Tucker v State of Victoria
[2022] VSC 760
•12 December 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2022 03367
| TOBIAS JOHN TUCKER | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| – and – | |
| PAUL BRODERICK (sued in his capacity as Commissioner of State Revenue) | Second Defendant |
---
JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 December 2022 |
DATE OF JUDGMENT: | 12 December 2022 |
CASE MAY BE CITED AS: | Tucker v State of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 760 |
---
PRACTICE AND PROCEDURE – Undertaking as to damages – Application to be released from undertaking on the ground of fraud – No evidence of actual fraud – Breach of undertaking involving deliberate defiance of the authority of the Court – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr J Bourke KC and Ms R Preston | Maddocks Lawyers |
HIS HONOUR:
Introduction
Since December 2017 the plaintiff, Mr Tobias Tucker, has been a party to four proceedings in the Supreme Court of Victoria and the Federal Court of Australia arising out of disciplinary proceedings which culminated in the termination of his employment as a solicitor with the State Revenue Office (‘SRO’) on 19 July 2019.
This judgment relates to two summonses filed by Mr Tucker on 15 November 2022 and 2 December 2022 in the latest proceeding commenced by writ filed 23 August 2022. In this proceeding Mr Tucker seeks orders setting aside orders in favour of the State of Victoria made by Ierodiaconou AsJ on 16 July 2019 and 21 April 2020 and by the Court of Appeal on 23 June 2021.
The principal issue for determination is whether Mr Tucker should be released from an undertaking as to damages which he proffered to the Court on 2 March 2018 in proceeding S CI 2017 05032. On 19 March 2020 Mr Tucker was ordered to pay the State of Victoria $199,681.46 by way of enforcement of the undertaking (‘Damages judgment’). Mr Tucker contends that Damages judgment is tainted by fraud and that Ierodiaconou AsJ’s order, and the Court of Appeal’s order which upheld it, should be set aside.
The evidence before the Court which Mr Tucker relies upon falls well short of establishing that the defendants engaged in fraud. Mr Tucker has failed to establish any proper basis for him to be released from his undertaking as to damages. The proceeding will be stayed until Mr Tucker complies with his undertaking as to damages.
Background
In November 2011 Mr Tucker commenced employment as a solicitor with the first defendant working in the Customer Service and Debt Recovery Management Branch of the SRO. In June 2017 Mr Tucker’s conduct as an employee was the subject of two separate investigations. First, an investigation into allegations of harassment (‘harassment investigation’). Second, an investigation into allegations that he improperly searched customer records (‘customer search investigation’).
Mr Tucker’s employment was suspended with pay whilst these two investigations were conducted. On 25 October 2017 Mr Tucker was advised of the outcome of the harassment investigation. He was advised that most of the allegations against him had been made out and that the proposed disciplinary action would be a formal warning and training. Mr Tucker continued to be suspended with pay whilst the customer search investigation was undertaken.
On 11 December 2017 Mr Tucker commenced proceeding S CI 2017 05032 (‘first instance proceeding’). In that proceeding he sought declarations that the State of Victoria had contravened the Victorian Public Service Enterprise Agreement 2016 and the Public Administration Act 2004. Mr Tucker sought interlocutory and permanent injunctions preventing the defendants from finalising the harassment investigation and any disciplinary action arising therefrom.
On 7 February 2018 Mr Tucker was advised of the outcome of the customer search investigation in a letter from Mr Darren Joyce, Executive Director, Corporate Services of the SRO. Mr Tucker was advised that the investigation had found that he engaged in misconduct by undertaking searches of 24 customers’ records on the SRO e-Sys database, which were not related to any known SRO-business purpose.[1]
[1]Exhibit AENP-1 to the Affidavit of Mr Alexander Edwards Noel Price dated 30 November 2022, Letter from Mr Darren Joyce to Mr Tobias John Tucker dated 7 February 2018, 288–290.
In relation to six of the 24 customers who were identified as B, E, G, Q, V and W, Mr Joyce considered that evidence obtained during the investigation:
(i) Contradicted information provided by Mr Tucker to the investigator, Mr Don Di Federico. This contradictory evidence had been put to Mr Tucker in writing on 7 December 2017 and he had not provided any response despite being given until 31 January 2018 to do so; or
(ii) Positively indicated that there was no SRO-business purpose for Mr Tucker’s e-Sys searches of the customers’ records.
Mr Joyce advised Mr Tucker that he considered that in relation to customers B, E, G, Q, V and W Mr Tucker had provided misleading and untruthful responses to Mr Di Federico. Mr Joyce advised Mr Tucker that he considered this conduct constituted serious misconduct and that he proposed to recommend to the Commissioner of State Revenue that Mr Tucker’s employment be terminated with immediate effect.
Mr Tucker was provided an opportunity to respond to the findings of the investigation report and the proposed disciplinary action by 5:00pm on 16 February 2018.
On 2 March 2018 orders were made by consent in the first instance proceeding granting leave to Mr Tucker to include claims for interlocutory and permanent injunctions to restrain the defendants from finalising any disciplinary action arising out of the customer search investigation. The Court’s order of 2 March 2018 recorded the following undertakings:
A. Upon the plaintiff by his solicitor undertaking to the Court to abide by any order that the Court may make as to damages in the event that the Court is hereafter of the view that the defendants suffered any by reason of giving the undertaking referred to herein that the plaintiff ought to pay.
B. And upon the defendants by their counsel undertaking to the Court that the defendants will not, until the determination of this proceeding, or as otherwise agreed between the parties or by further order of the Court, finalise the proposed discipline outcomes set out in the letters of 25 October 2017 and 7 February 2018 to the plaintiff.
The first instance proceeding was heard by Ierodiaconou AsJ on 4 to 6 February and 7 May 2019. On 16 July 2019 her Honour dismissed the proceeding. On 19 July 2019 SRO terminated Mr Tucker’s employment. The letter of termination stated that the reasons for termination were those set out in Mr Joyce’s letter of 7 February 2018 and were based on the outcome of the customer search investigation. The termination letter stated that no final outcome had been reached in relation to the proposed disciplinary outcome arising from the harassment investigation.
Following the termination of Mr Tucker’s employment the defendants sought to enforce the undertaking as to damages. The defendants claimed the amount of $199,681.46, representing payments made to Mr Tucker during the period 2 March 2018 to 19 July 2019 of salary, superannuation and payments in lieu of annual leave and long service leave.
On 19 March 2020 Ierodiaconou AsJ ordered Mr Tucker to pay the defendants $199,681.46. Subsequently, her Honour ordered Mr Tucker to pay the costs of the separate hearing as to damages.[2]
[2]Tucker v Victoria (Costs Ruling No 2) [2020] VSC 192.
Mr Tucker filed an application for leave to appeal the Damages judgment and the damages cost judgment.[3] The defendants agreed to refrain from taking any steps to recover the Damages judgment until the hearing and determination of Mr Tucker’s application for leave to appeal. The application for leave to appeal the Damages judgment was dismissed.[4] The Court of Appeal’s reasoning for dismissing the application for leave to appeal the Damages judgment was as follows:
[3]S EAPCI 2020 0041.
[4]Tucker v State of Victoria & Anor [2021] VSCA 120, [16(e)].
The Customer Search Allegations were unambiguous: the applicant was not authorised to access customer records unless it was for the purpose of carrying out his duties; there were a number of instances in which he had access to customer records for purposes other than the carrying out of his duties; and those instances of unauthorised access constituted serious breaches of his obligations to the SRO.
In order to establish those breaches, it was not necessary for the SRO to prove the purposes for which the applicant had access; all it needed to establish was that the access was not for the purpose of carrying out the applicant’s duties. Whether access was for a work-related authorised purpose could be determined by an analysis of whether the access was relevant to a taxpayer query or dispute that the applicant was handling on behalf of the SRO. The particulars that were provided to the applicant, and the inspection of his records which he and his solicitor were granted by the SRO, were sufficient to enable him to respond to the allegations. There was no reversal of onus.
The applicant responded to the Customer Search Allegations and Mr Di Federico’s questions on 6 October 2017114 and he was given an opportunity to respond to the contradictory evidence. It appears from Mr Di Federico’s evidence at trial that he was not provided with a copy of the applicant’s statement of 1 August 2017, which was prepared prior to Mr Di Federico’s appointment as investigator. However, this omission is inconsequential, as that statement dealt mainly with the Harassment Allegations. The final form of the Customer Search Allegations was settled after Mr Di Federico’s appointment and the applicant responded to the allegations in his statement of 6 October 2017.
As a lawyer, the applicant was aware of the importance of maintaining confidentiality of taxpayer records and the need to limit access to those records to work-related purposes. The SRO was not obliged to explain to him why unauthorised access to customer records was improper.
For the above reasons, unauthorised access to customer records could constitute misconduct irrespective of whether any taxpayer was aware of the unauthorised access or, if a taxpayer was aware, he or she did not wish to complain about the unauthorised access.
By its very nature, the alleged unauthorised access effected by the applicant using his computer could be achieved in a clandestine fashion without any witnesses. In these circumstances, the allegations against the applicant could be proved in accordance with the principles in Briginshaw by showing that the applicant’s password-protected computer accessed the customer records and that those records were not relevant to any work being undertaken by the applicant. But, in any event, the ground upon which the applicant’s employment was terminated was narrow, namely, that he had misled Mr Di Federico in his specific responses with respect to customers B, E, G, Q, V and W. It follows that there is no substance to the applicant’s complaint about the non-provision of evidence given by witnesses or the complaint that Mr Di Federico disregarded the witness testimonies that corroborated his evidence. Those complaints did not relate to the ground upon which the termination decision was based.
The applicant was provided with an unredacted copy of the Customer Search Report. That report provided sufficient information to the applicant to enable him to understand why Mr Di Federico made adverse findings against him.
As we have already stated, the applicant’s complaints about the Privacy Act do not assist him because the allegation that he had breached that Act was not substantiated.
For the above reasons, the applicant has failed to establish that the respondents breached any provision of the VPSEA, the Misconduct Policy or the PAA in relation to the conduct of the Customer Search Investigation or the termination of his employment as a result of the findings of misconduct by that investigation. On 9 August, 25 August, 7 September and 9 December 2021 the Department of Treasury and Finance served letters of demand on Mr Tucker requiring payment of the damages judgment debt. On 7 February 2022 the State of Victoria issued a bankruptcy notice. The notice was served on Mr Tucker on 11 February 2022. On 11 July 2022 the State of Victoria filed a creditor’s petition against Mr Tucker.[5]
[5]Ibid [283]–[291] (citations omitted).
On 23 August 2022 Mr Tucker commenced the present proceeding. Mr Tucker alleges that during the first instance proceedings, ‘the defendants contrived to keep the Court, and the plaintiff in ignorance of the real facts of the case’.[6] Mr Tucker alleges that this conduct constitutes fraud which he was not able to detect during the first instance proceedings.[7] Mr Tucker seeks orders setting aside the orders made by Ierodiaconou AsJ and the Court of Appeal pursuant to which he was ordered to pay the State of Victoria the sum of $199,681.46.
[6]Statement of Claim [5].
[7]Ibid [7]–[8].
On 15 November 2022 Mr Tucker filed a summons seeking orders that the Damages judgment order be stayed. On 2 December 2022 Mr Tucker filed a further summons seeking an order that he be released from his undertaking to pay damages as recorded in the Court’s order made on 2 March 2018. Both summonses were heard on 5 December 2022.
Should Mr Tucker be released from his undertaking to pay damages?
A court may vary an undertaking if a party who gave the undertaking establishes by evidence that, based on circumstances prevailing when the variation is sought, the interests of justice require the variation in order to avoid enforcement of the undertaking being unjust. If a party can establish that the enforcement and the undertaking has been enlivened by fraud this may require a variation of the undertaking to avoid the enforcement of the undertaking being unjust.[8] Mr Tucker submits that the defendants engaged in fraud in obtaining the Damages judgment and that this fraud justifies variation of his undertaking.
[8]HJ (a pseudonym) & Anor v Independent Broad Based Anti-Corruption Commission (2021) 64 VR 270, 290 [87].
The power to set aside a judgment on the basis of fraud requires actual fraud.[9] It is necessary for the party alleging fraud to establish that the party engaging in fraud acted ‘in order to take undue advantage of some other person for the purpose of actually and knowingly defrauding him’.[10] The fraud ‘must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining that decree by that contrivance’.[11]
[9]Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165, 175 [2].
[10]Ibid 192–3 [55].
[11]Ibid.
A party asserting that a judgment was procured by fraud must establish that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.[12] It must be shown that the successful party was responsible for the fraud which taints the judgment in such a way as to render it inequitable that such party should take the benefit of the judgment.[13]
[12]Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538.
[13]Ibid 539.
Mr Tucker contends that he should be released from his undertaking as to damages because Ierodiaconou AsJ’s Damages judgment was tainted by fraud. Her Honour’s order that Mr Tucker pay damages was not disturbed on appeal. I have set out earlier in this judgment the Court of Appeal’s reasons for upholding the Damages judgment. The Court of Appeal concluded that the termination of Mr Tucker’s employment was based on the narrow ground that Mr Tucker had misled Mr Di Federico in his specific responses to questions he was asked with respect to customers B, E, G, Q, V and W.
Mr Di Federico’s customer search report is a comprehensive document comprising 83 pages. The report sets out clearly the basis upon which Mr Di Federico concluded that Mr Tucker accessed the customer records of 24 customers without having an SRO-business purpose for doing so. The report also sets out the basis for the conclusion that the answers which Mr Tucker provided to questions regarding customers B, E, G, Q, V and W were misleading.
On 7 December 2017 Mr Di Federico provided written evidence to Mr Tucker contradicting the contents of Mr Tucker’s written statement of 6 October 2017 in respect of customers B, E, G, Q, V and W. Mr Di Federico invited Mr Tucker to respond to the contradictory evidence and provided him with the opportunity to attend the SRO to search its systems. Mr Tucker did not provide any response despite being given until 31 January 2018 to do so.
None of the matters relied upon by Mr Tucker in his written and oral submissions provide any basis for concluding that Mr Di Federico’s report, which provided the basis for the termination of Mr Tucker’s employment and the subsequent Damages judgment, is tainted by fraud.
Mr Tucker relies upon a recording of a telephone conversation with Ms Susie Maamary on 30 June 2021. Ms Maamary is the colleague whose complaint against Mr Tucker initiated the harassment investigation. Mr Tucker contends that the recording supports a finding that contrary to evidence given by Mr Joyce during the proceedings at first instance, Ms Maamary never made any complaint against Mr Tucker in respect of harassment or improper access of customer records. The veracity of the statement attributed to Ms Maamary, as recorded in the telephone conversation with Mr Tucker, denying that she made any complaint about Mr Tucker, is strenuously denied by the defendants. The evidence before the Court includes Ms Maamary’s handwritten response to Mr Tucker’s rejection of ten allegations which were the subject of the harassment investigation.[14] These responses call into question the accuracy of the recorded statement of Ms Maamary denying having made any complaint against Mr Tucker.
[14]Affidavit of Mr Alexander Edwards Noel Price dated 30 November 2022, 15 [63]; Exhibit AENP-1 to the Affidavit of Mr Alexander Edwards Noel Price dated 30 November 2022, 166–178.
Whether Ms Maamary made a complaint of harassment is irrelevant to whether the Damages judgment was the product of fraud. The decision to terminate Mr Tucker’s employment was based solely on the narrow ground that he had misled Mr Di Federico in respect of questions which were put to him regarding customers B, E, G, Q, V and W.[15] The recording of the telephone conversation between Mr Tucker and Ms Maamary on 30 June 2021 does not contain any information which supports a finding that Mr Tucker did not mislead Mr Di Federico. The contents of the recording do not detract in any way from the substance of the findings in Mr Di Federico’s report that Mr Tucker gave misleading answers to Mr Di Federico regarding customers B, E, G, Q, V and W.
[15]Tucker v State of Victoria & Anor [2021] VSCA 120, [288].
Mr Tucker also relies on a witness statement of Mr Thomas Egan which Mr Tucker prepared in support of an unfair dismissal application filed in the Fair Work Commission. Mr Bourke KC, who appeared with Ms Preston for the defendants, submitted without opposition from Mr Tucker that Mr Egan is customer V. Mr Egan’s statement had been prepared prior to the damages hearing before Ierodiaconou AsJ. However, Mr Tucker did not seek to rely upon the statement in that proceeding as a basis for contending that the customer investigation report was tainted by fraud. Mr Tucker did seek leave to rely upon the witness statement as fresh evidence in support of his application for leave to appeal the Damages judgment. In rejecting the application the Court of Appeal stated in reference to Mr Egan’s witness statement:
The statement of the other tax payer was to the effect that he was aware that the applicant was alleged to have accessed his records, he had provided the SRO’s investigator with two reasons why the applicant may have accessed his records and he would not object to the applicant accessing his records for those reasons. The two reasons suggested by the tax payer do not have an SRO–business purpose.[16]
[16]Tucker v State of Victoria [2021] VSCA 120, [138(h)].
In rejecting Mr Tucker’s application to rely on evidence which included the witness statement of Mr Egan the Court of Appeal stated:
We are firmly of the opinion that, if the evidence had been available at trial, it could not have made any difference to the Associate Justice’s decision on the issue she determined.[17]
[17]Ibid [168].
In light of the Court of Appeal’s finding that the two reasons identified in Mr Egan’s witness statement for Mr Tucker to have been accessing his customer records did not have an SRO-business purpose, the witness statement does not detract from the basis upon which Mr Tucker was found to have engaged in misconduct justifying his dismissal. Further, and in any event, Mr Egan never actually gave evidence in proceedings in the Fair Work Commission because Mr Tucker’s claim was settled prior to a hearing. During the hearing on 5 December 2022 Mr Tucker placed particular weight upon the fact that prior to the settlement of the proceeding in the Fair Work Commission the State of Victoria had indicated that it did not require Mr Egan to attend for the purposes of cross-examination. The difficulty with this submission is that Mr Egan’s statement is not exculpatory of Mr Tucker because the two reasons identified by Mr Egan for Mr Tucker to have been accessing his customer records did not have a legitimate SRO-business purpose.
During the hearing on 5 December 2022 I asked Mr Tucker if he was able to point to any particular documents which constituted evidence supporting a finding that the Damages judgment had been tainted by fraud. He was not able to do so. Rather, he submitted that the defendants’ fraud was evidenced by ‘many strands of the cable’ which established that the SRO had wilfully advanced an artificial narrative during the proceedings at first instance. I reject this submission. Mr Tucker’s contention that the Damages judgment is tainted by fraud is extremely tenuous. None of the ‘strands in the cable’ provide a credible basis for impugning the customer investigation report which underpinned the termination of his employment and enlivened the undertaking as to damages. Mr Tucker ultimately conceded during the hearing on 5 December 2022 that on the material presently before the Court there was no proper basis for a finding of actual fraud. He accepted that in order for the Court to be in a position to make a finding of fraud the Court would need to hear evidence from himself, Mr Di Federico, Ms Maamary and Mr Joyce.[18]
[18]Transcript of Proceedings, T 45 L 10–15 (5 December 2022).
Mr Tucker received significant benefits from the undertaking which the defendants proffered to the Court on 2 March 2018 concurrent with his undertaking as to damages. The benefits were twofold. First, the defendants refrained from taking any steps to terminate Mr Tucker’s employment. Second, Mr Tucker continued to receive salary and other employment benefits totalling $199,681.46. Mr Tucker was required to comply with his undertaking as to damages 28 days after the Court of Appeal dismissed his challenge to the Damages judgment. He has been in breach of his undertaking since late June 2021.
Mr Tucker has been admitted to practice as a barrister and solicitor of the Supreme Court of Victoria. When he proffered the undertaking on 2 March 2018 he held a practising certificate. He must have fully appreciated the significance of the undertaking he proffered to the Court and the obligation to comply with it in the event that he was subsequently found by the Court to be liable to pay damages to the defendants.
Mr Tucker has deposed in an affidavit dated 21 November 2022 that he currently does not have the capacity to pay the SRO $200,000.[19] He has deposed that he does not own any property.[20] As against this evidence it is clear that since the Damages judgment was delivered on 19 March 2020 Mr Tucker has initiated other legal proceedings against the defendants in which he has been represented by lawyers. Those proceedings include proceedings both at first instance and on appeal seeking the imposition of penalties for contravention of provisions of the Fair Work Act 2009 (Cth) and damages, defamation proceedings in the Federal Court of Australia and an unfair dismissal claim in the Fair Work Commission. During the hearing on 5 December 2022 Mr Tucker accepted that since March 2020 he has chosen to deploy his financial resources in aid of these proceedings.
[19]Affidavit of Mr Tobias John Tucker dated 21 November 2022, 28 [94].
[20]Ibid 29 [101].
I do not accept Mr Tucker’s submission that his failure to comply with the damages undertaking is solely attributable to his financial position. In his affidavit of 21 November 2022 he advanced three other reasons why he has not complied with the undertaking:
Beyond hardship, I have not paid the SRO because:
(a)I consider that the judgment debt was obtained by fraud for the above reasons;
(b)I believe that I have counter claims against the SRO which counter balance the debt owed including my extant defamation claim; and
(c)The hardship of paying that amount on my family (I have two young daughters).[21]
[21]Ibid 29 [100].
Mr Tucker’s Applications for Leave to Issue Subpoenas
Prior to the hearing, on 30 November 2022 Mr Tucker sought leave to issue a subpoena directed to Mr Joyce to attend the hearing on 5 December 2022 and to produce an unredacted copy of the harassment investigation report. I refused to grant leave for the issuing of the subpoena. The application listed for hearing on 5 December 2022 was an interlocutory application. Mr Tucker therefore required leave of the Court for the issuing of a subpoena requiring Mr Joyce to attend to give evidence. The unredacted version of the harassment investigation report which Mr Tucker sought to have produced at the hearing by Mr Joyce is of no relevance to the question of whether the Damages judgment was tainted by fraud. The decision to terminate Mr Tucker’s employment which enlivened his undertaking as to damages was based on Mr Di Federico’s customer investigation report.
Shortly after the conclusion of the hearing on 5 December 2022 Mr Tucker filed three proposed subpoenas in support of an application for a temporary release from his undertaking as to damages pending the hearing of oral evidence in respect of alleged fraud. The proposed subpoenas were directed to Ms Susie Maamary, Mr Di Federico and Mr Thomas Egan. Shortly after the commencement of the hearing on 5 December 2022 I informed Mr Tucker that he would have until 1:00pm to complete his submissions. He responded, ‘fair enough, your Honour’.[22] He concluded his submissions at approximately 12:15pm. At that time, I informed Mr Tucker that there was still half an hour available for him to make any further submissions if he wished to. He declined the offer to make any further submissions.[23] At no time did he foreshadow that he wished to lead further evidence. Following Mr Bourke’s submissions, Mr Tucker made brief submissions in reply. At that point I informed the parties that I would reserve my judgment. The hearing concluded shortly before 1:00pm. I refused to grant leave to Mr Tucker to issue the three proposed subpoenas because the hearing of the summonses seeking orders that he be released from his undertaking as to damages concluded when I reserved my judgment.
[22]Transcript of Proceedings, T 24 L 18 (5 December 2022).
[23]Ibid T 51 L 2–5.
Mr Tucker submitted that if the evidence presently before the Court did not support a finding that the defendants had engaged in fraud, the Court should order that he be temporarily released from the undertaking to enable the allegations of fraud to be herd and determined at trial.[24] I reject this submission. Mr Tucker’s allegation of fraud is extremely tenuous. The mere making of an allegation of fraud does not provide any justification for Mr Tucker to be released, even temporarily, from the undertaking he proffered to the Court.
[24]Ibid T 45 L 7–27.
Conclusion
The present proceeding will be stayed until such time as Mr Tucker complies with his undertaking to the Court. A stay of the proceeding is appropriate for the following reasons. First, Mr Tucker has failed to establish that the Damages judgment is tainted by fraud. Despite being given every opportunity to do so during the course of the hearing on 5 December 2022, Mr Tucker was unable to point to any documentary evidence which supported a finding of fraud. Second, in return for the undertaking which he proffered to the Court Mr Tucker received the significant benefit of nearly $200,000 in salary and employment benefits. Third, his breach of the undertaking is egregious. When he proffered the undertaking he was an experienced legal practitioner and must have fully understood that he would be bound to comply with the undertaking if it was subsequently enlivened by a damages award in favour of the defendants. He has been in default of the undertaking for nearly 18 months. During that period, funds which he could have directed towards complying with the undertaking have been expended on other litigation. His failure to comply with the undertaking involves deliberate and very serious defiance of the authority of the Court.[25]
[25]Cf Maritime Union of Australia v Patrick Stevedores Operations Pty Ltd [1998] 4 VR 143, 156.
The plaintiff’s summonses of 15 November 2022 and 2 December 2022 will be dismissed. The Court will order that proceeding S ECI 2022 03367 be stayed until the plaintiff establishes to the satisfaction of the Court that he has complied with the undertaking as to damages which he proffered on 2 March 2018 in proceeding S CI 2017 05032. I shall provide the parties an opportunity to make submissions as to the costs of the proceeding.
2
6
0