Tucker v McKee [2024] FCA 199

FEDERAL COURT OF AUSTRALIA

Tucker v McKee [2024] FCA 199 File number(s): VID 274 of 2020

Judgment of: WHEELAHAN J

Date of judgment: 7 March 2024

Catchwords: PRACTICE AND PROCEDURE — abuse of process – where the Limitation of Actions Act 1958 (Vic) prescribes a one-year limitation period for defamation actions – where the applicant commenced an action outside the one-year limitation period – where the applicant applied for an extension of time – where the applicant's first application for an extension of time was refused on the basis that the applicant did not sufficiently explain his delay in commencing the proceeding – where the applicant made a second application for an extension of time – where the applicant sought to rely on additional evidence as to his subjective reasons for not commencing his action within the limitation period – where the applicant did not adduce this evidence on the first application – Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 and P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; 255 ALR 466 applied – the order dismissing the applicant's first application was an interlocutory order of a substantive nature made after a contested hearing – the applicant's failure to adduce evidence of reasons for the delay was a forensic choice – considerations of finality, certainty, the efficient use of judicial resources, and the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) lead to the conclusion that the second application is an abuse of process – application dismissed.

Legislation: Evidence Act 1995 (Cth) s 131(2)(g) Federal Court of Australia Act 1976 (Cth) ss 37M(1), 37N(1) Crown Proceedings Act 1958 (Vic) s 23(1)(b) Limitation of Actions Act 1958 (Vic) ss 5(1AAA), 23B