Tucker v McKee

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] FCA 828
• Date: 23 July 2021

Federal Court of Australia

Tucker v McKee [2021] FCA 828

File number:	VID 274 of 2020
Judgment of:	ANASTASSIOU J
Date of judgment:	23 July 2021
Catchwords:	PRACTICE AND PROCEDURE – jurisdiction of Federal Court of Australia in defamation proceedings – first duty of Court to determine question of jurisdiction – whether there is a matter arising under federal law – whether there is a right, duty or obligation in issue in the matter that owes its existence to federal law or depends upon federal law for its enforcement – whether alleged defamatory email was published outside the State of Victoria – whether storage of an email on a cloud or server sufficient to constitute publication – whether assertion of jurisdiction was colourable – jurisdiction of the Court not established – originating application and amended statement of claim dismissed
Legislation:	Fair Work Act 2009 (Cth) Judiciary Act 1903 (Cth) Defamation Act 2005 (Vic)
Cases cited:	CGU Insurance v Blakeley [2016] HCA 2; 259 CLR 339 Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; 12 CLR 398 Fencott v Muller [1983] HCA 12; 152 CLR 570 Humphrys (Tobin) v Chief Executive Officer of Department of Communities WA [2021] FCA 586 LNC Industries v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 Murphy v Nationwide News Pty Ltd [2021] FCA 381 Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 Prasad v Google LLC [2020] FCA 67 Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 Somasundaram v Luxton [2020] FCA 1076 Toben v Jones [2012] FCA 1193 Tucker v State of Victoria (Costs Ruling No 2) [2020] VSC 192] Tucker v State of Victoria (Costs Ruling) [2019] VSC 481 Tucker v State of Victoria (Notice to Produce) [2019] VSC 689 Tucker v State of Victoria (Stay Application) [2019] VSC 635 Tucker v State of Victoria (Undertaking as to Damages) [2020] VSC 121 Tucker v State of Victoria [2018] VSC 389 Tucker v State of Victoria [2019] VSC 420 Tucker v State of Victoria [2021] VSCA 120 Webster v Brewer [2020] FCA 622
Division:	General Division
Registry:	Victoria
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	73
Date of last submissions:	28 May 2021 (Applicant) 4 June 2021 (Respondents)
Dates of hearing:	2 July 2020, 8 July 2020 and 20 August 2020
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr J. Hooper
Solicitor for the Respondents:	DTF Legal

ORDERS

		VID 274 of 2020
BETWEEN:	TOBIAS JOHN TUCKER Applicant
AND:	PAUL MCKEE First Respondent ; STATE OF VICTORIA (STATE REVENUE OFFICE) Second Respondent

order made by:	ANASTASSIOU J
DATE OF ORDER:	23 July 2021

THE COURT ORDERS THAT:

1. The Originating Application and Amended Statement of Claim be dismissed.

2. The Applicant pay the Respondents’ costs of and incidental to the interlocutory application dated 27 August 2020, and of the proceeding, to be agreed and in default of agreement assessed on a standard basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

Introduction

1. The Applicant, Mr Tucker, alleges that the First Respondent, Mr McKee, and the Second Respondent, the State of Victoria, defamed him. The State of Victoria, through its organ the State Revenue Office of Victoria (SRO), previously employed Mr Tucker and currently employs Mr McKee. The alleged defamation was said to have occurred by publication of an email in circumstances described below.

2. By interlocutory application dated 27 August 2020, the Respondents raise a preliminary question; namely, whether this Court has jurisdiction to hear and determine the Applicant’s claim. In particular, the Respondents seek an order that the Originating Application and Amended Statement of Claim (ASoC) filed in this proceeding be set aside on the basis that there is no matter arising under a federal law which enlivens the jurisdiction of this Court.

3. This issue has its genesis in the Respondents’ defence, filed on 27 May 2020, which pleads that the jurisdiction of the Court is not invoked by the publication of an email within Victoria only. This was also raised by the Respondents at the first case management hearing on 11 June 2020, at which time I directed the parties to provide written submissions in relation to the issue.

4. Mr Tucker contends that this Court has jurisdiction to hear and determine his claim, on the ground that it raises a ‘federal matter’. Mr Tucker identified two bases upon which he claims federal jurisdiction is engaged:

1. first, as a matter arising under a federal law, in the sense that part of the substratum of fact is the Fair Work Act 2009 (Cth) (FW Act) and matters connected to the FW Act; and

2. second, as a matter that involves publication of an email outside the State of Victoria, including in the Australian Capital Territory (ACT).

5. The Respondents submitted that even if the claim were to fall within federal jurisdiction for either of the aforementioned reasons, I should reject the claim as colourable. The predicate of this submission is that Mr Tucker only amended his Statement of Claim for the purpose of attracting the jurisdiction of this Court. In this regard, the Respondents submitted that there is no proper basis for the allegations in the ASoC.

6. In accordance with the ‘first duty’ of a court to determine whether it has jurisdiction (see, eg, Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; 12 CLR 398 at 415 (Griffith CJ); Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [9] (Lee J)), I directed the preliminary question of the Court’s jurisdiction be listed for hearing on the first available date.

7. For the reasons that follow, I find that this Court lacks the jurisdiction to hear and determine the proceeding and accordingly it should be dismissed.

Background

8. It warrants first mentioning that Mr Tucker is an experienced solicitor, having practised law from 2008. This includes being employed as a senior solicitor at the SRO from late November 2011 to 19 July 2019. Far from being inexperienced in litigation, Mr Tucker practised principally in litigious matters. Indeed, in affidavits Mr Tucker filed in this proceeding, he described his occupation as “solicitor”.

9. Mr Tucker’s dispute with the Mr McKee and the SRO has spawned significant litigation: see, eg, Tucker v State of Victoria [2018] VSC 389 (McDonald J), and further, citations [2019] VSC 420, [2019] VSC 481, [2019] VSC 635, [2019] VSC 689, [2020] VSC 121, [2020] VSC 192] and [2021] VSCA 120. For present purposes, it is sufficient to extract the summary of facts by her Honour Ierodiaconou AsJ in Tucker v State of...