Tucker v McKee

Case [2022] FCA 315


FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2022] FCA 315

File number: VID 449 of 2021
Judgment of: MURPHY J
Date of judgment: 29 March 2022
Date of publication of reasons: 30 March 2022
Catchwords: PRACTICE & PROCEDURE – application for review of order for security for costs made by Registrar – application for additional security for costs – application of the National Guide to Counsel Fees – principles for assessing quantum of security for costs – “broad brush” assessment of future costs – whether appropriate to assess prospects of success
Legislation:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth) ss 50, 570

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Federal Court Rules 2011 (Cth) rr 40.01, 40.02, Sch 3 cl 16.1

Cases cited:

3Bears Childcare Centre Pty Ltd v Deputy Commissioner of Taxation [2018] FCA 1690

Bryan E Fencott & Assocs Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497

Clack v Collins (No 1) [2010] FCA 513

Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No 5) [2020] FCA 953

Farmitalia Carlo Erba SrL v Delta West Pty Ltd [1994] FCA 88; 28 IPR 336

Kayler-Thomson v Colonial First State Investments Ltd [2020] FCA 1867

Mulley v Hayes [2021] FCA 1111

Norcast S.r.L v Bradken Ltd & Others [2012] FCA 765

Nyoni Pharmacy Board of Australia [2018] FCA 1313

Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 119

Pathway Investments Pty Ltd and Ors v National Australia Bank Limited [2012] VSC 97

Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No 5) [2005] VSC 19

Soh v Commonwealth of Australia [2008] FCA 1524

Southern Equity Pty Ltd v Timevale Pty Ltd [2015] FCA 1364

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603

Tucker v McKee [2021] FCA 828

Voxson Pty Ltd v Telstra Corporation Ltd (No 8) [2017] FCA 1427

Waters v Commonwealth of Australia (Australian Taxation Office) [2017] FCA 312

West International v Ultradrilling Pty Ltd [2008] FCA 1443

Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) [2011] FCA 661

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 65
Date of hearing: 28 March 2022
Counsel for the Appellant: The Appellant appeared in person
Solicitor for the Applicant: SGM Legal
Counsel for the Respondents: Ms R Enbom QC
Solicitor for the Respondents: DTF Legal

ORDERS

VID 449 of 2021
BETWEEN:

TOBIAS JOHN TUCKER

Appellant

AND:

PAUL MCKEE

First Respondent

STATE OF VICTORIA (STATE REVENUE OFFICE)

Second Respondent

ORDER MADE BY:

MURPHY J

DATE OF ORDER:

29 MARCH 2022

THE COURT ORDERS THAT:

1.The Appellant provide security for the Respondents’ costs of and incidental to the appeal in the amount of $36,122 (the security amount).

2.On or before 4.00 pm on 5 April 2022 the Appellant pay the security amount by way of payment into Court or in a manner acceptable to a Registrar.

3.Failing provision of the security amount in accordance with orders…

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Details
AGLC
Tucker v McKee [2022] FCA 315
Case
[2022] FCA 315
Decision Date

CaseChat Overview and Summary

The appeal in Tucker v McKee was brought before the court by Mr. Tucker against the State parties. The dispute centres on the order for security for costs made by the Registrar in relation to Mr. Tucker’s appeal against the dismissal of his defamation proceeding. The State parties sought an order for additional security for costs, which Mr. Tucker opposed on the basis that the amount should not exceed $5,985, citing the special costs regime under the Fair Work Act 2009 (Cth). The primary legal issue before the court was the appropriate amount of security for costs to be ordered, considering the broad brush assessment of future costs and the principles guiding such assessments. The court was required to decide whether the order for security in the amount of $28,490, as initially determined by the Registrar, was sufficient or if additional security should be ordered.

The court considered the principles for assessing the quantum of security for costs, which involve a broad brush assessment rather than a detailed taxation of costs. It noted that the court's task is to identify an amount that is broadly reasonable rather than an exact assessment. The court found that the Registrar's approach in determining the amount of security for costs was appropriate, and thus upheld the order for security in the amount of $28,490. However, given the additional security requested by the State parties, the court ordered an additional amount of $7,632, bringing the total security for costs to $36,122. The court also ordered that if Mr. Tucker fails to pay the security amount within the specified time, his appeal will be stayed. Finally, unless Mr. Tucker files short written submissions opposing the order within seven days, he will be ordered to pay the State parties’ costs of and incidental to the review application and the application for additional security for costs.

Orders

Orders of the court

1. The Appellant provide security for the Respondents’ costs of and incidental to the appeal in the amount of $36,122 (the security amount).

2. On or before 4.00 pm on 5 April 2022 the Appellant pay the security amount by way of payment into Court or in a manner acceptable to a Registrar.

3. Failing provision of the security amount in accordance with orders 1 and 2 above the appeal be stayed.

4. Unless within seven days the Appellant files short written submissions (no more than two pages) opposing such an order, the Appellant be ordered to pay the Respondents’ costs of and incidental to the Appellant’s review application dated 1 March 2022 and the Respondents’ application for additional security for costs dated 15 March 2022, which in the absence of agreement shall be determined by lump sum assessment by a Registrar.

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

For the reasons that follow I am satisfied that it is appropriate to order that Mr Tucker provide security for the State parties’ costs of and incidental to the appeal herein, including the additional security sought by the State parties, in a total of $36,122, to be paid within seven days.THE EVIDENCE The State parties rely upon the following affidavits:(a)in the review application, affidavits of Alexander Price, Assistant General Counsel at DTF Legal and the solicitor with the conduct of the proceeding on behalf of the State Parties, affirmed 3 November 2021 (First Price Affidavit) and 3 February 2022; (Second Price Affidavit); and(b)in the application for additional security, an affidavit of Alexander Price affirmed 15 March 2022 (Third Price Affidavit). Mr Tucker relies upon the following affidavits:(a)an affidavit of Mr Tucker affirmed 31 January 2022;(b)affidavits of Nicholas Raso, lawyer, an Australian Legal Practitioner with SGM Legal and the solicitor with the conduct of the proceeding for Mr Tucker, affirmed 1 March 2022 (First Raso Affidavit) and 17 March 2022 (Second Raso Affidavit).THE FACTUAL AND PROCEDURAL BACKGROUND The application for review arises against the background that, on 27 April 2020, Mr Tucker commenced a defamation proceeding against the State parties. On 23 July 2021, the primary judge dismissed Mr Tucker’s originating application and amended statement of claim and ordered him to pay the costs of the proceeding. The primary judge made those orders consequent upon finding that the Court did not have jurisdiction to hear and determine the proceeding. On 12 August 2021 Mr Tucker filed a notice of appeal in relation to the orders of the primary judge. On 7 October 2021 DTF Legal, the solicitors for the State parties, wrote to SGM Legal, Mr Tucker’s solicitors, requesting that Mr Tucker pay the sum of $60,000 into Court as security for the State parties’ costs of and incidental to the appeal. That request was not met, and on 4 November 2021 the State parties filed an interlocutory application seeking an order that Mr Tucker provide security for the State parties’ costs in the amount of $60,000. Mr Tucker opposed the application on the basis that it was not appropriate to order security for costs in the circumstances of the case, including that the originating application and the appeal arise under the Fair Work Act 2009 (Cth) (FW Act) and the special costs regime under s 570 of that Act applies. But if security for costs was to be ordered he contended that the amount should not be more than $5,985. In relation to the parties’ estimates of the State parties’ party-party costs it is necessary to understand that DTF Legal are “in-house” legal service providers to the Victorian Department of Treasury and Finance, and do not issue invoices for the legal work they undertake. Therefore the State parties do not seek security for costs in relation to the legal work undertaken by DTF Legal. The significant difference in the parties’ estimates regarding the State parties’ recoverable costs arises from the difference between them as to party-party counsels’ fees.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Fifth, he submits that the “general injustice” in the matter is a factor as to why he should not be denied access to justice through an order for security in an amount greater than $5,985. He contends that the Court should acknowledge the “appalling conduct” of Mr McKee and the State of Victoria in raising and publishing “utterly false allegations” against him, a relatively young man with young children. Mr Tucker describes the alleged behaviour as “heinous and moral[ly] depraved conduct” including sexual harassment, and notes that the alleged victim has provided evidence that she never made a complaint against him and has expressly advised Mr McKee of the falsity of the allegations. He argues that this justifies a further reduction in the amount of security ordered.Consideration It is common ground that the review application requires a hearing de novo and that the Court must decide the quantum of security afresh: 3Bears Childcare Centre Pty Ltd v Deputy Commissioner of Taxation [2018] FCA 1690 at [13] (Gleeson J); West International v Ultradrilling Pty Ltd [2008] FCA 1443 at [6] (Gordon J). As the party seeking security for costs, the State parties have the onus. The legal principles in relation to fixing an appropriate sum for security for costs are well-established. It involves a “broad brush” assessment for the purpose of fixing an amount of security that is “sufficient”. It does not involve a full assessment of the respondent’s costs: Pathway Investments Pty Ltd and Ors v National Australia Bank Limited [2012] VSC 97 at [37] (Davies J); Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No 5) [2020] FCA 953 at [10] (Middleton J). In undertaking a broad brush assessment of future costs, the Court should have regard to the probable costs to which the respondent will be put to insofar as they can be ascertained: Farmitalia Carlo Erba SrL v Delta West Pty Ltd [1994] FCA 88; 28 IPR 336 at 343-4 (Heerey J). It is not the Court’s task to undertake anything in the nature of the taxation of the respondent’s costs (see, e.g. Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No 5) [2005] VSC 19 at [5]-[6] (Byrne J); Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 119 at [8]-[13] (Sifris J)); instead the Court’s task is to identify an amount that is not an “exact assessment” but is “broadly reasonable”: Southern Equity Pty Ltd v Timevale Pty Ltd [2015] FCA 1364 at [49]-[50]; see also Kayler-Thomson v Colonial First State Investments Ltd [2020] FCA 1867 at [114] (Beach J). In Bryan E Fencott & Assocs Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515 French J (as his Honour then was) said that the process of estimation embodies to a considerable extent, necessary reliance on the “feel” of the case after considering relevant factors. The State parties contend that, in the main, the Court should take the same approach as that taken by the Registrar below. They submit that Mr Tucker should be ordered to provide security for costs in an amount no less than the $28,490 ordered.