FEDERAL COURT OF AUSTRALIA
Tucker v Broderick [2021] FCA 1492
File number(s): VID 359 of 2021 Judgment of: O'CALLAGHAN J Date of judgment: 30 November 2021 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth) on the ground that it was an abuse of process – application granted
COSTS – application by respondents for indemnity costs – indemnity costs ordered
Legislation: Fair Work Act 2009 (Cth) ss 50, 570
Federal Court Rules 2011 (Cth) r 26.01
Public Administration Act 2004 (Vic) ss 8(b), 20(3)(c)
Cases cited: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334
Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34
Re Australian Education Union (NT) (No 2) [2011] FCA 728
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Tucker v State of Victoria [2018] VSC 389
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 79 Date of hearing: 15 November 2021 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Applicant: SGM Legal Counsel for the Respondents: Mr JL Bourke QC with Ms R Preston Solicitor for the Respondents: Maddocks ORDERS
VID 359 of 2021 BETWEEN: TOBIAS JOHN TUCKER
Applicant
AND: PAUL BRODERICK (SUED IN HIS CAPACITY AS COMMISSIONER OF STATE REVENUE)
First Respondent
THE STATE OF VICTORIA
Second Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
30 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The proceeding be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth).
2.The applicant pay the costs of the respondents on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
INTRODUCTION
Mr Tucker was employed by the second respondent, the State of Victoria, and worked as a senior solicitor at the State Revenue Office (SRO) from 28 November 2011 until 19 July 2019, when his employment was terminated. The first respondent, Mr Broderick, is the Commissioner of State Revenue, who is sued in that capacity. He exercised delegated powers with respect to SRO employees.
This is an application by the respondents for summary judgment under r 26.01 of the Federal Court Rules 2011 (Cth). The respondents contend, among other things, that this proceeding is an abuse of process because Mr Tucker seeks relief in relation to matters already determined in long running proceedings in the Supreme Court of Victoria.
For the reasons that follow, it is readily apparent, and should have been readily apparent to Mr Tucker and his solicitor, that this proceeding does constitute an abuse of process, including because:
(a)The proceedings in the Supreme Court finally settled the real controversy between the parties that is the subject of the claims in this proceeding.
(b)Mr Tucker, a lawyer and at the time represented by…
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- AGLC
- Tucker v Broderick [2021] FCA 1492
- Case
- [2021] FCA 1492
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether Tucker's proceedings constituted an abuse of process, warranting summary dismissal. The court considered the principles governing summary judgment and whether Tucker's claims had a bona fide prospect of success. Furthermore, the court examined whether the proceeding was an abuse of process by being an improper use of the court's procedures, potentially oppressive to the respondent or undermining the integrity of the judicial process.
The court found that Tucker's claims lacked merit and were an abuse of process. It held that there was no reasonable prospect that the proceeding would succeed, given the lack of evidence to support the defamation claims. The court also determined that the claims were vexatious and oppressive, justifying the application for indemnity costs. Consequently, the court granted the application for summary judgment, dismissing the proceeding and ordering Tucker to pay Broderick's costs on an indemnity basis. This decision underscores the importance of ensuring that court processes are not misused to harass or intimidate other parties.
Orders
Orders of the court
1. The proceeding be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth).
2. The applicant pay the costs of the respondents on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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