FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2024] FCA 199

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed 22 November 2023 for an enlargement of the limitation period in respect of the publication of the email on 9 June 2017 alleged in [3](a) of the amended statement of claim be dismissed.

2.    The costs of the interlocutory application be reserved and shall be subject to the directions set out below.

3.    By 4.00 pm on 13 March 2024, the respondents by their solicitors are to email the Court and the applicant stating whether the respondents seek costs of the interlocutory application.

4.    If the respondents elect not to seek costs of the interlocutory application, then there be no order as to costs.

5.    If the respondents elect to seek costs of the interlocutory application, then the following has effect –

(a)    by 4.00 pm on 14 March 2024, the respondents are to file and serve an outline of submissions not exceeding five pages in 1.5 line spacing and 12 point font, addressing the question of costs of the interlocutory application;

(b)    by 4.00 pm on 21 March 2024, the applicant file and serve an outline of submissions not exceeding five pages in 1.5 line spacing and 12 point font in response; and

(c)    the respondents’ application for costs be fixed for hearing on 25 March 2024 at 11.30 am.

6.    The applicant’s oral application made today under r 35.01 for leave to appeal the order dismissing his interlocutory application filed 22 November 2023 be referred to the National Operations Registrar for allocation to another judge.

OTHER MATTERS:

A.    The Court determined that, because the applicant made an oral application in this proceeding for leave to appeal the order dismissing his interlocutory application filed 22 November 2023, it would not be consistent with the overarching purpose for the Court to hear the respondents’ application for summary judgment until the applicant’s applications for leave to appeal the orders of 3 November 2023 and this day are heard and determined.

B.    The applicant submitted to the Court that the costs provisions in s 570 of the Fair Work Act 2009 (Cth) apply to this proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant has made a second application to the Court for an extension of the one-year limitation period that applies to his defamation claim under s 5(1AAA) of the Limitation of Actions Act 1958 (Vic). The applicant’s first application was dismissed on the merits following a hearing and full argument: Tucker v McKee [2023] FCA 1335 (Judgment No 1). For the reasons that follow, the second application will be dismissed on the ground that it is an abuse of process.

Background

2    The applicant claims damages in respect of an email published by the first respondent on 9 June 2017 to two persons within the Victorian State Revenue Office. Although the second respondent, the State of Victoria, is alleged to be directly liable for the publication of the email, any liability of the State would likely be only vicarious: see, Crown Proceedings Act 1958 (Vic) s 23(1)(b). Little turns on this point for present purposes, but it directs focus on the claimed liability of the first respondent, Mr McKee.

3    This proceeding has some history to it, which was referred to by the Full Court in its reasons for allowing an appeal against an order by which the proceeding was summarily dismissed for lack of jurisdiction: Tucker v McKee [2022] FCAFC 98; 292 FCR 666 at [1] to [25] (Allsop CJ, Kenny and Jagot JJ). The proceeding also forms part of a wider field of disputation between the applicant and the State of Victoria arising from the termination of the applicant’s employment as a solicitor in the State Revenue Office, which has been the subject of decisions of other courts, including Tucker v State of Victoria [2021] VSCA 120, where several aspects of the matter were referred to at [5] to [16], and more recently, Tucker v State of Victoria [2023] VSCA 126.

4    This proceeding was commenced on 24 April 2020, which was outside the one-year limitation period for defamation claims prescribed by s 5(1AAA) of the Limitation of Actions Act. The one-year limitation period is subject to the power of a court under s 23B of the Limitation of Actions Act to extend it by a period not exceeding three years from the date of publication. In their defence, the respondents pleaded that the applicant’s claim was commenced outside the limitation period.

5    The applicant sought an extension of the limitation period in his originating application. By orders made 16 June 2023, I fixed the extension application for hearing on 31 October 2023, and made orders for the filing and service of affidavit material, written submissions, and lists of authorities. The hearing proceeded on 31 October 2023, where the matter was fully argued. The applicant represented himself, and the respondents were represented by senior and junior counsel. I reserved my decision, and on 3 November 2023 I dismissed the application: Judgment No 1.

6    On 22 November 2023, and after the dismissal of the first application, the applicant filed a second application seeking an extension of the limitation period, and sought leave to rely upon additional affidavit material and submissions in support. The applicant also filed an application for leave to appeal the orders of 3 November 2023. The application for leave to appeal has been allocated to another judge of the Court and has yet to be heard. Its progress awaits the outcome of the applicant’s second application before me.

7    I stated in Judgment No 1 at [4] that the applicant is self-represented before this Court. In light of evidence adduced on this second application, that statement needs to be qualified. From time to time the applicant has engaged solicitors, SGM Legal, who have corresponded with the solicitor for the respondents in relation to issues relating to this proceeding. However, the applicant appeared for himself at the hearing of the applications. It remains relevant to note that the applicant is legally trained, as the quality of the drafting of his affidavit evidence and written and oral submissions would indicate. Further, having heard the applicant over a number of hearings and having observed him being cross-examined on this application, it is clear that he is articulate, he is able to organise material in a coherent manner, and that he is capable of undertaking legal analysis and exercising forensic judgment.

The disposition of the first application

8    There were two steps in my path of reasoning supporting the order dismissing the first application. The first step was that I was satisfied that the applicant had established that it was not reasonable for him to have commenced a proceeding within one year of publication. This first step was not put in issue by the respondents. That finding had the consequence that the limitation period had to be extended. The second step involved whether the period should be extended until 24 April 2020, when the applicant commenced the proceeding. This involved a discretionary decision. This two-step analysis is supported by appellate authority concerning the largely uniform limitation provisions governing defamation proceedings, namely Casley v Australian Broadcasting Corporation [2013] VSCA 182; 39 VR 526 at [73] (Hansen JA, Robson AJA agreeing) and Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; 96 NSWLR 478 (Barrett) at [4], [75], [82] and [92] (McColl JA, Simpson JA agreeing at [108]), and [109] (Payne JA).

9    I decided that in circumstances where there was a legislative policy that parties and their advisers act timeously in respect of the narrow limitation window, the applicant had not satisfactorily accounted for the period of delay after 8 November 2019, from when the applicant was reasonably in a position to pursue his claim. I held in Judgment No 1 at [21] that the absence of sufficient evidence about the reasons for the applicant’s delay in pursuing a defamation claim against the respondents was an unsatisfactory basis on which to extend the limitation period until 24 April 2020, citing Barrett where the same conclusion was arrived at on the facts of that case.

10    In support of the applicant’s submission that his reasons for delay were not relevant, the applicant cited the decision of the Queensland Court of Appeal in Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [65]. In Judgment No 1, I rejected the applicant’s submission, stating –

20    … This involves a misunderstanding of the authorities. The determination of the first stage, namely whether in the circumstances it was not reasonable to commence a proceeding within one year of publication is objective. The determination is objective in the sense that, in relation to the first stage, s 23B poses a test requiring evaluation of the circumstances as they appear objectively to the court, and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] (McColl JA), citing Noonan at [20] (Keane JA), and [65] (Chesterman JA). Attention is required to the claimant’s actual reasons because they are part of the circumstances pertinent to whether it was not reasonable to commence a proceeding within one year of the publication: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48] (McCallum J), followed in Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135 at [22] (McWilliam AsJ), which was itself followed in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [8] (Lee J), and in turn in Lehrmann at [11] (Lee J).

21    In a case such as this, a claimant’s explanation for delay is relevant to the discretionary question of what further period of limitation should be allowed. That is because, as I have explained, the policy of the legislation is that claimants should move quickly. On the state of the evidence, I am not able to draw any conclusions about the reasons for the applicant’s delay from 8 November 2019. I am left to speculate. In circumstances where the applicant had alluded to a defamation claim in correspondence on 21 October 2019, the situation may be no more than that the applicant left the service of the concerns notice on the first respondent and the commencement of the proceeding to a time of his choosing. Such a conclusion would be supported by the evidence of other activities involving other court process in which the applicant engaged. I do take account of the fact that a refusal of this application has consequences for the applicant. But I have to balance the applicant’s interests against those of the respondents and examine the facts and circumstances of this application. In circumstances where a favourable exercise of discretion in the applicant’s favour would deprive the respondents of a defence, I am not persuaded to exercise my discretion favourably to the applicant in the absence of cogent evidence directed to his explanation for the delay that occurred. It may be accepted that if the applicant had moved quickly after 9 November 2019 and applied for an extension of the limitation period, the Court would have been required to extend time for a period. But the applicant did not do that, and as with Barrett, the absence of sufficient evidence about the reasons for the applicant’s delay is an unsatisfactory basis on which to extend the limitation period until 24 April 2020.

Additional evidence

11    In support of the second application, the applicant tendered affidavit evidence which included four affidavits that were additional to the evidence that was before the Court on the first application. Objections were taken on behalf of the respondents to evidence that was claimed to be evidence of attempts to negotiate settlement of disputes, and evidence that was claimed to be irrelevant. I ruled on the objections, upholding some, but overruling others, taking the general approach that evidence of the fact of negotiations should be admitted, so that the Court would not be misled, but that evidence of the detail of any negotiations should be excluded: see Evidence Act 1995 (Cth) s 131(2)(g). The respondents also relied on additional evidence, including in particular an affidavit of the respondents’ solicitor Mr Price dated 15 December 2023.

12    At the hearing of the second application the applicant and his brother, who had also made an affidavit in support of the second application, were cross-examined by senior counsel for the respondents. Mr Price was cross-examined briefly by the applicant. I curtailed the applicant’s cross-examination of Mr Price, exercising my powers to control the hearing. It appeared to me that the applicant was attempting a roving enquiry in relation to the circumstances in which the email of 9 June 2017 that is the subject of his claim was published, which is outside the scope of the current application.

13    The evidence adduced by the applicant concerning the reasons for his delay from 8 November 2019 until 24 April 2020 in commencing this proceeding may be summarised as follows –

(1)    The reasons for which he did not commence the proceeding until 24 April 2020 were multi-faceted and to a certain extent overlapped. The reasons given by the applicant were that from 8 November 2019 until at least late January 2020 when the COVID-19 pandemic came into full force he did not have the capacity to file a claim because –

(a)    he was preoccupied with vacating his apartment in Melbourne in preparation for moving to France with his family in early December 2019, where he now resides;

(b)    he was preoccupied with moving household items and personal effects to France, including his clothes, snowboard, and kitchen and household items;

(c)    he was preoccupied in preparing visa documentation and other paperwork;

(d)    he was seeking employment opportunities in France or Europe upon his arrival in late 2019;

(e)    he had a child under one, and prepared a large party for her first birthday on 24 November 2019;

(f)    from late 2019 to early 2020 the applicant and his family went to the Pyrénées mountains for a ski holiday during the Christmas period, and his energies were not focussed on litigation during this time;

(g)    he had been incurring legal fees for solicitors and counsel in his unfair dismissal claim against the State of Victoria in the Fair Work Commission, and did not have the finances to engage other lawyers with respect to a defamation claim; and

(h)    his energies were directed to other proceedings that he had on foot, such as the unfair dismissal claim, an appeal in the Victorian Court of Appeal, and an application in the Victorian Civil and Administrative Tribunal.

(2)    The applicant’s evidence was that he did not commence researching or drafting his claim in this proceeding until on or after 1 April 2020, because from 29 November 2019 to 1 April 2020 he had been hoping to settle all his disputes arising from his employment by the State of Victoria, and that to commence defamation proceedings during that time might have disrupted the settlement negotiations. The applicant referred to advice from his solicitor that he should hold off “lighting fires” during a period in which he sought to explore a global settlement of other claims that he had on foot against the State of Victoria and the State Revenue Office. The applicant stated that these negotiations occurred from November 2019 to at least 1 April 2020.

(3)    In particular –

(a)    as a consequence of some unsuccessful results in proceedings on foot with the State of Victoria, he felt disheartened and between 29 November 2019 and 1 April 2020 engaged in without prejudice correspondence with the State of Victoria;

(b)    he did not commence defamation proceedings during the above period because he wanted to let things sit for a bit, to see how things went, and to reflect on his options and finances, and in particular he did not want to commence defamation proceedings during this period because he wanted to use the threat of defamation proceedings as a “stick” to entice a global settlement of all disputes;

(c)    it was only during the time of the lockdown in early 2020 that he had time to think about the claim, and to assess his options and the claim’s prospects, and he used this time to draft the claim and also appeals in the Supreme Court of Victoria;

(d)    on 1 April 2020, the applicant received a without prejudice email from the lawyers acting on behalf of the State of Victoria which caused him to form the opinion that the State was not interested in settling his other claims;

(e)    the applicant then stated at [26] of his affidavit of 21 November 2023 –

After this time, in about early April 2020, and in light of the second respondent’s conduct above, I was angered and upset by the second respondents’ [sic] behaviour and decided to engage in an ‘all out lawfare’ against the respondents and commenced drafting the claim in this proceeding as well as my appeals in the Supreme Court of Victorian [sic] in Proceedings Numbered S EAPCI 2020 0031 and S EAPCI 2020 0041. …

(f)    the applicant took several weeks to draft his claim, having regard to the need to devise a way to attract federal jurisdiction, and using the publicly available pleadings in Rush v Nationwide News Pty Ltd as a source.

(4)    As I have mentioned, the applicant’s brother, Rhys Tucker, made an affidavit and was cross-examined. Mr Rhys Tucker gave evidence of his presence on 8 November 2019 at a meeting with the applicant and his solicitor who was retained in connection with the conciliation of his Fair Work Commission claim. Mr Rhys Tucker stated that the applicant was advised by the solicitor not to bring a defamation claim against his former manager, the first respondent, and the State Revenue Office during the period of negotiations as this might “rock the boat”. Mr Rhys Tucker gave evidence of his understanding that an in-principle settlement of the Fair Work Commission proceeding was later reached, and he did not disagree that a settlement was reached on 13 November 2019 when that was put to him. However, Mr Rhys Tucker was clear that the advice about not wanting to “rock the boat” was given to his brother in the broader context of a global settlement of various proceedings. It is convenient to state here that I found Mr Rhys Tucker to be an honest and credible witness, and I accept his evidence.

(5)    At the hearing on 31 October 2023, the applicant accepted that he had made no demand on the first respondent prior to the concerns notice dated 20 April 2020, and he also accepted that to be the case at the hearing on 14 February 2024. It was common ground that no concerns notice was sent to the second respondent before the proceeding was commenced.

The applicant’s conduct of the first application

14    The applicant stated that he believed that the Court would automatically grant an extension of time within which to commence the proceeding, claiming that the cause of action had been concealed from him until 25 September 2019, and believing the extension would be granted provided the proceeding had been commenced within the three-year long-stop limitation period which expired on 9 June 2020.

15    In his affidavit of 21 November 2023, the applicant stated that in preparing his affidavit material for the first application he had regard to the decision of the Queensland Court of Appeal in Noonan v MacLennan, and the decision of Derham AsJ in Johnston v Holland [2017] VSC 448 at [74]. It is convenient to record here that the point to which the applicant referred in the reasons of Derham AsJ was held to be erroneous by John Dixon J on appeal in Johnston v Holland (No 2) [2017] VSC 597 at [53]. The applicant deposed that he did not on the first application give evidence of his subjective reasons and explanation for the delay in commencing the proceeding because he thought by reference to the authorities that subjective evidence was irrelevant, and he did not want to burden the Court with irrelevant material.

16    The direct evidence of the applicant is to be set against the background of other evidence, including the cross-examination of the applicant. It is convenient at this point to say that I found the applicant in cross-examination to give evidence in a direct, straight-forward way. He did not tailor his answers to suit his case, and I formed the impression that he was seeking to give honest answers.

17    On the first application the applicant tendered two affidavits: (1) an affidavit dated 24 April 2020 which had been filed with the originating application; and (2) an affidavit dated 17 July 2023. In broad overview, the nature of the evidence adduced by the applicant on the first application was to annexe to his affidavits a number of documents evidencing events that had occurred between early November 2019 and 20 April 2020, leaving much to speculation. There was very little, if anything, in the way of direct evidence from the applicant as to the reasons for the delay from early November 2019 in advancing his defamation claim in circumstances where he had identified a potential defamation claim in correspondence with the solicitors for the State of Victoria in October 2019 in connection with Victorian Supreme Court proceedings relating to the potential application of Hearne v Street obligations to the email in question. The applicant accepted in the course of the hearing of the second application that from that time until the service on the first respondent of the concerns notice dated 17 April 2020, there had been no communication, whether in the course of without prejudice negotiations or otherwise, which foreshadowed the defamation claim.

18    The respondents’ position on the hearing of the first application, namely that the applicant had not explained by evidence the circumstances of his delay in commencing the proceeding, was brought to the applicant’s attention on several occasions. In a letter to the applicant’s solicitors SGM Legal dated 22 July 2022, the respondents’ solicitor stated –

We note your confirmation in your 1 July 2022 letter that your client intends to rely only on evidence set out in his affidavit of 24 April 2020 to support his application for an extension of time. We have reviewed your client’s application and supporting affidavit on that basis and consider the application for an extension of time to be without merit. Accordingly, the respondents intend to oppose it.

Your client’s affidavit contains no explanation regarding the seven month delay between your client obtaining a copy of the relevant publication (25 September 2019) and commencing this proceeding (27 April 2020). Nor does that evidence address in any detail the period from 9 June 2017 to 25 September 2019. If, contrary to the position outlined in your 1 July 2022 letter, your client does wish to rely on further affidavit material, we request that that material be provided to the respondents for consideration before your client seeks to progress the application and before the respondents incur costs in opposing it.

(Emphasis in bold added.)

19    In cross-examination on this application the applicant agreed that he understood as a result of this letter that the respondents considered his application to be without merit, and that one of the reasons for this stance was that the applicant’s affidavit evidence did not explain the seven month period of delay.

20    On 19 August 2022 the respondents’ solicitor wrote to the applicant’s solicitors and stated –

We repeat the observation made in our letter dated 22 July 2022 that your client’s current evidence does not provide a basis for the Court to extend the limitation period to the date on which he commenced the proceeding. The evidence does not explain why your client did not issue the proceeding until 27 April 2020 when it was clear from the time of the hearing before Irving AsJ that the e-mail complained of was not the subject of the Harman obligation. Nor does the evidence explain why it took until September 2019 for your client to use court procedures to seek production of the e-mail.

(Emphasis added.)

21    In cross-examination the applicant accepted that he understood from the respondents’ solicitor’s letter of 19 August 2022 that one of the reasons why the respondents considered that the applicant’s evidence did not provide a basis for the Court to extend time was because the evidence did not explain the delay between the ruling of Irving AsJ in the Supreme Court of Victoria and the commencement of this proceeding.

22    On 13 September 2022, the respondents’ solicitor wrote to the applicant’s solicitors referring to the letter of 19 August 2022, stating –

Our letter identified deficiencies in your client’s evidence with respect to the extension of the limitation period issue and confirmed the respondents will oppose your client’s extension application.

23    In cross-examination the applicant accepted that he understood that by the letter of 13 September 2022, the respondents were maintaining their position that the evidence that he had filed in support of the extension application was deficient.

24    By letter to the applicant’s solicitors dated 4 April 2023, the respondents by their solicitor admitted that the first time that the respondents provided the applicant with the email that is the subject of the claim in this proceeding was on 25 September 2019, adding –

If, contrary to your client’s earlier correspondence, he wishes to file further affidavit material in support of his application to extend the limitation period, then the respondents have no objection to him doing so. The respondents will consider any additional affidavit material received and let you know their position in relation to the application.

25    This admission was then made at [10] of the respondents’ second further amended defence filed 3 May 2023.

26    The applicant then filed his second affidavit on 17 July 2023. This evidence plotted events and, as I have said, much was left to speculation. The applicant’s explanation in cross-examination, which I accept, was that he considered evidence in this form to be “objective” evidence of his reasons for delay, which reflected his understanding of the decision of the Queensland Court of Appeal in Noonan v MacLennan which he thought stood for the proposition that his subjective reasons for delay were irrelevant, and that he did not wish to burden the Court with irrelevant material. By this, I understood the applicant to accept that while his reasons for the delay were “vital” (see Paule v McKay (No 2) [2022] ACTSC 190; 18 ACTLR 135 at [22], cited in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [8]), the form of the evidence that was admissible had to point to objective facts. While this understanding of Noonan v MacLennan is not correct, I accept the applicant’s evidence that it represented his understanding. The applicant also stated that he thought that the position that the respondents had taken in correspondence in relation to the sufficiency of his evidence concerning his explanation for the delay was wrong.

27    The applicant’s outline of written submissions dated 14 August 2023 addressed the period of delay from November 2019 until the date the proceeding was commenced on 24 April 2020, stating at [4] –

…

(c)    until at least 1 April 2020, the parties attempted to make a global settlement agreement of all disputes arising from the applicant’s employment including mutual releases. The making of such an agreement would have rendered the defamation action unnecessary and provides a cogent reason why it was objectively not reasonable for the applicant to have commenced proceedings until those negotiations stalled; and

(d)    the applicant’s energies were otherwise reasonably directed to other related litigation against the respondents including drafting and filing his ultimately successful appeals in Tucker v State of Victoria [2021] VSCA 120 (Tucker), and otherwise to relocating to France during the COVID-19 pandemic. These circumstances alone justify the extension sought.

(Footnotes omitted.)

28    It should be noted that there is no evidence that the alleged tortfeasor, Mr McKee, was a party to any other proceedings brought by the applicant. In response to these submissions, the respondents’ outline of written submissions stated –

39    Second, the Applicant had the McKee Email from 25 September 2019 and the evidence discloses that it was apparent from no later than 8 November 2019 that the Applicant was not prevented by the implied undertaking from commencing these proceedings. He then chose to wait for more than 5 months before sending a Concerns Notice to Mr McKee on 17 April 2020 and he did not send a Concerns Notice to the State at all. He then commenced these proceedings on 27 April 2020, being 7 months after he received the McKee Email and only months before the 3 year limit expired. The Applicant chose to proceed in this leisurely way.

40    In the circumstances, there is no compelling reason for the Court to extend the limitation period to 27 April 2020. This is especially so given the legislative policy encouraging the prompt resolution of defamation disputes and a confined limitation period.

(Footnotes omitted.)

29    In written reply submissions on the first application, the applicant stated, amongst other things –

1    The respondents’ contention (at RS[39]) that the applicant was dilatory in commencing proceedings fails on the evidence. The respondents ignore the impediments that prevented the proceeding from being commenced earlier (the impediments) save their sole reference to the implied undertaking (at RS[39]). The impediments included litigation and settlement negotiations. The Court is required to consider all circumstances of the case and the objective circumstances must be evaluated as a whole, not piecemeal. The Court is required to consider the circumstances for the whole of the period from initial publication until commencement of proceedings. Thus, the impediments are directly relevant to the period of the extension to be granted.

(Footnotes omitted.)

30    The applicant also submitted in writing on the first application that a period of limitation allows a potential litigant time to consider the potential litigation, and that even ignoring the chronology, a seven month period in which the claim was considered, drafted, and filed was justifiable.

31    In the course of the hearing of the first application on 31 October 2023 senior counsel for the respondents impressed upon the Court the absence of evidence of the applicant’s reasons for his delay in prosecuting his defamation claim from November 2019. In oral reply, the applicant submitted that on his understanding of the authorities the relevant test for an extension of time was objective, including as to the Court’s discretion to extend. The applicant submitted that his understanding was that his actual reasons for the delay were entirely irrelevant, and that he did not wish to burden the Court with irrelevant matters. The applicant did not seek an adjournment of the hearing.

32    In relation to the interests of justice, the applicant referred in his affidavit of 10 December 2023, relied on in support of the second application, to his desire to have his reputation vindicated in relation to what he said were false allegations made by the first respondent that he had sexually harassed another employee who had made a complaint about him. During the course of the hearing I remarked that I would proceed on the basis that the applicant has a tenable claim for defamation, and that the respondents have a tenable defence of common law qualified privilege, and that these were triable issues.

The applicable principles

33    The law favours finality, and is resistant to the re-litigation of disputes. This resistance finds many forms. The doctrine of res judicata precludes the re-litigation of causes of action. Issue estoppel precludes the re-litigation of an ultimate issue of fact or law which was necessarily resolved as a step in reaching a determination made in an earlier proceeding. The principles essayed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 preclude the litigation of an issue that was so connected with the subject matter of an earlier proceeding that it was unreasonable not to bring the issue forward in the earlier proceeding. Even where these principles are not strictly applicable, seeking to litigate an issue that has already been disposed of by earlier proceedings may constitute an abuse of process, as with Reichel v Magrath (1889) 14 App Cas 665. The object of finality is reflected in rules of court which require that leave be sought before adducing evidence on appeal. The object of finality underlies the constraints on raising new issues on appeal, which ensure that the trial of a proceeding is not some “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7. The object of finality underlies the principle that ordinarily material should not without leave be sent to a court after a hearing has been completed and judgment reserved: Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127; 285 FCR 159 at [85]. And the object of finality gives rise to the constraints on the re-litigation of interlocutory applications that were referred to by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud).

34    Allied to the policy of finality are the policy considerations underlying statutory limitation periods that were referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-552. Those policy considerations include closure, which was referred to by Lord Wilberforce in the Ampthill Peerage Case [1977] AC 547 at 569. Those policy considerations manifest themselves in limitation Acts in different ways, depending on the cause of action. In defamation proceedings in Australia, the limitation periods are short.

35    The order made dismissing the applicant’s first application to extend the limitation period was not a final judgment because it did not have the legal effect of determining any cause of action on the merits. Consistently with authority, it was not argued that any res judicata or issue estoppel attached to the dismissal of the first application: see D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 599 (Hayne JA). Therefore, it was not in dispute that the order made on 3 November 2023 dismissing the first application was an interlocutory order.

36    However, the fact that the order was interlocutory in form does not mean that it did not have some attributes of finality, which are relevant to considering the respondents’ claim that the second application is an abuse of process. In this context, the reasons for judgment of McLelland J in Brimaud refer to the relevant principles. McLelland J stated at 46 in relation to an interlocutory order of a substantive nature made after a contested hearing –

The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164–5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447–8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177–8; 35 ALR 625 at 629–30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.

37    McLelland J cited the following passage from the reasons of Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492-493 to illustrate the point –

The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party’s position.

38    McLelland J also cited the following passage from the reasons of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178 –

A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust … Of course the changed circumstances must be established by evidence …

39    The interlocutory process in issue in Adam P Brown Male Fashions was an undertaking given to a court in order to resolve an application for an interlocutory injunction, and by reference to the above principle, the High Court held that there was power to release a party from such an undertaking.

40    The principles essayed by McLelland J in Brimaud have been cited and applied in this Court, including by the Full Court: Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr and Sackville JJ, 17 May 1996); Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd [2020] FCAFC 23; 144 ACSR 1 at [275] (Markovic and O’Callaghan JJ). Brimaud has also been cited and applied many times at first instance: Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 at [11]-[12] (Hely J); Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 at [26] (Jagot J); Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [32] (Besanko J); Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167 at [15] (Nicholas J); Lahood v Bank of Western Australia (No 2) [2013] FCA 150 at [14]-[15] (Perram J); Dallas Buyers Club LLC v iiNet Ltd (No 5) [2015] FCA 1437; 115 IPR 544 at [14]-[15] (Perram J); Waters v Commonwealth of Australia (Australian Taxation Office) [2017] FCA 312 at [52] (Griffiths J); Fewin Pty Ltd v Prentice (No 2) [2019] FCA 53 at [22] (Markovic J).

41    Re-litigation of applications to extend limitation periods has been considered at intermediate appellate level by the Victorian Court of Appeal in D A Christie Pty Ltd v Baker, to which I referred earlier, and by the New South Wales Court of Appeal in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139. Those decisions have been thought to represent different approaches to the circumstances in which a second application to extend a limitation period will be permitted. In D A Christie Pty Ltd v Baker, Brooking JA at 597-598 held that an applicant who did not come fully prepared with proper materials in the first instance, and who offered no explanation of his failure to put forward material that was later provided, should not be allowed to vex the respondent with a second application. These features of the case also supported the reasoning of Hayne JA at 604 –

The applicant in this matter, Baker, filed further material with a gap in the material that had been identified by the judge intended to deal with a gap in the material that had been identified in his reasons for judgment dismissing the first application. Nevertheless, I am of the view that the second application was properly classed as an abuse of process. The additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why that material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect.

42    At 605, Hayne JA applied the following principle in holding that the second application was an abuse of process –

So far as presently relevant that limitation is to be imposed by an application of principles concerned with abuse of process and in at least most cases may be resolved by concluding that a second application is an abuse unless there is proof of fraud or it is sought to adduce fresh evidence, “fresh”, that is, in the sense in which that expression is used in connection with the admission of evidence on appeals.

43    Importantly, Hayne JA added at 605-606 -

Moreover, given the breadth of possible application of the principles of abuse of process, I do not intend in what I say to attempt some definition of the circumstances properly to be regarded as constituting an abuse of process or to say that it is only upon proof of fraud or the adducing of fresh evidence that a second application of the kind now under consideration can be said not to amount to an abuse. The hazards of attempting some general definition of such broad and discretionary principles as are encompassed in the simple expression “abuse of process” are well known and need not be restated.

44    Charles JA dissented, holding at 611 –

… it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent.

45    In Nominal Defendant v Manning, the majority, comprising Heydon JA and Foster A-JA, with Mason P dissenting, favoured the approach of Charles JA over the approach of Brooking JA and Hayne JA in D A Christie Pty Ltd v Baker. Importantly though, Heydon JA stated at [72] –

Nothing in the above reasoning rejecting the Nominal Defendant’s submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant’s proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) — the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs — and others — damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily — are evils which each court in its individual discretion will rightly strain to avoid.

46    In previous decisions of this Court, it has not been necessary to resolve the ostensibly divergent views in D A Christie Pty Ltd v Baker and Nominal Defendant v Manning. For my part, I respectfully consider the difference between them may be more apparent than real, given that Hayne JA in the passage that I have set out at [43] above made plain that his Honour was not attempting some definition of the circumstances that might be regarded as an abuse of process. Goldberg J found it unnecessary to resolve the difference in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; 255 ALR 466 (P Dawson Nominees), instead holding at [49] that one or more of the following factors should be present in order for the applicants to re-litigate the interlocutory matter that was before his Honour –

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on earlier occasions;

(b)    there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter.

47    In Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 (ACCC v Adata), Reeves J at [12]-[37] gave careful consideration to the judgments in D A Christie Pty Ltd v Baker and Nominal Defendant v Manning. Like Goldberg J in P Dawson Nominees, Reeves J did not attempt to resolve the apparent conflict between the views expressed by the judges in those cases. Instead, his Honour at [44] applied the principles stated by Goldberg J in P Dawson Nominees, noting that other judges have done likewise, citing Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd (No 2) [2010] FCA 1093; 274 ALR 626 (Tropical Reef) (Finkelstein J), N A Retail Solutions Pty Ltd v St George Bank Ltd [2010] FCA 290; 267 ALR 599 (Cowdroy J), and Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100 (Cowdroy J). To those cases may be added Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd at [26] (Jagot J), Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16] (Jagot J), DB Marketing Solutions Pty Ltd v Cause (No 2) [2014] FCA 1429 at [11] (Logan J), Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 (Bernard v Minister) at [5]-[6] (Jackson J), and AEI Insurance Group Pty Ltd v Martin [2023] FCA 914 at [22] (Bromwich J).

48    Both D A Christie Pty Ltd v Baker and Nominal Defendant v Manning were decided before the statutory recognition in Victoria and New South Wales in their Civil Procedure Acts of the policies underlying modern principles of case management. They were also decided some years before the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon). In relation to Nominal Defendant v Manning, in Fletcher v Besser [2010] NSWCA 30 at [17] Sackville A-JA, with whom Allsop P and McColl JA agreed, stated –

… without casting doubt on the correctness of Manning at the time it was decided, … the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application.

49    See also Liu v The Age Company Ltd [2016] NSWCA 115; 92 NSWLR 679 at [12] (Beazley P) and [292] (Ward JA).

50    In this Court, parties must conduct proceedings in a way that is consistent with the overarching purpose, which is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth), ss 37M(1), 37N(1). These principles are an acknowledgment of the public interest in the just resolution of proceedings having regard to the proper and efficient use of court resources, and are a recognition of the strain on litigants that court proceedings may impose: see Aon at [23]-[27] (French CJ) and [97]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). The principles inform the obligations of parties in the presentation of their cases to the Court, and are relevant to the question whether a second application should be entertained, as Reeves J recognised in ACCC v Adata at [44], and as Jackson J recognised in Bernard v Minister at [6].

51    In this application, I will adopt the guidance of Goldberg J in P Dawson Nominees at [49]. In doing so, I do not understand there to be a bright line distinction between the four circumstances identified by Goldberg J at [49]. For instance, at [39] Goldberg J considered that exceptional circumstances might exist where new facts come into existence which might render the enforcement of an interlocutory order unjust, citing the majority of the High Court in Adam P Brown Male Fashions at 178. The reference by Goldberg J in [49](b) to a material change in circumstances takes its colour from his Honour’s earlier discussion at [39]. One would think that exceptional circumstances involving new facts that render the enforcement of an order unjust would also amount to concluding that “the justice of the matter requires that the applicants be allowed to revisit the matter”. Further, the guidance in P Dawson Nominees is not a code, but is to be informed by other guidance, such as that of McLelland J in Brimaud, with which it is harmonious.

Consideration

52    In determining whether there are exceptional circumstances which warrant reconsideration of the applicant’s application in this case, or whether the justice of the matter requires that the applicant be able to prosecute a second application, it is relevant to have regard to: (1) the nature of the interlocutory order dismissing the first application; (2) whether the matter concerned an issue of real substance or a question of practice and procedure that is under the Court’s continuing control; (3) whether the first application was fully argued; (4) the applicant’s explanation for failing to adduce the evidence on which he now seeks to rely; (5) the public interest in finality; (6) the efficient use of judicial resources; and (7) the overarching purpose to which I have referred.

53    A limitation defence is a substantive defence, and is not a mere matter of procedure: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [99]-[100] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The applicant’s application to extend the limitation period was indorsed on the originating process, and was a necessary step to obtaining final relief because the respondents had foreshadowed a limitation defence. The failure of the first application to extend the limitation period has significant consequences for all parties, because it gives rise to the question whether the applicant’s cause of action is maintainable. Indeed, the respondents have now made an application for summary judgment based upon their limitation defence. It was always in contemplation that the outcome of the application to extend the limitation period would have these significant consequences, and that the hearing of the application was an essential element of the adjudication of the entire matter. In the potential range of interlocutory orders, extending from procedural orders setting timetables, to interlocutory injunctions which are expressed to be subject to further order, to orders recording answers given on the trial of a separate question, the order made dismissing the applicant’s first application to extend the limitation period has much in common with an order made upon the trial of a separate question, and therefore attracts the type of considerations referred to by McLelland J in Brimaud that are applicable to orders of a substantive nature made after a fully contested hearing in contemplation that they would operate until the final disposition of the proceedings.

54    The nature of the order dismissing the first application was therefore not one relating to a question of practice or procedure under the Court’s continuing control. The order was the type of order that a Court will ordinarily be reluctant to permit to be reargued for the reasons identified by Hayne JA in D A Christie Pty Ltd v Baker at 602-603, which were referred to with approval by Heydon JA in Nominal Defendant v Manning at [72], and by Finkelstein J in the following terms in Tropical Reef at [12] –

Unless a tight rein is kept on applications to reopen an issue already disposed of … there is the prospect of conflicting decisions, the possibility of a party being vexed by successive applications and the risk that an application may be “hawked” from judge to judge until a judge is found who is willing to accede to a particular argument. On this approach, the occasions on which separate questions will be reheard will be few.

55    While the present case does not involve hawking the application to a different judge, it does involve the equally serious problem of an applicant who made forensic choices seeking to re-litigate the matter when the first decision of the Court was made in a way that the applicant perceives was a product of those forensic choices: see Liu v The Age Company Ltd at [14] (Beazley P). The applicant had his day in court, and is now seeking to repair a deficiency in the evidence that was before the Court on the first occasion. Presenting his case in the way he did was a risk the applicant took himself, by failing to address the respondents’ claims, which were made several times, that his evidence was insufficient. And it is to be borne in mind that the correspondence to which I refer was sent to solicitors who were acting for the applicant. Although I have accepted the applicant’s evidence that he misunderstood the Queensland Court of Appeal’s decision in Noonan v MacLennan, that does not change the character of what occurred, which was that a forensic decision was made by the applicant about the way in which he would present his case in the face of correspondence and submissions from the respondents’ legal representatives pointing to the need to provide a better explanation for the period of delay. There were also other ways in which the applicant in the presentation of his case appeared to have misunderstood the principles, such as his reliance on the judgment of Derham AsJ in Johnston v Holland [2017] VSC 448 at [74], and not noting its treatment on appeal by John Dixon J.

56    The making of forensic choices by parties and their legal advisers is commonplace, not exceptional. It transpires on occasion, for a variety of reasons, that a party makes a forensic choice to present a case in a way that a court does not find persuasive. The examination of such choices and their possible effects on the outcome of a case may always be undertaken with the benefit of hindsight. As with Reeves J in ACCC v Adata at [50], if I were to accept that the applicant’s decision to frame his case as he did was so exceptional that it was in the interests of justice to allow the application to extend the limitation period to be reheard, “it is self-evident that the opportunities to make successive interlocutory applications would be almost limitless”.

57    Instead, I consider that the interests of justice point in the other direction. The applicant should not have a “second bite at the cherry”: Hancock v Rinehart [2015] NSWSC 1311 at [16] (Brereton J). The parties and the Court have applied resources to the adjudication of the first application in the expectation that it would determine finally the question whether the limitation period should be extended. The applicant had every opportunity on that occasion to proffer the evidence on which he now seeks to rely. He elected not to do so. The public interest in finality and certainty of result, the efficient use of judicial resources, and the overarching purpose which informs the expectation that upon an application that is fully argued the parties will be bound by the way in which their cases were presented, lead to the conclusion that the second application is an abuse of process.

Associate:

Dated:    7 March 2024