FEDERAL COURT OF AUSTRALIA
Tucker v McKee [2022] FCA 315
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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- AGLC
- Tucker v McKee [2022] FCA 315
- Case
- [2022] FCA 315
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
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.