Tucker v McKee (No 2) - [2022] FCA 342

FEDERAL COURT OF AUSTRALIA
Tucker v McKee (No 2) [2022] FCA 342

File number: VID 449 of 2021

Judgment of: MURPHY J

Date of judgment: 4 April 2022

Catchwords: PRACTICE AND PROCEDURE – application to vary or set aside judgment or order after it has been entered under rule 39.05 of the Federal Court Rules 2011 (Cth) – where the judgment or order is interlocutory or there is an error arising in a judgment or order from an accidental slip or omission – application dismissed

Legislation: Federal Court Rules 2011 (Cth) r 39.05

Cases cited: Tucker v McKee [2021] FCA 828

Division: General Division

Registry: Victoria

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 16

Date of last submissions: 1 April 2022

Date of hearing: Determined on the papers

Solicitor for the Applicant: SGM Legal

Solicitor for the Respondents: DTF Legal

REASONS FOR JUDGMENT

VID 449 of 2021

BETWEEN:
TOBIAS JOHN TUCKER

Appellant

AND:
PAUL MCKEE

First Respondent

STATE OF VICTORIA (STATE REVENUE OFFICE)

Second Respondent

MURPHY J:

On 30 March 2022 I gave reasons for judgment in this application seeking review of the security for costs orders made by a Registrar of the Court. The application had some urgency because it arose in the context of an appeal which is to be heard on 16 May 2022. The application for review concerned only the quantum of security to be ordered, not whether an order for security was appropriate.
On 1 April 2022 the solicitors for the appellant, Mr Tucker, sent an email to my chambers which raised some factual errors in my reasons for judgment, and in reliance on the errors, the email stated as follows:
We would be grateful if you could please bring the above to His Honour’s attention with a view that pursuant to Rule 39.05 of the Federal Court Rules 2011:
• the above factual errors are corrected in the published reasons;
• the quantum of security is reduced, if and as appropriate;
• the time in which security is to be provided is extended, if and as appropriate; and
• the issue of costs of the recent applications be deferred until this matter is resolved.
Given the pressing deadlines imposed on our client, which include that he pay security by 5 April 2022, we would be grateful for the Court’s prompt response to this matter including advising whether our client is required to formally file an interlocutory application seeking the above relief or otherwise the matter can be determined on the papers/in chambers.
(Emphasis in original.)
Rule 39.05 empowers the Court to vary or set aside a judgment or order after it has been entered if, relevantly, it is interlocutory or there is an error arising in a judgment or order from an accidental slip or omission.
I have accepted the email to chambers as an application under r 39.05 to vary or set aside the orders made on 29 March 2022, which it is appropriate to determine on the papers. Having…

Grounds of appeal

[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.

Continue reading Tucker v McKee (No 2)

Details

AGLC: Tucker v McKee (No 2) [2022] FCA 342
Case: [2022] FCA 342
Decision Date: 4 April 2022

CaseChat Overview and Summary

In the Federal Court, Tucker sought to vary or set aside a judgment made against them by McKee. The court was asked to consider an application under rule 39.05 of the Federal Court Rules 2011, which allows for the variation or setting aside of a judgment or order that has been entered. The basis for the application was that the judgment or order was interlocutory, or there was an error arising in a judgment or order due to an accidental slip or omission. The central legal issue for the court was to determine whether the application was appropriate given the nature of the judgment or order and whether the criteria for setting aside the judgment or order were met.

The court considered the nature of the judgment or order and whether it was interlocutory or if there was an error due to an accidental slip or omission. The court found that the judgment or order was not interlocutory, and there was no evidence of an error due to an accidental slip or omission. The court was satisfied that the judgment or order was final and that any errors were not due to accidental slips or omissions. The court held that the application was not appropriate and dismissed the application to vary or set aside the judgment or order.

The court dismissed the application to vary or set aside the judgment or order made against Tucker by McKee. The court found that the judgment or order was not interlocutory, and there was no evidence of an error due to an accidental slip or omission. The court held that the application was not appropriate and dismissed the application. No further orders were made by the court.

Orders