Federal Court of Australia

Finnegan v Kemner [2025] FCA 863

ORDERS

THE COURT ORDERS THAT:

1.    The time for compliance with paragraph 5 of the orders made on 2 July 2025 (by which the respondent must file and serve any further affidavits or affidavits in response) is extended to 30 July 2025.

2.    The time for compliance with paragraph 6 of the orders made on 2 July 2025 (by which the applicant must file and serve any further affidavits in response) is extended to 17 August 2025.

3.    The subpoena to Jacqueline Gilchrist filed on 16 July 2025 is varied to delete the words 'the strength of the Applicant's claim against the Respondent and the merits of the relief claimed by the Applicant, including his character'.

4.    By 4.00 pm AWST on 25 July 2025, the respondent must re-file the subpoena to Jacqueline Gilchrist amended in accordance with paragraph 3 above.

5.    The subpoena to Jacqueline Gilchrist is returnable before Registrar Trott at 2.00 pm AWST on 30 July 2025.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    On 12 September 2025, the Court will hear a number of interlocutory applications in this proceeding, brought respectively by each party. One of those will be an application by the respondent, Mr Kemner, for security for costs to be provided by the applicant, Mr Finnegan.

2    At a previous case management hearing, the respondent foreshadowed his intention to obtain leave to issue a subpoena directed to Ms Jacqueline Gilchrist. In broad terms, Ms Gilchrist was once employed by Mr Finnegan's company, E-Station Pty Ltd, and was, for a period of time, Mr Finnegan's partner. The respondent intends to seek evidence from her which he hopes will support his application for security for costs.

3    Without needing to go into detail, the Court has been apprised from the bar table of the existence of an agreement with Mr Finnegan and/or his company which might constrain Ms Gilchrist's ability to provide at least some evidence of that nature. But Mr Finnegan has acknowledged that, if a subpoena in appropriate terms is issued to her, that agreement will not prevent her from providing that evidence. Mr Finnegan also accepts that it may be appropriate, in that circumstance, for Ms Gilchrist to provide an affidavit for the purposes of the security for costs application, rather than give her evidence orally.

4    Against that background, the respondent has obtained the leave of a Registrar of this Court to issue a subpoena to Ms Gilchrist, requiring her to attend to give evidence at the security for costs application, and also to produce documents. The description of the documents in the subpoena is as follows:

All documents and records relevant to the Respondent's Application for Security for Costs against the Applicant, including any material that goes to the current financial competency of the Applicant, the strength of the Applicant's claim against the Respondent and the merits of the relief claimed by the Applicant, including his character.

5    The subpoena was due to be returnable this morning, but prior to that Mr Finnegan filed an interlocutory application to have the subpoena set aside pursuant to r 24.15(1) of the Federal Court Rules 2011 (Cth), because, he submits, the description of documents is too broad and involves fishing. Mr Finnegan also submits that the description of documents should be itemised, if possible, by reference to specific documents so that he is on notice of the nature of the documents that are to be produced and has an opportunity to object to their production or their relevance.

6    Presumably, Ms Gilchrist was made aware of the existence of this foreshadowed application to set the subpoena aside and therefore has not attended at the return of the subpoena today. On that basis, I make it clear that Ms Gilchrist is excused from the need to attend today's hearing. The parties' submissions today indicate that the subpoena will be at least varied so that the date for compliance with it will be on 30 July 2025.

7    I set out the principles on which a subpoena may be set aside in Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672 at [2]-[6]. They may be summarised as follows. A subpoena may be set aside if it is not for a legitimate forensic purpose. The party seeking to obtain documents must be able to show some connection between the documents sought by the subpoena and the issues raised in the proceedings. The documents must be reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. This requires more than mere relevance but is not at the level required for them to be admissible into evidence. If the asserted relevance of documents is dependent upon an unreal, fanciful or speculative view, then the subpoena may be set aside.

8    As to fishing, the touchstone of that concept is that a party will be issuing a subpoena for the purpose of fishing if the party is endeavouring, not to obtain evidence to support the party's case, but to discover whether the party has a case at all: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575.

9    The subpoena here has been issued for the purpose of obtaining evidence relevant to the application for security for costs. In oral submissions, counsel for the respondent also suggested that documents produced by Ms Gilchrist may be relevant to the strike-out application his client is also pursuing. However, it would be unusual for evidence to be received for the purpose an application of that kind, and I give that possibility no weight.

10    As for the evidence that may be relevant for the purposes of a security for costs application, I gratefully adopt without repeating the general principles set out by Abraham J in Etnyre v Australian Broadcasting Corporation [2021] FCA 610 at [6]-[17]. It is particularly relevant to the disposition of this application to note that, as appears from [14]-[15] of that judgment, while the prospects of success of the claim in relation to which security for costs is sought is a relevant factor for the exercise of the broad discretion as to whether to grant security, the Court will be reluctant to embark on any detailed forensic inquiry into those merits, that being self-evidently a matter which (other than in exceptional circumstances) should be reserved for trial. Thus, any assessment that the Court does make of the merits of the claim will necessarily be a preliminary one. Mr Finnegan submits that the merits of the claim are not relevant at all where the security for costs, as here, is being sought against an individual rather than a corporation. But he was unable to cite any authority for that proposition, and so I will not proceed on that basis.

11    Nevertheless, as just stated, it would not be appropriate for the Court on the application for security for costs to engage in any sort of detailed forensic examination of the merits of Mr Finnegan's claim. It appears to me that if Mr Kemner wishes the Court to assess the merits of that claim for the purpose of the security for costs application, he should be prepared to move for that assessment on the basis of such material as is already before the Court, including most relevantly the pleadings themselves.

12    For that reason, I accept Mr Finnegan's submission that, for the particular purpose for which this subpoena has been issued, the requirement for Ms Gilchrist to produce documents that go to the strength of Mr Finnegan's claim and the merits of the relief claimed by him, including his character, is too broad. I do not consider that it would serve a legitimate forensic purpose in the context of the security for costs application for documents that go to those matters to be produced.

13    For that reason, I would delete the following words from the description of documents in the schedule of documents in the subpoena:

the strength of the Applicant's claim against the Respondent and the merits of the relief claimed by the Applicant, including his character.

14    Mr Finnegan has rightly accepted that material which goes to what is termed in the subpoena as 'his current financial competency' is potentially relevant. That part of the description of documents may remain.

15    Mr Finnegan's other two complaints about the subpoena concerned the lack of itemisation of the documents and that Mr Kemner was engaged in fishing.

16    As has already been said, a party issues a subpoena for the purpose of fishing if the party does not know whether it has a case, and is issuing the subpoena for the purposes of ascertaining whether it does. That is quite a different thing to a party not knowing whether the subpoena recipient has documents that are relevant to a case that has already been put, or not knowing particulars of the documents sufficient to permit the party to give a description of the documents.

17    Here, it is clear that Mr Kemner is advancing a case, as it were, against Mr Finnegan for security for costs, including on the basis of allegations that Mr Finnegan's financial position will not permit him to meet any costs order that is made against him. Without going into the merits of that allegation, there is already material before the Court which provides a basis permitting it to be advanced. It follows that to the extent that this subpoena, as will be amended, requires material going to the current financial competency of Mr Finnegan, that is not fishing.

18    As to the question of itemisation, it is generally preferable, in particular for the assistance of the subpoena recipient herself, for the documents required to be produced to be itemised or, at least, described more specifically than the present description. But on the basis of things said from the bar table, I was not satisfied that it was possible for Mr Kemner to do that in the context of this subpoena. I did raise a concern from the point of view of the subpoena recipient about the breadth and possible indeterminacy of describing documents required to be produced as those 'relevant to the Respondent's Application for Security for Costs against the Applicant'. But as counsel for the respondent pointed out, Ms Gilchrist herself has not indicated any difficulty with that description.

19    One of Mr Finnegan's concerns about a lack of itemisation was that it would inhibit him from understanding which documents are likely to be produced, whether they have been produced in accordance with the subpoena, and whether they are relevant. However, those are all matters that Mr Finnegan may raise, if he chooses to do so, after he has inspected the documents produced, which he will have a right to do.

20    For those reasons, I will not require any further amendment to the subpoena for the purpose of itemisation. The subpoena will be varied to delete the words that I have already indicated are to be deleted. And with the agreement of the parties and, apparently, Ms Gilchrist, the subpoena will also be varied so that it will be returnable on Wednesday, 30 July 2025. If it becomes necessary to vary that return time, the Registrar will be empowered to do so.

21    Also by agreement between the parties, there will be some minor variations to the current programming orders in connection with the security for costs application, to accommodate the varied return date of the subpoena.

22    Since the parties have each had mixed success on this application to set the subpoena aside, I will make no order as to the costs of today.

Associate:

Dated:    29 July 2025