Tucker v State of Victoria & Anor (Summary Judgment Ruling)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

Common Law Division

Employment and Industrial List

S ECI 2022 03367

TOBIAS JOHN TUCKER (also known as TOBY TUCKER)	Plaintiff
v
STATE OF VICTORIA	First Defendant
and
PAUL BRODERICK (sued in his capacity as Commissioner of State Revenue)	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF JUDGMENT:	25 March 2024
CASE MAY BE CITED AS:	Tucker v State of Victoria & Anor (Summary Judgment Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VSC 135

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PRACTICE AND PROCEDURE – Application for summary judgment by defendants – Plaintiff alleging that orders in an earlier proceeding were procured by the defendants’ fraud and should be set aside – Plaintiff alleging that defendants breached provisions of enterprise agreement when conducting investigations of alleged misconduct – Claim for orders setting aside orders in earlier proceeding has no real prospect of success – Defendants’ alleged conduct does not constitute actual fraud – No connection between alleged fraudulent conduct and orders sought to be set aside – Claims alleging breach of enterprise agreement do not disclose an arguable cause of action – Claims struck out – Whether plaintiff should be granted leave to file amended statement of claim – Plaintiff granted leave to file further amended statement of claim confined to allegations of breach of enterprise agreement and Public Administration Act 2004 – Civil Procedure Act 2010 ss 62, 63; Supreme Court (General Civil Procedure) Rules (2015) r 23.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr J Bourke KC and Ms R Preston	Maddocks Lawyers

HIS HONOUR:

Introduction

By Statement of Claim filed 29 August 2022 the plaintiff alleges that the defendants engaged in fraud during a proceeding heard by Ierodiaconou AsJ in February and May 2019, proceeding S CI 2017 05032 (‘first instance proceeding’). He seeks orders setting aside the orders made by Ierodiaconou AsJ. He also claims declarations that the defendants breached provisions of the Victorian Public Service Enterprise Agreement 2016 (‘VPSEA’) and Public Administration Act 2004 (‘PAA’).
By a summons filed 15 November 2022 the defendants seek orders for summary judgment, or alternatively, orders that the Statement of Claim be struck out. For the reasons which follow I have concluded as follows. First, the plaintiff’s claim for orders setting aside the orders of Ierodiaconou AsJ has no real prospect of success. The matters which the plaintiff alleges constitute fraud on the part of the defendants do not constitute actual fraud. Further, there is no connection between the alleged fraudulent conduct and the orders made by Ierodiaconou AsJ. The defendants will be granted summary judgment in respect of the plaintiff’s claim to set aside the orders of Ierodiaconou AsJ. Second, the plaintiff’s claim that the defendants breached the VPSEA and the PAA does not disclose an arguable cause of action and will be struck out. Third, the plaintiff will be granted leave to file and serve an amended Statement of Claim confined to claims that the defendants breached the VPSEA and the PAA.
Background
In November 2011 the plaintiff commenced employment as a solicitor with the first defendant working in the Customer Service and Debt Recovery Management Branch of the State Revenue Office (‘SRO’). In June 2017 the plaintiff’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’).
The plaintiff’s employment was suspended with pay whilst these two investigations were conducted. On 25 October 2017 the plaintiff 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. The plaintiff continued to be suspended with pay whilst the customer search investigation was undertaken.
On 11 December 2017 the plaintiff commenced the first instance proceeding. In that proceeding he sought declarations that the State of Victoria had contravened the VPSEA and the PAA. The plaintiff sought interlocutory and permanent injunctions preventing the defendants from finalising the harassment investigation and any disciplinary action arising therefrom.
On 7 February 2018 the plaintiff was advised of the outcome of the customer search investigation in a letter from Mr Darren Joyce, Executive Director, Corporate Services of the SRO. The plaintiff 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.
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 the plaintiff to the investigator, Mr Don Di Federico. This contradictory evidence had been put to the plaintiff 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 the plaintiff’s e-Sys searches of the customers’ records.

Mr Joyce advised the plaintiff that he considered that in relation to customers B, E, G, Q, V and W the plaintiff had provided misleading and untruthful responses to Mr Di Federico. Mr Joyce advised the plaintiff that he considered this conduct constituted serious misconduct and that he proposed to recommend to the Commissioner of State Revenue that the plaintiff’s employment be terminated with immediate effect.
The plaintiff 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 the plaintiff 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 involved two separate trials. The first trial was heard by Ierodiaconou AsJ on 4 to 6 February 2019 and 7 May 2019. On 16 July 2019 her Honour dismissed the plaintiff’s claims in the proceeding. On 19 July 2019 the SRO terminated the plaintiff’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 the plaintiff’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 the plaintiff during the period 2 March 2018 to 19 July 2019 of salary, superannuation and payments in lieu of annual leave and long service leave. The trial in respect of the defendants’ claim for damages was heard on 24 and 25 September 2019 and 16 October 2019. On 21 April 2020 Ierodiaconou AsJ ordered the plaintiff to pay the defendants $199,681.46 (‘Damages Judgment’). Subsequently, her Honour ordered the plaintiff to pay the costs of the separate hearing as to damages.
The plaintiff filed an application for leave to appeal from the Damages Judgment. He filed a separate application for leave to appeal from Ierodiaconou AsJ’s refusal to grant a declaration that the conduct of the harassment investigation breached the procedural fairness requirements of clause 21.11(a) of the VPSEA. The Court of Appeal published its judgment on 12 May 2021. The Court of Appeal dismissed the application for leave to appeal from the Damages Judgment and upheld the appeal from the refusal to grant a declaration that the defendants breached the procedural fairness requirements of clause 21.11(a) of the VPSEA.
On 23 August 2022 the plaintiff commenced the present proceeding (‘fraud proceeding’). The plaintiff 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’. The plaintiff alleges that this conduct constitutes fraud which he was not able to detect during the first instance proceedings. The plaintiff 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.
On 15 November 2022 the plaintiff filed a summons seeking orders that the Damages judgment order be stayed. On 2 December 2022 the plaintiff 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.
On 12 December 2022 the Court dismissed the plaintiff’s summonses of 15 November 2022 and 2 December 2022. The Court ordered that the fraud proceeding be stayed until the plaintiff established to the satisfaction of the Court that he had complied with the undertaking as to damages which he proffered on 2 March 2018 in the first instance proceeding. A consequence of the stay order was that it was unnecessary for the Court to hear and determine a summons which had been filed by the defendants on 28 November 2022 seeking summary judgment.
The plaintiff applied for leave to appeal from the orders made on 2 December 2022. The Court of Appeal dismissed the application for leave to appeal against the orders dismissing the plaintiff’s summonses of 15 November 2022 and 2 December 2022. The Court of Appeal upheld the application for leave to appeal from the order staying the fraud proceeding. As a consequence of this order it was necessary for the Court to hear and determine the defendants’ summary judgment application. This application was heard on 15 February 2024.
The defendants seeks summary judgment pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 on the grounds that the statement of claim discloses no cause of action or is otherwise scandalous, vexatious and/or an abuse of the process of the Court. The defendants also seek summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010.
The Court will not make an order under Rule 23.01 unless it is clear that no proper amendment of the pleadings can raise a good cause of action because the claim so completely lacks foundation that no legitimate pleading amendment could save it. It must be clear on the pleading or from extrinsic evidence that the claim is unsustainable in fact or in law.
The Court has power under s 63 of the Civil Procedure Act to give summary judgment if satisfied that a claim or part of a claim has no real prospect of success. The Court has a residual discretion under s 64 to order that a civil proceeding proceed to trial if satisfied that, despite there being no real prospect of success, the civil proceedings should not be disposed of summarily because it is not in the interest of justice to do so, or the nature of the dispute is such that only a full hearing of the merits is appropriate.
The prayer for relief in the Statement of Claim claims the following relief:
i.That paragraphs 1 and 2 of the orders of Associate Justice Ierodiaconou made on 21 April 2020 in Proceeding No. S CI 2017 05032 are set aside.
ii.That the orders of Associate Justice Ierodiaconou made on 16 July 2019 in Proceeding Number S CI 2017 05032 (as amended by the orders of Justices Kyrou, McLeish and Sifris made on 12 May 2021 in Proceeding No. S EAPCI 2020 0031) are further amended by adding the following after ‘OTHER MATTERS: Not applicable’:
‘THE COURT DECLARES THAT:
B. The harassment and searches allegations against the plaintiff were invalid and ineffective for the purposes of clause 21 of the Victorian Public Service Enterprise Agreement 2016 and the Public Administration Act 2004.
C. The purported suspension of the plaintiff from work and directions that he was not to have any contact with persons, including [Ms M], were invalid and ineffective for the purposes of clause 21 of the Victorian Public Service Enterprise Agreement 2016 and the Public Administration Act 2004.
D. The defendants have failed to conduct the investigation into allegations against the plaintiff of improper searches of taxpayer records in accordance with the procedural fairness requirements of clause 21.11(a) of the Victorian Public Service Enterprise Agreement 2016 and section 20(3)(c) of the Public Administration Act 2004, read together with section 8(b).’
i.That the orders of Justices Kyrou, McLeish and Sifris made on 23 June 2021 made in Proceedings Nos. S APCI 2019 00931, S EAPCI 2020 0031 and S EAPCI 2020 0041 are set aside and the following order is substituted:
The respondents pay the appellant’s costs of, and in connection with, Proceedings S CI 2017 05032, S APCI 2019 0091, S EAPCI 2020 0031, and S EAPCI 2022 0041 on an indemnity basis.
i.That the defendants pay the plaintiff’s costs.
ii.The Court makes any further Orders it deems necessary.
Paragraph A seeks orders setting aside orders 1 and 2 of the orders made by Ierodiaconou AsJ on 21 April 2020 in proceeding SCI 2017 05032. These orders are as follows:
THE COURT ORDERS THAT:
1. The plaintiff pay $199,681.46 to the first defendant.
2. The plaintiff pay the defendants’ costs of and incidental to the plaintiff’s notice to produce served 10 October 2019, including the defendants’ costs of and incidental to their application to set aside the notice to produce, on an indemnity basis.
Paragraph B of the prayer for relief seeks orders setting aside the orders made by Ierodiaconou AsJ on 16 July 2019 as amended by the orders of the Court of Appeal (Kyrou, McLeish and Sifris JJA) on 12 May 2021. The orders of Ierodiaconou AsJ as amended are as follows:
THE COURT DECLARES THAT:
A The defendants have failed to conduct the investigation into harassment allegations against the plaintiff in accordance with the procedural fairness requirements of clause 21.11(a) of the Victorian Public Service Enterprise Agreement 2016 and section 20(3)(c) of the Public Administration Act 2004, read together with section 8(b).
THE COURT ORDERS THAT:
1. There be judgment for the plaintiff against the defendants in respect of the subject matter of the declaration made in this order. The proceeding by the plaintiff against the defendants is otherwise dismissed.
2. The Defendants be released from their undertaking recorded 2 March 2018.
3. The Plaintiff pay the Defendants' costs of and incidental to the written submissions on the application for amendment, that were made after 7 May 2019 and received by the Court on 13 May 2019 and 17 May 2019, on an indemnity basis.
4. Subject to order 3, the Plaintiff otherwise pay the Defendants' costs of and incidental to the proceeding brought against them, including any reserved costs, such costs to be taxed on a standard basis in default of agreement.
5. The question whether the Plaintiff should be ordered to pay the Defendants any damages pursuant to the Plaintiff's undertaking as to damages recorded in my orders of 2 March 2018 be heard and determined by a Judge of this Court (the Undertaking as to Damages trial) on a date to be fixed on an estimate of half a day.
6. The Undertaking as to Damages trial be conducted by way of affidavit.
7. By 4:00 pm on 16 August 2019, the Defendants file and serve their affidavits and an outline of argument in respect of the Undertaking as to Damages trial.
8. By 4:00 pm on 6 September 2019, the Plaintiff file and serve his affidavits and an outline of argument in respect of the Undertaking as to Damages trial.
9. By 4:00 pm on 13 September 2019, the Defendants file and serve any affidavits and outline of argument in reply in respect of the Undertaking as to Damages trial.
10. Liberty to apply be reserved.
The orders made by the Court of Appeal on 23 June 2021 are as follows:
THE COURT OF APPEAL ORDERS THAT:
1. The appellant pay the respondents’ costs of:
(a) the appellant’s application for a stay and orders under ss 26 and 65A of the Civil Procedure Act 2010, dated 1 June 2020; and
(b) the appellant’s application to adduce further evidence, forming part of the application other than for leave to appeal or cross-appeal dated 28 April 2020.
The effect of the orders made by Ierodiaconou AsJ as varied by the Court of Appeal is as follows. First, her Honour’s order that the plaintiff pay the State of Victoria damages of $199,681.46 was not disturbed. Second, the Court of Appeal upheld the plaintiff’s claim for a declaration that the harassment investigation was not conducted in accordance with the procedural fairness requirements of clause 21.11(a) of the VPSEA and s 20(3)(c) of the PAA read together with s 8(b).
The plaintiff alleges that during the trial of the first instance proceeding the defendants engaged in fraud. The particulars of this allegation refer to repeat paragraphs 5 and 6. Paragraph 5 alleges that during the trial of the first instance proceeding, ‘the defendants contrived to keep the Court, and the plaintiff, in ignorance of the real facts of the case’ (‘the matter complained of’).
On 12 October 2023 the plaintiff filed ‘substituted particulars of the matter complained of, as defined in paragraph 5 of the statement of claim dated 29 August 2022’. A copy of the substituted particulars is annexed to this judgment marked ‘A’. The particulars are divided into two sections. The first section appears under a heading ‘SRO’s allegations concerning harassment’ (‘harassment allegations’). The second section appears under the heading ‘SRO’s allegations concerning taxpayer information’ (‘taxpayer search allegations’).
Paragraphs (a) to (g) of the substituted particulars are as follows:
a. During the plaintiff’s employment at the SRO, Paul McKee and Darren Joyce contrived an artificial and false narrative that:
i. the plaintiff had engaged in sexual harassment and misconduct in and outside the workplace; and
ii. [Ms M] made a serious complaint against the plaintiff alleging sexual harassment and misconduct in and outside the workplace.
b. On 9 June 2017, Mr McKee published an email complaint (McKee Email) containing false and defamatory allegations concerning and identifying the plaintiff. A copy of the email is annexed to the statement of claim marked ‘A’.
c. By letter dated 9 June 2017 (Joyce Letter), Mr Joyce and the SRO failed to disclose:
i. the existence, date and content of the McKee Email; and
ii. that [Ms M] did not make a complaint against the plaintiff (Necessary Particulars).
d. During the plaintiff’s employment at the SRO, the SRO failed to disclose the Necessary Particulars to the plaintiff in contravention of the SRO’s obligations under:
i. the “SRO Equal Opportunity Policy”;
ii. the SRO’s “Managing Misconduct Policy”;
iii. clause 21.8 of the Victorian Public Service Enterprise Agreement 2016; and
iv. s 20(3)(c) of the Public Administration Act 2004 (Vic.) [sic].
e. During the SCV Proceeding, the SRO and their lawyers contrived to conceal the Necessary Particulars from the plaintiff, and the Court, contrary to their:
i. obligations under sections 16, 17, 21 and/or 26 of the Civil Procedure Act 2010 (Vic.) [sic]; and
ii. duty to the Court.
f. By letter dated 14 June 2017, Mr Joyce and the SRO were asked to provide, but failed to provide, the plaintiff with:
i. a copy of the complaint subject of the Joyce Letter, being the McKee Email; and
ii. particulars concerning the making of the complaint.
g. On or around 7 July 2017, the SRO provided the plaintiff with a document entitled “Allegations of [Ms M] against Toby Tucker" that did not disclose the Necessary Particulars.

The plaintiff’s allegation of fraud is based on the proposition that during the first instance proceeding the defendants and their lawyers contrived to conceal ‘the necessary particulars’ from the plaintiff and the Court. The necessary particulars are comprised of two elements:
ii.The existence, date and content of the McKee email; and
iii.The fact that Ms M did not make a complaint against the plaintiff.
Annexed to this judgment, marked ‘B’ is a copy of the email from Paul McKee to Darren Joyce, copied to David Heywood, which is referred to in paragraph (b) of the substituted particulars. Annexed to this judgment, marked ‘C’ is a copy of the ‘Joyce letter’ hand delivered to the plaintiff on 9 June 2017.
The Joyce letter contains four allegations of misconduct arising from the plaintiff’s interactions with Ms M. These allegations mirror the allegations set out at [1(a) to (d)] of the McKee email. The Joyce letter also alleges that in the period 24 November 2016 to 23 May 2017 the plaintiff made numerous searches of customer records on the SRO eSys data base which were unrelated to any known SRO business purpose. A similar allegation is made at [2] of the McKee email. The opening three paragraphs of the McKee email are as follows:
I raise with you several issues of significant concern regarding the behavioural conduct of staff member Toby Tucker, and seek your further action on the following issues which I consider may be a possible breach of the SRO Misconduct Policy.
I have recently had alleged concerning behavioural incidents brought to my attention as a complaint by staff member [Ms M] regarding a staff member Toby Tucker, following her meeting with Team Leader Graham George. The issues raised are sensitive and significant concerns for [Ms M] and her personal health and well-being. They also appear to have effected [sic] other staff in the immediate work area.
1. I have been informed about a number of alleged conversations and interactions between Toby Tucker and staff member [Ms M]. [Ms M] has said that she is worried about comments made regarding stalking her, and is fearful of someone arriving on her doorstep that may cause harm to herself and children. [Ms M] has indicated that she has felt embarrassed and uncomfortable in the workplace, uncomfortable with Toby Tucker staring at her and persistently being asked to befriend Toby Tucker on facebook [sic], which she had eventually accepted in an attempt to avoid further confrontation.
In his written submissions the plaintiff submitted as follows:
As will become apparent, [Ms M] herself repeatedly denies ever making a complaint against the plaintiff rendering the SRO’s conduct in fabricating [Ms M]’s complaint as ‘actual fraud’ in the common law Patch v Ward sense.
The investigation was instigated by Paul McKee, the plaintiff’s former line manager, via his email, sent on 9 June 2017 to Darren Joyce (Executive Director HR) and David Heywood (HR Manager). Mr McKee’s email expressly requested Mr Joyce to initiate a formal misconduct investigation into the plaintiff under cl. 21 of the enterprise agreement.
Tellingly, Mr Joyce’s letter of 9 June 2017, which purported to give formal advice of the investigation and allegations in accordance with the SRO’s obligations under cl. 21, reveals that the SRO concealed the true state of affairs from the plaintiff. Relevantly, Mr Joyce’s letter:
(a) did not disclose a copy of Mr McKee’s email complaint;
(b) did not disclose the existence of Mr McKee’s email complaint; and
(c) withheld and concealed the majority of Mr McKee’s serious allegations, which were of a criminal nature, including that the plaintiff had presented a physical threat to [Ms M] and her children and was a risk of physically presenting himself at [Ms M]’s house and that the plaintiff had engaged in inappropriate and harassing interactions with [Ms M] including bullying her.
The second element of the ‘necessary particulars’ contends that Ms M did not make any complaint of harassment against the plaintiff. On 30 June 2021 the plaintiff covertly recorded a telephone conversation with Ms M. Extracts from that conversation are set out at paragraph (m) of the substituted particulars. Based on the recorded telephone conversation the plaintiff submits:
[Ms M]’s evidence, which is put squarely before the Court, is not only that she never made any complaint against the plaintiff (“I never did it”, “I never did the complaint”, “I never did a statement”, “I didn't do a complaint”, “I didn’t. I have evidence I didn’t”) but also, that [Ms M] considered the plaintiff to be a friend (“they’ve used everything to ruin our friendship” and “And they knew I was always highly thinking of you”). [Ms M]’s account is corroborated by contemporaneous documents, primary evidence and witness statements of relevant witnesses and reveals that the SRO’s allegations put before the Court (including the Court of Appeal) lacked any factual basis. The primary evidence includes:
(a) a pleasant and unremarkable Facebook exchange between the plaintiff and [Ms M] which occurred in late May 2017 at the exact time the SRO alleged that the plaintiff was sexually harassing and threatening [Ms M] and her children at her home;
(b) a text message from [Ms M] to the plaintiff enquiring about attending after work drinks with the plaintiff;
(c) direct evidence from a former SRO colleague, a qualified solicitor now working at Russell Kennedy, who sat directly adjacent [Ms M] in the workplace that: “I did not observe a single occasion where [Ms M] raised a complaint or was otherwise upset by Mr Tucker's behaviour. [Ms M] would often interrupt Toby in his work and engage in conversation with him, as it was an open plan office”; and
(d) direct evidence from another former SRO colleague, a certified practising accountant: “Whilst I was at the SRO, I sat in close proximity to Toby and [Ms M] in the workplace although I did move workstations on a number of occasions as colleagues went on leave. I do not recall any occasion where [Ms M] was upset due to Mr Tucker's behaviour. I do not recall an occasion where [Ms M] complained about being uncomfortable in Toby's presence”.
I accept the plaintiff’s submission that the defendants have not put forward any evidence of a formal written statement or complaint by Ms M alleging misconduct by the plaintiff. Notwithstanding the absence of a formal complaint, there is evidence that Ms M made allegations of misconduct against the plaintiff on 26 May 2017 and 29 June 2017.
On 29 June 2017 Ms M was interviewed by Ms Klug, an employee of Worklogic, who had been appointed by the SRO to conduct an investigation of the harassment allegations set out in the Joyce letter. A transcript of this interview is in evidence. Ms M was asked by Ms Klug when she had first raised concerns about the plaintiff’s conduct:
LK:So can I just…? With, with… I might come back to that, but can I just ask you firstly who did you inform about your concerns about Toby in the workplace?
SM:Okay, this was just around May I informed, I informed them and that’s because… I was always a bit embarrassed and harassed and intimidated but that was only towards the end I raised concerns because… [   ] and he was fuming and he was outraged and… he was just degrading me and embarrassed me in front of the colleagues…
LK:Who was doing that?
SM:Toby.
LK:Okay.
SM:So I was really a bit hurt and embarrassed and I thought, ‘no, this isn’t right’.
SM:A few people looked at me and saw I was really upset [    ] came up to me and said, ‘[Ms M], you should be taking notes of all of this, because that’s not on. It’s real stalker, stalking behaviour.’ It’s what was said in front of everyone. He was saying to me, ‘Oh,’ he was saying, ‘Oh’. I said, I said to him – basically he sort of like knew every weekend what I was up to, and when I – … and I said to him, ‘how did you know anyway [   ] was on my Facebook?’ And he said to me, ‘Oh, that’s…’ and I said to him ‘Are you stalking me?’ He goes, ‘Yeah, I don’t just stalk you on Facebook. I stalk you… other ways as well.’
LK:Mm, mm.
SM:And the way he was saying it, it was just… he went on and on about it.
LK:Mm, mm, and… in that meeting did you provide details of what happened?
SM:Just basically, I just said what’s happened and he said to me to make sure it’s confidential and so I don’t say anything…
LK:Okay, so… when was the date of the meeting with [   ]?
SM:I think I’ve got… I think I have, so [    ] on the 26^th of Wednesday…
LK:26^th of May?
SM:May, yeah. It was on a Wednesday I think. So basically, why that led, on a Friday I went, after happy hour, after work drinks, I went with a colleague of mine, two colleagues of mine and Toby was there and he was just fuming. He couldn’t believe that I had [    ] on Facebook. He was bad mouthing [    ] and [    ].
The exchanges between Ms M and Ms Klug set out above are evidence that allegations of misconduct were made by Ms M to a manager during a meeting on 26 May 2017, as set out in the McKee email. During the interview with Ms Klug on 29 June 2017 Ms M repeated allegations of misconduct against the plaintiff:
SM:So what happened… so basically, you know, he was always approaching me. He was always staring across the room.
LK:Tell me about that.
SM:I don’t know, I was just doing my work and I’d just look, and I would just see him – seeing him staring across the room.
LK:At you?
SM:Yeah, and I’m like… I would say like, ‘what are you looking at?’ Like, people can see, that’s embarrassing, like, that’s degrading on me. They’re going to – they’re going – think, ‘Oh, is there something on? Happening?’
SM:It was just when I had [   ] on Facebook, that’s when he couldn’t handle it, he was fuming.
SM:And I said to him…that’s when I felt, oh I have to, because how he was fuming and going off his head. I said, ‘Please, just don’t send any inappropriate stuff.’ Then he sent me a friend request on Saturday, 2 o’clock in the morning, and I never accepted, cause I was hoping, ‘Oh maybe he’ll forget about it.’ And then on the Monday morning he was at it again.
SM:He could see that I’m friends with [    ] you know, when you have like a mutual friend, but there was no comments or anything. So he was really just furious, he was saying, ‘Oh I can’t believe that.’
SM:So he’s like, ‘Oh, are you messaging [    ] at night?’
LK:[    ]
SM:Yeah.
LK:Mmm.
SM:In front of everyone. So it was really degrading, disrespectful, embarrassing.
SM:So obviously – so he was always – then he became more constant – staring across the room.
LK:Mmm – hm.
SM:I, I – yeah. And that’s when I told [    ]. I said, ‘Did you hear that? Cause everyone heard it, it was so embarrassing. I said to [    ] ‘That is so embarrassing and inappropriate. I don’t know what’s his problem.’ I, I said to him, ‘Oh I think I can see another side of – view of him.’ And I said, ‘You know, it’s really… I feel – really feel awkward now.’ Because he’s basically saying that me and [   ] have something on – going on.
SM:That’s why he was doing – putting all that pressure on me, and embarrassing me, and humiliating me.
SM:And I thought, ‘Enough’s enough.’ And I, I just said to [   ] I go, ‘That’s not appropriate, what’s his problem.’ Cause I think everyone was just… like what the – what the hell, what the hell’s going on? Why is he so obsessed? Or possessive over – what’s his issue?
SM:I knew he was going to intimidate me. I know there’s going to be consequence for this. I know how he thinks, yeah.
LK:What leads you to have that belief?
SM:He always says he will take people to court, all his friends are lawyers and… barristers, and he gets whatever he wants.
SM:That was on the Monday when I came back… so that Friday; that Monday when he was talking, he was saying, ‘Oh, I’m not just stalking you on Facebook.’
LK:Do you mean Monday, the 22^nd of May?
SM:Yeah.
LK:Yeah.
SM:He was saying, ‘I’m not just stalking you on Facebook, I’m stalking you on other stuff.’
LK:[   ] also noted that you were fearful of someone arriving on your foots – on your door step that may cause harm to yourself and your children?
SM:I was – no, I just thought – I just said to [   ] I go, ‘I hope he’s not one of those types that will just – laughs – rock up.’
LK:What is your level of concern about that risk?
SM:I’m not sure. You don’t know what these people will do.
LK:Mmm.
SM:So if he’s just already – he obviously knows a lot of information about me. Is he that type that will do that? That’s what I said to [   ]. ‘Is he that type that…’ I’m worried; I’ve got kids. I can’t have that.
LK:Mm okay. In relation to the behaviour you’ve described by Toby, do – would you describe that behaviour as harassing behaviour?
SM:Yeah, of course. Yeah.
LK:And… would you describe it as sexually harassing behaviour?
SM:I just think it’s harassing.
LK:Mm.
SM:Really, what was it, humiliating me and embarrassing me, really degrading me in front of everyone, intimidating me.
The transcript of interview records the following exchange between Ms M and Ms Klug regarding the plaintiff’s access to the SRO’s customer records:
SM:      And I said, "Why don't you do property?" I said to him, " [   ] has ... like
several houses and [   ] and he's really successful and just doing that."
And, all of a sudden, he just turned around, typed in [   ] name <laughs> and did a ... land title search and saw the properties that he has. And he's like, "Oh, yeah, oh shit, he does do." <Laughs>.
LK:      What’s your [   ]?
SM: [   ] think [   ] will be very upset if ... if I told people that, but I was just talking financials and ...
LK:      And when, when did that happen <turns page>?
SM:      I think in the first two months as well.
LK: Yeah <turns pages>. Okay ... and what did you--what happened next after he did the search?
SM: I said, "You can't do that," I go, "that's ... strictly, you can't do searches like that."
LK:      So that was a land titles search?
SM: I don't know, he just went onto the system and found how many properties he has.
LK:      Is that using thee-Sys database?
SM:      I'm not sure if it's e-Sys or something else.
LK:      Okay.
SM:      But all I could see is the properties.
LK:      Do you have access to that search function?
SM:      Yes, I do.
LK:      Okay.
SM:      Yeah. But there's several ways you can search people on different systems, just seeing--so I'm not sure. I saw the ... l was just freakin' out, like, "You can't just do those searches."
LK:      Yeah, where does it say you can't do those searches?
SM:      It's in the Privacy Law Act and misconduct. You can't just look up anyone's details.
LK:      And how did he respond when you said, "You can't do that"?
SM:      He's like, "No, I can do whatever I want."
The transcript of interview is evidence that allegations of misconduct against the plaintiff were made by Ms M prior to 9 June 2017 which provided the defendants with a proper basis for investigating the harassment and customer search investigations.
Paragraphs (t) to (aa) of the substituted particulars appear under the heading: ‘SRO’s allegations concerning taxpayer information.’ Paragraph (t) states that ‘During the plaintiff’s employment at the SRO, the SRO contrived an artificial and false narrative that the plaintiff had inappropriately accessed taxpayer records.’ Paragraph (t) also contends that the SRO breached its obligations to accord the plaintiff procedural fairness under clause 21.6 of the VPSEA and s 20(3)(c) of the PAA by withholding notes of interviews between Mr Di Federico and four taxpayers identified as taxpayers G, Q, V and W. Paragraph (t) also contends that the SRO withheld redacted documents entitled ‘Communications with taxpayer Q’ and ‘Communications with taxpayer W’ (‘withheld documents’).
During the hearing on 15 February 2024 the parties advanced conflicting submissions as to whether the withheld documents had in fact been withheld. In an affidavit dated 21 November 2022 the plaintiff deposed that on 26 October 2021 the SRO produced to himself and the Fair Work Commission ‘Notes of interviews’ with taxpayers G, Q, V and W and ‘Communications’ with taxpayer Q and W. The relevant documents are annexed to his affidavit.
Mr Bourke KC, who appeared with Ms Preston for the defendants submitted that the notes of interview provided to the plaintiff on 26 October 2021 had all previously been disclosed to him on 7 February 2018 as annexures to the report of Mr Di Federico. I accept this submission. The notes of interview of taxpayer G on 15 November 2017 at 2.00pm are at page 150 of the exhibit bundle annexed to the plaintiff’s affidavit. The same notes are at page 14 of attachment A to Mr Di Federico’s report. The notes of interview of taxpayer Q on 27 October 2017 at 3.00pm are at page 151 of the exhibit bundle to the plaintiff’s affidavit. The same notes appear at page 33 of attachment A to Mr Di Federico’s report. The notes of interview of taxpayer V on 15 November 2017 at 3.00pm are at page 152 of the exhibit bundle to the plaintiff’s affidavit. The same notes appear at page 43 and 44 of attachment A to Mr Di Federico’s report. The notes of interview of taxpayer W, 8 November 2017 at 1.00pm are at page 153 of the exhibit bundle to the plaintiff’s affidavit. The same notes appear at page 47 of attachment A to Mr Di Federico’s report.
On 7 December 2017 Mr Di Federico wrote to the plaintiff informing him that he had obtained independent evidence which contradicted evidence contained in a statement dated 6 October 2017 provided to him by the plaintiff. The letter referred to contradictory evidence provided by taxpayers G, Q, V and W. The letter referred to ‘The direct oral evidence’ provided by these taxpayers and set out the substance of their evidence which contradicted the statement provided by the plaintiff in respect of these taxpayers. The plaintiff was asked to provide a further comment regarding the stated purpose for undertaking searches in respect of customers G, Q, V and W by 5.00pm on 14 December 2017. On 13 December 2017 the timeline for providing a response was extended to midday on 27 December 2017. On 5 January 2018 the time for providing a response was further extended to 5.00pm on 31 January 2018. The plaintiff did not provide any response prior to the receipt of Mr Joyce’s letter of 7 February 2018 annexing a copy of Mr Di Federico’s report.
The first instance proceeding was commenced on 11 December 2017. Initially, the relief sought by the plaintiff was confined to the harassment investigation. The plaintiff sought a declaration that the State had breached the VPSEA and the PAA and interlocutory and permanent injunctions preventing the finalisation of the harassment investigation and any subsequent disciplinary action.
The plaintiff was provided with Mr Di Federico’s report as an attachment to a letter from Mr Joyce dated 7 February 2018. The letter foreshadowed Mr Joyce’s intention to recommend to the Commissioner of State Revenue that the plaintiff’s employment be terminated with immediate effect. The letter also stated that in accordance with clause 21.11 of the VPSEA the plaintiff would be provided with an opportunity to respond by 5.00pm on 16 February 2018 to the report’s findings and the proposed disciplinary action. The plaintiff did not provide any response prior to 5.00pm on 16 February 2018.
Following the finalisation of the taxpayer search investigation the plaintiff’s claims were expanded to include claims for relief in respect of the taxpayer search investigation. Paragraph 37 of the second further amended statement of claim (‘second FASOC’) dated 21 January 2019 alleged that the defendants breached clause 21.6 of the VPSEA (the procedural fairness obligation) because the defendants:
a. failed and refused to provide particulars concerning the basis on which it was said the plaintiff had no work purpose in conducting the said searches;
b. failed and refused to provide, or alternatively, failed to sufficiently provide, the plaintiff with access to his work records, emails and other information to enable him to provide a meaningful response to the Searches Proposed Discipline Outcome;
c. failed and refused to provide to the plaintiff a redacted version of the Di Federico Report which does not disclose Taxpayer Confidential Information to enable legal advice to be sought; and
d. cast the onus of the burden of proof with respect to the determination of whether any or all of the Third Searches Allegations were conducted for no legitimate work purpose on the plaintiff.

Paragraph D of the prayer for relief sought the following relief:
Further or in the alternative to paragraph C above, a declaration that the defendants have contravened clause 21.6 of the Victorian Public Service Enterprise Agreement 2016, in that the defendants failed to conduct the investigation commenced 9 June 2017 with respect to that part of the investigation the subject of a report prepared by Di Federico concerning the First and/or Second and/or Third Searches Allegations in accordance with the requirements of procedural fairness.
The trial of the first instance proceeding was heard over four days: 4 to 6 February 2019 and 7 May 2019. The plaintiff received copies of the notes of interview of taxpayers G, Q, V and W on 7 February 2018. No express allegation was made in the second FASOC that the plaintiff had been denied procedural fairness by not having been provided with these interview notes at an earlier date. However, [37(b)] of the second FASOC alleged that the defendants failed to provide the plaintiff ‘with access to his work records, emails and other information to enable him to provide a meaningful response to the Searches Proposed Discipline Outcome’. At [25] of the judgment in the first instance proceeding Ierodiaconou AsJ noted that during the trial the plaintiff abandoned the allegation in [37(b)] of the second FASOC.
The substituted particulars describe the notes of interview with taxpayers G, Q, V and W as ‘withheld documents’. The documents were not withheld. The plaintiff received the interview notes when he was provided with the Di Federico report on 7 February 2018. He had previously been provided with details of the substance of the contents of the notes in a letter he received from Mr Di Federico on 7 December 2017. Contrary to paragraph (y) of the substituted particulars the SRO did not fail to disclose to the Court and the plaintiff that it had not provided the plaintiff with the withheld documents during the investigation. The factual premise of this allegation is without substance.
The power to set aside a judgment on the basis of fraud
The power to set aside a judgment on the basis of fraud requires actual fraud. 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’. 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’. 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. 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.
In order to set aside a judgment on the grounds of fraud it is necessary to establish a nexus between the fraud and the obtaining of the judgment. Accordingly, it is necessary for the plaintiff to plead specifically and provide full particulars of the allegation that the orders made by Ierodiaconou AsJ and the Court of Appeal, which he seeks to set aside, were the product of actual fraud.
The plaintiff alleges at [5] of the Statement of Claim that during the trial the defendants contrived to keep the Court and the plaintiff in ignorance of the real facts of the case. These facts, described in the substituted particulars as ‘necessary particulars’ were:
iv.The existence, date and content of the McKee email; and
v.That Ms M did not make a complaint against the plaintiff.
As to the second of these matters, it is clear from the transcript of interview between Ms Klug and Ms M on 29 June 2017 that Ms M made allegations of misconduct against the plaintiff on 26 May 2017 which she repeated on 29 June 2017. The defendants were entitled to conduct the trial of the first instance proceeding on the footing that allegations of misconduct had been made by Ms M against the plaintiff prior to the harassment and taxpayer search investigations being initiated.
The statements made by Ms M during the covertly recorded conversation with the plaintiff do not provide any basis for an allegation that the defendants concealed the real facts of the case from the Court. When the trial was heard in February and May 2019 the defendants’ understanding of ‘the real facts of the case’ was based upon the allegations made by Ms M during her discussions with her manager on 26 May 2017, which were repeated and expanded upon during her interview with Ms Klug on 29 June 2017.
The failure to disclose to the Court and the plaintiff the existence, date and content of the McKee email does not constitute actual fraud. The allegations of misconduct in the numbered paragraphs 1 and 2 in the email are very similar to the allegations of misconduct in the Joyce letter which was received by the plaintiff on 9 June 2017. Insofar as the email sets out concerns expressed by Ms M regarding the plaintiff’s behaviour, including concerns for the safety of her children, those matters were based on information conveyed to Mr McKee and are consistent with statements made by Ms M to Ms Klug during the interview on 29 June 2017.
In his written submissions the plaintiff contended:
At trial, Mr Joyce gave dissembling evidence in his affidavit of 19 August 2019 including that: “In early June 2017, I was advised by Mr Heywood that allegations of misconduct against Mr Tucker had arisen”. The email reveals that it was Mr McKee and not Mr Heywood that alerted Mr Joyce to the allegations. Relevantly, Mr Joyce’s affidavit, which purported to give evidence of the entire investigation process, its chronology and the background to the alleged complaint of [Ms M], and which was prepared by Maddocks Lawyers (the same lawyers acting here), did not attach a copy of the email and omitted to mention or refer to Mr McKee or his email complaint in any way. Further, Mr Joyce’s affidavit did not refer to the true detail of Mr McKee’s allegations including those of physical harassment, intimidation, bullying and stalking. These were material omissions predicated to keep the Court and the plaintiff in the dark as to the true facts of the case. Given the length and detail of Mr Joyce’s affidavit, and that the affidavit was drafted by the same lawyers (Maddocks) who responded to the plaintiff’s Concerns Notice these omissions were calculated steps predicated to shield Mr McKee and the State from a defamation claim by concealing the particulars necessary to sue on Mr McKee’s email including dates and the true nature of Mr McKee’s published allegations.
First, nothing turns on whether it was Mr Heywood or Mr McKee who advised Mr Joyce that allegations of misconduct had been made against the plaintiff. Second, the fact that the Court and the plaintiff did not have the McKee email at the time of the first instance proceeding, does not constitute actual fraud. The plaintiff submits that the Court was ‘kept in the dark as to the true facts of the case’. It is implicit in the plaintiff’s submission that serious allegations were made against the plaintiff in the McKee email which had no foundation. However, all of the matters in the McKee email were supported by statements made by Ms M to Ms Klug on 29 June 2017.
The plaintiff contends that the defendants were attempting to shield the State and Mr McKee from defamation proceedings. This submission ignores the requirement for a connection between the alleged fraud and the orders to be set aside. The orders which the plaintiff seeks to set aside were a consequence of the termination of the plaintiff’s employment on the ground that he gave misleading answers to Mr Di Federico as to the reason for accessing the records of taxpayers.
The plaintiff made an application in the appeal from the judgment of Ierodiaconou AsJ to rely upon the McKee email. The Court of Appeal dismissed this application. The plaintiff’s submissions in support of the application were summarised by the Court of Appeal as follows:
In relation to the first item, Mr McKee’s 9 June 2017 email, the applicant submitted that this was the core piece of adverse evidence in relation to the respondents’ flawed investigative process. He contended that, in circumstances where he had recently lodged a workplace complaint against Mr McKee and where AB did not make a written complaint against him, Mr McKee’s 9 June 2017 email reveals that the process was actuated by malice, underpinned by falsities and contrived to ‘get rid of’ him.
The applicant argued that the respondents denied him procedural fairness during the two investigations by not providing him with a copy of Mr McKee’s 9 June 2017 email, which was said to be the complaint against him. He emphasised that the email contained additional allegations concerning his conduct towards AB, which the SRO did not pursue as part of the Harassment Investigation. According to him, he was prejudiced by Ms Klug being provided a copy of the email because the additional allegations ‘poison[ed] [Ms Klug’s] mind’ against him and he was denied an opportunity to respond to them.
The basis upon which the Court of Appeal dismissed the application to rely upon the McKee email was as follows:
We first consider Mr McKee’s 9 June 2017 email. That email was not relevant to either of the investigations. That is because, although the email was the catalyst for the two investigations, the allegations in the email were not the allegations that became the subject of the investigations. The allegations that the applicant was required to address were those in Mr Joyce’s 9 June 2017 letter, as subsequently expanded by the SRO.
It follows that, even if the applicant could establish that Mr McKee was motivated by malice due to the applicant’s complaint against him on 31 May 2017, that had no bearing on the veracity or otherwise of the allegations that were ultimately the subject of the two investigations.
Further, we reject the applicant’s submission that he was prejudiced by the contents of Mr McKee’s 9 June 2017 email because it was provided to Ms Klug and potentially caused her to form an adverse impression of him based on serious allegations that ultimately did not form part of the Harassment Investigation. The allegations that were the subject of the Harassment Investigation were self-contained and there was no evidence at trial that Ms Klug took into account extraneous considerations. Further, the fact that Ms Klug found that some of the allegations were not proven and that, of those that were proven, some did not constitute misconduct, indicates that there was no basis for a finding of actual bias on her part.
Paragraphs (t) and (z) of the substituted particulars do not particularise an allegation of actual fraud. The notes of interview of taxpayers G, Q, V and W were not withheld. The plaintiff had the documents prior to the trial of the first instance proceeding. He did not advance any submission during the first instance proceeding that he was denied procedural fairness by not having been provided with the statements prior to being provided with the Di Federico report on 7 February 2018. A denial of procedural fairness does not, in any event, constitute actual fraud.
There is no nexus between the orders which the plaintiff seeks to set aside and the alleged withholding of the statements provided by taxpayers G, Q, V and W. The plaintiff was terminated on the narrow ground that he misled Mr Di Federico in his specific responses with respect to taxpayers G, Q, V and W. The plaintiff’s complaint that the defendants withheld the witness statements of these taxpayers does not relate to the ground upon which he was terminated. Accordingly, the alleged withholding of evidence provides no foundation for setting aside the orders of Ierodiaconou AsJ as amended by the Court of Appeal.
Paragraphs 5 to 8 of the Statement of Claim will be struck out. The matters pleaded in [5] and particularised in the substituted particulars do not constitute a pleading of actual fraud. The matters alleged do not provide any foundation for setting aside the orders of Ierodiaconou AsJ as amended by the Court of Appeal.
Section 63 of the Civil Procedure Act confers power on the Court to grant summary judgment in respect of claim in a proceeding if it does not have a real prospect of success. The plaintiff’s claim for an order setting aside the order of Ierodiaconou AsJ has no real prospect of success. The plaintiff claims that the defendants and their lawyers engaged in actual fraud during the first instance proceeding by contriving to conceal from the plaintiff and the Court:
b.The existence, date and content of the McKee email; and
c.That Ms M did not make a complaint against the plaintiff.

d. Assuming in the plaintiff’s favour that he can establish both of these matters. This does not constitute actual fraud. There is clear evidence that the defendants had received allegations of misconduct against the plaintiff prior to commencing the harassment and taxpayer search investigations. The absence of a formal complaint from Ms M is of no consequence. Further, there is no nexus between the failure to disclose these matters and the order that the plaintiff pay damages to the defendants. That order was a consequence of the termination of the plaintiff’s employment on the narrow ground that he misled Mr Di Federico.

e. I do not consider it appropriate to grant the plaintiff leave to replead paragraphs 5 to 8 in aid of the relief he seeks in paragraph A of the prayer for relief. The plaintiff filed substituted particulars of his allegation of fraud on 12 October 2023. Even if granted leave to replead his allegation of fraud, he will not be able to overcome the absence of any nexus between any alleged fraud and the orders of Ierodiaconou AsJ which he seeks to set aside.

Further breaches of the VPSEA
a.Paragraph 9 of the Statement of Claim alleges that ‘By reason of the matters complained of’ the defendants committed further breaches of the VPSEA. The particulars of this breach are as follows:
a. The harassment and searches allegations against the plaintiff were invalid and ineffective for the purposes of clause 21 of the VPSEA and the PA Act.
b. The purported suspension of the plaintiff from work and directions that he was not to have any contact with persons, including [Ms M], were invalid and ineffective for the purposes of clause 21 of the VPSEA and the PA Act.
c. The defendants failed to conduct their investigation into allegations against the plaintiff of improper searches of taxpayer records in accordance with the procedural fairness requirements of clause 21.11(a) of the VPSEA and section 20(3)(c) of the PA Act, read together with section 8(b).

a.The alleged further breaches of the VPSEA are ‘by reason of’ the matters alleged in [5] which comprise ‘the matter complained of’. During the hearing on 15 February 2024 the plaintiff advanced an alternative submission in the event that the Court concluded that the matters pleaded in [5] do not constitute actual fraud justifying the setting aside of the orders of Ierodiaconou AsJ as varied by the Court of Appeal. He submitted that if the matters pleaded do not constitute actual fraud they nevertheless provide the basis for the declaratory relief set out in paragraph B of the prayer for relief.
b.The matters alleged in [5] of the Statement of Claim do not provide a foundation for the declaratory relief set out in paragraph B of the prayer for relief. In particular the matters pleaded do not disclose the basis upon which the plaintiff contends that:
c.The harassment and search allegations were invalid and ineffective for the purposes of clause 21 of the VPSEA and the PAA;
d.The suspension of the plaintiff from work and directions that he was not to have any contact with any persons, including Ms M, were invalid and ineffective for the purposes of clause 21 of VPSEA and the PAA;
e.The defendants have failed to conduct the customer search investigation in accordance with the procedural fairness requirements of clause 21.1(a) of the VPSEA and section 20(3)(c) of the PAA read together with section 8(b).

f.To the extent that the relief sought by the plaintiff relies upon the contention that Ms M did not make any complaint of harassment, the plaintiff confronts at least two obstacles. First, the conduct of an investigation under clause 21 of the VPSEA is not contingent upon a formal written complaint of misconduct having been made against an employee. Rather, the employer’s right to conduct an investigation is contingent upon an allegation of misconduct having been made. Second, as set out earlier in this judgment, there is evidence that on 26 May 2017 Ms M made allegations of misconduct against the plaintiff. These allegations were then set out in the Joyce letter of 9 June 2017. The allegations were repeated by Ms M during her recorded interview with Ms Klug on 29 June 2017. The transcript records a specific exchange between Ms Klug and Ms M during which Ms Klug expressly described the matters raised by Ms M during the interview as being ‘allegations’.
g.Clause 21.7(a)(iv) of the VPSEA conferred power on the SRO to direct the plaintiff not to speak to any other employee whilst the investigations were being undertaken. Clause 21.7(a)(v) conferred power on the SRO to suspend the plaintiff with pay whilst the investigations were being undertaken. The plaintiff claims a declaration that the suspension and direction were invalid and ineffective for the purpose of clause 21. The basis of the alleged invalidity is not apparent on the face of the Statement of Claim.
h.Clause 21.11(a) provides that as soon as practicable after an investigation has made a finding that any allegation of misconduct is substantiated, the employee is to be provided with the finding of the investigation, the proposed discipline outcome and sufficient information to allow the employee a reasonable basis to respond. The plaintiff claims a declaration that the defendants failed to conduct the taxpayer search investigations in accordance with the procedural fairness requirements of clause 21.11(a) of the VPSEA and s 20(3)(c) of the PAA read together with s 8(b). The basis upon which the plaintiff claims this relief is not disclosed by the Statement of Claim.

Paragraph 9 of the statement of claim will be struck out. The ‘matter complained of’ in paragraph 5, particulars of which are contained in the substituted particulars, do not disclose an arguable basis for the contentions that:
j.The harassment and search allegations against the plaintiff were invalid and ineffective for the purposes of clause 21 VPSEA and the PAA;
k.That the suspension of the plaintiff pursuant to clause 27.7(a)(v) and the direction that he not speak to other employees under clause 21.7(a)(iv) were invalid; and
l.The defendants failed to conduct the customer search investigation in accordance with the procedural fairness requirements of clause 21.11(a) VPSEA and section 20(3)(c) of the PAA read together with s 8(b).

m.It is necessary to address the question of whether the plaintiff should be granted leave to file a further amended statement of claim alleging breaches of the VPSEA and the PAA.
n.The plaintiff’s second FASOC in the first instance proceeding included claims that the defendants breached clause 21 of the VPSEA by reason of the manner in which the harassment investigation and the customer search investigation was conducted. At the trial of the first instance proceeding the plaintiff pressed two claims alleging breaches of the VPSEA:

i.That the failure to provide an unredacted copy of the Klug report breached clause 21 of the VPSEA and/or section 20(3) PAA; and
ii.That the failure to provide the particulars concerning the basis upon which it was said the plaintiff had no known work purpose in conducting the searches of the subject of the Di Federico report breached clause 21 of the VPSEA and/or section 20(3) PAA.

Ierodiaconou AsJ rejected both these alleged breaches. The Court of Appeal overturned Ierodiaconou AsJ’s finding in respect of the alleged breach of clause 21 arising from the failure to provide the plaintiff with an unredacted copy of the Klug Report. The Court of Appeal made a declaration that the defendants failed to conduct the harassment investigation in accordance with the procedural fairness requirements of clause 21.11(a) of the VPSEA and s 20(3)(c) of the PAA, read together with s 8(b).
Mr Bourke submitted that the plaintiff should not be granted leave to replead claims of breach of the VPSEA. He submitted that the plaintiff has already had the opportunity to plead breaches of the VPSEA in the first instance proceeding and was estopped from seeking to reagitate any new claims of breach in the present proceeding. In response, the plaintiff submitted that he did not previously have an opportunity to allege breaches of the VPSEA based upon the absence of a complaint from Ms M or non-disclosure of the McKee email because he was not aware of these matters at the time of the first instance proceeding.
When rejecting the plaintiff’s application to rely upon the McKee email as fresh evidence the Court of Appeal stated:
That email was not relevant to either of the investigations. That is because, although the email was the catalyst for the two investigations, the allegations in the email were not the allegations that became the subject of the investigations. The allegations that the applicant was required to address were those in Mr Joyce’s 9 June 2017 letter, as subsequently expanded by the SRO.
This reasoning stands in the way of a finding that the failure to disclose the McKee email to the plaintiff constituted a breach of the procedural fairness obligations under clause 21 of the VPSEA. As to the failure of Ms M to make a formal complaint, the existence of a formal complaint is not a precondition to the instigation and conduct of an investigation into alleged misconduct under clause 21 of the VPSEA.
Based on the plaintiff’s submissions to date, failure to disclose the McKee email and the absence of a formal complaint by Ms M appear to be the only new matters which the plaintiff has become aware of since the first instance proceeding which would provide the basis for alleging of breaches of the VPSEA which he could not have made prior to the first instance proceeding.
On the material presently before the Court it is likely that any amended pleading alleging a breach of clause 21 of VPSEA and s 20(3) of the PAA which relies on any matters other than the McKee email and the absence of a formal complaint by Ms M will be met with a defence of Anshun estoppel.
Notwithstanding the difficulties which confront the plaintiff in repleading allegations of breach of the VPSEA, I have concluded that he should be granted leave to file and serve a further amended statement of claim. The plaintiff’s claims of breach of the VPSEA and PAA are not so lacking in foundation as to be incapable of being validly pleaded. If the defendants wish to contend that the plaintiff is estopped from pleading breaches of the VPSEA and PAA because he could have pleaded the breaches in the first instance proceeding, the basis of the estoppel should be set out in the defendants’ defence. The defendants are not precluded by this judgment from making a further application for summary judgment.
The current version of the Statement of Claim does not identify the particular obligations arising under the VPSEA and/or the PAA which the plaintiff contends have been breached. In an amended pleading the plaintiff will have to identify the particular obligations which he contends have been breached. He will also have to identify the particular conduct of the defendants which he alleges breached the obligations under the VPSEA and the PAA.
The Court will order as follows:
1.The defendants are granted summary judgment in respect of the plaintiff’s claim that paragraphs 1 and 2 of the orders of Ierodiaconou AsJ made on 21 April 2020 in proceeding S CI 2017 05032 be set aside.
2.The statement of claim dated 29 August 2022 is struck out.
3.The plaintiff is granted leave to file and serve a further amended statement of claim limited to claims that the defendants breached the Victorian Public Service Enterprise Agreement 2016 and/or the Public Administration Act in the conduct of the harassment investigation and the customer search investigation.

I shall provide the parties with an opportunity to make submissions on the costs of the summons heard on 15 February 2024.

[2024] VSC 135

25 March 2024