Federal Court of Australia

Tucker v Broderick [2021] FCA 1492

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be summarily dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the costs of the respondents on an indemnity basis.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    Mr Tucker was employed by the second respondent, the State of Victoria, and worked as a senior solicitor at the State Revenue Office (SRO) from 28 November 2011 until 19 July 2019, when his employment was terminated. The first respondent, Mr Broderick, is the Commissioner of State Revenue, who is sued in that capacity. He exercised delegated powers with respect to SRO employees.

2    This is an application by the respondents for summary judgment under r 26.01 of the Federal Court Rules 2011 (Cth). The respondents contend, among other things, that this proceeding is an abuse of process because Mr Tucker seeks relief in relation to matters already determined in long running proceedings in the Supreme Court of Victoria.

3    For the reasons that follow, it is readily apparent, and should have been readily apparent to Mr Tucker and his solicitor, that this proceeding does constitute an abuse of process, including because:

(a)    The proceedings in the Supreme Court finally settled the real controversy between the parties that is the subject of the claims in this proceeding.

(b)    Mr Tucker, a lawyer and at the time represented by a solicitor and senior and junior counsel, elected to continue the proceedings in the Supreme Court in full knowledge of the fact that the Supreme Court could not make pecuniary penalty orders or orders for compensation under the Fair Work Act 2009 (Cth) (FW Act) of the type now sought in this proceeding.

(c)    Mr Tucker made no claim in the Supreme Court for loss or damage in respect of the matters pleaded in this proceeding, but limited his relief to permanent injunctive relief – so he cannot now seek such a claim in this court.

4    To the extent that Mr Tucker now pleads a cause of action founded on the Victorian Model Litigant Guidelines (the guidelines), that claim is bound to fail, because any breach of those guidelines does not give rise to a cause of action known to law, and in any event, this court has no jurisdiction to adjudicate non-compliance with them.

5    The story of Mr Tucker’s grievances has a long, sorry, and tortuous history. Mr Tucker deposed, for reasons that are not apparent, that according to SRO documents released to him pursuant to a freedom of information request, the respondents have spent in excess of $3 million (largely successfully) defending the Supreme Court proceedings.

6    It is regrettably necessary to set out in some detail the course that the proceedings took in the Supreme Court.

History of the proceedings in the Supreme Court of Victoria

7    On 9 June 2017, the SRO wrote to Mr Tucker to notify him of allegations of misconduct made against him, which were to be investigated pursuant to clause 21 of the Victorian Public Service Enterprise Agreement 2016 (VPSEA). Mr Tucker was also notified that he would be suspended with pay while the investigation was undertaken.

8    On 21 August, the investigation was split into two separate investigations, described as “the Klug investigation” and “the e-Sys investigation”.

9    The Klug investigation involved allegations that Mr Tucker engaged in inappropriate and harassing behaviour towards a female colleague, to whom I shall refer as SM.

10    The e-Sys investigation involved allegations that Mr Tucker had searched the records of a number of taxpayers on the SRO’s “e-Sys” database, without a known SRO business purpose.

11    On 25 October, the SRO wrote to Mr Tucker to notify him of the findings of the Klug investigation and the proposed discipline outcome, namely, a formal warning and training. The SRO invited Mr Tucker to respond.

12    That letter advised that of the ten allegations against Mr Tucker, the SRO had accepted the investigator’s findings that:

(a)    four allegations were proven and amounted to misconduct as defined in clause  21.3(a) of the VPSEA;

(b)    one allegation was partly proven and amounted to misconduct;

(c)    three allegations were partly proven and did not amount to misconduct; and

(d)    one allegation was not proven and no finding was made in respect of one allegation.

13    From 25 October 2017, Mr Tucker’s continued suspension from duty was in relation to the allegations the subject of the e-Sys investigation only.

14    Between 27 October and 2 November 2017, correspondence was exchanged between the SRO, Mr Tucker, and WMB Lawyers (the applicant’s then lawyers) regarding the provision of a copy of the report prepared by the investigator in the Klug investigation (Klug report).

15    On 13 November, the SRO provided a copy of the Klug report to Mr Tucker. The version of the report provided contained a number of redactions, which the SRO said was to remove personal information of witnesses.

16    Between 27 and 30 November 2017, correspondence was exchanged between the parties regarding the provision of an un-redacted copy of the Klug report. The SRO declined to provide an un-redacted copy. Its position was that the provision of the un-redacted report would unnecessarily compromise the privacy of those involved in the investigation, in circumstances where procedural fairness had been afforded to Mr Tucker, who had received the full allegations against him, and later the contradictory evidence against him, together with the opportunity to provide written and oral responses to the allegations and the contradictory evidence.

17    On 11 December 2017, Mr Tucker commenced proceedings in the Supreme Court of Victoria against the State of Victoria and one Darren Joyce, the then Executive Director of Corporate Services at the SRO.

18    Mr Tucker sought declarations and an interlocutory and permanent injunction preventing the defendants from finalising the Klug investigation, on the grounds that:

(a)    he had not been afforded procedural fairness;

(b)    the defendants had failed to disclose information, documents, or material on which they might rely in determining a discipline outcome in accordance with the VPSEA;

(c)    he had not been given a proper and real opportunity to be heard in respect of the information, documents, or material on which the defendants might rely in determining a discipline outcome in accordance with the VPSEA; and

(d)    despite requests, the defendants had failed to provide him with information or material before the decision maker, including an un-redacted copy of the Klug report.

19    On 7 February 2018, the SRO wrote to Mr Tucker to notify him of the findings of the e-Sys investigation and the proposed discipline outcome, namely, termination of his employment. The letter confirmed that the termination of his employment was not based on, or related to, any findings in relation to the Klug investigation and noted that no final outcome had been reached in relation to the Klug matter.

20    The letter further advised that of the 26 taxpayers whose records Mr Tucker was alleged to have searched without a known SRO business purpose, it had been found that the allegations regarding 24 taxpayers were substantiated. Two were not substantiated. The SRO advised that it relied only on the allegations regarding six taxpayers, in relation to which evidence had been obtained that contradicted that given by Mr Tucker, or which positively indicated that there was no SRO business purpose for Mr Tucker’s searches of those taxpayers’ records.

21    On 23 February, Mr Tucker notified the defendants of his intention to amend his claim to seek relief with respect to the e-Sys investigation and the termination of his employment.

22    On 2 March, the Supreme Court made orders by consent giving Mr Tucker leave to further amend his claim. The orders also recorded that:

(a)    the defendants undertook not to finalise either the Klug or e-Sys matters until the proceeding was determined; and

(b)    Mr Tucker gave an undertaking as to damages.

23    On 13 March, Mr Tucker filed a further amended originating motion, which also sought declarations and an interlocutory and permanent injunction preventing the defendants from finalising the e-Sys investigation.

24    Two days later, Mr Tucker filed a statement of claim alleging that there were terms of his contract of employment with the SRO that gave rise to an obligation to comply with the process for investigating misconduct, as set out in clause 21 of the VPSEA and the SRO’s Managing Misconduct Policy. It was also alleged that the SRO was obliged to treat Mr Tucker fairly and reasonably, pursuant to s 20(3)(c), read together with s 8(b), of the Public Administration Act 2004 (Vic) (PA Act). Mr Tucker alleged a number of breaches of those obligations in relation to the conduct of the e-Sys and Klug investigations.

25    On 10 April, Mr Tucker filed an amended statement of claim which did not materially change the nature of the pleaded case.

26    On 28 May, Mr Tucker served a summons seeking:

(a)    leave to file a proposed further amended statement of claim (FASOC);

(b)    an order that Mr Broderick be joined as the second defendant; and

(c)    transfer of the proceeding to the Federal Court or the Federal Circuit Court, pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

27    The proposed FASOC made new allegations against the defendants. Specifically, [40]-[46] alleged that the defendants breached s 50 of the FW Act. The proposed FASOC also sought to re-frame the relief sought, including declarations that the defendants had contravened the VPSEA and/or the PA Act; the imposition of penalties in relation to the FW Act claims; and permanent injunctions preventing the defendants from finalising the Klug and e-Sys investigations.

28    Justice McDonald heard the application. In Tucker v State of Victoria [2018] VSC 389, his Honour ordered that Mr Tucker have leave to:

(a)    file the proposed FASOC, excluding the FW Act claims, because the Supreme Court did not have jurisdiction to hear them; and

(b)    join Mr Broderick as a second defendant

29    At [19] of the judgment, McDonald J said this:

The phrases ‘real question in controversy’ and ‘real issues in dispute’ must be read subject to any constraints imposed upon the Court’s jurisdiction to resolve issues in dispute between the parties. The fact that the plaintiff wishes to pursue a claim for penalties for alleged contravention of the VPSEA does not confer upon the claim the status of ‘a real issue in dispute’. This conclusion is reinforced by the fact that ‘court’ is defined in s 3 of the [Civil Procedure Act 2010 (Vic)] as the Supreme Court, County Court or Magistrates’ Court. Mr Williams QC, who appeared with Ms Paszkiewicz for the plaintiff, acknowledged that the parties were in ‘heated agreement’ that if the plaintiff wishes to pursue his claims alleging contravention of s 50 ‘we’ve got to go somewhere else to do it’. An issue in dispute between the parties which is not within the Supreme Court’s jurisdiction is not a real issue in dispute.

(Footnote omitted.)

30    On 20 July 2018, Mr Tucker filed the FASOC, in accordance with the orders of McDonald J. It alleged that:

(a)    it was an implied term of Mr Tucker’s employment agreement that the SRO would adhere to any internal policy it implemented, including the Managing Misconduct Policy;

(b)    it was an implied term of Mr Tucker’s employment agreement that the defendants would exercise any right, duty, power, or authority as an employer under the Managing Misconduct Policy in good faith;

(c)    by virtue of ss 20(3)(c) and 8(b) of the PA Act, the defendants had an obligation to conduct any disciplinary process against Mr Tucker in accordance with clause 21 of the VPSEA;

(d)    a number of obligations arose under clause 21 of the VPSEA;

(e)    the defendants failed to comply with various obligations of clause 21 in the conduct of the e-Sys and Klug investigations; and

(f)    the defendants breached obligations under the PA Act in the conduct of the e-Sys and Klug investigations.

31    Mr Tucker sought permanent injunctions preventing the defendants from finalising the Klug and e-Sys investigations, and declarations that the defendants had contravened the VPSEA and/or the PA Act.

32    On 14 August, Mr Tucker filed a Second Further Amended Originating Motion which replaced the Further Amended Originating Motion and reflected the relief set out in the FASOC. No compensation was sought by Mr Tucker in relation to the alleged breaches of his employment agreement, the PA Act or the VPSEA. Consistent with the orders of McDonald J, the claim for penalties for breach of s 50 of the FW Act was omitted.

33    The defendants filed their defence three days later, and on 31 August, Mr Tucker filed his reply.

34    Between 21 September and 5 December 2018, the parties filed their evidence.

35    On 11 December, Mr Tucker filed his outline of submissions, which included the following submission about the FW Act:

The third basis on which it is said the [VPSEA] obligations arise is that they are imposed by the VPSEA. The Defendants have admitted that the [VPSEA] covered and applied to Tucker in his employment from about 18 May 2016, and the [VPSEA] was the source of six of the eight obligations. A contravention of those obligations is a breach of the FW Act and a declaration should be made that the contraventions identified below have occurred.

36    On 21 December, the defendants filed their outline of submissions. At [8] and [9], the submissions read:

8.    In relation to the source of the seven obligations, the plaintiff’s outline of submissions now appears to assert that:

a.    the six VPSEA obligations were also incorporated into his employment agreement by express reference (rather than by implied terms); and

b.    another source of the six VPSEA obligations is the VPSEA itself, such that any breach of that instrument of itself gives rise to declaratory relief.

9.    The apparent attempt to allege breach of the VPSEA as actionable per se is not developed in the plaintiff’s outline. The Court has no jurisdiction to entertain a claim of this kind under s 50 of the Fair Work Act 2009: Tucker v State of Victoria [2018] VSC 398. Absent a legal foundation for alleging breach of the VPSEA in contract or under the PA Act, no other potential foundation is identified.

37    Prior to the hearing, on 14 January 2019, WMB Lawyers wrote to Maddocks in relation to the matters raised in [8] of the defendants’ submissions. Mr Tucker proposed to amend the FASOC to, relevantly, “make it clear that [he] contends that the [Supreme Court] can and should grant relief for a contravention of the VPSEA”. That correspondence also stated that “in the event your client[s] [do] not consent [to the proposed amendments to the FASOC], they will appreciate that our client remains at liberty to commence proceedings in the Federal Court”.

38    Maddocks responded to WMB Lawyers two days later, confirming that the defendants did not consent to the proposed amendments to the FASOC. In relation to the amendment regarding relief for contravention of the VPSEA, the correspondence noted that:

(a)    the Supreme Court’s jurisdiction to deal with alleged contraventions of the VPSEA was dealt with by McDonald J in his interlocutory decision;

(b)    the defendants considered it would be an abuse of process for Mr Tucker to commence Federal Court proceedings while the Supreme Court proceeding was still on foot, and reserved their rights in relation to any Federal Court claim; and

(c)    if Mr Tucker wished to discontinue the Supreme Court proceeding, and pursue new proceedings in the Federal Court, he could and should have done so at an earlier time.

39    On 22 January 2019, WMB Lawyers wrote to Maddocks and provided a proposed Second Further Amended Statement of Claim (Second FASOC). The proposed amendments contained no reference to the FW Act.

40    On 30 January, the Supreme Court made orders, by consent, permitting Mr Tucker to file the proposed Second FASOC and the defendants to file an amended defence. Mr Tucker filed the Second FASOC the next day, and the defendants filed an amended defence the day after.

41    WMB Lawyers then wrote to the Associate to Ierodiaconou AsJ, stating that “having been given leave to amend his pleadings and an amended defence having been filed this afternoon, the Plaintiff now provides submissions on those issues”. Attached to that email was an outline of submissions which made a new argument, viz that the Supreme Court had jurisdiction to determine a claim for a contravention of the FW Act by virtue of s 39(2) of the Judiciary Act 1903 (Cth).

42    Associate Justice Ierodiaconou heard the proceeding over three days in early February 2019.

43    Over the course of the trial, Mr Tucker abandoned several allegations contained in the Second FASOC.

44    The issues remaining in dispute between the parties at the conclusion of the trial were set out in an agreed document provided to the Supreme Court on 6 February.

45    On 7 May, after an exchange of submissions, the matter came back before Ierodiaconou AsJ for argument on Mr Tucker’s Judiciary Act and FW Act claims.

46    Two days later, Mr Tucker, who was at that time represented by senior counsel, served a proposed Third Further Amended Statement of Claim. It included a new paragraph 37A which alleged that: “Further, the breaches alleged in paragraphs 34 to 37 above were contraventions of section 50 of the Fair Work Act (Cth.) as they were contraventions of the VPSEA”.

47    On 13 May, the parties provided the Supreme Court with an addendum to the outline of issues in dispute to include the assertion of Mr Tucker regarding jurisdiction to deal with allegations of contraventions of s 50 of the FW Act.

48    On 16 July 2019, Ierodiaconou AsJ delivered judgment. See Tucker v State of Victoria [2019] VSC 420. Her Honour dismissed the claims and made the following orders:

1.    The proceeding as against the Defendants be dismissed.

2.    The Defendants be released from their undertaking recorded in my orders of 2 March 2018.

3.    The Plaintiff pay the Defendants’ costs of and incidental to the written submissions on the application for amendment, that were made after 7 May 2019 and received by the Court on 13 May 2019 and 17 May 2019, on an indemnity basis.

4.    Subject to order 3, the Plaintiff otherwise pay the Defendants’ costs of and incidental to the proceeding brought against them, including any reserved costs, such costs to be taxed on a standard basis in default of agreement.

5.    The question whether the Plaintiff should be ordered to pay the Defendants any damages pursuant to the Plaintiff’s undertaking as to damages recorded in my order of 2 March 2018 be heard and determined by a Judge of this Court (the Undertaking as to Damages trial) on a date to be fixed on an estimate of half a day.

6.    The Undertaking as to Damages trial be conducted by way of affidavit.

7.    By 4:00 pm on 16 August 2019, the Defendants file and serve their affidavits and an outline of argument in respect of the Undertaking as to Damages trial.

8.    By 4:00 pm on 6 September 2019, the Plaintiff file and serve his affidavits and an outline of argument in respect of the Undertaking as to Damages trial.

9.    By 4:00 pm on 13 September 2019, the Defendants file and serve any affidavits and outline of argument in reply in respect of the Undertaking as to Damages trial.

10.    Liberty to apply be reserved.

49    Three days later, the SRO wrote to Mr Tucker and advised him that his employment was terminated with immediate effect. That letter added:

I confirm that this discipline outcome is not based on, or related to, any finding in relation to the separate investigation undertaken by Lisa Klug, nor the proposed discipline outcome following that investigation, communicated to you on 25 October 2017. No final outcome has been reached in relation to that proposed discipline outcome.

50    Mr Tucker then sought a stay of the trial of the defendants’ claim for damages arising out of his undertaking as to damages, on the ground that he should first be permitted to pursue an unfair dismissal claim in the Fair Work Commission.

51    Associate Justice Ierodiaconou denied that application, including for these reasons:

In the unfair dismissal proceeding, the Commission will direct itself to the question of whether or not Mr Tucker’s termination of employment was harsh, unjust or unreasonable. Here, the question is whether or not the State can succeed in its application for Mr Tucker to pay damages to it following the undertaking of damages that he provided to it. In return, it undertook not to finalise proposed discipline outcomes (including termination of employment) until determination of the substantive proceeding.

Whether or not the State should have terminated Mr Tucker’s employment immediately prior to giving its undertaking is not the question here. The issue will be whether or not it would have terminated his employment.

(Emphasis in original.)

52    Her Honour ordered Mr Tucker to pay the defendants $199,681.46 in damages, being the wages paid to Mr Tucker for the duration of his undertaking as to damages – from 2 March 2018 when the undertaking was given, until termination of his employment.

53    Mr Tucker sought leave to appeal to the Court of Appeal, contending that the primary judge erred in concluding that his contract of employment did not incorporate clause 21 of the VPSEA by reference, and that the PA Act did not require compliance with the SRO’s Managing Misconduct Policy and clause 21 of the VPSEA. He also contended that the primary judge should have concluded that the defendants breached various obligations in clause 21 of the VPSEA with respect to the Klug and e-Sys investigations. In relation to the Klug investigation, Mr Tucker alleged that those contraventions arose by:

(a)    failing to provide details of the allegations to Mr Tucker, including the failure to provide a copy of the email of Paul McKee dated 9 June 2017 which gave rise to the investigation;

(b)    failing to inform Mr Tucker that in fact, SM did not lodge a complaint against him;

(c)    failing to provide the transcripts of the investigator’s interviews of the employees who provided evidence consistent with Mr Tucker’s account;

(d)    failing to provide Mr Tucker with testimonies of witnesses relied upon by the investigator which were adverse to him;

(e)    failing to give Mr Tucker an opportunity to respond to these testimonies of witnesses which were adverse to him before the conclusion of the investigation;

(f)    failing to provide Mr Tucker with an un-redacted copy of the Klug report including annexures; and

(g)    disregarding, without explanation, the witness testimonies that corroborated Mr Tucker’s account.

54    In the course of hearing the application for leave to appeal and the appeal (on 10 March 2021), the following exchange took place between Kyrou JA and Mr Tucker (who was by then self-represented):

KYROU JA: Just to clarify something that you’ve already touched upon, in the substantive proceedings before the judge, you sought interlocutory and final injunctions and you also sought declarations.

…

KYROU JA: Do you accept that the relief in the nature of injunctions [is] now not possible, because they go to stopping something which has already happened? Do you accept that? And therefore, the only live relief really is the declarations, or some of the declarations.

MR TUCKER: That’s – yes, yes, I accept that, and of course, you know, if everything goes well and I get the declarations and there’s no appeal, then I would have to go to the Federal Court somehow and get the penalty. You know, the personal pecuniary penalties for breaches of the enterprise agreement. So, yes, so as long as – yes.

KYROU JA: Okay. And that was going to be my next – sorry, I interrupted you. What was the balance of your answer?

MR TUCKER: Sorry, I was just going to, yes, complete the circle. Your Honours asked a very reasonable question of what’s the point of all this. Well, the point is declaration for very personal reasons, as I passionately expressed, but also there is money in it for me, in the sense that in theory, I believe I can get those declarations and go the Federal Court and say, ‘Yes, sir, I was in the – whatever it is, the – for breaching the enterprise agreement.’

KYROU JA: Well, that’s – that was going to be my next question; what is the utility of the declarations? And from your answer it appears that you want to obtain a declaration so that you can use a declaration in a different proceeding in a different forum, is that correct? That may not be an appropriate use of the declaration relief in this Court, you see.

MR TUCKER: Well, I – that was my understanding, from this long saga, was that the declaration could be enforced in the Federal Court. I mean, that’s why the – I don’t know, Your Honour, I hadn’t put my mind to that particular scenario in any detail.

KYROU JA: Well, I just want to ask you – I want to ask you this; leaving aside possible use of the declaration in another forum in another proceeding, what is the utility of the declaration in this proceeding in this Court?

MR TUCKER: It’s a vindication. It’s a vindication. I can go and say, ‘Look at what the SRO has alleged against me, that cuts deep to my professional reputation, to my name, to my family’s name reputation, and look, they stuffed the process up.’ And there is a lot of weight, I – I know that, you know, that’s – you know, like, well there’s no direct financial benefit from this Court, but it’s – it means a lot to me. I mean, that’s why I’m fighting this.

KYROU JA: All right. So, the declaration first – it would not say that the allegations were false, the declaration would say that that the process was flawed?

MR TUCKER: Correct.

55    The Court of Appeal made the orders in Tucker v State of Victoria [2021] VSCA 120 on 12 May 2021, relevantly as follows:

5.    The application for leave to appeal is granted.

6.    The appeal is allowed.

7.    The order of Associate Justice Ierodiaconou made on 16 July 2019 is amended by adding the following after ‘OTHER MATTERS: Not applicable’:

THE COURT DECLARES THAT:

A    The defendants have failed to conduct the investigation into harassment allegations against the plaintiff in accordance with the procedural fairness requirements of clause 21.11(a) of the Victorian Public Service Enterprise Agreement 2016 and section 20(3)(c) of the Public Administration Act 2004, read together with section 8(b).

8.    Paragraph 1 of the order of Associate Justice Ierodiaconou made on 16 July 2019 is set aside and the following order is substituted:

(1)    There be judgment for the plaintiff against the defendants in respect of the subject matter of the declaration made in this order. The proceeding by the plaintiff against the defendants is otherwise dismissed.

The claim filed in this court

56    The originating application filed on 2 July 2021 provides as follows:

Details of claim

On the grounds stated in his statement of claim (SOC), the Applicant claims:

1.    Pecuniary penalty orders in respect of each of the contraventions set out in the declaration annexed to the SOC (declaration), in such sums as the Court considers appropriate in the circumstances, pursuant to section 546 of the Fair Work Act 2009 (Cth.) (FWA).

2.    An order that any pecuniary penalty ordered by the Court be paid to the Applicant within 21 days, pursuant to section 546(3) of the FWA.

3.    Damages including:

(a)    Exemplary damages;

(b)    General damages;

(c)    Aggravated damages;

(d)    Andrews damages; and

(e)    Special damages.

4.    A declaration that the Respondents have breached their obligations under subparagraphs 2(c), 2(e), 2(f), 2(g), 2(i) and 2(l) of the Second Respondent’s Model Litigant Guidelines by reasons of their failure to:

(a)    address the Applicant’s correspondence dated 14 May 2021, 21 May 2021, 31 May 2021, 9 June 2021 and 24 June 2021;

(b)    respond to the Applicant’s claims in this matter promptly;

(c)    engage in settlement discussions despite the Applicant’s request;

(d)    acknowledge or pay their liability arising from the declaration;

(e)    apologise to the Applicant for their conduct concerning the declaration; and

(f)    minimise their costs concerning this matter.

5.    Costs.

6.    Interest pursuant to sections 51A and 52 of the Federal Court of Australia Act 1976 (Cth.) including interest on costs.

7.    Such further and other orders as the Court deems fit or thinks necessary.

57    Relevantly, the statement of claim seeks to contend as follows:

First matter complained of

3.    At all material times, the respondents (herein referred to as the “SRO”) were obliged to comply with clause 21 of the VPSEA.

Particulars

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

(b)    From on or about 18 May 2016 to 19 July 2019, the VPSEA covered and applied to Mr Tucker and the second respondent.

(c)    At all material times, the first respondent acted as the second respondent’s servant and agent for the purposes of the VPSEA.

4.    On or before 19 July 2019, the SRO contravened clause 21 of the VPSEA and consequently section 50 of the [FW Act] concerning its allegations that Mr Tucker harassed [SM] (“first matter complained of”).

Particulars

(a)    The applicant relies on the orders and declaration of the Victorian Court of Appeal dated 12 May 2021 (declaration) [see [55] above].

Second matter complained of

5.    At all material times, the SRO was obliged to comply with section 20(3)(c) of the PA Act.

6.    On or before 19 July 2019, the SRO breached its obligation under section 20(3)(c) of the PA Act, read together with section 8(b), to treat the applicant reasonably and fairly concerning its allegations that the applicant harassed [SM] (“second matter complained of”).

Particulars

(a)    The applicant refers to and repeats the particulars subjoined at subparagraph 4(a) above.

Third matter complained of

7.    At all material times, the SRO contractually promised the applicant that it would comply with the provisions of the VPSEA (contractual promise).

Particulars

(a)    The applicant relies on Tucker v State of Victoria [2021] VSCA 120; [247].

8.    On or before 19 July 2019, the SRO breached its contractual promise concerning allegations that the applicant harassed [SM] (“third matter complained of”).

Particulars

(a)    The applicant refers [to] and repeats the particulars subjoined at subparagraph 4(a) above.

Damages

9.    By reason of the matters complained of, the applicant has been brought into hatred, ridicule and contempt and has been gravely injured in his character and reputation as a lawyer and employee of the second respondent and has suffered hurt and embarrassment and has suffered and will continue to suffer loss and damage.

Particulars of aggravated damages

The applicant’s hurt and harm occasioned by reason of the matters complained of were aggravated by his knowledge of the following matters:

(a)    The conduct of the SRO and/or its servants and agents in making false allegations that the applicant harassed [SM] (false allegations).

(b)    The conduct of the SRO and/or its servants and agents in requiring the applicant to undertake training concerning its false allegations.

(c)    The conduct of the SRO and/or its servants and agents in proposing to discipline the applicant with respect to its false allegations.

(d)    The conduct of the SRO and/or its servants and agents in withholding information from the applicant to which he was entitled concerning its false allegations.

(e)    The conduct of the SRO and/or its servants and agents in failing to withdraw its false allegations.

(f)    The conduct of the SRO and/or its servants and agents in failing to apologise for its false allegations.

(g)    The conduct of the SRO and/or its servants and agents in ridiculing the applicant to ensure substantial damage to his reputation by failing to afford him procedural fairness and treat him fairly and reasonably.

(h)    The conduct of the SRO and/or its servants and agents in relying on the SRO’s privacy obligations as basis to deny the applicant procedural fairness and fair and reasonable treatment.

(i)    The conduct of the SRO and/or its servants and agents in making a calculated decision to withhold information from the applicant concerning its false allegations.

(j)    Further particulars of aggravated damages will be provided as and when they arise.

Particulars of exemplary damages

(k)    There has been no acknowledgement from the SRO that its conduct concerning the matters complained of was unlawful.

(l)    There has been no acknowledgement from the SRO that it treated the applicant unfairly and unreasonably.

(m)    There has been no acknowledgement from the SRO that it breached its contractual promise to the applicant.

(n)    By letter dated 1 June 2021, the SRO denied liability concerning the matters complained of. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(o)    The SRO is the first, and only, agency of the State of Victoria that has been found by a court of law to have breached a term of an enterprise agreement.

(p)    The SRO is the first, and only, agency of the State of Victoria that has been found by a court of law to have breached its statutory obligation to treat employees reasonably and fairly.

(q)    There has been no disciplinary action initiated against the first respondent or any of the SRO’s officers involved in the breaches concerning the matters complained of.

(r)    The VPSEA covers and applied to approximately 300,000 Victorian workers.

(s)    The Victorian Public Sector is a major Employer in the State of Victoria, making up 9 per cent of total Victorian employment.

(t)    The SRO is a Model Employer.

(u)    Further particulars of exemplary damages will be provided as and when they arise

Particulars of special damages

(v)    The applicant has suffered and continues to suffer economic loss by reason of the publication of the matters complained of.

(w)    From on or about 9 June 2017, the SRO excluded the applicant from the workplace and prevented him from performing any work with respect to his employment with the second respondent.

(x)    From on or about 9 June 2017, the SRO denied the applicant career advancement within the Victorian Public Service.

(y)    On 19 July 2019, the SRO terminated the applicant’s employment with the second respondent.

(z)    The applicant’s reputation as a lawyer and an employee of the second respondent has been irreparably harmed such that he is likely to be shunned by employers in future.

(aa)    Since on or after 19 July 2019, the applicant has been unable to secure on-going employment.

(bb)    Further particulars of special damages will be provided as and when they arise.

Model Litigant Guidelines

10.    At all material times, the SRO was obliged to comply with its obligations under the Model Litigant Guidelines (Guidelines).

11.    On or after 12 May 2021, the SRO breached its obligations under sub-paragraphs 2(c), 2(e), 2(f), 2(g), 2(i) and 2(l) of the Guidelines.

Particulars

(a)    On 14 May 2021, the applicant wrote to Paul Broderick of the SRO and requested the SRO’s agreement, within 7 days, to hold a without prejudice conference to discuss financial settlement of the matters complained of. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(b)    Mr Broderick failed to respond to the above communication.

(c)    On 21 May 2021, the applicant forwarded the letter at subparagraph 11(a) above to Ross Jackson of Maddocks Lawyers. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(d)    Maddocks lawyers failed to respond to the above communication.

(e)    On 31 May 2021, the applicant’s lawyers wrote to the SRO and requested a response to the letter referred to at subparagraph 11(a) above. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(f)    On 1 June 2021, the SRO’s lawyers, Maddocks, wrote to the applicant’s lawyers inter alia denying liability with respect to the declaration and asserting that it would be an “abuse of process” for the applicant to seek relief flowing from same. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(g)    On 9 June 2021, the applicant’s lawyers requested the SRO’s lawyers, within 7 days, to particularise their allegations contained in their letter at subparagraph 11(f) above in light of the SRO’s concession recorded in Tucker v State of Victoria [2018] VSC 389 at [19]. A copy of this correspondence is in possession of the applicant’s lawyers and may be inspected.

(h)    To date, the SRO’s lawyers have failed to respond to the above communication.

(i)    To date, the SRO has refused to engage in settlement negotiations regarding the matters complained of.

(j)    Further particulars will be provided as and when they arise.

Consideration

Summary judgment

58    In the Supreme Court proceeding, Mr Tucker alleged, and the respondents denied, that the SRO was obliged to provide an un-redacted (or less redacted) copy of the Klug report to him pursuant to clause 21.11(a) of the VPSEA, by virtue of the terms of his employment, which included s 20(3)(c) of the PA Act.

59    It is to be observed that the particulars to [4], [6] and [7] of Mr Tucker’s statement of claim set out above which, leaving aside the claim about the guidelines, constitute the whole of the matters complained of, rely on the declaration made by the Court of Appeal on 12 May 2021, that:

The defendants have failed to conduct the investigation into harassment allegations against the plaintiff in accordance with the procedural fairness requirements of clause 21.11(a) of the Victorian Public Service Enterprise Agreement 2016 and section 20(3)(c) of the Public Administration Act 2004, read together with section 8(b).

60    Leaving aside the guidelines claim, each of the other three claims is founded on, and only on, that declaration, those claims being for:

(a)    compensation and penalties in respect of s 50 of the FW Act;

(b)    damages in contract for breach of the duty to comply with clause 21.11(a) of the VPSEA; and

(c)    damages in relation to a breach of s 20(3)(c) of the PA Act.

61    It is as plain as a pikestaff that those three claims purport to be founded on an issue that has already been pleaded and resolved, in Mr Tucker’s favour, in the Supreme Court, namely, that clause 21.11(a) of the VPSEA entitled Mr Tucker to receive an un-redacted (or less redacted) copy of the Klug report, in the conduct of the disciplinary process in relation to the alleged harassment of SM.

62    It is also the case that:

(a)    in the Supreme Court proceeding, Mr Tucker sought injunctive and declaratory relief based on claims in contract and under the PA Act, but not damages;

(b)    Mr Tucker unsuccessfully attempted to persuade the Supreme Court that it had jurisdiction to hear a claim under the FW Act; and

(c)    after his unsuccessful application to transfer the Supreme Court proceeding to this court, Mr Tucker did not discontinue the Supreme Court proceeding and instigate any proceeding, including a claim under the FW Act, in this court.

63    In those circumstances, the following conclusions follow.

64    Mr Tucker’s rights and obligations in respect of his claim that the SRO was obliged to provide an un-redacted (or less redacted) copy of the Klug report to him pursuant to clause 21.11(a) of the VPSEA, by virtue of the terms of his employment, including s 20(3)(c) of the PA Act, merged into a final judgment upon the making of the declaration by the Court of Appeal that the respondents had “failed to conduct the investigation into harassment allegations against [Mr Tucker] in accordance with the procedural fairness requirements of clause 21.11(a) of the [VPSEA] and section 20(3)(c) of the [PA Act] read together with section 8(b)”.

65    As French CJ, Bell, Gageler and Keane JJ explained in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 516 [20]:

An exercise of judicial power, it has been held, involves ‘as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons’. The rendering of a final judgment in that way ‘quells’ the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they ‘merge’ in that final judgment. That merger has long been treated in Australia as equating to ‘res judicata’ in the strict sense.

(Footnotes omitted.)

See also Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 356 [48].

66    The causes of action sought to be pleaded here (other than the guidelines claim) are thus no longer available, because they merged in the judgment in the Supreme Court and are extinguished.

67    In any event, a cause of action estoppel applies in respect of each of the s 50, contract and PA Act claims. As the majority explained in Clayton v Bant [2020] HCA 44; (2020) 95 ALJR 34 at 42-43 [34]:

Founded on the twin policies of ensuring finality in litigation (thereby promoting respect for and efficient use of courts as well as avoiding inconsistent judgments) and of ensuring fairness to litigants (by sparing them the stress and expense of duplicative proceedings), the focus of the common law doctrine of estoppel is on ‘substance rather than form’. The doctrine looks not for absolute identity between the sources and incidents of rights asserted or capable of being asserted in consecutive proceedings. The doctrine looks rather for substantial correspondence between those rights. Enough for its operation is that the rights are of a substantially equivalent nature and cover substantially the same subject matter. A common law right to damages for negligent misstatement has been held to correspond to a statutory right to damages for misleading and deceptive conduct, for example, whereas a common law right to damages for personal injury has been held not to correspond to a common law right to damages for property damage arising from the same negligent conduct given that damage is a necessary element of a cause of action in negligence.

(Footnotes omitted.)

68    It follows that, as the respondents submitted, Mr Tucker cannot validly commence any proceedings in this court in relation to the failure of the SRO to provide him with an un-redacted copy of the Klug report.

69    The bringing of this proceeding is also an abuse of process. As French CJ, Bell, Gageler and Keane JJ explained in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [25]-[26]:

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.

(Footnotes omitted.)

70    This proceeding is an abuse of process not only because Mr Tucker is seeking to raise before this court issues which could have been raised before – namely the FW Act claim and claims for damages – but because he seeks to vex the respondents again with the same claims. As the respondents submitted, and I agree:

… it is an abuse of process to seek to use the outcome of the Supreme Court Proceedings, namely, the Declaration, to then pursue the s 50 Claim, the Contract Claim and the PA Act Claim.

Mr Tucker elected to commence, and then continue, the Supreme Court Proceedings, rather than commencing proceedings in this Court, in full knowledge that the Supreme Court could not order penalties or compensation under the FW Act. He did so when it was in the interests of the parties and in the public interest for all claims to be resolved simultaneously in a single proceeding. Mr Tucker himself recognised the importance of these matters when seeking to cross-vest the Supreme Court Proceedings to this Court.

Also, conducting the litigation in this way deprived the First Respondent of his right to claim penalty privilege in respect of the s.50 Claim. The conduct of the litigation in this way undermines the processes of the Court and the protections afforded by the law. It will bring the administration of justice into disrepute if this proceeding is not stayed.

Further, Mr Tucker did not seek damages for his claims in contract and under the PA Act in the Supreme Court proceedings, but now seeks damages in this Court for what are in substance identical claims.

Accordingly, Mr Tucker could have brought all his claims in a single proceeding in this Court. Knowing this, he sought to cross-vest the proceeding to this Court. Mr Tucker argued that it was in the interests of all parties and the Court that his claims be heard together in this Court. When his application to cross-vest the proceeding failed, it was incumbent on Mr Tucker, if he wanted to make claims under the FW Act, to then discontinue the Supreme Court Proceedings and commence proceedings in this Court.

Mr Tucker raises in his affidavit affirmed 26 May 2021 his ‘understanding based on advice that it was inappropriate to discontinue the Supreme Court proceeding to commence a new proceeding in the Federal Court or the Federal Circuit Court’ for reasons which included the non-transferability of the SRO’s undertaking not to finalise the disciplinary process and costs concerns.

The fact that Mr Tucker made a forensic decision, in what he considered to be his own interests, not to commence proceedings in this Court, is no answer to the abuse of process now alleged against him, let alone an answer based on the principles of res judicata or cause of action estoppel.

71    The respondent also submitted that Mr Tucker’s failure to comply with his undertaking (by paying the damages awarded) is a prima facie contempt of the Supreme Court, and it would not be in the interests of justice for this Court to enable Mr Tucker to pursue claims here. That may well be so, but I need not say anything about it, in circumstances where the other grounds for the making of the orders sought by the respondents are (so clearly) made out.

72    As for the claim under the guidelines, it is hopeless.

73    The guidelines set standards for how the state should behave as a party to legal proceedings. Breach of them does not give rise to a cause of action. Even if it did, this court would not have jurisdiction to hear it.

Costs

74    The respondents seek costs on an indemnity basis.

75    In that regard, it is (at least in part) necessary to consider s 570 of the FW Act, because the main part of the claim sought to be brought is under s 50 of that Act.

76    Section 570 relevantly provides:

570    Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

…

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

…

77    As Reeves J said in Re Australian Education Union (NT) (No 2) [2011] FCA 728 at [27] of the cognate provision in s 329 of the Fair Work (Registered Organisations) Act 2009 (Cth):

The purpose or policy behind s 329 is to free parties from the risk of having to pay the costs of an opposing party in proceedings under the Act while at the same time protecting parties who are forced to defend proceedings that have been instituted vexatiously, or without reasonable cause …

78    As these reasons make clear, this proceeding was instituted vexatiously.

79    The discretion to award indemnity costs, whether under the FW Act or under the Federal Court Rules 2011 (Cth), is enlivened. In my view, an order of the type sought by the respondents is warranted because Mr Tucker is an experienced solicitor, and he either must have known, or ought to have known, that the instigation of this groundless proceeding was pure folly.

Associate:

Dated:    30 November 2021