Commonwealth of Australia v Cornwell [2007] HCA 16

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

COMMONWEALTH OF AUSTRALIA APPELLANT

AND

JOHN GRIFFITH CORNWELL RESPONDENT

Commonwealth of Australia v Cornwell [2007] HCA 16

20 April 2007

C10/2006

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of the Australian Capital Territory

Representation

S P Estcourt QC with K L Bennett for the appellant (instructed by Australian Government Solicitor)

B W Walker SC with R J Davis and J R C Gordon for the respondent (instructed by Snedden Hall and Gallop)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commonwealth of Australia v Cornwell

Limitation of actions – Negligence – Meaning of "first accrues" in s 11(1) of the Limitation Act 1985 (ACT) – The respondent was negligently advised in 1965 that he was ineligible for acceptance as a member of the fund established pursuant to the Superannuation Act 1922 (Cth) – The respondent did not institute proceedings against the appellant until 1999 – Whether the respondent's cause of action first accrued upon his retirement in 1994, or at some earlier time – Whether the respondent's cause of action was statute-barred.

Limitation of actions – Concealed fraud – Whether a consideration of s 33 of the Limitation Act 1985 (ACT) is required to resolve the respondent's case.

Negligence – Cause of action – Whether the respondent's cause of action accrued upon his retirement in 1994, or at some earlier time.

Negligence – Damage – Economic loss – Contingent loss – Superannuation entitlements – Statutory contingencies – Whether the respondent suffered damage when his superannuation entitlements accrued upon his retirement in 1994, or at some earlier time.

Superannuation – Defined benefits schemes – Statutory contingencies for the accrual of entitlements – Whether the respondent suffered any damage until the statutory contingencies contained in the Superannuation Act 1990 (Cth) were enlivened upon his retirement in 1994.