PRACTICE AND PROCEDURE – jurisdiction of Federal Court of Australia in defamation proceedings – first duty of Court to determine question of jurisdiction – whether there is a matter arising under federal law – whether there is a right, duty or obligation in issue in the matter that owes its existence to federal law or depends upon federal law for its enforcement – whether alleged defamatory email was published outside the State of Victoria – whether storage of an email on a cloud or server sufficient to constitute publication – whether assertion of jurisdiction was colourable – jurisdiction of the Court not established – originating application and amended statement of claim dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tucker v McKee [2021] FCA 828
Case
[2021] FCA 828
Decision Date
CaseChat Overview and Summary
In the case of Tucker v McKee, the plaintiff, Mr Tucker, sought to bring defamation proceedings against the defendants, Mr McKee and the State of Victoria, before the Federal Court of Australia. Mr Tucker, a former solicitor, claimed defamation arising from an email allegedly sent by Mr McKee, which contained disparaging remarks about Mr Tucker's professional conduct. The core legal issue before the court was whether it had jurisdiction to hear the defamation claim, particularly focusing on whether the alleged defamatory email was published outside the state of Victoria and if storing the email on a cloud or server was sufficient to constitute publication for jurisdictional purposes.
The court held that the first duty in any proceeding is to determine the court's jurisdiction. For the Federal Court to have jurisdiction in defamation cases, there must be a matter arising under federal law, such as a right, duty, or obligation that owes its existence to federal law or depends upon federal law for its enforcement. The court concluded that the alleged defamatory email did not constitute publication outside Victoria as it was merely stored on a cloud or server, which was not sufficient to establish publication in another jurisdiction. Additionally, the court found that the assertion of jurisdiction was not colourable and thus the court's jurisdiction was not established.
As a result, the court dismissed the originating application and the amended statement of claim. The court ordered that Mr Tucker pay the respondents' costs of and incidental to the interlocutory application dated 27 August 2020, and of the proceeding, to be agreed upon and, in the absence of agreement, assessed on a standard basis. This ruling was made under Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The Originating Application and Amended Statement of Claim be dismissed.
2. The Applicant pay the Respondents’ costs of and incidental to the interlocutory application dated 27 August 2020, and of the proceeding, to be agreed and in default of agreement assessed on a standard basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, I find that this Court lacks the jurisdiction to hear and determine the proceeding and accordingly it should be dismissed. BACKGROUND It warrants first mentioning that Mr Tucker is an experienced solicitor, having practised law from 2008. This includes being employed as a senior solicitor at the SRO from late November 2011 to 19 July 2019. Far from being inexperienced in litigation, Mr Tucker practised principally in litigious matters. Indeed, in affidavits Mr Tucker filed in this proceeding, he described his occupation as “solicitor”. Mr Tucker’s dispute with the Mr McKee and the SRO has spawned significant litigation: see, eg, Tucker v State of Victoria [2018] VSC 389 (McDonald J), and further, citations [2019] VSC 420, [2019] VSC 481, [2019] VSC 635, [2019] VSC 689, [2020] VSC 121, [2020] VSC 192] and [2021] VSCA 120. For present purposes, it is sufficient to extract the summary of facts by her Honour Ierodiaconou AsJ in Tucker v State of Victoria [2019] VSC 420 at [8]-[20], which I gratefully adopt:8. The plaintiff [Mr Tucker] commenced employment with the first defendant [the State of Victoria] in November 2011 as a solicitor at the SRO. …10. On 9 June 2017, the SRO wrote to the plaintiff advising of allegations of workplace misconduct made against him. These allegations concerned two different subject matters and led to two investigations. 11. The first investigation concerned allegations of inappropriate conduct towards another employee of the SRO, including ‘inappropriate, harassing and offensive comments’ and ‘repeatedly requesting that [the Female SRO Employee] accept your friendship request on Facebook’ (‘the First Allegations’). 12. The second investigation concerned allegations of ‘numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose’ (‘the Second Allegations’).13. The plaintiff was suspended with pay during the course of the investigations……15. On 21 June 2017, Mr David Heywood, Branch Manager, Human Resources of SRO, wrote to the plaintiff advising that Ms Lisa Klug, Associate Director, Worklogic, had been appointed as an investigator. Initially, Ms Klug was engaged to investigate both sets of allegations, however, she was subsequently only retained to investigate the First Allegations. This occurred after the plaintiff expressed concerns that if Ms Klug were to continue to conduct the investigation into the Second Allegations she would be exposed to confidential information in breach of the Taxation Administration Act 1997.16. On 21 August 2017, Mr Joyce, Executive Director, Corporate Services, SRO wrote to the plaintiff’s solicitors advising that Mr Don Di Federico, Branch Manager of Investigations in the Compliance Division of SRO, had been appointed to undertake the investigation into the Second Allegations. 17. Ms Klug completed her investigation and a report dated 12 September 2017 (‘the First Report’). On 25 October 2017, Mr Joyce wrote to the plaintiff and provided a summary of Ms Klug’s findings in relation to the First Allegations. Mr Joyce then proposed a disciplinary outcome consisting of a formal warning and a direction to undertake appropriate training concerning the obligations under the Victorian Public Sector Code of Conduct, the SRO Values and Behaviours, and the SRO Equal Opportunity Policy. 18. The plaintiff, after correspondence from his solicitors, eventually received the First Report but it contained redactions and, despite request, was not given an unredacted copy of it.19. On 12 December 2017, the plaintiff filed this proceeding seeking interlocutory and permanent injunctions prohibiting the defendants from proposing a disciplinary outcome in respect of cl 21 of the VPSEA and the First and Second Allegations, or alternatively, declaratory relief that the defendants failed to afford him procedural fairness and/or failed to provide him with all relevant material before the decision-maker. The plaintiff also sought an unredacted copy of the First Report and attachments to it.20. On 7 February 2018, Mr Joyce wrote to the plaintiff attaching Mr Di Federico’s complete investigation report into the Second Allegations (‘the Second Report’). Mr Joyce accepted the findings. The findings in the Second Report were that 24 of the 26 allegations against the plaintiff were substantiated while two were not. Mr Joyce stated that he proposed to recommend that the plaintiff’s employment be terminated. [Footnotes omitted]I adopt Ierodiaconou AsJ’s abbreviations in Tucker v State of Victoria for the balance of these reasons.