Tucker v McKee (No 2)
[2022] FCA 342
•4 April 2022
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 regard to my view in the application, there is no need to call on the respondents to put on responsive material.
In the reasons for judgment I said (at [47]) that the authorities indicate that the prospects of success of a proceeding is a factor which the Court may have regard to when assessing whether security for costs ought be awarded, but said it was a different question as to whether the prospects of success were an appropriate consideration in relation to an application for reduced security for costs. I accepted that the prospects of success may be relevant to the security amount to be ordered.
At [48] I said:
However, while on Mr Tucker’s submissions some of the appeal grounds appear to have merit, it is impossible to make a proper assessment. Amongst other things, Mr Tucker put on very little to allow an adequate assessment and the State parties put on nothing. I do not, for example, have the transcript of the hearing below, the written submissions filed below, a copy of the interlocutory application seeking further discovery, the transcript of any case management or interlocutory hearing(s) in relation to the application for further discovery, a copy of the documents the State parties produced relevant to the place of publication of the allegedly defamatory email, or a copy of the witness statements that were filed relevant to the place of publication of the allegedly defamatory email.
As I said, the materials in the review application did not include an appeal book containing: (a) the complete transcript of the final hearing below; (b) the submissions filed in the appeal; (c) a copy of the documents the respondents produced relevant to the place of publication; or (d) a copy of the witness statements that were filed relevant to the place of publication. There is no error in my noting the absence of those materials. Mr Tucker is, however, correct in asserting that the materials in the application did, in fact, include:
(a)most of the parties’ written submissions before the primary judge; and
(b)Mr Tucker’s interlocutory application seeking further discovery filed on 29 June 2020, which I had incorrectly said was dated 29 April 2020.
Mr Tucker also notes that the materials included the Amended Statement of Claim; a short extract (one page) from the transcript of the hearing on 2 July 2020; an extract from the transcript of the hearing on 20 August 2020 (pages 17-25) which appears to be part of the cross examination of Mr Tucker; and a transcript of a case management hearing on 11 June 2020. My reasons did not, however, say that those documents were not in the materials.
I am not persuaded it is appropriate to set aside or vary the order for security for costs on the basis of the factual errors identified at [7] above.
First, the statement that I did not have the interlocutory application seeking further discovery dated 29 June 2020 was not material to my decision fixing the security amount. It was uncontentious that Mr Tucker made that application and the relevant issue in the appeal concerns whether, or how, the primary judge dealt with that application. I cannot assess the prospects of success on that issue as the materials in the application before me did not include the transcript of any case management hearing or interlocutory hearing after 29 June 2020 when the application was filed (if there was one); nor do I have a full transcript of the final hearing before the primary judge, which appears to have taken place on 2 July 2020, 8 July 2020 and 20 August 2020: see Tucker v McKee [2021] FCA 828 at [18]. All I have is one page of the transcript from the hearing on 2 July 2020 and part of the cross examination of Mr Tucker on 20 August 2020.
Second, while the materials in the application before me included most of the parties’ written submissions below, I did not have all the submissions, including those filed by the State parties on 18 September 2020 which are referred to in the judgment below: see Tucker v McKee [2021] FCA 828 at [22]. The submissions that were before me total 49 pages, out of 434 pages of annexures to Mr Tucker’s affidavit dated 31 January 2022, and they relate to all the issues which were relevant below. They are not limited to the issues relevant in the appeal and Mr Tucker did not take the Court to the parts of those submissions which are relevant to the appeal. In circumstances where, (a) the appeal raises numerous factual and legal issues of some complexity, (b) I do not have all of the submissions that were filed below, and (c) I do not have the material which will be in the appeal book, I consider it to be impossible to make a proper assessment of the prospects of success of all the issues raised in the appeal.
Third, I have reasons to doubt some of Mr Tucker’s submissions as to what did or did not occur below. For example, one of the issues in the appeal is the primary judge’s finding that two of the pleaded imputations in the defamation proceeding are ‘colourable’. In his written submissions before me Mr Tucker submitted that:
An allegation that a claim has been ‘coloured’ is an extreme allegation that is tantamount to fraud. That allegation was never put to the Appellant and the Respondents never raised that as an issue.
(Emphasis in original).
I do not have a full transcript of the hearing below to know whether or not it was put to Mr Tucker that he had pleaded two new imputations merely so as to attract federal jurisdiction, but it is clear enough from paragraphs [16]-[18] of the respondents’ written submissions dated 18 June 2020 that he was on notice that the respondents alleged that those imputations were colourable. Indeed, at paragraph [66] of his written submissions dated 25 June 2020 Mr Tucker responded to the respondents’ submissions on that issue.
Fourth, Mr Tucker’s application seeking a reduction in the amount ordered in security on the basis of the small errors identified fails to take account of the fact that he argued for a security amount which was quite unrealistic; he did so in circumstances where he put on no evidence of inability to pay; and he conceded that he made a forensic decision not to do so. Those matters were significant to my decision and they are unchanged.
Fifth, although I considered I could not make a proper assessment of the prospects of success of the appeal, in all the circumstances I concluded it was appropriate to reduce the security amount by 50% from my estimate of party-party costs. That reduction should be seen as including a ‘broad brush’ consideration of the appeal’s prospects. As I said (at [53]) “[s]tanding back from the dispute, taking a broad brush approach, and one that is favourable to Mr Tucker, I consider that reducing the security amount by 50% from my estimate of party-party costs is reasonable in all the circumstances.”
In all the circumstances I can see no good reason to reduce the quantum of the security amount ordered, nor to extend the time within which security is to be provided; nor to defer the issue of the costs of the application for additional security. The application to set aside or vary the orders made on 29 March 2022 is dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 4 April 2022