Tucker v Broderick [2022] FCAFC 174

Federal Court of Australia Tucker v Broderick [2022] FCAFC 174 Appeal from: Tucker v Broderick [2021] FCA 1492

File number: VID 775 of 2021

Judgment of: BROMBERG, BROMWICH AND MCEVOY JJ

Date of judgment: 28 October 2022

Catchwords: INDUSTRIAL RELATIONS – appeal from orders summarily dismissing proceeding pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) – primary judge determined that claims in the Federal Court were plainly founded on an issue already pleaded and resolved in the Supreme Court of Victoria and that the causes of action pleaded had merged in the judgment of the Supreme Court – cause of action estoppel – proceeding determined to be an abuse of process which sought to vex the respondents with the same claim – primary judge found appellant's claim based on the Victorian Model Litigant Guidelines was hopeless as no relevant cause of action – appellant makes no challenge to key aspect of primary judge's finding that the proceeding constitutes an abuse of process – primary judge adequately explained findings – appeal had no prospect of success – appeal dismissed.

Legislation: Fair Work Act 2009 (Cth) ss 50, 546, 570(2)(a), 570(2)(b) Federal Court of Australia Act 1976 (Cth) ss 51A, 52 Federal Court Rules 2011 (Cth) r 26.01 Judiciary Act 1903 (Cth) s 39(2) Civil Procedure Act 2010 (Vic) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5 Public Administration Act 2004 (Vic) ss 8(b), 20(3), 20(3)(c)

Cases cited: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [206] HCA 27 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 Comaz (Aust) Pty Ltd v Commissioner of State Revenue (2015) 101 ATR 339; [2015] VSC 294 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v R (1936) 55 CLR 499; [1936] HCA 40 North West Melbourne Recycling Pty Ltd v Commissioner of State Revenue (No 2) [2017] VSC 726 Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) (2011) 85 ACSR 531; [2011] FCAFC 117 Perkins v County Court of Victoria (2000) 2 VR 246; [2000] VSCA 171 R v Carroll (2002) 213 CLR 635; [2002] HCA 55 Razzy Australia Pty Ltd v Commissioner of State Revenue [2021] VSC 409 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Tucker v Broderick [2021] FCA 1492 Tucker v State of Victoria [2018] VSC 389 Tucker v State of Victoria [2019] VSC 420 Tucker v State of Victoria [2021] VSCA 120 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48