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

BARRY MULCAHY AND OTHERS v. THE HYDRO-ELECTRIC COMMISSION JUDGMENT Federal Court of Australia

FEDERAL COURT OF AUSTRALIA CONTRACT - implication of term as a necessary incident of a definable category of contractual relationship - employment contract - whether implied term that employer advise board of superannuation fund or employee of employee's right to elect to contribute to fund EMPLOYMENT LAW - contract of employment - whether implied term that employer advise board of superannuation fund or employee of employee's right to elect to contribute to fund EQUITY - unconscionable conduct - Trade Practices Act 1974 (Cth) s 51AA - whether respondent Commission's conduct in requesting Tasmanian Government to enact retrospective legislation to defeat potential causes of action against it constituted unconscionable conduct - whether imbalance of power amounts to special disadvantage - whether acting to protect one's own interests unconscionable - whether unconscionable conduct gives rise to a claim for damages - whether relief available where unconscionable conduct not connected with a transaction in respect of which relief is claimed LIMITATION OF ACTIONS - Trade Practices Act 1974 (Cth) ss 82(2), 87(1CA)(a) - Limitation Act 1974 (Tas) s 4(1)(a) - time of accrual of cause of action - failure to notify of right to elect to contribute to superannuation fund where legislation gives right to elect to contribute - whether cause of action accrues when applicant became aware of right to contribute - whether knowledge of right to sue essential ingredient of cause of action - whether cause of action accrues upon termination of employment - Limitation Act 1974 (Tas) s 32(1) - fraud or concealment of right of action - whether limitation period runs from date of discovering fraud or concealment - whether "fraud" involves moral turpitude NEGLIGENCE - whether employer under duty to advise board of superannuation fund or employee of temporary employee's right to elect to contribute to fund - whether general reliance relevant - employer not a public body with statutory duty to regulate activities which may cause loss or damage to members of public - whether continuing duty to advise after employment ceased - whether breach of duty - what constitutes sufficient notification of right to elect to contribute to fund- whether deliberate policy by employer to conceal right to elect - causation - whether employees would have elected to contribute if aware of right to elect STATUTES - statutory powers and duties - breach of statutory duty - whether statutory corporation under duty to advise board of superannuation fund or employee of temporary employee's right to elect to contribute to fund - Retirement Benefits Act 1982 (Tas) s 82A - Retirement Benefits Regulations 1982 (Tas) regs 24(1)(ab), (ac) - obligation of "responsible officer" to notify board of fund of appointment of employee and to forward necessary forms for medical examination to employee - whether legislation created a cause of action for damages for breach of statutory duty - whether duty exists where penalty is imposed for breach of statute or regulations - whether duty imposed on commission SUPERANNUATION - Retirement Benefits Act 1982 (Tas) - Retirement Benefits Fund - employees of Hydro-Electric Commission - permanent employees obliged to join - temporary employees may elect to join - whether permanent or temporary employee - date of determination of permanency - whether number of years' service determinative - entry into fund precluded entitlement to benefits under Public Servants Retiring and Death Allowances Act 1925 (Tas) - duty of "responsible officer" to notify board of fund and employees of rights and obligations in relation to contribution - whether duty breached - entitlement to "buy back" previous years' employment where join fund after commencement of employment - effect of retrospective legislation attempting to preclude causes of action based upon failure of responsible officer to notify of right to elect to contribute TRADE PRACTICES - misleading or deceptive conduct - Trade Practices Act 1974 (Cth) s 52 - Fair Trading Act 1990 (Tas) s 14 - representation by employer that temporary employees not entitled to join superannuation fund - representation by silence - alleged failure to advise board of superannuation fund or temporary employees of right to elect to join fund - whether representations in "trade or commerce" -internal communication between employer and employee- Trade Practices Act 1974 (Cth) s 51AA - whether respondent Commission's conduct in requesting Tasmanian Government to enact retrospective legislation to defeat potential causes of action against it constituted unconscionable conduct - whether conduct in "trade or commerce" - whether s 51AA operates retrospectively - whether damages available for breach of s 51AA WORDS AND PHRASES - "employed in a permanent capacity" - "employment of a temporary nature" - "in respect of" - "enactment" - "fraud" Federal Court of Australia Act 1976 (Cth) Pt IVA Public Service Superannuation Fund Act 1905 (Tas) Public Service Act 1905 (Tas) ss 3, 67 Public Servants Retiring and Death Allowance Act 1925 (Tas) ss 2A, 3, 4 Hydro-Electric Commission Act 1929 (Tas) Superannuation Act 1938(Tas) ss 3, 4, 8, 18, 19, 20, 28, 29, 30, 31, 43, 48 Public Service Act 1918 s 95 Public Service Act 1923 s 51 Retirement Benefits Act 1970 (Tas) ss 2, 2AA, 21, 23, 24, 25, 25A, 26, 28A, 29, 62 Retirement Benefit Act (No.2) 1974 (Tas) Retirement Benefit Act (1982) (Tas) ss 3, 4, 5, 6, 10, 20, 23, 25, 29, 30, 32, 35, 72, 80, 82A, 87, 88, 90A Income Tax Assessment Act 1936 (Cth) s 82AAT Superannuation Regulations 1945 (Tas) reg 31 Retirement Benefits Regulations 1971 (Tas) reg 22 Retirement Benefits Regulations 1982 (Tas) reg 24 Retirement Benefits Amendment Regulations 1985 (Tas) Retirement Benefits Amendment Act 1993 The Complex Ores Act 1909 (Tas) Hydro-Electric Purchase Act 1914 (Tas) Hydro-Electric Commission Act 1929 (Tas) ss 21, 26, 27, 28, 29 Hydro-Electric Commission Act 1944 (Tas) ss 15, 16 Hydro-Electric Commission Rules 1939 (Tas) rr 30A(1), 39A Trade Practices Act 1974 (Cth) ss 51AA, 52, 81, 87 Fair Trading Act 1990 (Tas) s 14 Limitation Act 1974 (Tas) ss 4(1)(a), 32 Contravention of Statutes Act 1889 (Tas) Hydro-Electric Commission Rules 1978 (Tas) rr 19, 40 Local Government Act 1958 (Vic) Acts Interpretation Act 1931 (Tas) s 5 Re Goodwin [1986] Tas R 6 discussed Rollins v The Hydro-Electric Commission [1953] Tas SR 42 mentioned Launceston Corporation v The Hydro-Electric Commission (1959) 100 CLR 654 mentioned Tasmanian Dam Case (1983) 158 CLR 1 mentioned Haines v Woy Woy Shire Council (1933) 11 LGR (NSW) 99 distinguished Williams v Macharg (1910) 10 CLR 599 distinguished Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 applied Byrne v Australian Airlines Limited (1995) 185 CLR 410 applied O'Connor v S P Bray Ltd (1937) 56 CLR 464 applied X (Minors) v Bedfordshire County Council [1995] 2 AC 633 applied Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 applied BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 applied Scally v Southern Health and Social Services Board [1992] 1 AC 294 distinguished Liverpool City Council v Irwin [1977] AC 239 mentioned Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 applied Hawkins v Clayton (1988) 164 CLR 539 mentioned Macpherson & Kelly v Kevin J Prunty & Associates [1983] 1 VR 573 mentioned Pyrenees Shire Council v Day (1998) 72 ALJR 152 applied Sutherland Shire Council v Heyman (1985) 157 CLR 424 mentioned Stovin v Wise [1996] AC 923 mentioned Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied Boheto Pty Ltd v Sunbird Plaza Pty Ltd [1984] 2 Qd R 9 mentioned R v Kidman (1915) 20 CLR 425 mentioned Polyukhovich v The Commonwealth (1991) 172 CLR 501 mentioned Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 applied Blomley v Ryan (1956) 99 CLR 362 applied Louth v Diprose (1992) 175 CLR 621 applied Cooke v Gill (1873) 8 LR CP 107 applied Wardley Australia Limited v Western Australia (1992) 175 CLR 514 applied Gregg v Tasmanian Trustees Limited (1997) 143 ALR 328 applied Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89 applied Invercargill City Council v Hamlin [1996] AC 624 discussed Hamilton v Kaljo (1987) 17 NSWLR 381 followed Kerry Pink "Through Hell's Gates: A History of Strahan and Macquarie Harbour" (3rd ed, 1997) BARRY MULCAHY AND OTHERS v THE HYDRO-ELECTRIC COMMISSION NO. TG 1 of 1996 JUDGE: HEEREY J DATE: 3 JUNE 1998 PLACE: HOBART