Tucker v McKee

Case [2023] FCA 1335

FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2023] FCA 1335

File number(s): VID 274 of 2020
Judgment of: WHEELAHAN J
Date of judgment: 3 November 2023
Catchwords: PRACTICE AND PROCEDURE — where Limitation of Actions Act 1958 (Vic) prescribes a one-year period from the date of publication within which a defamation action is to be brought – where the applicant sought to commence his defamation action outside of the prescribed time and sought leave to extend time under s 23B of the Act – where conceded by the respondents that it was not reasonable for the applicant to seek to commence his action prior to 9 November 2019 – where the applicant did not commence his proceeding until 24 April 2020 – whether the Court should exercise its discretion to allow an extension of time within which to commence the proceeding until 24 April 2020 – the applicant did not sufficiently explain delay in commencing the proceeding – where the applicant’s reason for such a delay is a relevant consideration in the exercise of the discretion – where positive exercise of discretion would result in respondents losing a defence – application to extend time dismissed.
Legislation:

Civil Dispute Resolution Act 2011 (Cth), s 6

Evidence Act 1995 (Cth), s 131

Judiciary Act 1903 (Cth), s 79

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

Defamation Act 2005 (Vic), s 11

Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), s 42

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

Cases cited:

Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663

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

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541

Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136

Casley v Australian Broadcasting Corporation [2013] VSC 251

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

Hearne v Street [2008] HCA 36; 235 CLR 125

Johnston v Holland (No 2) [2017] VSC 597

King v Comiskey Management Services Pty Ltd [2020] QCA 229

Landrey v Nine Network Australia Pty Ltd [2023] FCA 27

Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385

Noonan v MacLennan [2010] QCA 50; Qd R 537

Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135

Tucker v McKee [2022] FCAFC 98; 292 FCR 666

Tucker v State of Victoria [2021] VSCA 120

Wookey v Quigley (No 2) [2010] WASC 209

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Muller v Linsley & Mortimer [1996] PNLR 74

Unilever Plc v The Procter & Gamble Co [2000] 1 WLR 2436

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 22
Date of hearing: 31 October 2023
Counsel for the Applicant The Applicant appeared in person
Counsel for the Respondents Ms R L Enbom KC
Mr D R Luxton
Solicitor for the…

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Details
AGLC
Tucker v McKee [2023] FCA 1335
Case
[2023] FCA 1335
Decision Date

CaseChat Overview and Summary

In the case of Tucker v McKee, the applicant, a former employee of the State Revenue Office of Victoria, sought an extension of the limitation period to bring a defamation action against the respondents. The respondents argued that the application was statute-barred by section 5(1AAA) of the Limitation of Actions Act 1958 (Vic), which prescribes a one-year period for defamation actions. The applicant, who was self-represented, had become aware of the defamatory email on 25 September 2019, during a hearing in the Supreme Court of Victoria. Despite this, the applicant did not commence proceedings until 24 April 2020. The central issue before the court was whether it should exercise its discretion under section 23B of the Limitation of Actions Act to extend the limitation period to permit the commencement of the proceeding on 24 April 2020.

The court considered the policy behind the legislation, which encourages claimants to act promptly. It noted that the applicant had not provided sufficient explanation for the delay in commencing the proceeding. While the applicant had alluded to a defamation claim in correspondence on 21 October 2019, the evidence suggested that the applicant may have chosen to delay initiating the proceeding. The court balanced the applicant's interests against those of the respondents, noting that a favourable exercise of discretion would deprive the respondents of a defence. Given the absence of cogent evidence regarding the reasons for the delay, the court was not persuaded to extend the limitation period.

The court concluded that the application for an extension of the limitation period should be dismissed. It ordered that the respondents file and serve any application for summary judgment by a specified date, with accompanying written submissions limited to three pages. The costs of the application for an extension of the limitation period and of the hearing were reserved.

This case highlights the importance of acting promptly in bringing a defamation action and the necessity for a claimant to provide a satisfactory explanation for any delay. The court's decision underscores the balance that must be struck between the interests of the claimant and the respondents, particularly when the exercise of discretion would deprive the respondents of a defence.

Orders

Orders of the court

1. The applicant’s application 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 is dismissed.

2. By 4.00 pm on 10 November 2023, the respondents file and serve any application for summary judgment, together with written submissions to be limited to three pages, to be prepared in 12 point font with 1.5 line spacing.

3. By 4.00 pm on 24 November 2023, the respondents file and serve any affidavit in response, together with written submissions to be limited to three pages, to be prepared in 12 point font with 1.5 line spacing.

4. Any application filed pursuant to paragraph 2 above will be listed for hearing on 1 December 2023 at a time to be advised.

5. The costs of the application for an extension of the limitation period and of today be reserved.

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

Background

Background to the litigation

The respondents plead that the applicant’s cause of action is statute-barred by operation of s 5(1AAA) of the Limitation of Actions Act 1958 (Vic), which provides for a limitation period of one year for an action for defamation. By the prayer for relief in the originating application the applicant seeks an extension of the limitation period under the “Uniform Defamation Laws”. It was accepted that the applicable provision is s 23B of the Limitation of Actions Act which empowers a court to make an order extending the limitation period to a period of up to three years from the date of publication.Background This proceeding has some history to it, and it is part of a wider course of disputation between the applicant, and the State of Victoria and the Commissioner for State Revenue (collectively, the State). Some of that wider disputation is relevant to the current application, as it forms part of the circumstances that are to be considered for the purposes of the question whether the limitation period should be extended, and if so by what period. Much of the background to this proceeding is referred to in the Full Court’s reasons in Tucker v McKee [2022] FCAFC 98; 292 FCR 666 at [1] to [25]. In summary, the applicant was a lawyer employed by the State Revenue Office of Victoria. He is self-represented before this Court, but it is relevant that he is legally trained, as the quality of the drafting of his affidavit evidence and written and oral submissions would indicate. While employed by the State Revenue Office the applicant was the subject of an investigation and a report into his conduct. He was subsequently dismissed. The applicant commenced proceedings in the Supreme Court of Victoria, the Fair Work Commission, and in this Court in relation to the investigation of his conduct and his dismissal from employment. Several aspects of the matter determined by the Supreme Court of Victoria are summarised in Tucker v State of Victoria [2021] VSCA 120 at [5] to [16]. The email that is the subject of this defamation proceeding was published by the first respondent to two other persons within the State Revenue Office. The email contains allegations about the applicant’s conduct and would appear to have been a precursor to the investigations that subsequently took place. The evidence is that the applicant first became aware of the email and its contents when he obtained a copy on 25 September 2019 when it was produced by the State in the Supreme Court proceedings during the course of a hearing. At that hearing, the applicant was self-represented. The email was subsequently tendered on 25 September 2019 in the Supreme Court proceeding by the State. When the email was produced on 25 September 2019, senior counsel then acting for the State submitted to the Associate Judge who was hearing the matter that the email attracted the obligations referred to in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (see, more appropriately, Hearne v Street [2008] HCA 36; 235 CLR 125 at [96]). The Associate Judge accepted this claim, and informed the applicant in clear terms that the Harman principles applied to the document.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In 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. Conclusion The application under s 23B of the Limitation of Actions Act will be dismissed. I will hear the parties on further orders.

Ratio Decidendi

Legal Principle Established

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