Tucker v McKee

Case [2024] FCA 199

FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2024] FCA 199

File number(s): VID 274 of 2020
Judgment of: WHEELAHAN J
Date of judgment: 7 March 2024
Catchwords: PRACTICE AND PROCEDURE — abuse of process – where the Limitation of Actions Act 1958 (Vic) prescribes a one-year limitation period for defamation actions – where the applicant commenced an action outside the one-year limitation period – where the applicant applied for an extension of time – where the applicant’s first application for an extension of time was refused on the basis that the applicant did not sufficiently explain his delay in commencing the proceeding – where the applicant made a second application for an extension of time – where the applicant sought to rely on additional evidence as to his subjective reasons for not commencing his action within the limitation period – where the applicant did not adduce this evidence on the first application – Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 and P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; 255 ALR 466 applied – the order dismissing the applicant’s first application was an interlocutory order of a substantive nature made after a contested hearing – the applicant’s failure to adduce evidence of reasons for the delay was a forensic choice – considerations of finality, certainty, the efficient use of judicial resources, and the overarching purpose in ss 37M of the Federal Court of Australia Act 1976 (Cth) lead to the conclusion that the second application is an abuse of process – application dismissed.
Legislation:

Evidence Act 1995 (Cth) s 131(2)(g)

Federal Court of Australia Act 1976 (Cth) ss 37M(1), 37N(1)

Crown Proceedings Act 1958 (Vic) s 23(1)(b)

Limitation of Actions Act 1958 (Vic) ss 5(1AAA), 23B

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

AEI Insurance Group Pty Ltd v Martin [2023] FCA 914

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175

Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272

Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; 96 NSWLR 478

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Casley v Australian Broadcasting Corporation [2013] VSCA 182; 39 VR 526

Coulton v Holcombe (1986) 162 CLR 1

D A Christie Pty Ltd v Baker [1996] 2 VR 582

Dallas Buyers Club LLC v iiNet Ltd (No 5) [2015] FCA 1437; 115 IPR 544

Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr and Sackville JJ, 17 May 1996)

DB Marketing Solutions Pty Ltd v Cause (No 2)

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AGLC
Tucker v McKee [2024] FCA 199
Case
[2024] FCA 199
Decision Date

CaseChat Overview and Summary

In Tucker v McKee, the applicant, Tucker, sought an extension of the one-year limitation period prescribed by the Limitation of Actions Act 1958 (Vic) for his defamation claim against McKee, who published an email to two persons within the Victorian State Revenue Office. Tucker's initial application for an extension was dismissed because he did not adequately explain his delay in commencing the proceeding. Subsequently, Tucker filed a second application, seeking to rely on additional evidence regarding his reasons for delay, which he did not present during the first application. The central legal issue was whether the second application should be permitted, given the dismissal of the first application and the potential implications for judicial efficiency and finality.

The court considered the nature of the interlocutory order dismissing the first application, which was substantive in nature and made after a contested hearing. It also weighed the public interest in finality, the efficient use of judicial resources, and the overarching purpose of the Federal Court of Australia Act 1976 (Cth). The court held that the applicant's failure to adduce evidence of his reasons for delay in the first application was a strategic choice. Consequently, the second application was deemed an abuse of process, and it was dismissed.

The court made several orders in relation to the application. Firstly, Tucker's interlocutory application for an extension of the limitation period was dismissed. Secondly, the costs of the interlocutory application were reserved pending a decision on whether the respondents would seek costs. If the respondents sought costs, they were required to submit an outline of their submissions, to which Tucker would respond, and the matter would be fixed for a hearing. Lastly, Tucker's oral application for leave to appeal the dismissal of his interlocutory application was referred to the National Operations Registrar for allocation to another judge.

Orders

Orders of the court

1. The applicant’s interlocutory application filed 22 November 2023 for an enlargement of the limitation period in respect of the publication of the email on 9 June 2017 alleged in [3](a) of the amended statement of claim be dismissed.

2. The costs of the interlocutory application be reserved and shall be subject to the directions set out below.

3. By 4.00 pm on 13 March 2024, the respondents by their solicitors are to email the Court and the applicant stating whether the respondents seek costs of the interlocutory application.

4. If the respondents elect not to seek costs of the interlocutory application, then there be no order as to costs.

5. If the respondents elect to seek costs of the interlocutory application, then the following has effect –

(a) by 4.00 pm on 14 March 2024, the respondents are to file and serve an outline of submissions not exceeding five pages in 1.5 line spacing and 12 point font, addressing the question of costs of the interlocutory application;

(b) by 4.00 pm on 21 March 2024, the applicant file and serve an outline of submissions not exceeding five pages in 1.5 line spacing and 12 point font in response; and

(c) the respondents’ application for costs be fixed for hearing on 25 March 2024 at 11.30 am.

6. The applicant’s oral application made today under r 35.01 for leave to appeal the order dismissing his interlocutory application filed 22 November 2023 be referred to the National Operations Registrar for allocation to another judge.

OTHER MATTERS:

A. The Court determined that, because the applicant made an oral application in this proceeding for leave to appeal the order dismissing his interlocutory application filed 22 November 2023, it would not be consistent with the overarching purpose for the Court to hear the respondents’ application for summary judgment until the applicant’s applications for leave to appeal the orders of 3 November 2023 and this day are heard and determined.

B. The applicant submitted to the Court that the costs provisions in s 570 of the Fair Work Act 2009 (Cth) apply to this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In support of the applicant’s submission that his reasons for delay were not relevant, the applicant cited the decision of the Queensland Court of Appeal in Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [65]. In Judgment No 1, I rejected the applicant’s submission, stating –20… This involves a misunderstanding of the authorities. The determination of the first stage, namely whether in the circumstances it was not reasonable to commence a proceeding within one year of publication is objective. The determination is objective in the sense that, in relation to the first stage, s 23B poses a test requiring evaluation of the circumstances as they appear objectively to the court, and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] (McColl JA), citing Noonan at [20] (Keane JA), and [65] (Chesterman JA). Attention is required to the claimant’s actual reasons because they are part of the circumstances pertinent to whether it was not reasonable to commence a proceeding within one year of the publication: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48] (McCallum J), followed in Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135 at [22] (McWilliam AsJ), which was itself followed in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [8] (Lee J), and in turn in Lehrmann at [11] (Lee J). 21In a case such as this, a claimant’s explanation for delay is relevant to the discretionary question of what further period of limitation should be allowed. That is because, as I have explained, the policy of the legislation is that claimants should move quickly. On the state of the evidence, I am not able to draw any conclusions about the reasons for the applicant’s delay from 8 November 2019. I am left to speculate. In circumstances where the applicant had alluded to a defamation claim in correspondence on 21 October 2019, the situation may be no more than that the applicant left the service of the concerns notice on the first respondent and the commencement of the proceeding to a time of his choosing. Such a conclusion would be supported by the evidence of other activities involving other court process in which the applicant engaged. I do take account of the fact that a refusal of this application has consequences for the applicant. But I have to balance the applicant’s interests against those of the respondents and examine the facts and circumstances of this application. In circumstances where a favourable exercise of discretion in the applicant’s favour would deprive the respondents of a defence, I am not persuaded to exercise my discretion favourably to the applicant in the absence of cogent evidence directed to his explanation for the delay that occurred. It may be accepted that if the applicant had moved quickly after 9 November 2019 and applied for an extension of the limitation period, the Court would have been required to extend time for a period. But the applicant did not do that, and as with Barrett, the absence of sufficient evidence about the reasons for the applicant’s delay is an unsatisfactory basis on which to extend the limitation period until 24 April 2020. Additional evidence

Decision

Reasons for decision

The applicant has made a second application to the Court for an extension of the one‑year limitation period that applies to his defamation claim under s 5(1AAA) of the Limitation of Actions Act 1958 (Vic). The applicant’s first application was dismissed on the merits following a hearing and full argument: Tucker v McKee [2023] FCA 1335 (Judgment No 1). For the reasons that follow, the second application will be dismissed on the ground that it is an abuse of process.Background The applicant claims damages in respect of an email published by the first respondent on 9 June 2017 to two persons within the Victorian State Revenue Office. Although the second respondent, the State of Victoria, is alleged to be directly liable for the publication of the email, any liability of the State would likely be only vicarious: see, Crown Proceedings Act 1958 (Vic) s 23(1)(b). Little turns on this point for present purposes, but it directs focus on the claimed liability of the first respondent, Mr McKee. This proceeding has some history to it, which was referred to by the Full Court in its reasons for allowing an appeal against an order by which the proceeding was summarily dismissed for lack of jurisdiction: Tucker v McKee [2022] FCAFC 98; 292 FCR 666 at [1] to [25] (Allsop CJ, Kenny and Jagot JJ). The proceeding also forms part of a wider field of disputation between the applicant and the State of Victoria arising from the termination of the applicant’s employment as a solicitor in the State Revenue Office, which has been the subject of decisions of other courts, including Tucker v State of Victoria [2021] VSCA 120, where several aspects of the matter were referred to at [5] to [16], and more recently, Tucker v State of Victoria [2023] VSCA 126. This proceeding was commenced on 24 April 2020, which was outside the one‑year limitation period for defamation claims prescribed by s 5(1AAA) of the Limitation of Actions Act. The one‑year limitation period is subject to the power of a court under s 23B of the Limitation of Actions Act to extend it by a period not exceeding three years from the date of publication. In their defence, the respondents pleaded that the applicant’s claim was commenced outside the limitation period. The applicant sought an extension of the limitation period in his originating application. By orders made 16 June 2023, I fixed the extension application for hearing on 31 October 2023, and made orders for the filing and service of affidavit material, written submissions, and lists of authorities. The hearing proceeded on 31 October 2023, where the matter was fully argued. The applicant represented himself, and the respondents were represented by senior and junior counsel. I reserved my decision, and on 3 November 2023 I dismissed the application: Judgment No 1. On 22 November 2023, and after the dismissal of the first application, the applicant filed a second application seeking an extension of the limitation period, and sought leave to rely upon additional affidavit material and submissions in support. The applicant also filed an application for leave to appeal the orders of 3 November 2023. The application for leave to appeal has been allocated to another judge of the Court and has yet to be heard. Its progress awaits the outcome of the applicant’s second application before me.

Ratio Decidendi

Legal Principle Established

In this application, I will adopt the guidance of Goldberg J in P Dawson Nominees at [49]. In doing so, I do not understand there to be a bright line distinction between the four circumstances identified by Goldberg J at [49]. For instance, at [39] Goldberg J considered that exceptional circumstances might exist where new facts come into existence which might render the enforcement of an interlocutory order unjust, citing the majority of the High Court in Adam P Brown Male Fashions at 178. The reference by Goldberg J in [49](b) to a material change in circumstances takes its colour from his Honour’s earlier discussion at [39]. One would think that exceptional circumstances involving new facts that render the enforcement of an order unjust would also amount to concluding that “the justice of the matter requires that the applicants be allowed to revisit the matter”. Further, the guidance in P Dawson Nominees is not a code, but is to be informed by other guidance, such as that of McLelland J in Brimaud, with which it is harmonious. Consideration In determining whether there are exceptional circumstances which warrant reconsideration of the applicant’s application in this case, or whether the justice of the matter requires that the applicant be able to prosecute a second application, it is relevant to have regard to: (1) the nature of the interlocutory order dismissing the first application; (2) whether the matter concerned an issue of real substance or a question of practice and procedure that is under the Court’s continuing control; (3) whether the first application was fully argued; (4) the applicant’s explanation for failing to adduce the evidence on which he now seeks to rely; (5) the public interest in finality; (6) the efficient use of judicial resources; and (7) the overarching purpose to which I have referred. A limitation defence is a substantive defence, and is not a mere matter of procedure: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [99]-[100] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The applicant’s application to extend the limitation period was indorsed on the originating process, and was a necessary step to obtaining final relief because the respondents had foreshadowed a limitation defence. The failure of the first application to extend the limitation period has significant consequences for all parties, because it gives rise to the question whether the applicant’s cause of action is maintainable. Indeed, the respondents have now made an application for summary judgment based upon their limitation defence. It was always in contemplation that the outcome of the application to extend the limitation period would have these significant consequences, and that the hearing of the application was an essential element of the adjudication of the entire matter. In the potential range of interlocutory orders, extending from procedural orders setting timetables, to interlocutory injunctions which are expressed to be subject to further order, to orders recording answers given on the trial of a separate question, the order made dismissing the applicant’s first application to extend the limitation period has much in common with an order made upon the trial of a separate question, and therefore attracts the type of considerations referred to by McLelland J in Brimaud that are applicable to orders of a substantive nature made after a fully contested hearing in contemplation that they would operate until the final disposition of the proceedings.