FEDERAL COURT OF AUSTRALIA
Tucker v McKee [2022] FCAFC 98
Appeal from: Tucker v McKee [2021] FCA 828 File number(s): VID 449 of 2021 Judgment of: ALLSOP CJ, KENNY AND JAGOT JJ Date of judgment: 3 June 2022 Catchwords: HIGH COURT AND FEDERAL COURT – federal jurisdiction – defamation – alleged defamatory imputations in email from first respondent to employees of second respondent – whether pleadings disclose matter within federal jurisdiction – whether respondents’ pleading of common law defence of qualified privilege based in part on legal duty or interest by reference to an enterprise agreement was sufficient to enliven jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – where enterprise agreement made under and enforceable by Fair Work Act 2009 (Cth) – whether appellant’s pleaded defamatory imputations relying upon enterprise agreement and Fair Work Act “colourable” or “unarguable”: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 applied – whether such imputations sufficient to enliven federal jurisdiction – held: appeal allowed Legislation: Constitution s 76(ii)
Fair Work Act 2009 (Cth) ss 50, 172, 570
Federal Court of Australia Act 1976 (Cth) s 32
Judiciary Act 1903 (Cth) ss 39, 39B(1A)(c)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)
Cases cited: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212
Cadet v Stephens (unreported, Windeyer J, Brisbane 21 June 1966)
CGU Insurance Ltd v Blakeley [2016] HCA 2; 259 CLR 339
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Crosby v Kelly [2012] FCAFC 96; 203 FCR 451
Dzikowsky v Mazgay (unreported, Windeyer J, Sydney 7 July 1966)
Felton v Mulligan [1971] HCA 39; 124 CLR 367
LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575
Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457
National Australia Bank Ltd v NautilusInsurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627
Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369
R v Commonwealth Court of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460
Raghubir v Nicolopoulos [2022] FCAFC 97
Rana v Google Inc [2017] FCAFC 156; 254 FCR 1
Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511
Ridd v James Cook University [2021] HCA 32; 394 ALR 12
Toogood v Spyring (1834) 1 Cr M & R 181
Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152
Tucker v Broderick [2021] FCA 1492
Division: General Division Registry: Victoria National Practice Area:
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- AGLC
- Tucker v McKee [2022] FCAFC 98
- Case
- [2022] FCAFC 98
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the pleadings disclosed a matter within federal jurisdiction and whether the respondents' reliance on the enterprise agreement and the Fair Work Act sufficiently enlivened the federal jurisdiction under section 39B(1A)(c) of the Judiciary Act. The Court considered the application of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, which held that certain defamatory imputations were "colourable" or "unarguable." The Court needed to determine if the respondents' defence of qualified privilege, which referred to the enterprise agreement and the Fair Work Act, was sufficient to enliven the federal jurisdiction.
The Court found that the primary judge erred in dismissing the application for want of federal jurisdiction. The defence of qualified privilege, which referred to a Commonwealth law through the enterprise agreement and the Fair Work Act, was sufficient to enliven the federal jurisdiction. Consequently, the Court allowed the appeal, set aside the orders of the primary judge, and remitted the proceeding to a Judge of the Court for case management. Additionally, the Court granted leave to appeal, extended time for filing the appeal, and directed the respondents to pay the appellant's costs.
Orders
Orders of the court
1. To the extent necessary:
(a) extend time for the filing and service of any application for leave to appeal up to and including 12 August 2021;
(b) dispense with the filing of any application for leave to appeal; and
(c) grant leave to appeal in the form of the notice of appeal filed on 12 August 2021.
2. The appeal be allowed.
3. Orders 1 and 2 made by the Court on 23 July 2021 be set aside.
4. In lieu of Order 1 made on 23 July 2021, the respondents’ interlocutory application dated 27 August 2020 be dismissed.
5. In lieu of Order 2 made on 23 July 2021, the respondents pay the applicant’s costs of and in connection with the respondents’ interlocutory application dated 27 August 2020 as agreed or taxed.
6. The respondents pay the appellant’s costs of the appeal, as agreed or taxed.
7. The proceeding be remitted to a Judge of the Court for case management.
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
Ratio Decidendi
Legal Principle Established
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