Tucker v McKee

Case [2021] FCA 828


FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2021] FCA 828

File number: VID 274 of 2020
Judgment of: ANASTASSIOU J
Date of judgment: 23 July 2021
Catchwords: 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
Legislation:

Fair Work Act 2009 (Cth)

Judiciary Act 1903 (Cth)

Defamation Act 2005 (Vic)

Cases cited:

CGU Insurance v Blakeley [2016] HCA 2; 259 CLR 339

Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91

Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575

Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; 12 CLR 398

Fencott v Muller [1983] HCA 12; 152 CLR 570

Humphrys (Tobin) v Chief Executive Officer of Department of Communities WA [2021] FCA 586

LNC Industries v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575

Murphy v Nationwide News Pty Ltd [2021] FCA 381

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

Prasad v Google LLC [2020] FCA 67

Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141

Rana v Google Inc [2017] FCAFC 156; 254 FCR 1

Somasundaram v Luxton [2020] FCA 1076

Toben v Jones [2012] FCA 1193

Tucker v State of Victoria (Costs Ruling No 2) [2020] VSC 192]

Tucker v State of Victoria(Costs Ruling) [2019] VSC 481

Tucker v State of Victoria(Notice to Produce) [2019] VSC 689

Tucker v State of Victoria (Stay Application) [2019] VSC 635

Tucker v State of Victoria(Undertaking as to Damages) [2020] VSC 121

Tucker v State of Victoria [2018] VSC 389

Tucker v State of Victoria [2019] VSC 420

Tucker v State of Victoria [2021] VSCA 120

Webster v Brewer [2020] FCA 622

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 73
Date of last submissions: 28 May 2021 (Applicant)
4 June 2021 (Respondents)
Dates of hearing: 2 July 2020, 8 July 2020 and 20 August 2020
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: Mr J. Hooper
Solicitor for the Respondents: DTF Legal

ORDERS

VID 274 of 2020
BETWEEN:

TOBIAS JOHN TUCKER

Applicant

AND:

PAUL MCKEE

First Respondent

STATE OF VICTORIA (STATE REVENUE OFFICE)

Second…

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Details
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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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