the Hydro for engagement as a permanent employee, and failing to make enquiries to the Senior Wages Clerk at the Hydro Head Office and electing to be eligible for benefits under the 1925 Act, which benefits were only available to non-superannuation contributors. (c) Reply By their reply the applicants allege in relation to the Limitation Act defence that each cause of action was concealed by the fraud of Hydro and/or that the action is for relief from the consequences of a mistake caused by the Hydro. It is asserted that any cause of action did not accrue until the Hydro's acts or omissions became known to the applicants. Paragraph 4 alleges that the Hydro expressly or impliedly represented to the applicants that they were not entitled to become members of the RBF Scheme, abstained from advising them that they were entitled to join and provided no assistance to the applicants as to whether they were entitled to join. It is alleged that as a consequence it would be unconscionable and against good conscience for the Hydro to rely upon any limitation provision and that it is estopped and precluded from so doing. II PERMANENCY

1. "Employed in a permanent capacity" The expression "a person ... employed in a permanent capacity" is not a legal term of art, like "lease" or "partnership". The words are ordinary English words which have to be construed and given effect to in the context of this particular legislation. I do not see any significance for present purposes in the drafting differences in the definitions in the 1938, 1970 and 1982 Acts. All have the characteristic that "permanent" and "temporary" are treated as mutually exclusive. This accords with dictionary definitions which, amongst other things, define "permanent" as "not temporary" and "temporary" as "not permanent": see Macquarie Dictionary, Shorter Oxford Dictionary and Oxford English Dictionary. Counsel for the applicants placed particular reliance on the decision of Street J in Haines v Woy Woy Shire Council (1933) 11 LGR (NSW) 99. The case involved a prosecution of the Council for breach of a local government ordinance which required prior advertisement in the case of "an appointment ... to any permanent position in the service of a Council". The position was that of an "A" grade Clerk. The evidence was that since its inception the Council had always employed four staff: a Shire Clerk, a Deputy Clerk who was also required to be an "A" grade Clerk, a "B" grade Clerk and a junior. Street J said of the appointment in question (at 101): "The new appointment was not due to any re-organization of the staff, which has always consisted of four members, the "A" grade Clerk being second in command, and taking charge in the absence of the Shire Clerk." His Honour went on to say (ibid): "There is nowhere in the Local Government Act itself any statutory provision drawing a distinction between permanent and temporary appointments, or directing whether any particular appointment is or is not regarded as a permanent one. The ordinance itself refers to 'appointments' and to 'positions' and the word 'permanent' in the ordinance qualifies the words 'position in the service of a council'." Later (at 102) his Honour said: "It seems to me that in each case the question whether or not any particular position is or is not a permanent position must be determined on a consideration of all the surrounding circumstances. Mr Mitchell suggested that an adequate definition of 'permanent position' would be any position which appears to be one that forms or is to form part of the regular administration of a Council, or one which, as things stand, has not been established for merely temporary purposes, but will continue indefinitely unless some resolution is passed by the Council re-organizing the service. That appears to me to be the real test as to whether or not a position is permanent. It does not mean that it is to last for ever, but I think that any position that has no definite time limit to its existence, and which forms an integral part of the ordinary and regular administration of the Council is a permanent position." Counsel for the applicants argued that the criterion in the present case for permanency was the same, and that the relevant test was whether the work of each applicant was an integral part of the ordinary and regular administration of the Hydro. Construction of dams and other works by the Construction Division of the Hydro was, counsel argued, part of the ordinary and regular administration of the Hydro. Therefore those who were employed to do such work were employed in a permanent capacity. I do not accept this argument. Haines dealt with a different statutory context. The ordinance was concerned with the permanency or otherwise of the position to which the person was appointed. In the present case we are concerned with the nature and purpose of the person's employment. The 1982 Act, and the earlier Acts, do not predicate a fixed establishment or office. The distinction is made by the Privy Council in Williams v Macharg (1910) 10 CLR 599 where the issue was whether a person had been a member of the NSW Civil Service over a particular period. Their Lordships said (at 602): "It is the holding of a permanent salaried office which constitutes membership, not the quality or duration of the tenure." The present case is the reverse of the situation in Williams. We are concerned with the quality of each applicant's tenure, that is to say whether or not he was employed in a permanent capacity. This case does to deal with any particular office such as Plant Operator or Maintenance Painter. Some further features of the concept "employed in a permanent capacity" in the present context are as follows. First, the test of permanency or otherwise is to be applied at the date of engagement or at any subsequent stage where there is an express agreement to vary the nature of the employment. The person may be appointed in a permanent capacity or, having been appointed in a temporary capacity, may be appointed in a permanent capacity at some later date. However I do not accept the applicants' contention that at the end of a lengthy period of service one may be able to say that a person, initially a temporary employee, is now a permanent employee and must have become permanent at some stage "depending on the circumstances". The argument that employment, initially in a temporary capacity, may change over time in some gradual evolutionary way is inconsistent with the RBF Scheme. Membership imposed very precise obligations to contribute by way of deduction from salary. These obligations must be readily determinable. In particular the RBF Scheme Acts speak of "appointment" as the event which triggers the obligation to contribute, see for example s 25(1)(b) of the 1982 Act. The notion of "appointment" necessarily requires some specific act occurring at a determinable point in time. Secondly, the criterion is an objective one. Reference has already been made to the decision of Cosgrove J in Re Goodwin [1986] Tas R 6. Mr Goodwin had been engaged as a Cadet Engineer in 1943 and in 1949 he was taken onto the Hydro Staff. The issue was whether during his service as a Cadet he was employed in a permanent capacity for the purpose of computing his entitlement under the 1982 Act. Cosgrove J said (at 13) that the status of the appellant during his term of cadetship "must be construed from the Points of Agreement, the letter of 3 March 1943 and the indenture". The letter in question was one confirming Mr Goodwin's appointment and the indenture was the formal employment agreement. The "Points of Agreement" was a memorandum of agreed facts which included a statement that there was "a very lively expectation" that cadets would go on to be employed by the Commission. As I read the report, the "expectation" was referring to the circumstances at the time of Mr Goodwin's engagement, albeit that they were confirmed by later events. His Honour went on to say (at 15): "It is difficult to establish the insignia of 'permanency'. I use the inverted commas because, as counsel agreed, there is no employment which is permanent. Sometimes entry into or the capacity to enter into a superannuation scheme is regarded as an indication that employment is 'permanent'. But that is to put the cart before the horse, because it is the character of 'permanency' in the employment that gives the right to enter the scheme. Indefiniteness is not the same as permanency, nor is a fixed termination point or a fixed point for the exercise of a choice, a sure indication that the employment is other than permanent. ... It was not possible for the Commission, by an administrative act, to alter the meaning or application on the statute, nor for the appellant to contract himself outside the scope of the statute. ... In the end, the resolution of the question depends upon the view one takes of the essential relationship between the Commission and the cadet. The relationship is illumined by the contract, but not necessarily entirely shaped by it. In my view, the relationship was a permanent relationship, involving training, and intended to last indefinitely albeit on changing levels but affording both parties opportunities to terminate." (Emphasis in original.) I agree with Cosgrove J that the parties cannot contract out of the statute. To take an extreme example, if a person was employed for a fixed term of one month, the Hydro and that person could not validly agree that person would be employed in "a permanent capacity" for the purposes of the RBF Scheme. Nevertheless in this context substantial deference must be given to the express and implied terms of the contract the parties made. Permanency was by no means an unmixed blessing for an employee. It brought with it the obligation to contribute 5.5 per cent of salary with the prospect that the employee might work for many years, but retire more than five years before retiring age and only receive back contributions without interest (for most of the period with which this case is concerned). Also such a person would lose his rights to a free benefit under the 1925 Act. As will be seen later, there was at one stage a dispute at a very high level between the Tasmanian Treasury and the Hydro in which the former was attacking the latter for treating employees as "temporary" where they were in truth "permanent". But the status of being "employed in a permanent capacity" is not something external to the contractual relationship of employer and employee, in the sense of being something fixed and immutable around which the parties have to make their contract as best they can. There were pros and cons for either side in the status of being permanent or temporary. What the Court is concerned with however, is not the "actual intentions, aspirations or expectations of the parties before or at the time of the contract" but what is, objectively determined, the genesis and object of the transaction: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347-352 per Mason J. To the extent that Goodwin involved an ascertainment of the actual expectations of the parties (a fortiori of one only of the parties), I would respectfully not agree. Thirdly, lengthy service is not necessarily determinative of permanency. As has been already observed, the 1925 Act applied mainly to temporary employees but it assumed that in the ordinary case no benefits would be available for them until retirement at age 60. I now turn to the evidence which bears on this issue.

2. Hydro policies as to permanency On 30 January 1939, as a consequence of the 1938 Act, a memorandum of the then Commissioner (CB4/3) noted that "... it has been necessary to classify the staff of the Commission as permanent or temporary. The position held by each officer has been reviewed, and where the position has been regarded as permanent in character the officer at present occupying the position will be eligible for admission as a contributor to the Fund." (Emphasis in original.) A later memorandum by the Secretary of the Hydro on 3 February 1939 (CB4/5) noted that in effecting the classification required by the 1938 Act "... the basis adopted has been to determine whether the position held by each officer at the date of commencement of the Act is of a permanent character." In 1943 the Hydro adopted a policy that members of Temporary Staff were to be "eligible for classification as permanent" for the purposes of membership of the superannuation fund when they had completed four years' service, or if absent on defence leave, had completed three years' service (CB 4/13). But at an early stage, at least from the end of the Second World War, a view emerged in the Hydro workforce that forced contribution to superannuation would be resisted. Mr Jack Russell, who worked for the Hydro from 1935 until 1978 and was Personnel Superintendent from 1965 until his retirement, said (T756) that shortly after he returned from the war he had been told that the Secretary of the Tasmanian Trades and Labor Council called on the Staff Industrial Officer, Mr Best and said that if his men were told they had to contribute to superannuation he would call the whole Commission out on strike. Mr Best had said: "We'll look after that; they will apply if they want to and we'll tell them and that's ... where it stayed." Mr Russell was asked (T758): "Q. But because of this fear of industrial unrest, the policy was adopted that you would not look at whether a position was really permanent or temporary unless and until the incumbent asked to be made permanent? A. If they asked to be made permanent then their job would be considered and their prospects of ... Q. But the Commission itself as far as you were aware was not concerned to identify whether a particular position was permanent or not unless the incumbent in that position asked? A. I suppose that's - I suppose I'd agree with that, yes." However Mr Russell was also asked (T757): "Q. So there could be any number of employees who really had permanent jobs but because they never asked to be classified as permanent were never recognised as permanent? A. I can't actually agree with that. There were people in construction work which we knew was finite, was going to finish, the Retail Supply Branch, the Power Branch are likely to go on forever but the construction part of it, when it was finished the Civil Branch handed it over to Power Branch who went on to run the place and the Civil Branch had to retrench or hopefully be able to transfer to another job. There were a number of times there had to be retrenchments but they avoided it if it was at all possible." In the mid to late 1960s the issue of superannuation for construction employees emerged again. A memorandum from the chief accountant of 15 December 1966 (CB4/64) in relation to a Mr G Eastwood stated: "The proposed continuation of deductions for this award employee is contrary to the existing practice for employees not on staff or declared to be permanent for purposes of superannuation. There are many of our existing work force seeking the same privilege without success." On 17 July 1969 the Secretary of the Hydro wrote to the Secretary of the Board (CB4/66) saying: "The Commission is repeatedly being asked to consider transferring officers from temporary staff to permanent staff to enable them to qualify as 'employees' for the purposes of the Superannuation Act. In the case of some officers, particularly those engaged in construction work, it is difficult to foresee whether work will be available until normal age of retirement. If this proves not to be the case, the Commission would be obliged to meet the costs of a qualified pension." The letter concluded with a request for an actuarial assessment. On 23 July 1969 in answer to another query from the Secretary of the Hydro, the Secretary of the Board wrote (CB4/68): "... it is for the employing authority in each case to determine whether an employee is 'permanent' within the meaning of Section 3 of the Superannuation Act and that, in making such determination, the employing authority should be reasonably certain that the employee will continue in the employment of the Commission to normal retiring age." The Secretary of the Hydro replied on 10 November 1969 (CB4/69) saying: "We appreciate that it is for the employing authority to determine whether an employee is 'permanent' or not. In many cases it is extremely difficult to make a decision and one of the factors is the cost to the Commission if an error is made. This is the reason why we would like some indication of the level of qualified pensions." The request for actuarial advice was repeated. On 16 November 1971 (CB4/143) the State Treasurer Mr W A Bethune (who was then also Premier) wrote to the Commissioner of the Hydro stating that he was informed that: "... it now appears that, over a period of years, a practice has been allowed to develop in the Commission whereby a person who is an employee within the meaning of the Superannuation Act has been permitted to inform the Commission whether or not he desires to contribute to the Fund. This practice is, of course, contrary to the provisions of the relevant legislation ... . I request your assurance that the provisions of the Retirement Benefits Act will be complied with in the future in the following manner: 1. The Commission will determine whether or not a person is a permanent employee. 2. Under no circumstances will a person be given the option of contributing to the Fund or not. 3. That so soon as a person is appointed to a permanent position in the Commission, arrangements will be made for his medical examination for the purpose of the Retirement Benefits Act. 4. His medical certificate will be forwarded to the Superannuation Branch as soon as it has been received by the Commission." The Hydro replied by a letter under the hand of the Commissioner addressed to the Premier dated 3 December 1971 (CB4/149). The letter included the following: "EXISTING EMPLOYEES: The question as to whether an employee's service was or is permanent within the meaning of the Superannuation Act has always presented difficulty. The Commission has a substantial body of employees whose employment can be regarded as permanent. These are officers engaged in the operation and maintenance of the power system and on administrative duties and others involved in design and construction of new works. At the other end of the scale is a substantial body of employees whose services are definitely of a temporary nature. Between these two extremes there is another substantial number of employees in respect of which it is difficult to decide whether their services are likely to be permanent or not. It is a matter of opinion which, expressed at a certain time, may turn out to be right or wrong. Employment that is temporary to begin with may become permanent at a later date. Many of the employees concerned are 'wages' employees working under Award conditions. We understand that when the Superannuation Act came into force representatives of the Unions protested at the prospect of award workers being obliged to become contributors to the Superannuation scheme. As benefits were dependent on the contributions according to age and wages it was agreed by persons now deceased that arbitrary decisions would not be made and that each case should be decided on its merits as it arose. Those in this general category that applied for entry were considered - some were accepted and some rejected. A review of all the individual cases now would take a considerable period. The situation is very involved because it is not known with certainty how much or for how long work will be available for at least some of these employees. The Commission can give an opinion in each case as to the permanency of the work but the Retirement Benefits Act does not appear to place the onus on individual employers to make a 'determination'. In fact this seems to be something which the Board is required to do under Section 68 of the Retirement Benefits Act 1970 when it determines the nature and length of an employees service, subject to the right of appeal to a judge. It is apparent that arbitrary decisions requiring employees who do not wish to become contributors so to do will almost certainly result in a great deal of industrial unrest. NEW EMPLOYEES: So far as new employees are concerned we consider the position is somewhat simpler. Nevertheless, there is likely to be difficulty in respect of the 'middle' group of employees if by arbitrary decision they are obliged to become contributors. We would find the same difficulty in forming an opinion in some cases as to whether employees were permanent or not and an opinion given at one time could be subject to alteration with a change in circumstances and may not at the time of retirement be accepted by the Board. As to the question whether a person should be given the option of contributing to the Fund or not. In cases that are difficult to determine we would raise the question whether it is not in fact a more satisfactory procedure to take into account the views and circumstances of the employee concerned. There is no problem regarding medical examination and provision of certificates for those persons appointed to positions considered to be of a permanent nature. As we said at the outset we feel that the whole situation is extremely involved and that more consideration needs to be given the matter in the hope that a simpler procedure may be devised. We are now at the request of the Board wrestling with the problem of investigating the service of the 700 employees who have transferred to the new scheme and are finding this an involved and time consuming task. We are ready to contribute to a discussion on this subject if it is thought it would be helpful." The evidence included an extract from minutes of a staff conference on 20 May 1975 (CB4/192). The minute recorded the Acting Secretary's report that he had in collaboration with the Chief Accountant and Personnel Superintendent, reviewed the practicability of establishing tests, formulae or guidelines to be applied for applications from temporary employees to contribute to the RBF Scheme. The review committee were unable to recommend general tests other than that Heads of Branches must seriously consider: "(1) the type of work performed by the applicant; (2) the applicant's performance; (3) how essential the job is for achieving the Commission's objectives; (4) the degree of uncertainty covering the ensuing three years as to the Commission's ability or desirability to retain the applicant in the relevant job. If there is any doubt as to (2), (3) and (4) above the application should be rejected. The above approach has been approved by the Commissioner. The Acting Secretary advised that an appropriate administrative procedure has been established to process the 22 applications received to date. Several of the applicants are occupying positions which can be considered as 'permanent' and these will be submitted to the Commissioner for confirmation. The remainder will be dealt with as temporary employees in terms of the Act." The minute is a little ambiguous. It may be that the applications referred to were from persons who sought classification as permanent as opposed to those exercising their right as temporary employees under the recently introduced amendment. In a memo dated 28 April 1993 (CB6/242) from the Manager Human Resources, approved by the General Manager, it is stated in the context of award restructuring and the removal of the distinctions based on "wages" and "staff": "One of those outstanding matters relate to former 'wages' employees being eligible to contribute to the Retirement Benefits Fund. In the past 'wages' employees were engaged as temporary employees. This was principally done to satisfy the requirements of the RBF Act that temporary employees were not compulsorily required to contribute to RBF. The distinction was not based on any objective assessment of tenure." However, this comes late in the piece and I do not attach much weight to it as against the evidence of Mr Russell and the correspondence of the Secretary of the Hydro with the Treasury. The evidence falls far short of establishing that, as alleged by the applicants, there was a deliberate policy adopted by the Hydro to avoid the obligations imposed on it by the RBF Scheme and that in furtherance of that policy the Hydro classified as temporary persons who were in fact employed in a permanent capacity. Rather, the conclusion I draw overall is that the Hydro made a genuine attempt to grapple with the problems posed by the inherently unpredictable nature of its construction activity and the strenuous objection of much of its workforce to compulsory membership in what was, for many, a not particularly attractive or suitable scheme. And this is so notwithstanding that there is an indication that, on the other hand, some did want to join. The obvious solution would be to give temporary employees a choice - which is what Parliament did by introducing the 1974 amendment.
3. Employment history of the applicants I now turn to the evidence of the applicants insofar as their own employment history bears on the issue of permanency. In the statement of claim they appear in alphabetical order and I shall follow the same sequence. Unless otherwise indicated, nothing was expressly said at the time of engagement as to an applicant being employed in a temporary or permanent capacity. (a) Cooper Mr Peter Cooper was employed by the Hydro from 2 August 1976 until 16 April 1992. He was interviewed at Tullah by Mr Mulcahy and started a week later as a Machine Borer/Operator. He signed a labour engagement form in the following terms (CB2/38): "HYDRO-ELECTRIC COMMISSION No. 71957 LABOUR ENGAGEMENT DUPLICATE TO EMPLOYMENT OFFICE Date 2 - 8 - 76 Surname COOPER Returned Soldier or Sailor ................... Christian Names PETER WILLIAM Occupation MACH BORER Address 176 PARKER ST D'PORT Previous Employer RENISON BELL Date of Birth 25 - 5 - 39 Trade Union .......................................... Single or Married, or Widower M Selected for Work at TULLAH ANTHONY Name and Address Nearest Relative 'W' M. COOPER 176 PARKER STREET D'PORT Engaged by W.I.O. Employee's Signature P W Cooper

Employee's Identity No. 035 075 Car Fare Docket No. P.T.O. Entered Employment Card by ....... Date [illegible] 1976."

From 1976 until 1986 Mr Cooper was based at Tullah, from 1986 until 1990 at Crotty and from then until his retrenchment in 1992 he returned to Tullah. Throughout his time at the Hydro he transferred from dam site to dam site as directed and worked on tunnels and roadworks. He was involved in any work which involved drilling and blasting. He said that it was not until he received redundancy documents that he noticed his employment had been classified as temporary/full-time by the Hydro. Nothing was said when he was engaged as to whether his employment was temporary or permanent or limited for a fixed project or a fixed period of time. He said in his affidavit (CB2/31): "When I started at the Hydro I considered that the Hydro provided a long term employment and was seen to be like other government jobs in that it had security. I therefore considered that I would have a job for as long as I required and/or needed. The Hydro were continually building dams and had done so for 50 years. I thought that this work would continue." (b) Duggan Mr Garry Duggan was employed by the Hydro from 1 December 1969 to 27 October 1989. He commenced as an apprentice fitter and turner at Gowrie Park and transferred to Strathgordon in late 1972 (with his father who was also employed by the Hydro) and then in late 1974 transferred to Tullah where he remained until accepting voluntary redundancy. On 11 October 1983 he was appointed to the Staff of the Hydro as a Supervisor Grade 2 in the Plant Workshop, Civil Engineering Branch, Pieman River Power Development, based at Tullah. The letter of appointment (CB2/56) stated that the appointment "... is classified as temporary, and although subject to the Hydro-Electric Commission Rules, two weeks' notice only in writing of termination of service by either party is required." Mr Duggan deposed that (CB2/52) "Despite this classification I always considered my job to be permanent". His father spent most of his life in the Hydro and his four brothers all worked for it. He saw the Hydro as guaranteeing long term future employment. Transfers were made automatically from one scheme to another where construction work was available. He believed that provided he was willing to transfer, construction work would commence and provide him with continuing employment. He further deposed (CB2/53): "I had no idea why the Hydro classified me as a temporary. The only explanation I have is because I was based in the construction workforce of the Hydro. There was a general consensus on dam sites that the Hydro classified you as temporary because you were on a construction site." (c) Johnstone Mr Colin Johnstone worked for the Hydro as long ago as 1960 at age 14. However his employment relevant to the present case commenced on 24 October 1977 when he was engaged as a truck driver. Later he became a plant operator. He accepted redundancy on 16 July 1992. His labour engagement form is in the same form as that of Mr Cooper's and does not state whether he was temporary or permanent. On 15 October 1979 he was appointed to the Staff of the Hydro as a Foreman Grade 2 (Assistant to Operator Supervisor) in the Construction Division, Civil Engineering Branch, Pieman River Power Development. The memorandum of appointment (CB2/151) noted that the appointment was "classified as temporary". He held positions as Plant Operator Foreman and Plant Operator Supervisor, at one stage having over 130 employees under him. On average he was responsible for 50 to 60 men. He believed that he had a job for as long as he needed and his employment would continue. His father worked with the Hydro as did his eight brothers. It had not been suggested to him that his employment was for a limited period of time or was limited to a certain scheme. To his mind his employment was permanent. (d) Mulcahy Mr Barry Mulcahy was employed by the Hydro from 19 March 1956 to 5 July 1991. On 25 August 1956 he was appointed to Staff. His memorandum of appointment dated 22 August 1956 (CB2/200) advised of his appointment "to the temporary Staff of this Commission as a Timekeeper/Clerk in the Secretarial Branch at Wayatinah ... Until you are otherwise notified, your appointment is classified as temporary and as such is subject to termination by two weeks' notice in writing by either party." Mr Mulcahy started work with the Hydro as a Time Keeper at Wayatinah until 1967 when he transferred to Strathgordon. He continued to work as a Time Keeper. In 1976 he was transferred to Tullah as a Senior Time Keeper and in about 1978 was promoted to Assistant Industrial Officer. In 1982 he was transferred to Queenstown and was responsible for industrial relations on the King scheme. In 1984 he was made Works Industrial Officer after the retirement of Mr Claude Taplin and in 1988 became Senior Industrial Officer in charge of the Hydro West Coast Construction workforce on both the King and Anthony schemes. He held this position until his retirement on 5 July 1991. Mr Mulcahy's work as a Time Keeper involved observing and recording work done and keeping records thereof. He described this as (CB2/188): "the first line of communication for many workers for many things, checking entitlements annual and sick leave, ordering meals and picking up cribs, explaining rates and allowances." When he became Works Industrial Officer he was responsible for hiring, firing and disciplining the construction workforce. In his affidavit he deposed (CB2/193): "The great bulk of staff on construction sites, myself included, were always considered to be temporary staff and therefore could not participate in the RBF Scheme." And further (CB2/194): "In my opinion the term temporary employee was a label which was put on the construction workforce by the Hydro. I was always told and always believed that construction employees were temporary employees within the meaning of the RBF Act. The term temporary was what the Hydro classified the construction workforce as but despite the use of the term temporary, employment with the Hydro could not be considered temporary. It was always the understanding of the workforce that if you kept your nose clean, behaved and did the work satisfactorily you had a job for life. The workforce would transfer from one dam site to another and the Hydro would always do its best to find alternative employment." (e) Vlagsma Mr Gerrit Vlagsma worked for the Hydro from 25 May 1982 to 10 February 1990. His labour engagement form (CB 10/31) is in essentially the same form as Mr Cooper's. On commencing employment with the Hydro he worked at Stringers Creek as a truck driver for four years then transferred to Crotty for three years and finished at Lynchford. Throughout this time he worked as a truck driver. He deposed (CB 2/259-260) that when he started work "I believed that I had a job which would last for a long time. The Hydro was a major employer on the West Coast of Tasmania and had a lot of employees. I believed that provided I did the job which was asked of me my employment would continue. At the time of joining the Hydro I was not told that I was employed for a fixed time or until a certain dam site was completed. I was signed on and my employment continued from that day. I considered that I had a permanent job and it was never suggested to me that my employment was temporary. I was a full-time employee, I worked overtime and received long service leave, sick leave and annual leave. I believed that my job was permanent." (f) Williams Mr Kevin Williams was employed by the Hydro from 29 April 1946 to 5 December 1986. He had at an early stage commenced employment with the Hydro at Tarraleah in 1941 as a Nipper and in 1943 was transferred to Butlers Gorge. In 1944 he joined the RAAF and returned to employment with the Hydro on 29 April 1946. He worked for some three months as a carpenter's labourer and thereafter as a painter continuously up until his retirement at age 60. On his engagement in 1946 he signed a labour engagement form which was in the same terms as Mr Cooper's. Between 1946 and 1955 he lived and worked at Butlers Gorge. He then transferred to Wayatinah. From Wayatinah he transferred to Gowrie Park and then in 1972 to Tarraleah where he completed his service. Each of these towns were Hydro towns established to service dams which were built or in the process of being built. Throughout Mr Williams' time he was in the Construction Division. His work involved painting the homes and general maintenance work for houses and buildings. By the time he was at Gowrie Park he was responsible for approximately 20 painters. 4. Conclusion on permanency I am not persuaded that any of the applicants were employed in a permanent capacity within the meaning of the applicable legislation, either on their initial engagement or any time thereafter. I accept that there was a subjective intention on the part of at least some of the applicants that they would remain in employment indefinitely for a period which might be very lengthy, or indeed all their working life. Nevertheless, on their initial engagement, which for the reasons already mentioned, I regard as the relevant point in time, the Hydro was not an organization which could be said to carry on the business of dam construction on a continuous and indefinite basis. Parliamentary approval was required for each new project. For many years the political reality may have been that such approval was likely to be something of a formality. The first time a Hydro proposal failed to win speedy Parliamentary approval was in 1979-1980 when the Lowe Government initially rejected the Gordon below Franklin scheme and proposed legislation for a different scheme, the Gordon above Olga: see Pink, op cit, pp 65 et seq. Nevertheless the very nature of the Hydro's operations meant that its construction workforce could only be utilized from one Parliament-approved project to the next. The correspondence to which I have referred, particularly that in the 1970s, shows that the senior management of the Hydro were acutely conscious of this. In this and in other respects the applicants' case involves a trenchant attack on the ethical conduct of the Hydro. I do not think that criticism is warranted. In cases where applicants or other employees were expressly designated as temporary, I do not think that was from any desire of Hydro management to avoid its lawful obligations. Moreover, one cannot ignore, any more than the management could, the fact that many of the workforce, for good reason, did not want to be anything other than temporary. III THE ALTERNATIVE CASE - TEMPORARY EMPLOYMENT

1. Duty to advise applicants or RBF Board during employment (a) Under statute Since I have held that all the applicants were employed in a temporary, not permanent, capacity reg 31 of the 1945 Regulations, reg 22 of the 1971 Regulations and reg 24 of the 1982 Regulations as pleaded in pars 9(a), (b) and (c) of the statement of claim are not applicable. Those regulations imposed duties in relation to permanent employees. There was no statutory requirement concerning notification of temporary employees of their right to elect until 29 November 1985 when reg 24(1)(ab) and (ac) of the 1982 regulations came into force. By this stage all of the applicants had been engaged, the most recent being Mr Vlagsma on 25 May 1982. Counsel for the Hydro contended that reg 24(1)(ab) could have no application because it operated "as soon as" a person is entitled to elect under ss 5(1) or 6(1)(a) of the 1982 Act to become a contributor. He argued that s 5(1) was never satisfied because a certificate as to likely appointment for three years was never issued. Section 6(1)(a) had been satisfied, but at a point in time prior to the promulgation of reg 24(1)(ab) (except in the case of Mr Vlagsma). I do not accept these arguments. As to s 5, since the whole purpose of the regulation is to convey knowledge of the right to elect, and no one would obtain a certificate unless he or she had that knowledge, it would be pointless to construe the regulation as imposing the requirement to notify only after the person obtained a certificate. Likewise s 6 predicates inability to obtain the three year certificate which necessarily involves the employee having made an unsuccessful application for such a certificate. This need not happen immediately upon the expiration of the four year period of continuous service. I therefore will proceed on the basis that reg 24(1)(ab) and its statutory successor s 82A applied to the applicants. Two questions arise: (i) Did the regulation and/or the statute create a right of action for damages for breach of statutory duty? (ii) If so, was that duty imposed on the Hydro? (i) Was there a right of action? An authoritative modern statement of the law is contained in the judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 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." In the context of workplace safety regulation the law has long found such a duty to arise because, in the words of Dixon J in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, "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." However the mere fact that the legislation in question is one dealing with or touching on the relationship of employer and employee does not necessarily mean that an action for damages arises. Byrne itself illustrates this. The High Court held that breach of a term of an Award made under the Industrial Relations Act 1988 (Cth) which provided that termination of employment not be harsh, unjust or unreasonable did not give rise to a right of action for damages because, inter alia, the term of the Award did not become a term of the employment contract. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731 Lord Browne-Wilkinson said (with the concurrence of all other members of the House of Lords): "The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. ... Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give the rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, i.e. bookmakers and prisoners: see Cutler's case [1949] A.C. 398; Reg. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58. The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions." In my view reg 24(1)(ab) and s 82A are to be seen as part of a complex regulatory scheme providing for retirement benefits for public sector employees in Tasmania. 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. There is thus no larger duty of which this particular regulation and statutory provision might form a specific instance, as that concept is discussed in O'Connor. Moreover there was in the case of a breach of reg 24(1)(ab) a specific penalty of $500 imposed (reg 24(3)), and not just for breach of the regulations as a whole but "this regulation", i.e. reg 24. For s 82A the general provisions of the Contravention of Statutes Act 1889, which provide a penalty of $50 for breach of any statutory provision, would apply. These are pointers to the lack of any intent on the part of Parliament that a private cause of action be constituted. Further, the ameliorative powers and discretions conferred on the Board by ss 87 and 88 of the 1982 Act and earlier equivalent provisions are a strong indication against the existence of an intention to create a right of action for damages for breach of statutory duty. In the event of a mistake or negligence, prejudice to an employee was to be remedied by the application of these provisions. (ii) Was the duty imposed on the Hydro? If, contrary to the conclusion I have reached, there was any duty enforceable by an action for damages it was in my view enforceable only against the "responsible officer". A High Court authority directly in point is Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. A regulation made under the Navigation Act 1912-1953 (Cth) required that the "person-in-charge" of loading or unloading a ship was required to remove hatch beams. The regulations defined "person-in-charge" as "any person directly or indirectly in control of the persons actually engaged in the process of loading or unloading that ship". Williams J, with whom the other members of the Court agreed, said (at 51): "Regulation 31 relates to certain simple but very important precautions that must be taken before loading or unloading begins. They are precautions which fall aptly to be observed by the person actually on the spot and in control of the operations. There is no sufficient indication of intention in the regulations as a whole or in particular in reg. 31 that duties imposed upon the person in charge should be imposed upon any person except the person actually in control of the work of loading or unloading the ship." Likewise Kitto J said (at 59): "In my opinion the only person upon whom this regulation places any obligation is the person referred to by the expression the 'person-in-charge'." I see no valid ground of distinction in the present case. Bearing in mind that the RBF Scheme was to operate not only for the Hydro but throughout Tasmanian Government departments and other instrumentalities, with no doubt differences in size, function, administrative structure and resources, there is obvious sense in a regulation which puts responsibility in relation to notification on some identifiable individual, the person "on the spot", to use the expression of Williams J. Neither the statement of claim nor the case as conducted on behalf of the applicants sought to identify the relevant individual who was the "responsible officer", although evidence as to this appeared in passing. No such person is a respondent to this proceeding. Nor is it any part of the applicants' case to make the Hydro vicariously responsible for any default of a "responsible officer". The skill and care with which the applicants' case has been conducted persuades me that this is not an oversight, but a recognition of the insuperable obstacle placed against such a claim by the High Court's decision in Long. This is because the second limb of Long was that since the duty was owed by the "person-in-charge" it was not a duty for which the employer was vicariously liable. Williams J said (at 52-53): "But the employer could not be made liable for the breach by his servant of a duty imposed by a statute or regulation on the servant and not on the employer. To make the employer liable in such a case would be to enlarge the scope and operation of the statute or regulation. Where a statute or regulation creates a civil right of action it can be enforced in an action for damages at common law. But it is the statute or regulation that creates the civil right and not the common law. It is the common law that supplies the remedy. ... It would seem to be quite inconsistent with principle to hold that an employer upon whom no personal liability is imposed by a statute or regulation can be sued for a breach of that duty simply because it is committed by an employee in the course of his employment." The applicants also relied on a duty said to arise under r 19 of the Hydro-Electric Commission Rules 1978. That regulation provides that every officer shall promptly and correctly carry out all duties pertaining to his office, and in due course and at proper times comply with, and give effect to, all Acts, regulations, rules and instructions made or issued for guidance in the performance of his duties. "Officer" is defined by r 3 to mean "an employee of the Commission who is in receipt of remuneration expressed in terms of an annual salary". If for the reasons mentioned the specific reg 24(1)(ab) and s 82A do not give rise to any action for breach, I find it quite impossible to conclude that r 19 is anything other than of a regulatory nature. (b) Under contract A term may be implied in a contract because it represents the presumed or imputed intention of the parties, that is to say what the Court concludes they would have agreed upon had they turned their mind to the question. The criteria for the implication of such a term are laid down in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, see also Byrne, 185 CLR at 422.

Counsel for the applicants, correctly in my view, did not contend that the implied terms alleged were of this category. Rather he argued that the implied terms fell within a second category where the term in question is "a necessary incident of a definable category of contractual relationship": Scally v Southern Health and Social Services Board [1992] 1 AC 294 at 307, see also Byrne at 447-453. In Scally medical practitioners employed by Health Boards in Northern Ireland had not been informed of their right to elect to purchase years of service for superannuation purposes within a fixed period of commencing employment. The House of Lords upheld their claim that there was an implied term in their contracts to bring this right to their attention. The contracts of employment had been negotiated by representative professional bodies. It was a critical element in the case that the relevant rights were contained in the employment contracts. In a speech concurred in by all members of the House, Lord Bridge of Harwich said (at 306): "I recognise that a quite different situation might arise where the pension rights available to an employee in connection with his employment were not part of the terms of his contract of employment but arose out of a separate contract between the employee and an insurance company or the trustees of a pension fund. But that is not this case. Here there is no doubt whatever that the terms of the superannuation scheme as laid down in the regulations in force from time to time were embodied in the terms of the contract of employment of each plaintiff." The present case is even further removed because the superannuation rights arise under statute. The issue in Scally was whether the law would imply the alleged term "as a necessary incident of a definable character of contractual relationship". Lord Bridge, in upholding the plaintiffs' claim, noted that the category of contractual relationship in which the implication would arise had to be "defined with sufficient precision". He said (at 307): "I would define it as the relationship of employer and employee where the following circumstances obtain: (1) the terms of the contract of employment have not been negotiated with the individual employee but result from negotiation with a representative body or are otherwise incorporated by reference; (2) a particular term of the contract makes available to the employee a valuable right contingent upon action being taken by him to avail himself of its benefit; (3) the employee cannot, in all the circumstances, reasonably be expected to be aware of the term unless it is drawn to his attention." The present case is distinguishable. The criteria mentioned by Lord Bridge are not present. Each applicant's right to elect to become contributors to the RBF Scheme was a statutory one. It did not flow from his contract of employment or any other contractual relationship with the Hydro. It arose from the amendment of the 1970 Act in 1974 and the subsequent 1982 Act. There is, generally speaking, no obligation on an employer to advise an employee of legal rights, certainly not where the employees, as in the present case, are of full age and not under any legal disability. Moreover, the contracts of employment were not negotiated with a representative body. And the rights were contained not in some inaccessible location but in an Act of Parliament. In Byrne, McHugh and Gummow JJ considered Scally and also Liverpool City Council v Irwin [1977] AC 239 where the House of Lords held that the landlord of a fifteen storey tower block of public housing had contractual duties to maintain lifts and other common property. The appellants in Byrne argued that employment contracts were a well recognised "class of contract" and that as a necessary incident of that relationship the clause of the Award was necessarily imported into the contract. In rejecting this argument McHugh and Gummow JJ said (at 452-453): "However, there is no 'necessity' for such a step in the sense in which that term was applied in cases such as Irwin and Scally. The contract of employment is not, from the viewpoint of the employee, rendered nugatory if the existing provisions thereof remain, as a matter of contract, to operate concurrently with the regime established by the Award and deriving its authority from statute." In my respectful opinion that reasoning is applicable in the present case. The RBF Scheme and the rights and obligations thereunder are established by statute. Employment contracts with those employers covered by the Scheme (if that be treated as a "class of contract") can work perfectly well without the implication of the term contended for. There is not "necessity", in the relevant sense. (c) In tort 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." His Lordship then proceeded to cite a passage from the advice of the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 107. It is a lengthy passage and it is sufficient to say that in my opinion it is applicable in the present case. 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 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 L.J. 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 Deane J; Macpherson & Kelly v Kevin J Prunty & Associates [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) 72 ALJR 152. 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) 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". Heyman itself was concerned with a Municipal Council's approval of building plans and inspection of footings. Day involved a Victorian Municipal Council which had statutory power under the Local Government Act 1958 (Vic) to carry out works or take any other measures for the prevention of fires and also to give notices requiring fire places and chimneys to be made safe. In Stovin v Wise [1996] AC 923 it was alleged a road authority failed to exercise its powers to direct owners of land adjoining a highway to remove obstructions which contributed to a collision by obstructing a motorist's view. The present case is fundamentally different. The Hydro was established by statute to generate and supply electricity and, subject to Parliamentary approval in each instance, to construct dams and other works for that purpose. It is no part of its function to give legal or financial advice to its employees or anybody else. Still less is there any specific statutory power or duty for such purpose. The Hydro is an employer which, along with other employers in the public sector in Tasmania, is subject to various obligations under the RBF Scheme. There were also responsibilities at various times imposed on the "responsible officer" under reg 24(1)(ab) and s 87A. For the reasons already mentioned those provisions do not confer a right of action for breach of statutory duty. There is in my opinion no basis to found an action for a duty of care giving rise to an action for damages in negligence. 2. Misleading and deceptive conduct Section 52(1) of the Trade Practices Act 1974 (Cth) provides: "(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Section 14 of the Fair Trading Act 1990 is in the same terms, although it did not come into operation until 19 December 1990. Because the Fair Trading Act came into operation at such a late date its application was not pressed. In any event, a claim under that Act would fail for the same reason that defeats the Trade Practices Act claim. The representations complained of, whether express or "by silence", were not "in trade or commerce" within the meaning of s 52(1). The leading authority is Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. A worker was instructed by his foreman to remove the grates from the entry points of air conditioning shafts on a construction site. The foreman told the worker that each grate was secured by bolts. The worker claimed that this statement was untrue and that while he was removing one of the grates it gave way and caused him to fall to the bottom of the shaft and suffer serious injuries. He claimed damages against his employer on the basis that the foreman's untrue statement was conduct which was misleading or deceptive or likely to mislead or deceive, contrary to s 52. The High Court held that the statement of claim did not disclose a cause of action. The principal judgment was that of Mason CJ, Deane, Dawson and Gaudron JJ. The construction of s 52 which their Honours preferred was expressed in these terms (at 603): "... the reference to conduct 'in trade or commerce' in s. 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J. in a different context in Bank of N.S.W. v The Commonwealth (1948) 76 CLR 1 at 381, the words 'in trade or commerce' refer to 'the central conception' of trade or commerce and not to the 'immense field of activities' in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business." Their Honours concluded (at 604-605): "The alleged misleading or deceptive conduct of the Company's foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that the conduct was not, for relevant purposes, conduct 'in trade or commerce' and would not, if established, constitute a contravention of s. 52 of the Act." In the present case the relationship between the Hydro and each of the applicants was that of employer and employee. There were no trade or commercial dealings between them in the relevant sense. I am bound by Nelson to reject this part of the applicants' claim. 3. Continuing duty Counsel for the applicants contended that the Hydro owed a duty to them which continued after their employment ceased. The duty was to advise applicants of their right to apply to the Board for the exercise of its discretionary power under s 87(1) of the 1982 Act. The Board, it was argued, had power to permit a person to exercise a right, or grant to that person a privilege or benefit, because "person" meant simply any individual and was not confined to persons who were employees at the time of the application. It was pointed out that, by contrast, s 88 refers to "employee". It is immediately apparent that on this construction "person" would mean anyone in all the world, irrespective of any connection with the employer. The evidence disclosed that there were different legal opinions held as to the ambit of s 87. The Board however considered that it did not extend to persons who had ceased employment. The 1993 Act put the matter beyond doubt by inserting a new s 87(1A) which provided that the Board must not exercise its powers under s 87(1) so as to allow a person who at the time of the determination was not an employee (i.e. permanent employee), or a person referred to in ss 5(1) or 6(1), to become a contributor or to allow a variation of the date on which a person became a contributor. Counsel for the applicants accepted that if there was a right arising from the alleged continuing duty, it was annihilated by the 1993 Act. Accordingly the hypothetical scenario necessarily involves: (i) advice to an applicant after termination of employment but prior to 13 August 1993 (when the 1993 Act commenced); (ii) the applicant making an application to the Board under s 87; (iii) the Board, contrary to the view it in fact held, exercising its discretion in favour of the applicant by allowing him to become a contributor. At best that would be the loss of a chance. I do not agree that the chance is to be assessed at 100 per cent on the basis that the Board would have in fact acted in accordance with what is now argued to be the true construction of s 87. On the contrary, I consider the chance to have no value because there is no basis for assuming that the Board would have acted differently from the way it in fact did. In any event there was in my opinion no such continuing duty as alleged. Counsel conceded that the duty could only lie in tort since the contractual relationship had terminated. He said it was not so much a "fresh duty as a continuation of the duty of care which existed during the course of the employment." For the reasons already discussed, there was no duty in tort to existing employees. A fortiori, no duty could be owed to former employees. The mutual obligations of employer and employee had ceased. 4. Breach of duty (if owed) In the event that there should be an appeal, I shall proceed to make findings as to whether there was any breach of relevant duties by the Hydro if, contrary to my holding, such duties existed. There was a large body of evidence as to general knowledge or lack of knowledge within the Hydro, and in particular in the construction workforce, of the existence of the RBF Scheme and the right of temporary employees to elect. In one sense, this evidence is not of great assistance. It is impossible to come to a conclusion either that nobody knew of the RBF Scheme or, on the other hand, that everybody knew of it. Rather, I think it is necessary to focus on the steps that the Hydro took to bring this knowledge to those in the workforce. It will then be necessary to look at the evidence bearing on each applicant's knowledge. This latter evidence bears on the issue of causation. If it were found that the Hydro had breached the duty, it would still be necessary to consider, in the case of each applicant, whether he in fact had knowledge of the RBF Scheme or, if he did not, whether the acquiring of that knowledge would in fact have resulted in him making an election. (a) What the Hydro did (i) Procedures Prior to the 1974 amendment some temporary employees applied for appointment to the permanent staff for the purpose of becoming contributors. For example on 31 August 1959 Mr Lance Duggan, a brother of the applicant, then a clerk based at Poatina, applied for appointment to the permanent staff and to contribute to the State Superannuation Fund (CB14/109). The application was recommended by the Works Accountant (CB14/108) but rejected on 20 October 1959 (CB14/107). However he applied again, this time successfully, and a form (CB14/94) recording his confirmation of appointment is signed by the Commissioner. The form includes a certification in these terms signed by the Chief Accountant: "I certify that to the best of my knowledge Mr Duggan's services or position will not become unnecessary through curtailment of work and that he/she may be regarded as employed in a permanent capacity within the meaning of the Superannuation Act 1938." A letter from the Chief Accountant to Mr Duggan on 4 February 1964 (CB14/95) advised him that before appointment to the Permanent Staff was confirmed it was necessary for him to undergo a medical examination. The letter said: "If the examination is satisfactory and after confirmation of appointment it will be compulsory for you to contribute to the State Superannuation Fund, unless you have been granted an exemption by the Superannuation Board from contributing to the Fund." An explanatory memorandum on the Superannuation Act was enclosed. On 16 March 1964 the Personnel Superintendent wrote to Mr Duggan confirming his appointment to the Staff and that he was "now required to contribute to the State Superannuation Fund, and the Chief Accountant will make the necessary arrangements accordingly" (CB 14/92). The Personnel Superintendent on the same day sent a memorandum to the Chief Accountant confirming Mr Duggan's appointment and that he would now be required to contribute to the State Superannuation Fund (CB14/93). All these documents appear to be of a routine administrative nature and indicate that transfer from temporary to permanent status for the express purpose of contributing to the Superannuation Fund was an established procedure. Another example is that of Mr Claude Taplin who was engaged on 16 October 1951. He signed a Head Office Engagement Form (CB23/625). This was a printed form which differed from the Engagement Form signed by Mr Cooper and other applicants. The difference appears to have been that those engaged at Head Office in Hobart signed a form like Mr Taplin's. The printed part of the form included the following:

"I agree that my employment shall be classified as TEMPORARY until otherwise approved by the Hydro-Electric Commission." (Emphasis in original.) On 3 September 1964 the Chief Accountant sent a pro forma letter to Mr Taplin advising him of his appointment to the Permanent Staff and of his obligation to contribute to superannuation. On 14 September Mr Taplin wrote (CB23/630) stating: "I wish to apply for an exemption from contributing to the State Superannuation Fund, on the basis of several previous applications submitted on my behalf over a period of 13 years having been refused." By memorandum of 24 September 1964 (CB23/631) the Secretary of the Hydro stated: "With reference to your letter of 14th September concerning an exemption from contributing to the Superannuation Fund, it is advised that circumstances governing your condition of employment have changed since your appointment as an Engineering Clerk in Launceston. The position of Timekeeper-Clerk occupied by you whilst located in the field was classified as temporary, and as such, did not carry superannuation benefits. Your present position is of permanent classification and you cannot be exempt from contributing to the Superannuation Fund because of the reasons you have submitted. Enclosed for your information is a pamphlet containing the principal provisions of the Superannuation Act, and section II refers to exemptions." After the 1974 amendment a system was established to deal with applications by temporary employees. Evidence was given as to this by Mr Noel Wilson who worked for the Hydro between 1956 and 1992, for the last six years as Senior Personnel Officer. At the time of the 1974 amendment he was Staff Clerk, Personnel Department. Mr Wilson deposed (CB20/53-54): "3. I have a clear recollection of the implementation of a system to deal with processing the applications from temporary employees which resulted from the amendment. I was involved in establishing the system as part of my job responsibility. As I recall, a memo was prepared advising of the circumstances in which temporary employees could apply to become superannuation contributors as temporary employees and indicating that if they wanted to apply they should write to the Secretary providing details of their age, position and length of service. The memo was sent to all wages and temporary employees who were not RBF contributors. 4. As part of the system I established a Register of all applications. The Register was a bound hard cover book divided into alphabetical sections. I divided the pages of the Register into columns. The first entry was the name of the applicant and the columns recorded the progress of the application through the system. The system involved completing a standard form and sending it for approval to the Head of Department/Division and Head of Branch of the relevant employees as well as the Personnel Superintendent and the Commissioner/ Secretary. The Register was not in evidence, nor were the specific terms of the memo referred to by Mr Wilson. But his veracity was not challenged and I accept his evidence. He did produce a number of sample copies of applications. One of these (CB20/58) is in a typed form which commences: "The under named has applied to become a contributor under Part II Section 2AA(1)(4) of the Retirement Benefits Act (No. 2) 1974." There was then room for name, classification, branch, location, salary, department/division and date of commencing with the Hydro. Then the form continues: "Section B Secretary Thru' P.S. I hereby certify that: - 1. The above officer has given satisfactory service for ____ years. 2. The position occupied by the above named officer will, in my opinion, be required for at least the three years next ensuing. I therefore recommend that he/she be permitted to contribute to the Retirement Benefits Fund. Signed___________________ Signed ­­­­­­­­­­­­­­­­­­___________________ Head of Dept./Division. Head of Branch. Endorsed ________________ Approved_________________ Personnel Superintendent Commissioner Secretary" Mr Wilson deposed that he has no particular recall of the Head Office circular although he did process applications as a consequence. One example of this was an application from Mr Geoffrey Leedham dated 12 October 1977 (CB20/62). Mr Leedham wrote: "Re Head Office Circular No. 15/1977 Retirement Benefits for Temporary Employees I hereby seek admission to this fund at the 5˝% of gross salary." The forms that were in evidence show this procedure being adopted as early as May 1975. By 20 May some 22 applications had been received (CB4/192). Mr Wilson also deposed that he occasionally received enquiries about superannuation from employees. When temporary employees enquired about their eligibility he advised them when and how they could apply. If the enquiry was as to something about which he was not certain he referred the enquiry to the State Superannuation office. There was also evidence from Mr Neil Hunt who worked for the Hydro from 1940 to 1983, apart from military service during the Second World War. He was attached to the wages section and was Senior Wages Clerk from 29 October 1973 until his retirement. As such he was the "responsible officer" for superannuation. He described that role as follows (CB9/59): "This was not a large part of my work. I received and passed on circulars and the like from the relevant superannuation authorities. They were passed on to the Personnel Department/Industrial Relation Department and employees of the Hydro. Boxes of the information came in and they were distributed to, amongst others the Works Industrial Officers on construction sites." His primary involvement in a day to day sense was the deduction and payment of contributions once a contributor had been admitted. Admissions were arranged by the Personnel Department or Industrial Relations Department who would advise him that a person was to be a contributor and he would arrange for a medical examination of the person and the outcome of the examination would be passed on to the superannuation authorities. On receiving notification that they had been accepted as a contributor he would arrange for appropriate payroll deductions. Mr Wilson was aware of the 1974 amendment and received a circular from the Superannuation Branch dated 10 December 1975 (CB9/65) referring to it. He said that the circular was "probably distributed throughout the Hydro". He confirmed that the standard form was used for applications from temporary employees to become contributors. When the 1982 Act introduced an additional entitlement for temporary employees to contribute after four years' continuous service, without any need for a certificate as to three more years' service, Mr Hunt received a pamphlet from the Board detailing the Act (CB9/69) which he says "would have been distributed throughout the workforce". An example of a temporary employee who joined under the 1974 amendment was Mr Robin Bricknell. He worked for the Hydro from 1968 to 1992. In 1977 he was working at Poatina as a Maintenance Handyman. While at Poatina he heard, in a way he does not specify, about changes to eligibility to join the RBF Scheme. He deposed (CB9/53): "I discussed joining with other employees. Some tried to talk me out of joining. They said I shouldn't join because I would be worse off. My wife and I spoke to John King who encouraged me to join, so I did." His application was approved on 7 November 1977. The form used was that already referred to (CB9/56). Another example of the form shows a typed heading "Tullah" indicating that standard forms were available there (CB11/317). Procedures were in place for Time Keepers and Wages Clerks to arrange for applicants to attend for medical examinations (T405). (ii) Head Office circular On 15 August 1977 the Head Office of the Hydro produced a circular in the following terms (CB8/69): "THE HYDRO-ELECTRIC COMMISSION TASMANIA Head Office, HOBART HEAD OFFICE CIRCULAR NO. 15/1977 RETIREMENT BENEFITS FOR TEMPORARY EMPLOYEES The Retirement Benefits Act No. 2, 1974, contemplates the application of retirement benefits to "temporary" employees under certain conditions. The main criteria are satisfactory service for at least one year prior to application being made and a certification by the Commission that continuous employment for the ensuing three years is expected. Employees who apply to become contributors will be required to undergo a medical examination and, if their application is then accepted by the Retirement Benefits Board, will normally contribute to the fund fortnightly at the rate of 5˝% of gross salary. Employees may, however, elect to contribute at the rate of 2ľ% with a corresponding reduction in benefits. Contributors' pensions and other benefits are determined basically by the length of service as a contributor and annual rate of salary or wage. This can be compared with entitlements which otherwise may be due under the provisions of the Public Servants' Retiring and Death Allowances Act, 1925. Further information can be provided on request. Applications to become a contributor should be made in writing to the Secretary, through head of Branch concerned. (Sgd) R.R. Raward Secretary" In practice Head Office circulars were distributed throughout the whole of the Commission and in particular posted on notice boards. Mr William Gunn, a fitter on the Wages Staff saw the circular on the notice board at the main workshop and in the mess at Tullah (CB3/108). Mr Christopher Bonnily who was at the time a Clerk in the Civil Engineering Laboratory at Moonah (a suburb of Hobart) placed the circular on the notice boards there (CB3/29). The ordinary practice was for circulars to go on the notice boards at Tullah where there were notice boards in the main workshop and in the messes (T407). Head Office circulars were also sent to Union representatives (CB3/276). There was in evidence applications to become contributors which are expressed to be in reliance on the Head Office circular: Holstein, August 1977 (CB23/656); Leedham,12 October 1977 (CB20/62); Painting, 28 April 1978 (CB20/64). Generally the evidence supports the conclusion that Head Office circulars and the placing of them on notice boards were an accepted and effective form of communication (T240, 307, 407, 415, 446, 572). That is not to say of course that everybody necessarily read everything that was on notice boards. (iii) Blue Book In 1980 the Hydro published a booklet (CB11/231) which because of the colour of its cover was universally referred to as the Blue Book. It is 20 cm by 10 cm. On the cardboard cover are the words "WELCOME TO THE HEC [logo] Information For New Wages Employees THE HYDRO-ELECTRIC COMMISSION TASMANIA." On page one under the heading "Welcome" there are some general remarks of an exhortatory nature and also the following: "This booklet outlines the general organisation to which you now belong and gives a brief summary of employment conditions. It is an introduction only. Your Foreman, Supervisor or Timekeeper will be pleased to help you with any further information you may need." The booklet contains thirty pages and deals with a variety of matters such as Award coverage, Industrial Chaplain, intoxicating liquor, issue of protective clothing, leave provisions, overtime, personal phone calls, safety rules, taxation, Union membership, conditions of work and pay arrangements. At page 27 the following appears: "Retirement Provisions

1. PUBLIC SERVANTS RETIRING AND DEATH ALLOWANCES ACT 1925 After 4 years' continuous service with the Commission, an employee who retires or is retired through ill health may be entitled to an allowance under the above Act at the rate of approximately one week's pay for each completed year of service. Such allowance is payable out of Consolidated Revenue and is not contributed to directly or indirectly by the Commission.
2. RETIREMENT BENEFITS FUND You may elect to contribute to the Retirement Benefits Fund after being continuously employed with the Commission for twelve months. Admission to the fund is subject to your passing a medical examination and the Commission certifying that you are likely to remain employed by the Commission for at least three years. Fortnightly contributions will be deducted from your pay." In 1984 a second edition was published. The part relating to the 1925 Act was as follows (CB11/27-28): "Retirement Provisions
3. PUBLIC SERVANTS RETIRING AND DEATH ALLOWANCES ACT 1925 Subject to completion of a qualifying period of service you may be entitled to an allowance under the above Act in the event of your retirement through age or ill health or, in the case of death, the allowance would be paid to your personal representative. The allowance is equivalent to approximately one week's pay for each year of service. The qualifying period of service is two years in the case of death and four years in the case of retirement. You are required to elect whether or not you wish to be considered as eligible to receive an allowance under the Act upon commencement with the Commission. Eligibility under the Act excludes you from an entitlement to tax deductions in respect of your contributions (if any) to a private superannuation scheme." That part dealing with the Retirement Benefits Fund was as for the first edition except that before the reference to fortnightly contributions there was inserted: "An election to contribute to Retirement Benefits Fund disentitles you to any benefits under the Public Servants' Retiring and Death Allowances Act 1925." And at the end the following was inserted: "For further information on retirement provisions please contact the Senior Wages Clerk at Head Office." The initiative for the Blue Book to a large extent came from the Combined Union Council ("CUC"), a body consisting of representatives of some eight unions with members in the Hydro workforce on the West Coast. From time to time the CUC would have meetings with representatives of the Hydro including Mr Claude Taplin, Mr John King and Mr Garry Baker. In a newsletter which went to all Union members the CUC reported on a meeting with Hydro representatives held at Tullah on 7 March 1979. The newsletter included a report (CB10/55): "The need for a better introduction programme for new men has been acknowledged. Among the items discussed was the production of a booklet and the need for a more detailed introduction to a person's rights and responsibilities as well as his part in the vitally important job of producing power for the state." On 7 August 1980 Mr John King, the Senior Industrial Relations Officer, circulated a draft of what was to become the Blue Book seeking comments (CB 4/232). This was sent to, amongst others, Mr Taplin, the Works Industrial Officer at Tullah (CB3/155). When finally produced a copy of the Blue Book was sent to some fifteen unions (CB7/112). The Secretary of the CUC wrote to the Hydro congratulating it on the "printing, presentation and contents" of the booklet. The Secretary stated that the council felt that the Blue Book "will be very helpful to new employees" (CB7/111). In about mid 1984 a reprint was prepared. The CUC wrote on 30 January 1985 (CB10/74) expressing concern about the "very long delay" in supplying a reprint. The Blue Book was said to have been out of print since July 1985 (sic, presumably 1984). The letter concluded: "The matter has been brought to the attention of the local Works Industrial Officer by myself on many occasions and the only response has been that it is at the Publishers. We take this opportunity to express our extreme disappointment at the non supply of this important brochure and we hope that you can facilitate the matter." The Hydro replied on 7 March 1985 (CB10/75) advising that it was also concerned with the delays and advising that the Blue Book would be available for distribution within the next three or four weeks. It was stated: "Copies will be made available to all employees who have not been issued with the booklet due to these production difficulties." There was evidence of the Blue Book being used by Mr Taplin in relation to disciplinary matters. For example he used it for drawing attention to its prohibition against bringing alcohol on to job sites: (CB10/76, 77, 78). Sometimes the Blue Book was sent to a person to remind him of his obligations: T388. As to distribution, Mr Alexander Gergel who from 1978 onwards worked in the employment office of the Hydro deposed (CB3/100-101): "6. My work included engaging Wages employees. Whenever a Wages employee was engaged at Head Office after the publication of the Blue Book they were provided with a copy. Bundles of Blue Books were also distributed throughout the Hydro for crib rooms and the like. During the period of my employment subsequent to publication of the Blue Book I on many occasions received requests from Works Industrial Officers, Assistant Works Industrial Officers, Timekeepers and their assistants for bundles of the Blue Books which were sent to them."

I certify that this and the preceding One hundred and nine pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Counsel for the Applicants: Mr Peter Tree and Mr Simon Cooper

Counsel for the Respondent: Mr Peter Evans and Mrs Kim Bennett

Solicitor for the Respondent: Butler McIntyre & Butler

Date of Hearing: 22-6 September 1997, 10-14 November 1997, 8-12 December 1997, 3-6 March 1998, 15-21 April 1998