Federal Court of Australia

Tucker v McKee [2021] FCA 828

ORDERS

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 Victoria [2019] VSC 420 at [8]-[20], which I gratefully adopt:

8. The plaintiff [Mr Tucker] commenced employment with the first defendant [the State of Victoria] in November 2011 as a solicitor at the SRO.

…

10. On 9 June 2017, the SRO wrote to the plaintiff advising of allegations of workplace misconduct made against him. These allegations concerned two different subject matters and led to two investigations.

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’).

13. The plaintiff was suspended with pay during the course of the investigations…

…

15. On 21 June 2017, Mr David Heywood, Branch Manager, Human Resources of SRO, wrote to the plaintiff advising that Ms Lisa Klug, Associate Director, Worklogic, had been appointed as an investigator. Initially, Ms Klug was engaged to investigate both sets of allegations, however, she was subsequently only retained to investigate the First Allegations. This occurred after the plaintiff expressed concerns that if Ms Klug were to continue to conduct the investigation into the Second Allegations she would be exposed to confidential information in breach of the Taxation Administration Act 1997.

16. On 21 August 2017, Mr Joyce, Executive Director, Corporate Services, SRO wrote to the plaintiff’s solicitors advising that Mr Don Di Federico, Branch Manager of Investigations in the Compliance Division of SRO, had been appointed to undertake the investigation into the Second Allegations.

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.

19. 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.

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.

[Footnotes omitted]

I adopt Ierodiaconou AsJ’s abbreviations in Tucker v State of Victoria for the balance of these reasons.

10    On 16 July 2019, Ierodiaconou AsJ dismissed Mr Tucker’s application. Three days later, on 19 July 2020, Mr Tucker was dismissed from his employment with the SRO. Following this, Mr Tucker lodged an unfair dismissal claim in the Fair Work Commission.

11    On 10 March 2021, an appeal from the decision of Ierodiaconou AsJ was heard by the Court of Appeal of the Supreme Court of Victoria. On 12 May 2021, the Court of Appeal allowed Mr Tucker’s appeal in part, including on the basis that the SRO failed to conduct the investigation into the First Allegations in accordance with procedural fairness requirements.

12    In respect of the present proceeding, Mr Tucker filed an Originating Application and Statement of Claim on 24 April 2020. The Respondents filed a Defence on 27 May 2020 and an Amended Defence on 17 June 2020. Further amended pleadings were filed by Mr Tucker and the Respondents on 21 June 2020 and 22 June 2020, respectively. The amended pleadings were accepted for filing for the purpose of determining the question of jurisdiction, without prejudice to the respective counterparty’s right to object at a later date on the basis of form or substance.

13    The ASoC alleges that Mr Tucker was defamed by publication by the Respondents of an email dated 9 June 2017 (the Email). For present purposes, the text of the Email need not be set out in full. It is sufficient to say that the Email outlined “several issues of significant concern” regarding Mr Tucker’s conduct and recommended that a formal investigation be conducted in relation to the allegations.

14    The imputations allegedly conveyed by the Email are various, expressed in particulars [4](a) to [4](o) of the ASoC:

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 [the Female SRO Employee].

(b)    The applicant had been a physical threat to [the Female SRO Employee].

(c)    The applicant had been a physical threat to [the Female SRO Employee’s] children.

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

(e)    The applicant had been persistently asking [the Female SRO Employee] to be a friend on Facebook.

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

(g)    The applicant had found [the Female SRO Employee] 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 [the Female SRO Employee’s] relatives.

(i)    The applicant had been engaging in scandalously inappropriate and harassing conduct in relation to [the Female SRO Employee].

(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 [the Female SRO Employee].

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

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

[Amendments to the original Statement of Claim are underlined]

15    In general, the alleged defamatory imputations are to the effect that Mr Tucker had stalked and been a threat to the Female SRO Employee and that Mr Tucker used his position within the SRO to breach the privacy of certain taxpayers. The ASoC also introduced imputations (j) and (k) which take on particular importance for the question of jurisdiction, as those particulars concern imputations that Mr Tucker breached cl 21 of the Victorian Public Service Enterprise Agreement 2016 (the VPSEA) and s 50 of the FW Act.

16    The ASoC alleges that the Email was first published by being sent by Mr McKee, to whom Mr Tucker’s manager reported, to Mr Darren Joyce and Mr David Heywood, all employees of the SRO (at ASoC [3](a)). So much appears from the face of the email. The ASoC further alleges the Email was sent by Mr Heywood to Lisa Klug of WorkLogic Pty Ltd (the company retained by the SRO to conduct an investigation into the First Allegations), and to Maddocks Lawyers (at ASoC [3](aa), (ab)). Relevant to the question of jurisdiction, the ASoC alleges that both Maddocks and WorkLogic operate nationally across Australia and have offices in various States and Territories, including the ACT (at ASoC [3](ac), (ad)).

17    The Respondents’ Further Amended Defence (FAD) admits the publication of the Email to Mr Joyce and Mr Heywood, and also to Lisa Klug of WorkLogic for the purpose of her investigation, but otherwise denies the Email was published except “for the purposes of Court proceedings later initiated by [Mr Tucker]” (at FAD [3](c)). The FAD otherwise denies that the Email was capable of being understood to carry any of the defamatory imputations alleged in the ASoC (at FAD [4], [5]).

Jurisdiction

18    As mentioned above, the matter came before me for a first case management hearing on 11 June 2020. At this hearing, the question of Court’s jurisdiction was raised and I declined to make any other orders in the matter until this preliminary question had been resolved. The matter subsequently came before me for the hearing in relation to this issue on 2 July 2020, though had to be adjourned due to technical difficulties. Though I make no criticism of Mr Tucker in this regard, those difficulties began when Mr Tucker was unable to re-join the Microsoft Teams hearing after losing his connection to the audio-visual stream. Mr Tucker was overseas at the time. However, Mr Tucker could not be contacted on his mobile as no international dialling code had been provided on documents filed with the Court and my chambers were unaware that he was overseas. As a result, my staff were unable to communicate with Mr Tucker other than via the Microsoft Teams ‘chat’ feature, which made it difficult to assist him, including by potentially establishing an ‘audio only’ connection. In light of the technical difficulties, I re-listed the matter for further hearing on 8 July 2020. On that date, the matter remained part-heard and it therefore had to be re-listed on 20 August 2020.

19    Over the course of the hearing, the question of jurisdiction narrowed to two issues, each, in Mr Tucker’s submission, being a sufficient basis to invoke this Court’s jurisdiction to hear and determine the matter. The first is whether the presence of the FW Act in the ‘substratum of fact’ was sufficient to raise a ‘federal matter’. The second is whether the Email said to contain the defamatory imputations had been published outside the State of Victoria, including within the ACT.

20    In addition to the above issues, I am required to consider whether Mr Tucker’s claims concerning federal matters are ‘colourable’ in the sense of being raised only for the purpose of enlivening the Court’s jurisdiction. I address each of these issues in turn. However, before doing so, I briefly set out the manner in which the matter proceeded.

21    At the 2 July 2020 hearing, the parties made submissions regarding whether the matter is one that arises under a federal law. Subsequently, at the 8 July 2020 hearing, evidence was received from Ms Klug, Mr Heywood, Mr McKee and Mr Joyce in relation to whether the Email had been published outside Victoria. Mr Tucker cross-examined each of these witnesses. Mr Tucker also made calls for certain documents referred to in evidence, including a confidentiality deed between the SRO and WorkLogic regarding the investigation into Mr Tucker’s conduct and the SRO’s internal policy concerning the retention of documents on its “RM8” document management system. Both of these documents were produced. The matter was then listed for further hearing on 20 August 2020, at which further evidence was received from Mr Joyce and Mr Tucker. The evidence of these witnesses is considered below.

22    In addition, Mr Tucker filed written submissions on the question of jurisdiction on 25 June 2020, closing submissions on 24 September 2020 and supplementary submissions 28 May 2021. The Respondents also filed extensive written submissions on 18 June 2020, 18 September 2020 and 4 June 2021, respectively.

23    The following affidavits were tendered and relied on by the Applicant:

(1)    an affidavit of Mr Tucker dated 3 June 2020 and affirmed on 25 June 2020;

(2)    an affidavit of Mr Tucker dated 19 August 2020 and affirmed on 13 November 2020; and

(3)    an affidavit of Mr Tucker dated 24 September 2020 and affirmed on 13 November 2020.

24    The following affidavits were tendered and relied on by the Respondents:

(1)    an affidavit of Ms Drakeford, solicitor at DTF Legal, affirmed on 10 June 2021;

(2)    an affidavit of Mr McKee, Senior Technical Specialist, Projects at the SRO, affirmed on 17 June 2020;

(3)    an affidavit of Ms Klug, Independent Facilitator at WorkLogic, affirmed on 17 June 2020;

(4)    an affidavit of Mr Heywood, Project Manager, Human Resources at the SRO, affirmed on 17 June 2020;

(5)    an affidavit of Mr Joyce, Deputy Commissioner of State Revenue and Executive Director of Corporate Services at the SRO, sworn on 17 June 2020; and

(6)    an affidavit of Ms Drakeford affirmed on 17 September 2020.

25    Having regard to this procedural history, I return to the substantive question of whether the Court has jurisdiction to hear and determine this matter.

Is the matter one that arises under federal law?

26    The first issue is whether the matter is one that arises under a federal law: s 39B(1A)(c) of the Judiciary Act 1903 (Cth). In this regard, the “matter” must be understood as being the justiciable controversy between the parties, comprised of the substratum of facts representing the dispute or controversy between them, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 608 (Mason, Murphy, Brennan and Deane JJ). Relevantly for present purposes, one of the basis upon which a federal matter arises is if an asserted right, duty or obligation in issue owes its existence to a federal law: LNC Industries v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ, Murphy J agreeing at 582-583).

27    In support of his contention, Mr Tucker relied primarily on the decision of Lee J in Oliver. The decision in Oliver concerned defamatory reporting by the Nine Network about a late-night altercation between a tourist from the United Kingdom and a player on the Australian Rugby Sevens Team, Mr Stannard. The defamed tourist, Mr Oliver, struck Mr Stannard once, causing a career ending head-injury. Mr Oliver was charged but acquitted on the basis of self-defence. The defamation was found to have occurred in the news reporting of the acquittal. It was found to have carried defamatory imputations that Mr Oliver was a coward who punched a defenceless man causing him grievous injury and ruining his career as a professional athlete (at [68]).

28    On the first day of the hearing in that matter it became apparent that the respondent alleged the publication occurred solely within New South Wales (at [6]). Though the parties consented to the jurisdiction of the Court in that matter, jurisdiction cannot be conferred by consent: see Oliver at [9] and the authorities cited therein. His Honour was therefore required to determine whether the Court had jurisdiction to hear and determine the matter, and in doing so, discussed several points of principle on which Mr Tucker relied in the present proceeding.

29    In particular, his Honour set out the proper approach to the question of federal jurisdiction at [11]-[18]:

11.    … For those interested (and everyone practising in courts exercising federal jurisdiction should be), the principles are explained in detail by Allsop J (as the Chief Justice then was) writing extracurially in the article Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Aust Bar Rev 29) [sic]. The starting point is s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which provides:

The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: ... (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

(emphasis added)

12.    The “matter” is the justiciable controversy between the actors involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them. It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination: Fencott v Muller (1983) 152 CLR 570 at 603-608; Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at 584-585 [50].

13.    When s 39B(1A)(c) of the [Judiciary Act] was introduced in 1997, Parliament changed this Court from being a court of specific federal jurisdiction into a court of more general federal jurisdiction, extending its reach to all controversies or “matters” across all areas with respect to which the Parliament of the Commonwealth has made laws. So long as a “matter” can be said to “arise under” a law of the Parliament, then the Federal Court is vested with jurisdiction to hear the whole of the dispute. It follows that once the jurisdiction of the Court has been invoked by reference to a justiciable issue within federal jurisdiction (say, a related claim under a federal statute), the Court has “accrued” jurisdiction to determine the whole “matter” or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-588 [136]-[147]. Accordingly, as a matter of impression and practical judgment, if a claim for defamation not otherwise within federal jurisdiction arises out of the same “matter” which is within federal jurisdiction, then it will form part of the one justiciable controversy and, if the jurisdiction of this Court is invoked, it will be the duty of this Court, exercising Chapter III judicial power, to quell the whole controversy. It is, of course, heterodox to speak of any notion of concurrent state and federal jurisdiction.

14.    Secondly, the Federal Court has original jurisdiction to hear a “pure” defamation action (that is, without the addition of any other cause of action or defence arising under a federal statute) where the publication somehow involves the consideration of the implied constitutional freedom of communication on governmental and political matters even if, as will commonly be the case, it is contended that the implied constitutional freedom will be raised by a respondent by way of defence. I have already made reference above to s 39B(1A) of the JA. Subsection (b) of that section provides that the original jurisdiction of the Court also includes jurisdiction in any matter “arising under the Constitution, or involving its interpretation”.

15    Thirdly, again focussing on s 39B(1A)(b) of the JA, where there is a publication in more than one “Australian jurisdictional area” being a State (see ss 11(1) and (5) of the Defamation Act 2005 (NSW) (Act) and its cognates), the full faith and credit provision of the Constitution (s 118) is engaged so as to enable courts to recognise and apply the provisions of the various uniform Defamation Acts as modifications of the laws of each Australian jurisdictional area and the common law of Australia. This is because where publications in more than one Australian jurisdictional area are sued upon, the law of each place of publication will create a substantive right to sue on that publication in that jurisdiction: see Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575.

16    Fourthly, and more broadly, as Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581, a federal matter arises if a right, duty or obligation in issue in the matter “owes its existence to federal law or depends upon federal law for its enforcement” including where the right claimed is in respect of a right or property that is the creation of federal law. Whether or not a matter arises does not depend upon the form of the relief sought: LNC Industries at 581. This would involve when a right or duty based on a Commonwealth statute in issue arises (even where it has not been pleaded by the parties, or a federal issue is unnecessary to decide). A common example illustrates the potential breadth of this concept. It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the JA. Chapter 2B of the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay’s Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2A.2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth.

17    This and other recondite ways that jurisdiction is attracted can be put to one side for present purposes, however, because the invocation of federal jurisdiction in the present case is quite straightforward. Even if I were to find, contrary to Mr Oliver’s assertion in the initial statement of claim, that upon consideration of the evidence there was no proof of publication outside New South Wales, that does not mean the matter has not always been within federal jurisdiction since the assertion was made: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. As the now Chief Justice noted in (2002) 23 Aust Bar Rev 29 at 45:

Once a non-colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC’s testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms:

So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction.

‘Colourable’ imports improper purpose, or a lack of bona fides. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process.

18    There is no suggestion here that that the relevant assertion as to publication in the Territories made in the initial statement of claim was colourable. Federal jurisdiction was thereby attracted and once federal, the matter is always federal: Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at 13-16 [45]-[55]. If an allegation of publication in the Territories is made bona fide, the Court is properly seized with jurisdiction to deal with the controversy and always will be even if the non-colourable allegation was unnecessary to decide, abandoned, struck out, or otherwise rejected on the evidence adduced at trial. As it turns out in this case, no evidence was adduced by Mr Oliver to prove publication in the Territories being a material fact pleaded and upon which issue was joined. As a consequence, the allegation fails for want of proof, but this does not mean that federal jurisdiction, properly invoked upon the bona fide making of the allegation, somehow disappeared like a will-o’-the-wisp.

(Emphasis added)

These principles have been cited with approval by judges of this Court, including most recently in Humphrys (Tobin) v Chief Executive Officer of Department of Communities WA [2021] FCA 586 at [7] (Colvin J) and Somasundaram v Luxton [2020] FCA 1076 (Murphy J) at [47].

30    Mr Tucker further submitted that this proceeding raises a ‘federal matter’ as a federal statute, the FW Act, formed part of the substratum of fact to the dispute, in the sense that it was relevant to the justiciable controversy between the parties. More specifically, it was said that the FW Act formed part of the dispute with the SRO as Mr Tucker’s termination was effected under cl 21 of the VPSEA, which is approved under Part 2-4 of the FW Act.

31    In addition, though not pleaded in the original Statement of Claim, Mr Tucker alleges in the ASoC that the imputations contained in the Email included that he breached cl 21 of the VPSEA and s 50 of the FW Act (ASoC at [4](j), (k)). Mr Tucker submitted that although no right arising under the FW Act is in issue in this proceeding, in the sense of falling for determination, one of the issues that the Court will need to consider is whether the Respondents were exercising rights that owe their existence to federal law.

32    Mr Tucker conceded that the Court would not be required to construe the terms of the VPSEA or FW Act so as to find breach or not per se, but rather would be required to assess whether the reasonable observer would understand the Email as conveying an imputation that Mr Tucker breached cl 21 of the VPSEA and, consequentially, s 50 of the FW Act. Mr Tucker’s submission accords with Latham CJ’s oft-cited statement in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 154 that a matter arises under federal law “if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law”: see also LNC Industries at 581.

33    The Respondents submitted that the accrual of federal jurisdiction requires consideration of two issues: first, whether there is a “matter” arising within the subject matter area of federal jurisdiction; and second, whether that matter reflects the justiciable controversy between the parties: Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 at [16]-[17] (Allsop CJ, Besanko and White JJ). The Respondents conceded that the “matter”, properly understood, is the justiciable controversy between the parties, comprised of the substratum of facts representing or amounting to the dispute or controversy between them and encompassing all claims made within the scope of the controversy: CGU Insurance v Blakeley [2016] HCA 2; 259 CLR 339 at [30] (French CJ, Kiefel, Bell and Keane JJ).

34    However, having regard to these principles, the Respondents submitted that there is no right or duty in issue that ‘depends upon federal law for its enforcement’ or ‘owes its existence’ to federal law. To the extent that the pleadings disclose any matter of a federal nature, it is by reference to the VPSEA agreement, that being an instrument approved by the Fair Work Commission pursuant to the FW Act.

35    The Respondents submitted that the remote connection between the alleged defamatory imputations in the Email and the FW Act do not bring federal law into the proceeding. That is to say, federal law is merely incidental or tangential to one of the many alleged imputations. Indeed, the Respondents contended that Mr Tucker makes no claim pursuant to any Commonwealth legislation, including the FW Act, and does not bring into issue the interpretation or validity of the VPSEA, being the instrument approved by the FW Act.

36    The Respondents further submitted that to the extent that Mr Tucker relies on a passing reference to the FW Act in his pleading as founding federal jurisdiction in the controversy between the parties, it ought to be viewed as colourable. In this sense, it was the Respondents’ submission that the FW Act has no part to play in the proceeding and is not a bona fide basis to allege that this Court has jurisdiction: see, eg, Rana at [21]-[22], cited with approval in Prasad v Google LLC [2020] FCA 67 at [18] (Wheelahan J).

37    As a matter of analysis, the matter as pleaded in the ASoC asserts a right or duty that owes its existence to a federal statute. However, I accept the Respondent’s characterisation of the alleged imputation in relation to the contravention of cl 21 of the VPSEA, and the alleged consequential contravention of the FW Act, as colourable.

38    Though I agree with the Respondents’ conclusion that the claim is colourable, and indeed an artificial attempt to invoke the Court’s jurisdiction, I express my reasons for that conclusion in a manner that may not be entirely the same as those proffered by the Respondents.

39    As Thawley J explained in Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 377 ALR 467 at [387]:

An imputation is defamatory of a person if it would cause the ordinary reasonable reader to think the less of the person when applying the ordinary reader’s general knowledge and their knowledge of standards held by the general community: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638‑639 (Mason and Jacobs JJ, Gibbs and Stephen JJ agreeing), Chakravarti at [57] (Gaudron and Gummow JJ); Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] and [60] (French CJ, Gummow, Kiefel and Bell JJ).

[Emphasis added]

See also Murphy v Nationwide News Pty Ltd [2021] FCA 381 at [34].

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.

Was the Email published outside the State of Victoria?

44    The second basis said to attract the Court’s jurisdiction is that the Email was published outside the State of Victoria including, in particular, in the Australian Capital Territory (ACT). For the following reasons, I am not satisfied that the second basis is made out.

45    In the ASoC, Mr Tucker pleads at [3] that “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 [contained in the Email]” (with the underlined words being those made by the amendment). The particulars at [3] were also amended to include reference to interstate publication by adding the following:

(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.

46    In response to the ASoC, the Respondents called evidence from all relevant persons in the employ of the SRO, or others engaged by it to investigate the complaints, who transmitted or received the Email. They were: Mr McKee, Mr Heywood, Mr Joyce and Ms Klug. Each of these witnesses provided affidavits, gave oral evidence and were cross-examined by Mr Tucker.

47    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.

48    Mr Tucker also sought to establish publication outside the State of Victoria by submitting that it was sufficient that the Email had been stored on email servers or document management systems which may not be located in Victoria. Applied to the present circumstances, Mr Tucker submitted that once the Email was sent to external professional services firms (WorkLogic and Maddocks), it would be uploaded onto an electronic document management system and, at that point, becomes accessible all throughout Australia.

49    I pause to note the inherently speculative nature of this submission, emphasising that even if the email could be theoretically accessed, that does not mean it was in fact accessed. While what Mr Tucker says concerning the potential for access to the Email by those authorised to access the relevant databases may be correct (assuming such access occurred), that alone does not constitute publication of the Email, much less publication outside the State of Victoria. The same may be said of the storage of the Email on a server or other database maintained and under the control of the SRO.

50    Mr Tucker cross-examined the employees of the SRO (being Mr McKee, Mr Heywood and Mr Joyce) on the question of whether they had uploaded the Email to their “RM8” document management system. He also made a call for the SRO’s document management policy in force at the time of his employment. That document was produced after the hearing on 8 July 2020. Though it appears that employees were required under the policy to upload all documents to RM8, none of the employees could recall uploading the Email at any stage and there was no evidence to suggest that occurred.

51    Mr Tucker made a similar submission in relation to the production of the Email to Maddocks, a law firm. The Email was provided to Maddocks in the course of a proceeding in the Supreme Court of Victoria, in which Maddocks was representing the SRO. There was no evidence the Email had been uploaded to an internal server within Maddocks or, more importantly, downloaded or read by an employee of that law firm, other than Ms Ali Gallagher (the direct contact point at Maddocks). There was also uncontradicted evidence that Mr Joyce did not send, copy, line copy, forward, share, show, publish, republish or distribute the Email to any other solicitor at Maddocks.

52    As indicated above, the Email was also provided to Ms Klug of WorkLogic for the purpose of investigating the First Allegations. Mr Tucker contended that WorkLogic has offices, and conducts business, throughout Australia, relying in particular on WorkLogic’s website, which reads: “Worklogic has a highly experienced team of workplace investigators, mediators and consultants serving Canberra, Sydney and regional NSW.” However, the publicly available information on WorkLogic’s website, which was put to Mr Tucker, demonstrated that WorkLogic does not in fact have offices in the ACT. I accept this evidence and find that WorkLogic does not conduct business from an office located in the ACT.

53    Similarly, in this regard, Ms Klug’s evidence was that she did not send, copy, blind copy, forward, share, show, publish, republish, or distribute emails relating to this matter to any staff member at WorkLogic. Ms Klug explained that “care was taken to keep this matter particularly confidential” due to the sensitivity of the matters raised. Further, though Ms Klug conceded in cross-examination that she travelled outside Victoria in the period between receiving the email and producing her report into the First Allegations, she gave evidence that during this time the only occasions on which she travelled outside the State of Victoria were for the purpose of vacation, and that she did not read her work emails while on holiday. I accept Ms Klug’s evidence and find that she did not access her emails outside the State of Victoria prior to providing the SRO with her report concerning her investigation into Mr Tucker’s conduct.

54    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].

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.

62    Finally, Mr Tucker contended that the essence of the Email, and therefore the alleged defamatory imputations, was republished in an article on WorkLogic’s website entitled “WorkLogic’s Robust Approach to Procedural Fairness Withstands Judicial Scrutiny”. This contention is entirely unsubstantiated.

63    In his ASoC (at [3](ag)-(ah)), Mr Tucker pleads that the sense and substance of the matter complained of in the Email was republished by WorkLogic in an online article and accessible to persons in each State and Territory of Australia. Mr Tucker’s evidence was that he was “very cheesed off” about the article because it specifically mentioned his name and disclosed the nature of complaints made against him, including allegations of “harassment" of a female SRO employee and allegations that he had accessed and/or interfered with customer records.

64    At the hearing on 20 August 2020, there was a dispute about whether the article had been removed by WorkLogic or was otherwise still available online. Mr Tucker’s evidence was that he did not have a copy of the article because it had been deleted by WorkLogic after he complained by email. The email Mr Tucker was referring to is dated 30 July 2019 and read as follows:

Dear WorkLogic Pty Ltd

I refer to the recent article posted on WorkLogic's website entitled "WorkLogic's robust approach to procedural fairness withstands judicial scrutiny". The article is said to be authored by "Jodie Fox".

Please remove this post from WorkLogic's website within 48 hours.

The matters referred to in Worklogic's post have affected me personally. I consider the content of Worklogic's post to be scandalous and defamatory in nature.

Please note:

1. the privacy breach proceeding previously brought to your attention, involving allegations that WorkLogic improperly used private and personal information, including taxpayer information, remains on-going;

2. further proceedings have been commenced which relate to WorkLogic's "investigation" referred to in your post, to the extent necessary you will informed of same; and

3. the Supreme Court matter referred to in the post is currently within the appeal period.

I note that WorkLogic's post did not mention any of the above.

I reserve the right to produce this communication in support of any application for injunctive relief necessary to ensure compliance with this request.

My rights are otherwise fully reserved.

Regards

Toby Tucker

[Emphasis in original]

65    Also in evidence was a reply email from Jodie Fox, Director of WorkLogic, dated 1 August 2019, which contradicted Mr Tucker’s evidence:

Dear Mr Tucker,

Thank you for your email in relation to our recently published Blog post.

The blog post analyses a published decision of the Supreme Court of Victoria and that decision is in the public domain. The blog refers to the parts of the judgement that are relevant to our readership and does not make any reference to you by name.

I note, however, that the name of the case does refer to you by name. In order to respond to your issues around identification, I will remove the reference to the case name from the article.

Kind regards,

Jodie Fox

Director

Worklogic

66    During the course of cross-examination, counsel for the Respondents produced a copy of an article available on WorkLogic’s website at the time of the hearing, which had the same title as the article referred to by Mr Tucker in his contemporaneous email and was authored by Ms Fox of WorkLogic. Mr Tucker vehemently denied that the article produced was the article which he alleges republished the sense and substance of the Email. Mr Tucker gave evidence that the article he recalled was “gloating” about the dismissal of his claim in the Supreme Court of Victoria and advertising WorkLogic’s services.

67    To resolve the competing versions of the evidence, I gave leave for the Respondents to issue a subpoena to WorkLogic on 27 August 2020. That subpoena directed WorkLogic to produce a copy of any article published on their website that identified Mr Tucker, including any changes to the published article made after Mr Tucker’s complaint on 30 July 2019, as well as a copy of the original source code and any backup files of the source code.

68    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”.

69    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.

Costs

70    Mr Tucker was afforded the opportunity to put forward such evidence as he desired regarding publication of the Email outside the State of Victoria. This included, as I have described above, cross-examining the witnesses able to give evidence about the transmission of the Email, each of whom were called by the Respondents. For the reasons I have given, Mr Tucker has failed to prove any publication of the Email other than to the very narrow group of persons within the State of Victoria responsible for investigating the allegations against Mr Tucker or involved in ancillary proceedings brought by Mr Tucker, including SRO employees, Ms Klug of WorkLogic and Ms Gallagher of Maddocks. That is the position notwithstanding that Mr Tucker was given every opportunity to prove publication outside the State of Victoria in the same way as would have been the case had the matter proceeded to trial on all issues.

71    It was open to the Court in these circumstances to direct that Mr Tucker pay the Respondents’ costs on an indemnity basis. However, I have concluded that because the question of publication of the Email by the SRO was a factual matter within the knowledge of the Respondents, Mr Tucker was entitled to test that question of fact. In saying that, it should have been apparent to Mr Tucker that publication outside the State of Victoria was at all times a speculative assertion on his part.

72    Thus, while it was highly unlikely that the Email had been published interstate, I have given Mr Tucker the benefit of the doubt. Accordingly, I will not order that Mr Tucker pay the Respondents’ costs on an indemnity basis. However, I can see no reason why Mr Tucker should not pay the costs of and incidental to the interlocutory application, and of the proceeding generally, on a standard basis.

Disposition

73    For these reasons, the Originating Application and ASoC should be dismissed with costs.

Associate:

Dated:    23 July 2021