Federal Court of Australia

Tucker v McKee [2022] FCAFC 98

ORDERS

THE COURT ORDERS THAT:

1.    To the extent necessary:

(a)    extend time for the filing and service of any application for leave to appeal up to and including 12 August 2021;

(b)    dispense with the filing of any application for leave to appeal; and

(c)    grant leave to appeal in the form of the notice of appeal filed on 12 August 2021.

2.    The appeal be allowed.

3.    Orders 1 and 2 made by the Court on 23 July 2021 be set aside.

4.    In lieu of Order 1 made on 23 July 2021, the respondents’ interlocutory application dated 27 August 2020 be dismissed.

5.    In lieu of Order 2 made on 23 July 2021, the respondents pay the applicant’s costs of and in connection with the respondents’ interlocutory application dated 27 August 2020 as agreed or taxed.

6.    The respondents pay the appellant’s costs of the appeal, as agreed or taxed.

7.    The proceeding be remitted to a Judge of the Court for case management.

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

REASONS FOR JUDGMENT

THE COURT:

Background

1    This is an appeal against orders made by the primary judge on 23 July 2021 dismissing the Originating Application and Amended Statement of Claim (the ASC) for want of jurisdiction: see Tucker v McKee [2021] FCA 828 (J). The respondents submitted that the orders were interlocutory and that the appellant required leave to appeal. No oral argument took place on this issue. It need not detain us here. If leave is required, and any associated extension of time be required, both will be granted. The subject of the appeal is important: the jurisdiction of the Court. The issue is one of substance and at least some of the complaints made by the appellant, Mr Tucker, are valid.

2    Mr Tucker was an employee of the State Revenue Office of Victoria (the SRO). He claims that Mr McKee, the first respondent, defamed him in an email sent by Mr McKee on 9 June 2017 to two other employees of the SRO, Mr Joyce (a Deputy Commissioner and Executive Director of Corporate Services) and Mr Heywood (the Branch Manager of Human Resources).

3    The background to the email was that Mr McKee was a manager who had responsibility for managing staff in a particular division, in which Mr Tucker and a woman, whom we shall call Ms M, both worked. Ms M made a verbal complaint to her team leader about Mr Tucker. Mr McKee was informed of the complaint. The complaint (more fully described below) concerned sexual harassment. Mr McKee spoke about the matter to Mr Joyce and Mr Heywood, they being more senior to him. Mr McKee also spoke with Ms M, and gathered other information. Another conversation took place between Mr McKee and Mr Joyce, the latter of whom asked Mr McKee to record the allegations in writing. Mr McKee did so by the email that he sent on 9 June 2017 to Messrs Joyce and Heywood, entitled “Request for investigation – Alleged Misconduct”. On the same day, the SRO wrote to Mr Tucker to tell him of the complaints and of the proposed investigations. The letter was entitled: “Misconduct allegations – clause 21 VPS Enterprise Agreement 2016 (VPS Agreement)”.

4    It is unnecessary to set out the email in full. The essence of the nature of the investigations was described in two paragraphs of the reasons for judgment of Ierodiaconou AsJ in the Supreme Court of Victoria in Tucker v State of Victoria [2019] VSC 420 at [11]–[12], which describe the communication with Mr Tucker and which was quoted by the primary judge at J[9]:

11. The first investigation concerned allegations of inappropriate conduct towards another employee of the SRO, including ‘inappropriate, harassing and offensive comments’ and ‘repeatedly requesting that [the Female SRO Employee] accept your friendship request on Facebook’ (‘the First Allegations’).

12. The second investigation concerned allegations of ‘numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose’ (‘the Second Allegations’).

The occasion for the Supreme Court’s involvement is discussed below.

5    The two investigations were related. The customer records that may have been improperly accessed were of people connected to Ms M.

6    The email to Messrs Joyce and Heywood stated, amongst other things, that the matters complained of were of concern to Ms M, and could affect her personal health and wellbeing, and that she was concerned for her safety and the safety of her children. Mr McKee expressed his concern in the email for Ms M’s health and safety and for the health and safety of other members of staff. He stated that the nature of the allegations warranted formal investigation. He said that if Mr Tucker had engaged in the conduct alleged, then he may have breached the SRO’s Misconduct Policy and clause 21 of the Victorian Public Service Enterprise Agreement 2016 (the VPSEA) by engaging in improper conduct. The VPSEA was made under s 172 of the Fair Work Act 2009 (Cth) and enforceable in accordance with, amongst other provisions, s 50 of that Act.

7    Later in June 2017, Mr Tucker was informed that a person (Ms Klug) from an employment consulting firm, WorkLogic, had been appointed to investigate both sets of allegations. After privacy concerns were raised by Mr Tucker with respect to Ms Klug undertaking the second investigation, an officer of the SRO, Mr Di Federico, was appointed to undertake the second investigation.

8    Solicitors, Maddocks, were also retained by the SRO and were sent a copy of the email.

9    The results of the investigations, which had been reached by late October 2017, were described by Ierodiaconou AsJ at [17], [18] and [20] of her Honour’s reasons (set out by the primary judge at J[9]) as follows:

17. Ms Klug completed her investigation and a report dated 12 September 2017 (‘the First Report’). On 25 October 2017, Mr Joyce wrote to the plaintiff and provided a summary of Ms Klug’s findings in relation to the First Allegations. Mr Joyce then proposed a disciplinary outcome consisting of a formal warning and a direction to undertake appropriate training concerning the obligations under the Victorian Public Sector Code of Conduct, the SRO Values and Behaviours, and the SRO Equal Opportunity Policy.

18. The plaintiff, after correspondence from his solicitors, eventually received the First Report but it contained redactions and, despite request, was not given an unredacted copy of it.

…

20. On 7 February 2018, Mr Joyce wrote to the plaintiff attaching Mr Di Federico’s complete investigation report into the Second Allegations (‘the Second Report’). Mr Joyce accepted the findings. The findings in the Second Report were that 24 of the 26 allegations against the plaintiff were substantiated while two were not. Mr Joyce stated that he proposed to recommend that the plaintiff’s employment be terminated.

10    On 2 December 2017, Mr Tucker filed proceedings in the Supreme Court of Victoria that were described by Ierodiaconou AsJ at [19] of her Honour’s reasons as follows:

On 12 December 2017, the plaintiff filed this proceeding seeking interlocutory and permanent injunctions prohibiting the defendants from proposing a disciplinary outcome in respect of cl 21 of the VPSEA and the First and Second Allegations, or alternatively, declaratory relief that the defendants failed to afford him procedural fairness and/or failed to provide him with all relevant material before the decision-maker. The plaintiff also sought an unredacted copy of the First Report and attachments to it.

11    The matter was heard by Ierodiaconou AsJ in February and May 2019 and her Honour gave judgment on 16 July 2019. Her Honour found no denial of procedural fairness, refused an amendment sought by Mr Tucker to allege a contravention by the State of s 50 of the Fair Work Act, and held that the Fair Work Act was not engaged.

12    Mr Tucker instituted an appeal. He was successful in that appeal: Tucker v State of Victoria [2021] VSCA 120 (handed down on 12 May 2021). Relevantly for the matter before us, the Court of Appeal found error in the associate judge’s order not to permit a contravention of s 50 of the Fair Work Act to be pleaded and also in her Honour’s conclusion that the Fair Work Act was not engaged. The Court found that Mr Tucker had been denied procedural fairness and made a declaration that the State had contravened clause 21 of the VPSEA. (Such a contravention amounted to a contravention of s 50 of the Fair Work Act.)

13    The relevance of the above is that, as the Court of Appeal found, the proceedings in the Supreme Court were in federal jurisdiction by reason of s 76(ii) of the Constitution and s 39 of the Judiciary Act 1903 (Cth), as a “matter arising under” a law of the Commonwealth Parliament, since a contravention of the VPSEA was a contravention of s 50 of the Fair Work Act: see [2021] VSCA 120 at [327]–[354].

14    Meanwhile, shortly after the decision of the associate judge on 19 July 2019, Mr Tucker was dismissed from the SRO.

15    On 30 July 2019, Mr Tucker commenced proceedings under Pt 3–2 of the Fair Work Act in the Fair Work Commission alleging unfair dismissal. This claim has now been settled. Such a claim could only be brought in the Fair Work Commission.

16    On 2 July 2021, after the Court of Appeal decision, Mr Tucker commenced a proceeding in this Court seeking, amongst other things, the imposition of a penalty by reason of the contravention of the VPSEA. The proceeding was dismissed as an abuse of process: Tucker v Broderick [2021] FCA 1492. That decision is under appeal, and is listed to be heard in the August Full Court sittings.

17    Meanwhile, on 24 April 2020, Mr Tucker commenced defamation proceedings in this Court. A statement of claim was filed on the same day and the ASC was filed on 21 June 2020. Before the filing of the ASC, the respondents had indicated in their defence filed 27 May 2020 that the Court lacked jurisdiction. A further amended defence (the FAD) to the ASC was filed on 22 June 2020. In May and June 2020, Mr Tucker filed three interlocutory applications seeking various orders as to discovery, particulars, and the striking out of paragraphs of the defence filed on 27 May 2020. On 28 August 2020, the respondents filed the interlocutory application to dismiss the proceedings brought by Mr Tucker for want of jurisdiction. The matter was heard on 2 and 8 July 2020 and 20 August 2020. The 28 August 2020 interlocutory application apparently formalised what had been previously asserted in the defence and orally at case management hearings. Further submissions were filed on 28 May 2021 and 4 June 2021. Judgment was delivered on 23 July 2021.

The pleadings

18    The ASC pleaded the matter complained of including publication in paragraph 3 as follows (tracking left in to show the amendments):

3.     On or about 9 June 2017, the first respondent and/or the second respondent published of and concerning the applicant, in Victoria and in all of the other States and Territories of Australia including the Australian Capital Territory, the words set forth in Schedule A hereto (“the matter complained of”).

Particulars of publication

(a)    The matter complained of was published in an email (“the email”) sent to Darren Joyce and David Heywood.

(aa)    David Heywood sent the email to WorkLogic Pty Ltd and/or its servants and agents (WorkLogic) who distributed or caused to be distributed the matter complained of throughout Australia.

(ab)    Darren Joyce sent the email to Maddocks Lawyers and/or its servants and agents (Maddocks) who distributed or caused to be distributed the matter complained of throughout Australia.

  (ac)    Maddocks and WorkLogic operate nationally across Australia.

(ad)    Maddocks and WorkLogic have offices in a number of States and Territories of Australia including the Australian Capital Territory.

(ae)    The sense and substance of the matter complained of was republished, with the authority of the first and/or second respondent, on the electronic document record management systems (EDRM Systems) used by WorkLogic and Maddocks.

(af)    The documents recording the sense and substance of the matter complained of were downloaded and/or accessed from the EDRM Systems by persons unknown to the applicant in each State and Territory of Australia.

(ag)    The sense and substance of the matter complained of was republished, with the authority of the first and/or second respondent, in an article on WorkLogic’s website.

(ah)    The article comprising the sense and substance of the matter complained of was downloaded from the website at (ag) above by persons unknown to the applicant in each State and Territory of Australia.

(b)    Further particulars of the extent of publication including republication of the matter complained of will be provided after admissions, discovery and interrogatories.

19    It is to be noted that the particulars allege publication outside Victoria, in the Australian Capital Territory and all States of the Commonwealth.

20    The defamatory meanings were pleaded in paragraph 4 of the ASC as follows:

4.    In its natural and ordinary meaning, the matter complained of was defamatory of the applicant and carried the following defamatory meanings (or meanings not different in substance):

Particulars of meanings

  (a)    The applicant had been stalking [Ms M].

  (b)    The applicant had been a physical threat to [Ms M].

  (c)    The applicant had been a physical threat to [Ms M]’s children.

(d)    The applicant had been a risk of presenting himself at [Ms M]’s residence to threaten her and her children.

(e)    The applicant had been persistently asking [Ms M] to be a friend on Facebook.

(f)    The applicant had been scandalously staring at [Ms M] in a leering fashion in the SRO’s offices.

(g)    The applicant had found [Ms M] attractive and had been communicating that attraction in the SRO’s offices.

(h)    The applicant had been breaching taxpayer privacy and misusing private taxpayer information by inappropriately searching taxpayer records on the SRO’s e-Sys database including misusing the records of [Ms M]’s relatives.

(i)    The applicant had been engaging in scandalously inappropriate and harassing conduct in relation to [Ms M].

(j)    The applicant had breached clause 21 of the Victorian Public Service Enterprise Agreement 2016.

  (k)    The applicant had breached section 50 the Fair Work Act 2009 (Cth.).

  (l)    The applicant had breached the SRO’s Misconduct Policy.

  (m)    The applicant had been bullying [Ms M].

(n)    The applicant had been a threat to the health and safety of [Ms M] and SRO staff members.

(o)    The applicant had improperly used information acquired by virtue of his employment with the second respondent.

21    Particulars (j)–(o) in the ASC appeared after and in response to the pleading of lack of jurisdiction.

22    Further alternative defamatory meanings were pleaded in paragraph 5 of the ASC, but it is unnecessary to set them out.

23    Under the heading “matters arising under the Fair Work Act 2009”, the following was pleaded in [7]–[9] of the ASC:

7.    From on or about 18 May 2016 to 19 July 2019, the Victorian Public Service Enterprise Agreement 2016 (VPSEA) covered and applied to:

(a)    the applicant and the first respondent in their employment with the second respondent; and

   (b)    the second respondent.

Particulars

(c)    The VPSEA was approved by the Fair Work Commission pursuant to section 185 of the Fair Work Act 2009 (Cth.) (FW Act) by order made 11 May 2016 and commenced 18 May 2016.

8.    Due to the publication of the matter complained of, on 9 June 2017, the second respondent and/or its servant and agents advised that it would investigate allegations that the applicant had engaged in misconduct under clause 21 of the VPSEA.

Particulars

(a)    The advice was contained in a letter dated 9 June 2017 signed by Darren Joyce.

9.    Due to the publication of the matter complained of, from on or about 9 June 2017 to 19 July 2019, the second respondent and/or its servant and agents suspended the applicant from duty under clause 21.7(a)(v) of the VPSEA (suspension).

Particulars

(a)     The applicant was advised of the conditions of his suspension from duty in letters dated 9 June 2017, 28 July 2017, 21 August 2017,19 September 2017, 18 October 2017, 14 November 2017, 7 December 2017, 10 January 2018, 8 February 2018, 6 March 2018, 3 April 2018, 4 May 2018, signed by Darren Joyce, letter dated 30 May 2018 signed by Grant Dunlop, letters dated 26 July 2018, 22 August 2018, 21 September 2018, 17 October 2018, 14 November 2018, 12 December 2018, 9 January 2019, 6 February 2019, 7 March 2019, 3 April 2019, 2 May 2019, 30 May 2019 signed by Peta Jennings and letters dated 27 June 2019, 19 July 2019 signed by Brett Anderson.

(b)    From on or about 9 June 2017, the applicant did not perform any work for the second respondent and/or its servants and agent by reason of the second respondent’s suspension of the applicant.

24    The FAD was filed in answer to the ASC. As to paragraph 4 of the ASC, the FAD denied that the email carried, or was capable of being understood as carrying, the meanings alleged, but if that were wrong, the meanings were admitted to be defamatory.

25    Paragraph 11 of the FAD pleaded qualified privilege. It is necessary to set out the whole of the paragraph including the particulars:

11.    Further or alternatively, if the Email carried any of the meanings alleged in the particulars to paragraph 4 and/or paragraph 5 (which is denied), then:

a.    the respondents published the Email in the performance of a legal, professional, social or moral interest or duty;

b.    the respondents published the Email to persons with a corresponding duty or interest in receiving the matter complained of, or who shared a community of interest with the respondents;

c.    accordingly, the respondents published the Email on an occasion of qualified privilege at common law; and

   d.    the Email was directly relevant to the privileged occasion.

PARTICULARS

11.1    The first respondent confined the recipient list of the Email to Darren Joyce and David Heywood.

  11.2    At the time of publication:

a.    the CSDM Branch had day-to-day responsibility for the administration of land transfer duty and the collection of debts owed to the second respondent;

    b.    the applicant was part of the CSDM Debt Specialist Team;

c.    the applicant’s role included legal work concerning the enforcement and recovery of debts owed to the second respondent;

   d.    the applicant reported directly to his team leader, John Cahir;

   e.    John Cahir reported directly to the first respondent;

f.    the first respondent, in his role of Branch Manager of the CSDM Branch, was responsible for the management of approximately 40 CSDM Branch staff, including the applicant and [Ms M];

g.    Darren Joyce, a recipient of the Email, was the Deputy Commissioner and Executive Director of Corporate Services at the SRO;

h.    the Human Resources Branch of the SRO was within the Corporate Services Division;

i.    Darren Joyce had executive oversight and responsibility for the SRO’s human resources and employment matters;

j.    David Heywood, a recipient of the Email, was the Branch Manager of Human Resources at the SRO;

k.    David Heywood was responsible for human resources and employment matters across the SRO, including occupational health and safety and misconduct issues;

   l.    David Heywood reported directly to Darren Joyce.

11.3    The subject matter of the Email related to allegations of workplace misconduct against the applicant. In particular, the Email recorded in written form the allegations of workplace misconduct arising from the verbal complaint made by [Ms M] and suggested there were reasonable grounds to investigate:

a.    alleged behaviour by the applicant towards his colleague [Ms M];

b.    searches of the SRO e-Sys database by the applicant alleged to have been conducted without a work purpose.

11.4    The events leading up to and surrounding publication of the Email included the following circumstances:

a.    on or around late May or early June 2017, the first respondent advised Darren Joyce and David Heywood that [Ms M] had made a verbal complaint to Graham George, a Team Leader in the CSDM Branch, regarding alleged inappropriate conduct by the applicant;

b.    around that time, the first respondent, Paula Scamangas and Graham George had met with [Ms M] to discuss the allegations she had raised with Graham George;

c.    as part of her complaint, [Ms M] said words to the effect that she had seen the applicant search the e-Sys database and access the personal record of one of her relatives in order to view the properties owned by that person;

d.    on around late May or early June 2017, Darren Joyce authorised an audit of searches conducted by the applicant on the e-Sys database for the 2016/2017 financial year;

e.    around that time, John Cahir undertook a review of the applicant’s searches of the e-Sys database;

f.    on or around 6 June 2017, the first respondent said to Darren Joyce words to the effect that John Cahir’s audit of the applicant’s searches of the e-Sys database revealed that the applicant may have accessed the records of numerous taxpayers between 24 November 2016 and 23 May 2017, without a known SRO business purpose;

g.    around that time, Darren Joyce said to the first respondent words to the effect that the allegations needed to be formally investigated and that it was appropriate for the first respondent to record the allegations against the applicant in writing and submit a written request for appropriate action to be considered;

h.    on or around 9 June 2017, Darren Joyce decided that suspension of the applicant from duty was necessary while the allegations were investigated.

11.5    At the time of publication, if the applicant did in fact behave towards [Ms M] in the manner alleged, then the conduct may have constituted:

a.    a contravention of clause 7.1(e) of the Public Administration Act 2004 (Vic);

b.    misconduct as defined in clause 21.3(a) of the Victorian Public Service Enterprise Agreement 2016;

c.    a contravention of clauses 6.1 and 6.4 of the Victorian Public Service Code of Conduct;

d.    a contravention of the SRO Values and Behaviours, specifically by breaching and/or being inconsistent with the value of Respect;

e.    a contravention of the SRO Equal Opportunity Policy, specifically Harassment.

11.6    At the time of publication, if the applicant did in fact search the e-Sys database without a work purpose as alleged, then the conduct may have constituted:

a.    a contravention of, or conduct contrary to, the values referred to in clause 7.1(b) of the Public Administration Act 2004 (Vic);

b.    misconduct as defined in clause 21.3(b) of the Victorian Public Service Enterprise Agreement 2016;

c.    a contravention of clause 3.4 and clause 5.3 of the Victorian Public Service Code of Conduct;

d.    a contravention of the SRO Values and Behaviours, specifically by breaching and/or being inconsistent with the value of Integrity;

e.    a breach of the SRO’s Electronic Communications Policy, namely by obtaining unauthorised access to information or data on SRO’s computers, specifically e-Sys;

   f.    a breach of the Privacy and Data Protection Act 2014 (Vic);

g.    a breach of the SRO’s Information Privacy Policy, namely by using personal information collected by the SRO other than in accordance with the law and for the purpose for which it was collected, or for a purpose that would reasonably be expected to be associated with its revenue collection or revenue protection functions.

11.7    In the circumstances referred to in paragraphs 11.2 to 11.6 above and by reason of his role and responsibilities at the SRO, the first respondent at the time of publication had a duty and, or, an interest to record the allegations of workplace misconduct against the applicant and communicate them to Darren Joyce and David Heywood.

11.8    In the circumstances referred to in paragraphs 11.2 to 11.6 above and by reason of their roles and responsibilities at the SRO, Darren Joyce and David Heywood at the time of publication had the requisite corresponding interests in receiving a record of the allegations of workplace misconduct against the applicant.

11.9    Further particulars may be provided prior to trial.

The reasons of the primary judge

26    The first matter to note is that the primary judge did not consider the jurisdictional position of the Court arising from the filing of the FAD. That was conceded (correctly) by Ms Enbom QC, senior counsel for the respondents, to be an error. The jurisdiction of the Court is not to be assessed only by reference to the terms of the originating process or its underlying pleading. The question is whether the matter (being the justiciable controversy) is within federal jurisdiction. That controversy may be reflected in the whole of the pleadings. Prior to pleadings being filed, it may be discernible from the correspondence between the parties: see generally National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627. We will return to the importance of the FAD in due course.

27    The “first duty” of the primary judge to consider the jurisdiction of the Court could not be fulfilled only by reference to the appellant’s pleadings at first instance. It required him to assess jurisdiction by reference to the whole of the controversy between the parties.

28    His Honour summarised the jurisdictional questions and his conclusions as follows at J[4]–[5]:

[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.

29    After setting out (at J[21]–[24]) the steps taken at the hearing, the primary judge turned to the question of jurisdiction.

30    The primary judge accepted (at J[37]) that the matter asserted in the ASC was the pleading of a right or duty that owed its existence to a Commonwealth statute: being the imputations and particulars (j) and (k) to paragraph 4 of the ASC that clause 21 of the VPSEA and s 50 of the Fair Work Act had been contravened. However, the primary judge found that the pleading of these matters was colourable. The primary judge’s reasons for that conclusion were contained in J[40]–[43], as follows:

[40] In my view, the alleged defamatory imputations in [4](j) and [4](k) of the ASoC, set out above at [13], are untenable and, indeed, borderline risible. The derivative imputation said to be conveyed by the express reference to a possible breach of the VPSEA is only capable of being so distilled by the ingenuity of a lawyer in search of a grievance. That is Mr Tucker. To any other reasonable observer, no such meaning could possibly be conveyed by the text of the Email.

[41] This conclusion is fortified by the timing and nature of the amendments to Mr Tucker’s pleading. The initial Statement of Claim, unamended, did not plead imputations drawing on a federal statute and, indeed, alleged only publication in Victoria. Further, the amendments were only introduced after the Respondents raised the question of jurisdiction.

[42] This conclusion is also fortified by the absence of any evidence that the Email, or any statement within in it, defamatory or otherwise, was published publicly. As I explain below, the evidence establishes that the Email was ‘published’, in the sense of being transmitted, only to those individuals with a proper interest in being made aware of the allegations against Mr Tucker by reason of their responsibilities within the SRO, to the legal representatives of the SRO, or in the case of WorkLogic, to a consultant engaged to assist the SRO with its investigation into those allegations. In these circumstances, I do not accept that Mr Tucker was motivated in bringing this claim for the proper purpose of protecting his reputation or to recover damages for harm to it.

[43] Accordingly, it is apparent that the assertions in [4](j) and (k) of the ASoC are not made bona fide: see Rana at [22]; Oliver at [17]. Mr Tucker’s claim is colourable, the amendments having been made solely to attract federal jurisdiction and without a proper basis. It follows that federal jurisdiction is not established on the first basis submitted by Mr Tucker.

31    The balance of the reasons, other than on costs (J[44]–[69]), concerned the question whether the email was published outside the State of Victoria, in particular whether it was published in the Australian Capital Territory so as to engage the jurisdiction of the Supreme Court of the Australian Capital Territory and s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): cf Crosby v Kelly [2012] FCAFC 96; 203 FCR 451.

32    By way of introductory comment, four (different) issues might be seen to be the subject of this discussion as to publication, without being clearly delineated. First, whether it was necessary to prove (not merely assert) publication in the Australian Capital Territory as a fact upon which jurisdiction of the Court depended. Secondly, whether the assertion of publication in the Australian Capital Territory was sufficient to attract jurisdiction. Thirdly, whether it was necessary for the assertion to have a reasonable basis or there to be a prima facie case to support it. Fourthly, whether the assertion was colourable.

33    The publication was particularised under paragraph 3 of the ASC (see [18] above).

34    The respondents led evidence from Messrs McKee, Heywood and Joyce and Ms Klug. Their evidence was dealt with by the primary judge at J[47], as follows:

In short, each of the witnesses’ evidence was to the effect that they received, or sent in the case of Mr McKee and Mr Joyce, the Email and read it while in the State of Victoria. They were all challenged during cross-examination by Mr Tucker as to their whereabouts when they sent or received the Email, as well as whether they had otherwise downloaded it or accessed it from an email server while interstate. The evidence, which I accept, was that none of the witnesses had accessed, downloaded or distributed the Email while they were outside the State of Victoria.

35    At J[48]–[54], the primary judge dealt with the assertion of publication by storage on email servers or document management systems. At J[54] the primary judge found the following from the evidence:

It follows from the above findings that there is no reason to infer, in relation to Maddocks, or WorkLogic, that the email was downloaded and/or read anywhere other than in the State of Victoria. Mr Tucker’s submission that mere storage on a server accessible outside the State of Victoria is sufficient to constitute publication interstate, and thereby attract jurisdiction, is misconceived. It is not the storage but the downloading of the document which constitutes publication, and it is the publication of the document which creates the substantive right to bring a claim and is relevant for present purposes: see, eg, Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575, especially as cited in Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 at [24].

36    The primary judge qualified this at J[55]–[61] with the following:

[55] It would be inappropriate in the context of the present application to opine generally on what constitutes publication outside a particular state or territory in the context of the storage of an electronic document on a database, such as a “cloud” or other server, of an allegedly defamatory statement contained in an email. Depending on the factual circumstances, the act of storing the document containing the defamatory statement on a particular database may be sufficient to infer publication to an audience outside a state or territory. The inclusion of defamatory imputation in an article available to subscribers to a national newspaper may be such an instance. However, even in that context, merely making available the defamatory material on a platform available to online subscribers does not constitute publication for the purposes of the tort of defamation or for the purposes of a claim for defamation pursuant to a statutory analogue for that tort, for example pursuant to s 6 of the Defamation Act 2005 (Vic).

[56] Indeed, the limitations of Mr Tucker’s submission are cast into sharp focus when one examines what is meant by publication for the purpose of the tort of defamation, or its statutory analogues. In Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575, Gleeson CJ, McHugh, Gummow and Hayne JJ explained at [26] that:

Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension.

[57] In Webster v Brewer [2020] FCA 622, Wheelahan J added at [17]:

The joint judgment in Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [25]–[28] and [44] confirmed that the tort of defamation focuses on publication causing damage to reputation, and is not complete until there is comprehension of defamatory matter by a reader, listener, or viewer. The place of commission of the tort is therefore the place where the defamatory matter is seen, heard, or read, and thereby comprehended. The injunctions which the applicants seek are to enjoin the commission of torts in Australia.

[58] In a context not entirely dissimilar to the present, Martin J explained at [24] in the recent decision of Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 that:

A critical element of the tort of defamation is the publication of the alleged defamatory article. The publication of alleged defamatory matter on the internet occurs where the recipient downloads the material, not where the publisher uploads the material. See Dow Jones & Company Inc v Gutnick.

[Footnote omitted]

[59] Similar observations were earlier made by Yates J in Toben v Jones [2012] FCA 1193 at [19]:

… In any event, “downloading” in and of itself may not necessarily be sufficient to constitute the communication that is required for publication, although it will be a necessary antecedent step for that purpose in this context.

[60] It is plain from these authorities that the mere act of storing a document on a cloud or server does not constitute publication in this instance, especially in the absence of any evidence that the document was uploaded to a server at either the SRO, Maddocks or WorkLogic, let alone downloaded or read.

[61] Notwithstanding the ample opportunities afforded to Mr Tucker to prove publication of the Email outside the State of Victoria, there was no such evidence. Indeed, the evidence was to the contrary, as I have explained. The Email was in actual fact sent within an internal State government agency, and was provided under cover of confidentiality and privilege obligations to Ms Klug (a workplace consultant at WorkLogic) and Maddocks (a law firm). Despite being afforded the opportunity to cross-examine the relevant individuals called on behalf of the Respondents, Mr Tucker was unable to create any doubt that the Email was sent and received as deposed to by the witnesses in their affidavits to persons within the State of Victoria. Accordingly, I find there was no publication of the Email outside the State of Victoria.

37    The primary judge then dealt with the asserted republication in an article on WorkLogic’s website. His Honour rejected this at J[68], having dealt with the relevant evidence at J[62]–[68], as follows:

The documents produced in response to the subpoena are annexed to the 17 September 2020 affidavit of Ms Drakeford. I have no reason for doubting that the subpoena was not properly answered, given that the article produced was plainly consistent with the objective evidence. Accordingly, it is sufficient to say that Mr Tucker’s recollection of the WorkLogic article contained significant factual errors and appeared to be misconstrued. Indeed, the changes made by WorkLogic to the article on 1 August 2019 were entirely consistent with the documentary record and Ms Klug’s evidence. I do not accept that there was any republication of the sense and substance of the Email in the article entitled “WorkLogic’s Robust Approach to Procedural Fairness Withstands Judicial Scrutiny”.

38    The concluding paragraph in the section, J[69] was in the following terms:

For the above reasons, I reject the second basis for jurisdiction relied upon by Mr Tucker. Plainly, there is no evidence of the Email being published outside the State of Victoria and Mr Tucker’s submissions to the contrary were bare assertions.

39    J[69], when read with the primary judge’s undifferentiated conclusion at J[5] that both the identified bases of federal jurisdiction set out at J[4] were colourable (see [28] above) may be seen to be directed to the absence of proof of publication as a jurisdictional fact, or the lack of any reasonable or prima facie foundation for any legitimate assertion of publication, or a finding of colourability about the question of publication.

40    We deal later with the question of the allegation of publication outside Victoria.

The issues before the Court on this appeal

41    The principal matter argued on appeal was whether the pleadings (the ASC and the FAD) gave rise to a matter arising under a law of the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act. We are of the view for the reasons below that the FAD does give rise to such a matter.

42    We are of the view that the primary judge was in error in characterising the claims made in the ASC as colourable.

43    It is unnecessary to deal with the conclusions of the primary judge concerning publication outside Victoria. The argument between the parties proceeded on the common foundation that it was only necessary for Mr Tucker to assert, at least on reasonable grounds and non-colourably, that the publication occurred interstate or in the Australian Capital Territory. Given our views on s 39B(1A)(c) in connection with the FAD, and for the reasons we express later, it is both unnecessary and inappropriate to deal with the questions of publication outside Victoria and jurisdiction. The Court also raised the question whether there was an overall or wider single controversy of which the defamation proceeding was but part.

A matter arising under Commonwealth law?

44    A matter can arise under a law of the Commonwealth Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act in a variety of ways. It is sufficient that a right or duty in question in the proceeding “owes its existence to Federal law or depends upon Federal law for its enforcement”: R v Commonwealth Court of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 154 per Latham CJ. It follows that it is sufficient if the “subject matter of the controversy owes its existence to Commonwealth legislation”: Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at 5–6 [18]. It is also sufficient if the proceeding could be disposed of by deciding an issue under a law of the Commonwealth, whether or not it is in fact so disposed of: Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 374. As the plurality (Stephen, Mason, Aickin and Wilson JJ, Barwick CJ agreeing) explained in Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457 at 476:

The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.

45    In the present case, the originating application, by reference to the ASC, identified the alleged defamation as contained in the email Mr McKee sent on 9 June 2017 to Messrs Joyce and Heywood. We have set out the substance of the email and the pleadings and their development above. The following should be identified in the FAD by way of more focused attention:

(1)    Mr McKee “confined the recipient list of the Email to Darren Joyce and David Heywood”, who held the positions within the SRO identified above: paragraphs 11.1 and 11.2;

(2)    the subject matter of the email related to allegations of workplace misconduct against the appellant: paragraph 11.3;

(3)    the events leading up to the email included that when Mr McKee told Mr Joyce that the appellant may have accessed records of the SRO without a known SRO business purpose, Mr Joyce said to Mr McKee that “the allegations needed to be formally investigated and that it was appropriate for [Mr McKee] to record the allegations against the [appellant] in writing and submit a written request for appropriate action to be considered”: paragraph 11.4(g);

(4)    at the time of the publication of the email, if the appellant did behave as alleged, the conduct may have constituted, amongst other things, misconduct as defined in clauses 21.3(a) and (b) of the VPSEA: paragraphs 11.5(b) and 11.6(b);

(5)    in the circumstances referred to in paragraphs 11.2 to 11.6 and by reason of his role and responsibilities at the SRO, at the time of publication of the email Mr McKee had a duty and/or an interest to record the allegations of workplace misconduct against the appellant and communicate them to Messrs Joyce and Heywood: paragraph 11.7; and

(6)    in the circumstances referred to in paragraphs 11.2 to 11.6 and by reason of their roles and responsibilities at the SRO, at the time of publication of the email, Messrs Joyce and Heywood had the requisite corresponding interests in receiving a record of the allegations of workplace misconduct against the appellant: paragraph 11.8.

46    The primary judge considered the pleading in paragraphs 4(j) and (k) of the ASC that the defamatory imputations conveyed by the email included that the appellant had breached clause 21 of the VPSEA and s 50 of the Fair Work Act. The primary judge concluded that this pleaded matter “asserts a right or duty that owes its existence to a federal statute”, but also concluded that this pleaded matter was colourable, being an “artificial attempt to invoke the Court’s jurisdiction” as the alleged imputations were “untenable and…borderline risible”: J[37], J[38] and J[40], see [30] above.

47    The respondents, by notice of contention, assert that the primary judge erred in concluding that paragraphs 4(j) and (k) of the ASC assert a right or duty that owes its existence to a federal statute, so as to bring the matter as a whole within federal jurisdiction by operation of s 39B(1A)(c) of the Judiciary Act. They also submitted that the pleadings of qualified privilege in the FAD do not attract federal jurisdiction.

48    As the respondents put it, the reference to a “legal duty” in paragraph 11(a) of the FAD is superfluous. It is sufficient if the corresponding duty or interest as between the maker and the recipient of the communication can be characterised as a moral or a social duty or interest. The duty or interest need not be and, indeed, will rarely be enforceable by mandamus or legal action: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 at 391 [68]. The particulars to paragraph 11, at least to the extent they refer to the VPSEA, are also superfluous according to the respondents. It is not necessary, they correctly say, that the respondents allege or prove that the appellant engaged in the alleged conduct or that, if he did so, the conduct was in fact “misconduct” in breach of the VPSEA. All that is required is that the Court consider the persons who sent and received the email, and the circumstances in which they did so, to ascertain if in those circumstances the relationship between the sender and receivers involved a moral or social right or duty to send and receive the email: Bashford at 389–390 [64].

49    There is an important difference between the pleaded matter in the ASC and these arguments concerning the FAD. In the ASC, the allegation is that the email conveyed the defamatory imputations that the appellant had breached clause 21 of the VPSEA and s 50 of the Fair Work Act. Whether or not an imputation was conveyed and was defamatory involves asking if the published matter was likely to lead an ordinary reasonable person to think less of the person: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at 467 [5] and 483–484 [60]. Accordingly, it is not relevant to the appellant’s allegation in paragraphs 4(j) and (k) of the ASC if: (a) the VPSEA applied to the appellant or the respondents or not, (b) the appellant’s alleged conduct occurred or not, or (c) the appellant’s alleged conduct, if it occurred, involved misconduct under the VPSEA and/or the Fair Work Act or not. All that is relevant for the appellant’s allegations in paragraphs 4(j) and (k) of the ASC are whether or not the email conveyed to the ordinary reasonable person that the appellant had breached clause 21 of the VPSEA and s 50 of the Fair Work Act and, if so, if this was likely to lead the ordinary reasonable person to think less of the appellant.

50    It follows that the pleaded matter in paragraphs 4(j) and (k) of the ASC could not be disposed of by any finding that: (a) the VPSEA applied to the appellant and the respondents, (b) the appellant’s alleged conduct occurred, and/or (c) the appellant’s conduct involved misconduct under the VPSEA and/or the Fair Work Act. Further, no right or duty asserted in paragraphs 4(j) and (k) of the ASC depends for its existence on Commonwealth law. This is because the matters identified (the application of the VPSEA, the occurrence of the alleged conduct, and whether the conduct was misconduct in breach of the VPSEA and so s 50 the Fair Work Act) are not relevant to the disposition of the pleaded matter. For the same reason, the subject matter of the controversy does not owe its existence to Commonwealth legislation. The subject matter of the controversy in paragraphs 4(j) and (k) of the ASC is confined to whether or not the email conveyed to the ordinary reasonable person that the appellant had breached clause 21 of the VPSEA and, if so, if this was likely to lead the ordinary reasonable person to think less of the appellant.

51    For these reasons, the primary judge was wrong at J[37] to conclude that the matter pleaded in paragraphs 4(j) and (k) of the ASC asserts a right or duty that owes its existence to a federal statute. Those pleadings do not engage s 39B(1A)(c) of the Judiciary Act. The submissions on the notice of contention on this point should be accepted.

52    Paragraph 11 of the FAD raises different issues for consideration. Leaving aside the respondents’ submissions that those parts of paragraph 11 which refer to breach of the VPSEA and s 50 of the Fair Work Act are superfluous to the respondents’ case, it may be accepted that those pleadings are that: (a) if the alleged conduct occurred it may have breached the VPSEA and s 50 of the Fair Work Act, and (b) the corresponding duty or interest as between Mr McKee as the sender and Mr Joyce and Mr Heywood as the recipients of the email was a legal, professional, social or moral duty or interest. It follows that the respondents are right that they do not have to prove any of the identified matters (the application of the VPSEA, the occurrence of the alleged conduct, and whether the conduct was misconduct in breach of the VPSEA and/or the Fair Work Act), or that the source of the alleged legal duty or interest is the VPSEA, to succeed in their defence. That, however, is not the end of the matter.

53    The respondents have pleaded a legal duty or interest, albeit in the alternative to a professional, moral or social duty or interest for Mr McKee to send and Mr Joyce and Mr Heywood to receive the email. The respondents also pleaded a range of alternative sources of that legal duty including the VPSEA. The fact that the legal duty and its source are all pleaded in the alternative is immaterial. The pleaded matter could be disposed of by deciding an issue under a law of the Commonwealth. That issue is whether, by operation of the VPSEA and the positions they held, Mr McKee had a legal duty or interest to send the email and Messrs Joyce and Heywood had a corresponding legal duty to receive the email. The fact that this aspect of the pleaded case could be disposed of by deciding whether the VPSEA (an instrument that exists and is enforceable under the Fair Work Act) was engaged is sufficient to make the matter one which arises under a law of the Commonwealth as provided for in s 39B(1A)(c) of the Judiciary Act. We elaborate.

54    The defence of qualified privilege arises when a maker and a recipient of a communication have a corresponding duty or interest to make and receive a communication: Bashford at 385–386 [53]. In the FAD, the respondents pleaded at paragraphs 11(a) and (b) that they published and received the email in the performance of a legal duty or interest in addition to a professional, social or moral duty or interest. In the particulars to paragraph 11, the respondents pleaded that the subject matter of the email related to allegations of workplace misconduct against the appellant which, if established, could amount to misconduct as defined in clauses 21.3 (a) and (b) of the VPSEA: see paragraphs 11.5(b) and 11.6(c) of the FAD. This corresponds with the email, which stated that the appellant’s “conduct may have breached clause 21 of the [VPSEA] specifically that he may have engaged in improper conduct and improper use of information acquired by virtue of his position”.

55    Whilst the VPSEA is not a law of the Commonwealth, it is a species of agreement which owes its existence to, and enforceability from, a law of the Parliament: Pt 2–4 and s 50 of the Fair Work Act; see Ridd v James Cook University [2021] HCA 32; 394 ALR 12 at 17 [11] and Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; 222 FCR 152 at 179–180 [89]. Under clause 21.2(a) of the VPSEA, the appellant’s employer had a duty or interest to ensure that any investigation into the appellant’s alleged misconduct was conducted in accordance with the clause. Where employee misconduct is alleged, the employer is entitled, pursuant to clause 21.7, to make an initial assessment of the alleged misconduct before commencing a formal process or to commence a formal investigation under clause 21.10. Therefore, Messrs McKee, Joyce and Heywood, acting as agents of the appellant’s employer, arguably had a legal duty or interest (that is, it is asserted that they had a legal duty or interest) in order to fulfil their obligations under the VPSEA to communicate or receive an email concerning alleged misconduct under clause 21 due to the employer’s interest in investigating such conduct in accordance with the mandatory procedures in that clause. That asserted legal duty or interest in sending and receiving the email would, at least in part, owe its existence to a federal law (the Fair Work Act) since the agreement itself and its enforceability depend upon the terms and application of the Fair Work Act. Therefore, the source of the propounded common law defence of qualified privilege pleaded by the respondents in the FAD, on the ground of a legal duty or interest owed its existence, at least in part, to a Commonwealth law. This is sufficient to give rise to federal jurisdiction: see Felton v Mulligan at 408; Phillip Morris at 476; LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581; Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at 591 [90]; CGU Insurance Ltd v Blakeley [2016] HCA 2; 259 CLR 339 at 351–352 [29]. This is so even if this particular aspect of the respondent’s defence of qualified privilege ultimately does not arise for consideration: Phillip Morris at 476.

56    While it may be open to the respondents to obtain leave to amend the FAD to remove the references to the legal duty and the VPSEA from paragraph 11, that will not have the effect of disengaging s 39B(1A)(c) of the Judiciary Act. Federal jurisdiction once attracted, is not lost: Felton v Mulligan at 373; Philip Morris at 477.

57    Further, even if that alternative had never been pleaded, the result may have been the same, for the following reasons.

58    If the respondents’ defence of qualified privilege had been confined to a moral or social duty or interest not sourced in the VPSEA then, in any event, the respondents cannot excise from the relevant circumstances the fact that the email itself says that Mr McKee believed that, if the allegations were proven, the conduct in issue may have been in breach of clause 21 of the VPSEA. That is, the content of the email requires the Court to consider, as part of the context and the existence of any relevant moral or social duty or interest, Mr McKee’s asserted belief that if the conduct occurred it may have breached the VPSEA. It is not possible to evaluate the alleged moral or social duty outside of the context established by the contents of the email, that Mr McKee believed that if the conduct occurred it may have breached the VPSEA. The existence of that belief, its reasonableness, and its relevance to Mr McKee sending and Messrs Joyce and Heywood receiving the email are unavoidably relevant to the alleged moral or social duty. Those issues can only be determined by reference to the identified matters which are within federal jurisdiction whether pleaded or not (that is, the application of the VPSEA, the occurrence of the alleged conduct, and whether the conduct was misconduct in breach of the VPSEA and/or the Fair Work Act).

59    It is not that the respondents must prove any of the identified matters. It is that the Court, at the least, will have to assess the existence of Mr McKee’s belief, its reasonableness, and its relevance to Mr McKee sending and Messrs Joyce and Heywood receiving the email. This will be a necessary part of the Court assessing if the email and its contents were “fairly warranted by any reasonable occasion or exigency, and honestly made”: Toogood v Spyring (1834) 1 Cr M & R 181 at 193 quoted in Bashford at 373 [9] per Gleeson CJ, Hayne and Heydon JJ.

60    The subject matter of Mr McKee’s belief was that the conduct, if it occurred, breached the VPSEA (and so, the Fair Work Act). As McHugh J observed in Bashford (albeit in dissent in the result) at 387–388 [58]:

A plea that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance. It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff’s reputation. The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation. It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged — despite the harm that the communication may cause — unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest.

61    In Bashford at 388 [60] McHugh J explained:

…the practical working of the doctrine of qualified privilege requires that the occasion be defined concretely and precisely. That ordinarily requires the interest of the recipient to be defined first, and to be defined concretely and precisely, although sometimes it is necessary first to define the duty in that way. Unless the interest is so defined, the issues of duty, occasion, relevance and malice cannot be determined — at all events correctly.

62    Justice McHugh continued in Bashford at 389 [63]:

In determining the question of privilege, the court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient.

(Emphasis in original)

63    For these reasons, a necessary aspect of the alleged moral or social duty (if the pleading had been so confined) may be seen to involve a part of a controversy that owes its existence to a federal law. That part of the controversy is whether, having regard to the terms and application of the VPSEA, the occurrence of the alleged conduct, and whether the conduct was misconduct in breach of the VPSEA, (and so, the Fair Work Act) the email and its contents (including Mr McKee’s stated belief about potential breach of the VPSEA) were “fairly warranted by any reasonable occasion or exigency, and honestly made”: Toogood v Spyring at 193. Relevantly: (a) the stated belief owes its existence to the Fair Work Act, under which the VPSEA was made and is enforceable, (b) the reasonableness of the belief depends, at least in part, on the application of the VPSEA, the occurrence of the alleged conduct, and whether the conduct was misconduct in breach of the VPSEA, and/or (c) in any event, the controversy could be disposed of by deciding if, under or by reason of the VPSEA and Mr McKee’s belief that the appellant may have breached the VPSEA, there was as between Mr McKee (as sender) and Messrs Joyce and Heywood (as recipients) a relationship involving the alleged moral or social duty or, although not pleaded, a legal duty.

64    Accordingly, the respondents’ defence of qualified privilege, howsoever it is or might have been pleaded, may be seen to involve a matter arising under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act.

Colourable claim?

65    As noted, the primary judge concluded that the pleading in paragraphs 4(j) and (k) of the ASC (that the defamatory imputations conveyed by the email included that the appellant had breached clause 21 of the VPSEA and s 50 of the Fair Work Act) were colourable in the sense that they were not made bona fide and, thereby, could not attract federal jurisdiction: J[37]–[43]. The primary judge said that as: (a) the claims were untenable and borderline risible at J[40], (b) the claims had been made only after the respondents had raised the issue of jurisdiction at J[41], and (c) the email had been published only to those with a proper interest in being made aware of the allegations, therefore his Honour did not accept that the appellant brought the claims for the proper purpose of protecting his reputation or to recover damages for harm to it: J[42]. Rather, the appellant had brought those claims “solely to attract federal jurisdiction”: J[43].

66    Given our conclusions above, the alleged colourability of paragraphs 4(j) and (k) of the ASC does not arise as, contrary to the primary judge’s conclusion, those pleadings do not involve a matter arising under a law of the Commonwealth Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act. Rather, the respondents’ defence of qualified privilege involves a matter arising under a law of the Commonwealth. There can be, and was, no suggestion that the respondents’ defence of qualified privilege is other than bona fide.

67    In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 the High Court examined the question of colourability and any required level of legal worth of the claim to engage federal jurisdiction. Relevantly, the plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) said at [35]–[38], [40]–[43] and [45] the following:

[35] The resolution in principle is that for a claim or defence in reliance on a Commonwealth law or in reliance on the Constitution to give rise to a matter of a description in s 76(i) or s 76(ii) of the Constitution, it is enough that the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument.

[36] That is what should be taken to have been meant by repeated acknowledgements that the assertion of a claim or defence will not give rise to a matter within the description in s 76(i) or s 76(ii) of the Constitution if the claim or defence is “unarguable” or if the claim or defence is “colourable” in that it is made for the purpose of “fabricating” jurisdiction.

[37] Thus, the State jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution is not denied, just as the federal jurisdiction of this Court under s 76(i) or s 76 (ii) or of another court under s 77(i) or s 77(iii) of the Constitution is not engaged, by the assertion of a claim or defence that amounts to “constitutional nonsense” or any other form of legal nonsense. But examination of what the prospects of success of a legally coherent claim or defence might be, were that claim or defence to be judicially determined on its merits, forms no part of the requisite assessment.

[38] The Full Court of the Federal Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation captured that principle well in pointing out that jurisdiction with respect to a matter is jurisdiction “to entertain, and determine, all claims constituting [the matter], whatever their ultimate fate”. It went on to point out that “[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim”.

…

[41] The respondent, with the support of the Attorney-General of the Commonwealth and some other intervenors, invites this Court to depart from that principled and longstanding approach. The invitation is to put in its place a requirement that, to operate to characterise a justiciable controversy as a matter described in s 76(i) or s 76(ii) of the Constitution, a claim or defence asserted in reliance on a Commonwealth law or in reliance on the Constitution must meet a threshold of arguability consistent with the raising of the claim or defence in a court not amounting to an abuse of the process of that court. The invitation is rejected.

[42] To adopt the suggested approach would blur the distinction between the existence of jurisdiction and the exercise of jurisdiction. It would confuse the jurisdiction that any court or non-court tribunal must have to decide the limits of its own jurisdiction with the power that a court alone must have in the exercise of its jurisdiction to safeguard the integrity of its processes. Applied to this Court, to a court created by the Commonwealth Parliament or a court of a State on which federal jurisdiction is conferred by a Commonwealth law, such an approach would result in a perverse fragmentation of jurisdiction by splintering off from jurisdiction those aspects of a genuine controversy most readily resolvable in the exercise of judicial power. Applied by a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii), it would inevitably involve that tribunal being drawn down the forbidden path of judicially determining the merits of a matter within a description in s 76(i) or s 76(ii) of the Constitution.

[43] None of that is to suggest that an incomprehensible or nonsensical claim or defence that is thereby incapable of giving rise to a matter within a description in s 76(i) or s 76(ii) of the Constitution would not equally be a claim or defence that would be struck out or summarily dismissed by a court were it asserted in a proceeding in respect of which federal jurisdiction was otherwise attracted under s 75 or s 76 of the Constitution. But the questions which arise and the tests which are applied on applications of the kind mentioned are different from those which arise and are applied when determining the existence of jurisdiction.

…

[45] Here, as has already been noted, the Tribunal specifically found that the constitutional defence of the appellants was “not colourable”. That finding has not been challenged. Whatever the merits of the constitutional defence, there is and could be no suggestion that the constitutional defence was not genuinely raised or is so incoherent as to be insusceptible of judicial determination on those merits.

(Footnotes omitted.)

68    The question of colourability is to be assessed by reference to the genuineness of the raising of the issue. An issue or pleading not genuinely raised will not engage federal jurisdiction. Likewise, federal jurisdiction is not engaged by an incomprehensible or nonsensical claim or defence that is thereby incapable of legal argument and so of giving rise to a matter within s 76 of the Constitution.

69    As to a claim that is said to be untenable because it is incomprehensible or nonsensical, it is not sufficient that the claim might ultimately fail, or that it ought ultimately fail. It is necessary that the claim be incapable of raising questions within federal jurisdiction: “[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim”: Citta Hobart at [38] quoting Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; 18 FCR 212 at 219. It followed that federal jurisdiction was not engaged by the assertion of “‘constitutional nonsense’ or any other form of legal nonsense” (see Citta Hobart at [37]), contrary to the opinion the then Mr Dixon KC gave at the Royal Commission on the Constitution in 1926 as to the tramp arrested on the Swan Hill bridge who claimed he was engaged in interstate trade and commerce perhaps being nonsense, but it was constitutional nonsense.

70    As to the lack of genuineness and colourability, an improper purpose is necessarily some purpose extraneous to the obtaining of the relief sought in the proceeding. It is not an improper purpose to make a claim in order to attract federal jurisdiction to obtain relief which is genuinely sought. The references in the cases (Burgundy Royale at 219 and Citta Hobart at [36]) to “fabricating jurisdiction” involve cases in which a party has sought to join parties or make claims which are unnecessary and unconnected to the real dispute solely to engage federal jurisdiction.

71    When dealing with the issue of paragraphs 4(j) and (k) of the ASC, the primary judge wrongly conflated the test for jurisdiction (untenable in the sense of being incapable on its face of legal argument and so of founding relief) with the test for the striking out or summary dismissal of the claims (untenable in the sense of being doomed to fail or hopeless or not having reasonable prospects of success). As noted, the primary judge also inferred that the appellant had not brought the claim for the proper purpose of protecting his reputation and recovering damages for harm to his reputation, but had done so solely to attract federal jurisdiction: J[42] and [43]. The problems with this analysis are fourfold.

72    First, it was never put to the appellant, during his cross-examination about the colourability of his claims, that he was motivated in making the claims in paragraphs 4(j) and (k) solely to attract federal jurisdiction and not to protect his reputation and recover damages for harm to his reputation. The fact that the appellant had generally denied his claims were colourable in an affidavit did not mean that the primary judge could fairly and properly make a specific finding about the appellant’s motivation in making the claims without that motivation having been squarely put to the appellant in cross-examination.

73    Secondly, the primary judge’s inference about the appellant’s motivation was affected by his Honour’s earlier erroneous conflation of the test for jurisdiction and the test for strike out or summary dismissal of the claim. This is apparent from the fact that the primary judge’s reasoning in J[42] builds on his earlier conclusion of the untenable nature of the claims.

74    Thirdly, once it is accepted (as it must be) that the claims were not incapable of founding the relief sought, it is impossible to infer that the appellant made the claims solely to attract federal jurisdiction and not also to protect his reputation and recover damages for harm to his reputation. The email said that Mr McKee believed that, if the allegations were proven, the conduct in issue may have been in breach of clause 21 of the VPSEA. The claims alleged that the defamatory imputations conveyed by the email included that the appellant had breached clause 21 of the VPSEA (and so s 50 of the Fair Work Act). Those claims were not incapable of legal argument and so of founding the relief sought in the form of damages and an injunction.

75    Fourthly, in reaching his Honour’s conclusions, the primary judge assumed that the email was published only to those with a “proper interest” to receive it. That is, the primary judge effectively assumed the defence of qualified privilege would succeed. The cogency and strength of the defence would have been relevant to a strike out or summary dismissal. But the cogency and strength of the defence could not disengage federal jurisdiction, if properly attracted by the ASC (which, in our view, it was not).

Publication in the Australian Capital Territory?

76    Given our conclusions above, it is also not necessary to determine the appellant’s claim that the primary judge erred in concluding that federal jurisdiction was not engaged on the basis that the email had been published outside Victoria and, specifically, in the Australian Capital Territory (by reference to the reasoning in Crosby v Kelly). The arguments give rise, however, to some important considerations.

77    As we have earlier noted, the submissions of the parties before us proceeded on the common foundation that all that was necessary was that there be an assertion of publication in the Australian Capital Territory that either had a reasonable foundation or that was non-colourable.

78    The primary judge, however, dealt with the matter in a way which appeared to posit the issue of the place of publication as relevant to whether proof of a jurisdictional fact had been satisfied, being publication in the Australian Capital Territory (cf Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at 391). This proposition was not argued before us; nor does it appear to have been argued below. If it had been, important questions would arise. These would include whether the question of publication in the Australian Capital Territory should be viewed by analogy with the question of proof of the High Court’s diversity jurisdiction: Cadet v Stevens (unreported, Windeyer J, Brisbane 21 June 1966) and Dzikowski v Mazgay (unreported, Windeyer J, Sydney 7 July 1965) noted at page 361, volume 40 of the Australian Law Journal and Lane, Lane’s Commentary on the Australian Constitution (1986) at 367–368.

79    These questions are not without their difficulty. No argument took place upon them and for these reasons it is unnecessary and inappropriate to consider them, or to cast any doubt upon any existing single judge decisions on the question.

80    The parties approached the matter on the basis that any assertion of publication in the Australian Capital Territory had to have a reasonable basis and (at least implicity) be non-colourable. There was no basis for the primary judge to conclude that the assertion was colourable. His Honour’s consideration of the evidence in accordance with the approach of the parties was sufficient to found a conclusion that there was no reasonable basis for the assertion.

81    Whether or not the appellant was entitled to the interlocutory procedures of the Court in a contest about jurisdiction is another question that need not be addressed in particular by reason of the fact that no substantive argument took place upon it before us.

82    In the circumstances of our conclusion that there was jurisdiction because there was a matter arising under a law of the Commonwealth Parliament, it is unnecessary and inappropriate to say anything further upon these matters.

83    For the reasons explained in Raghubir v Nicolopoulos [2022] FCAFC 97 at [31]–[41], service of an originating process in Australia, but not within the Australian Capital Territory, is insufficient, without a territorial nexus or other connection to the Territory, to enliven this Court’s jurisdiction.

A single matter?

84    At the commencement of the hearing of the appeal, the Court raised with Ms Enbom QC the question whether or not the relevant controversy, that is the matter, was not the whole of the dispute between Mr Tucker and the State of Victoria and the individuals from the SRO involved: the Victorian Supreme Court proceedings, the defamation proceeding in this Court and the unfair dismissal proceeding in the Fair Work Commission, and perhaps, although it was not raised in argument, the Federal Court proceedings latterly dismissed as an abuse of process: [2021] FCA 1492. There had been no evidence as to the allegations in the unfair dismissal case before the primary judge.

85    At the appeal, however, Mr Tucker disavowed any reliance upon the terms and content of the proceeding in the Fair Work Commission being part of the one controversy. He did, however, argue that the defamation proceedings and the Victorian Supreme Court proceedings were part of a single whole controversy.

86    The question of the breadth of the controversy is not straightforward. It was dealt with by Gummow and Hayne JJ in Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at 584 [137] ff.

87    It is clear that all the aspects of the disputes between Mr Tucker and the other parties arose out of the complaints by Ms M about Mr Tucker’s alleged conduct. However, the causes of action arose at different times, the relevant rights and duties asserted were different, and importantly, the only wrong for which Mr McKee was impugned was the alleged defamation. The parties did not address this issue with the advantage of forewarning of the Court raising the matter. We are inclined to the view that the defamation proceedings can be seen as a separate matter or controversy, perhaps related to the controversy or controversies as to be described as “associated” in the sense contemplated by s 32 of the Federal Court of Australia Act 1976 (Cth), but not as part of the matter being the matter raised in the Victorian Supreme Court concerning the lack of procedural fairness in the dismissal proceedings. Were the matter to be a single matter involving the alleged defamation by Mr McKee and the State and the breach by the State of procedural fairness and of clause 21 of the VPSEA, the surprising result would arise that the defamation proceeding would in all likelihood be subject to s 570 of the Fair Work Act dealing with costs.

88    Given our views as to the existence of federal jurisdiction otherwise, it is unnecessary and inappropriate to deal with this issue, in particular given the lack of attention given to the matter by the parties in considered written submissions. In those circumstances, we will say nothing further about the matter.

Interstate publication

89    The arguments before the primary judge also relied upon publication in more than one State. No argument took place before us on this question. We say nothing about the question.

Conclusions

90    For the reasons given above, the primary judge erred in dismissing the application on the basis that the matter did not engage federal jurisdiction under s 39B(1A)(c) of the Judiciary Act. The respondents’ defence of qualified privilege involves a matter arising under a law of the Commonwealth Parliament within the meaning of s 39B(1A)(c). Accordingly, leave to appeal and any necessary extension of time, to the extent either or both is or are necessary should be granted, the primary judge’s orders must be set aside, and the matter should be determined by a single judge on the basis that this Court has jurisdiction to determine the matter. Costs should follow the event.

Associate:

Dated:    3 June 2022