Tucker v Broderick

[2021] FCA 1492

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

Tucker v State of Victoria [2019] VSC 420

Tucker v State of Victoria [2021] VSCA 120

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

1. 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. 

2. 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.

3. 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…