Federal Court of Australia

Finnegan v Kemner (No 2) [2025] FCA 1164

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 1, 2, 3, 4, 5, 6, 7(a), 7(b), 7(c), 7(d) and 7(e), 7(h), 7(i) of the applicant's amended interlocutory application filed on 15 July 2025 (applicant's Interlocutory Application) are dismissed.

2.    The respondent's interlocutory application filed on 12 June 2025 (respondent's Interlocutory Application) is dismissed.

3.    By 4.00 pm AWST on 6 October 2025, the applicant must serve a proposed minute of substituted statement of claim on the respondent.

4.    The parties must confer about the proposed minute of substituted statement of claim.

5.    By 4.00 pm AWST on 20 October 2025, the applicant must file and serve any agreed substituted statement of claim.

6.    If the parties are unable to agree upon the terms of the substituted statement of claim, then:

(a)    By 4.00 pm AWST on 27 October 2025, the respondent must file and serve a list of objections to the substituted statement of claim (including whether and on what grounds the respondent submits that it should not file a defence before the objections are resolved);

(b)    By 4.00 pm AWST on 3 November 2025, the applicant must file and serve a response to the respondent's list of objections; and

(c)    The parties must email the Chambers of Justice Jackson to list the matter for an interlocutory hearing to determine the objections or otherwise determine the matter on the papers.

7.    By 4.00 pm AWST on 10 November 2025, the respondent must file and serve a substituted defence, noting that the substituted defence must state if the element of identification is admitted and contain a certificate as provided for in r 16.01(c) of the Federal Court Rules 2011 (Cth).

8.    By 4.00 pm AWST on 24 November 2025, the applicant must file and serve any substituted reply.

9.    Paragraph 7 of the applicant's Interlocutory Application is adjourned to the case management hearing listed at 9.30 am AWST on 3 December 2025.

10.    Liberty to apply.

11.    No order as to the costs thrown away by the filing of the substituted statement of claim.

12.    No order as to the costs of the applicant's Interlocutory Application and the respondent's Interlocutory Application, with the exception that costs in respect of paragraph 7 of the applicant's Interlocutory Application are reserved.

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 I heard interlocutory applications filed by each party seeking a variety of orders. After discussions that took place during an adjournment, the parties were able to resolve a number of the issues by agreement. That agreement is reflected in several of the above orders, which were made on 15 September 2025.

2    Three issues were not resolved by agreement and were the subject of oral reasons which (in edited form) were as follows.

Non conferral

3    The first issue was the subject of the following oral reasons, which were delivered on 12 September 2025.

4    The issue concerns paragraphs 3 to 7 of the orders sought in the amended interlocutory application of the applicant, Patrick Finnegan, filed on 15 July 2025. In moving for those orders, Mr Finnegan seeks to recover from the respondent, Matthew Kemner, certain fees that Mr Finnegan has had to pay in connection with the proceeding. Mr Kemner submits that I should dismiss those paragraphs without going into the merits, because of an alleged failure to comply with s 37N of the Federal Court of Australia Act 1976 (Cth).

5    That submission is advanced on the basis that Mr Finnegan should have conferred before making his application in relation to those matters. The argument is that by failing to confer, Mr Finnegan has detracted from the efficient conduct of the proceeding, and increased its costs, in a manner inconsistent with the objectives in s 37M(1)(b) and s 37M(2)(b)-(d) of the Federal Court Act, and has therefore failed to conduct the proceeding in a way that is consistent with the overarching purpose in s 37M, and thereby failed to comply with s 37N. Mr Kemner relies in that regard on what is said at paragraph 12.2 of the Court's Practice Note: National Court Framework and Case Management (CPN-1), which indicates that the Court expects that before an interlocutory dispute the parties and legal representatives have conferred in good faith for the purpose of avoiding the need for intervention by the Court and to identify and narrow the issues in dispute.

6    But while that is undoubtedly an important expectation of the Court, with which parties should comply, in this case Mr Finnegan raised his desire to recover those costs and fees at a case management hearing which occurred on 2 April 2025, at which it was decided that it would be necessary to adjourn the hearing of the trial, which was then listed for 14 to 17 and 22 April 2025. I therefore consider that the issues had been raised, albeit not by way of conferral, and that there was capacity for Mr Kemner to understand Mr Finnegan's position in relation to those issues.

7    Further, Mr Kemner has not cited any authority for the strong proposition that a failure to comply with s 37N of the Federal Court Act should result in the dismissal of any aspect of an interlocutory application without going into the merits. I do not rule out that in the right circumstances, it will be open to the Court to do this as a matter of its discretion and its control of its proceedings. But in this case, I do not consider that that step is warranted. Therefore I have determined not to dismiss those paragraphs of Mr Finnegan's interlocutory application, on the basis of any asserted failure to comply with s 37N.

Mediation position paper

8    The remaining two issues were the subject of the following (edited) oral reasons given on 15 September 2025.

9    The first of those issues concerns a document which the respondent seeks to put into evidence. The document was produced in the context of a mediation before a Registrar of the Court which took place on Monday, 7 April 2025, and which (obviously) was not successful.

10    The document is titled 'POSITION PAPER - COURT ORDERED MEDIAITION - MONDAY 7 APRIL 2025'. Mr Kemner wishes to rely on it, among other things, in relation to the question of security for costs. The question is whether or not that document, and a description of it found in paragraphs 9 to 11 of Mr Kemner's affidavit sworn 11 June 2025, can go into evidence.

11    The facts are reasonably simple. On 2 April 2025, the Court ordered that the mediation take place before a Registrar pursuant to s 53A of the Federal Court Act. On 3 April 2025 the Registrar's legal case manager sent a standard intake email to the parties, explaining the mediation process, confirming the listing time of the mediation, and requesting a 'short (1-2 page) Confidential Report' from each party.

12    Later on the same day, Mr Finnegan emailed the 'Position Paper' to Mr Kemner's lawyer and also to the Registrar's legal case manager. Mr Finnegan's emails said no more than: 'Find attached the Applicant's Position Paper for Monday's mediation.'

13    In objecting to the position paper and Mr Kemner's description going into evidence, Mr Finnegan relies, on s 131(1)(b) of the Evidence Act 1995 (Cth), among other things. That section provides that evidence is not to be adduced of 'a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute'.

14    On the face of things, the position paper meets that description. The position paper was sent, after the mediation had been ordered and after the Registrar's intake email was sent to the parties, but shortly before the mediation conference itself. That and the very title of the document mean that it can readily be inferred that it was prepared in connection with the mediation, which plainly involved an attempt to negotiate a settlement of the dispute.

15    Nevertheless, Mr Kemner advances submissions as to why that prima facie conclusion should not be reached. He does not rely on the exception to s 131(1) found in s 131(2)(h) of the Evidence Act, which applies when the document is relevant to determining liability for costs. Nor do I suggest that he could rely upon that, given that he seeks to rely on the document in relation to security for costs, which is a different issue.

16    Instead, Mr Kemner submits that the position paper was not the short document requested by the Registrar, given that it was much longer than the one to two pages requested, and it was sent to Mr Kemner's lawyer and therefore was not confidential in the sense that is usually meant by requests of the kind that were found in the intake email. Also, the document is not marked 'without prejudice'. Further, Mr Kemner submits that nothing in the position paper was an attempt to compromise the matter. It contained no offer of compromise and, according to Mr Kemner's submissions, merely purported to inform Mr Kemner as to why Mr Finnegan thinks his defence is weak, and informed him of the costs which Mr Kemner will incur. On that basis, Mr Kemner submits that it is not an attempt or part of an attempt to negotiate a settlement.

17    Mr Kemner relies in particular on CJ Redmond Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173, where Campbell J held that the requirement in s 131(1) for a 'connection' between the document and an attempt to negotiate a settlement needed to be consistent with the rationale for without prejudice privilege under the common law. In the case before his Honour, the document that was the subject of an objection was not protected from disclosure by s 131(1)(b) because, while it was headed 'Without Prejudice Save As To Costs', it made no admissions that could have been protected by the without prejudice privilege at common law.

18    However, in my view, CJ Redmond Constructions is distinguishable. In this case, there was a clear connection between the mediation, which was, as I have said, obviously an attempt to settle the dispute, and the position paper, which was explicitly prepared for the purposes of the mediation. That connection was confirmed by the timing of the sending of the document, which I have already described. That being so, it does not matter that the document does not say on its face that it was sent without prejudice. It was clearly sent within the context of the mediation and can be assumed to have been provided on a without prejudice basis, and on the basis that it was to be kept confidential within the confines of the mediation, in other words, only to be seen by the parties to the mediation, their advisors and the Registrar.

19    The policy of the Federal Court Act, and of the common law, is that communications made for the purposes of a mediation are generally to be protected from disclosure, and the Court will be slow to allow such a document into evidence. That is so in relation to a document prepared for the purpose of a mediation, even if it contains no express offers or admissions. The document apparently informs Mr Kemner of the costs which are likely to be incurred by him in the proceeding, and, in my view, that is still capable of being viewed as having been given in connection with an attempt to settle the dispute. That is firstly, because of the factual context for the sending of the document which I have outlined, but also because its content concerned an attempt to settle the dispute. It can be part of an attempt to settle a dispute to put to the other side a prejudice they will suffer if the dispute is not settled, such as a liability for costs. On the basis of its contents as submitted by Mr Kemner, there is a palpable connection between the document and an attempt to settle the dispute. Even if it is correct to say that s 131(1) of the Evidence Act does not go further than the common law, the policy of the common law will still protect the position paper from disclosure in these circumstances.

20    It is of no moment that the document was not the confidential document that was requested by the Registrar in the intake email. For the reasons I have given, it was nevertheless still connected with the mediation and therefore connected with an attempt to settle the dispute.

21    I therefore rule that paragraphs 9 to 11 of Mr Kemner's affidavit sworn on 11 June 2025 and annexure MDK-A2 to that affidavit will not be admitted into evidence. In view of the conclusion I have reached on the basis of s 131 of the Evidence Act, it is not necessary to address the other grounds that Mr Finnegan advanced as to why the document should not go into evidence.

Security for costs

22    The remaining disputed issue concerns security for costs. Mr Kemner seeks an order that Mr Finnegan pay $120,000 into court as security for Mr Kemner's costs if Mr Finnegan is subject to any adverse costs orders at trial. Mr Finnegan opposes the application.

Grounds of the application for security

23    The grounds of the application are:

(a)    it is said that Mr Finnegan has no significant assets in Australia, and it is pointed out that he has failed to provide any evidence establishing that he does have assets in Australia, despite discovery having been ordered in this matter quite some time ago and despite the application for security for costs being made;

(b)    it is said that there are reasons to doubt that Mr Finnegan is or will remain a resident of Australia;

(c)    it is submitted that Mr Finnegan has shown a reluctance to comply with orders of the Court; and

(d)    it is submitted that Mr Finnegan has shown a tendency to pursue this litigation in a manner which is likely to increase Mr Kemner's costs.

24    There was also a submission that Mr Finnegan's claim in the proceeding is weak. But that submission focused on a claim for special damages, which Mr Finnegan has indicated he will abandon. It appears to me that that submission does not touch what I will call the balance of Mr Finnegan's claim. I say nothing about whether the claim is strong or weak. But the submissions made in relation to the strength of the claim for the purpose of the security for costs application appear to me to fall away. That is because of the abandonment of the aspect of the claim that Mr Kemner criticises, being the claim for special damages arising out of what was said to be economic loss suffered by the company E-Station Pty Ltd.

25    Also in support of the application to security for costs was a draft bill of costs based on a five-day trial, estimating that costs of approximately $250,000 will be claimed against Mr Finnegan if he is unsuccessful after that trial.

Principles

26    The principles on which the Court is to act in relation to applications of this kind are not in dispute. I respectfully adopt the summary given by Abraham J in Etnyre v Australian Broadcasting Corporation [2021] FCA 610 at [6]-[17]. The parties both relied on her Honour's decision in Lehrmann v Network Ten Pty Limited [2024] FCA 1226, but several of her Honour's observations in Lehrmann were based on the fact that it was an appeal case, which presented somewhat different considerations. In Etnyre her Honour said:

[6]    Section 56 of the Federal Court Act relevantly provides:

(1)    The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

[7]    Rule 19.01 of the Rules relevantly provides:

(1)    A respondent may apply to the Court for an order:

(a)    that an applicant give security for costs and for the manner, time and terms for the giving of the security; and

(b)    that the applicant's proceeding be stayed until security is given; and

(c)    that if the applicant fails to comply with the order to provide security within the time specified in the order, the proceeding be stayed or dismissed.

[8]    The making of an order for security is discretionary, the power to order security has been described as a 'broad power': James v Australian and New Zealand Banking Group Ltd (No. 1) (1985) 9 FCR 442 at 444; Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1 (Madgwick v Kelly) at [6]; Stapleton v Fairfax Media Publications Pty Ltd [2019] FCA 1418 (Stapleton) at [6]-[7]. The discretion 'is to be exercised in light of the facts and circumstances of the particular case': Botsman v Bolitho & Ors [2018] VSCA 111 at [36]; Stapleton at [6]. The issue is essentially one of risk management: East Grace Corporation v Xing (No 1) [2005] FCA 219 at [6].

[9]    Against that background, a consideration of the authorities reflect the types of factors which have been considered as relevant on such applications, which have included the following.

[10]    First, whether the application for security for costs has been brought promptly: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197.

[11]    Second, whether the applicant is a natural person or a corporation. It has been recognised that, although courts are disinclined to order security against natural persons, as Lindgren J observed in Knight v Beyond Properties Pty Ltd [2005] FCA 764 at [32]-[33], being a natural person is no bar to an order for security for costs particularly when coupled with other factors. Lindgren J in [33] referred to circumstances (which are those addressed in the paragraphs below), which might lead to an order for a natural person to provide security, particularly when in combination with impecuniosity.

[12]    Third, whether the applicant is impecunious such that the applicant would not be able to satisfy a costs order against it: Bell Wholesale Co. Ltd v Gates Export Corporation (1984) 2 FCR 1 at 4; Australian Equity Investors v Colliers International (NSW) Pty Ltd [2012] FCAFC 57 at [25]-[30].

[13]    Fourth, whether the applicant is a foreign resident. In PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 102 ALR 321 (PS Chellaram), McHugh J stated at 323:

To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.

And see Stapleton at [7]. In Logue v Hansen Technologies Ltd [2003] FCA 81; (2003) 125 FCR 590 (Logue v Hansen Technologies Ltd) at [18], Weinberg J explained that the clear rationale of this principle is:

… to create a fund within this country against which a successful respondent may enforce a judgment for costs thereby enabling the avoiding of the risks, uncertainties and delays of attempting to enforce such a judgment in the applicant's claimed country of residence.

[14]    Fifth, the prospects of success of that person's claim, or the merits of that claim. In Staff Development & Training Centre Pty Ltd v Commonwealth of Australia [2005] FCA 1643, Spender J said at [12] to [13]:

[12] Pincus J observed in Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634 that at the stage of hearing an application for security for costs there will usually be no information on which the Court can possibly assess the merits of the applicant's claim. Accordingly, at the hearing of such an application, detailed investigation by the parties into the likelihood or otherwise of the success of the action will not be the right course to adopt. However, Hill J in Jodast Pty Ltd & Ors v A & J Blattner Pty Ltd & Ors (1991) 104 ALR 248 suggested that the situation might be otherwise where the case for the applicant appeared on the face of the pleadings to be merely frivolous or vexatious. French J observed in Bryan E. Fencott & Associates Pty Ltd v Eretta Pty Ltd & Ors [1987] FCA 102; (1987) 16 FCR 497 at 514:

'It is consistent with authority and the existence of a broadly based discretion that the bona fides and merits of the claim be taken into account where there is material from which some assessment can be made.'

[13] It is clear that an application for security for costs should be made promptly after proceedings have been initiated. Otherwise, a party exposed at a later stage to an order for security for costs will have been lulled into expending money on prosecuting its claim. Equally a consideration relevant in the circumstances of the present case, an application for security for costs is not an application for summary judgment or a variant of it. In particular, it is not the occasion for detailed argument as to the sufficiency of evidence, what conclusions might result from a detailed consideration of the evidence, or even for a determination of whether, on analysis of the proposed evidence, the applicant's case is unlikely to be successful.

[15]    In Mecrus Pty Ltd v Industrial Energy Pty Ltd [2015] FCA 103, recently cited in Frigger v Kitay [2019] FCA 624 at [27], Murphy J observed at [43]:

Counsel for the respondents submits that the Court should not make any assessment of the strength of the claims at this preliminary stage. I do not accept this contention. Whether an attempt should be made may well depend upon the complexity of the case, but it is common for the court to undertake a preliminary assessment of the strength of the applicant's claim in considering a security for costs application. As Finkelstein J said in Bray v F Hoffman-La Roche Ltd and Others [2003] FCAFC 153; (2003) 130 FCR 317 at [252], 'the court should not shy away from undertaking a preliminary evaluation of the merits. That task is not as difficult as it might seem.'

[16]    Sixth, interrelated with impecuniosity is whether an order would stifle the litigation. It is generally observed, that poverty is no bar to a litigant: Cowell v Taylor (1885) 31 Ch D 34 at 38. This is particularly so where it is a primary proceeding and not an appeal: see for example: Thomas v STX Pan Ocean Co Ltd [2011] FCA 254 at [7]. It is for the party resisting the order to show that impecuniosity would stultify the proceedings.

[17]    The relevant factors cannot be exhaustively stated, with the only limitation being that the discretion is exercised judicially: Madgwick v Kelly at [6]. Ultimately, whether an order is made will depend on the facts of the particular case.

The evidence

27    In relation to Mr Finnegan's assets, Mr Kemner has put on affidavit evidence showing that Mr Finnegan has no real property registered in his name in Western Australia or Queensland, being the two States he either resides in or often goes to.

28    Mr Kemner also relies on the evidence of a former employee of E-Station, Jacqueline Gilchrist. Ms Gilchrist was Mr Finnegan's partner, but most relevantly was employed by E-Station in the years 2021 to 2022. According to Ms Gilchrist's evidence:

(a)    E-Station prepared business activity statements during that period generally showing that it was trading at a loss;

(b)    during the period E-Station lost a contract with the Royal Automobile Club of WA - as far as I am aware, there are no details of that contract, but I will assume that it would have given rise to a potentially substantial income stream;

(c)    the company had no new significant contracts and no recurring sales income;

(d)    the company had disputes with trade creditors about payment of their invoices;

(e)    the company regularly paid employees' superannuation entitlements late and often had disputes with employees about pay (although I note that one of those employees, Maharshi Maharjan, has since given evidence for Mr Finnegan in relation to this matter, so that may dilute the weight to be given to this particular evidence);

(f)    although E-Station is in the electric vehicle industry, Mr Finnegan did not earn income from the company sufficient to permit him to afford an electric vehicle himself;

(g)    Mr Finnegan told Ms Gilchrist that he was concerned that if he had to pay the costs of the defamation action, he may go bankrupt;

(h)    Mr Finnegan is said to have instructed Ms Gilchrist to prepare payslips for salary paid to him that was not actually paid; and

(i)    Mr Finnegan may have owned a company in the United Kingdom, which he sold, presumably during that 2021 to 2022 period.

29    In addition to that, Mr Kemner relies on ASIC records showing that some companies which seem to have been owned by Mr Finnegan were deregistered for non-payment of fees. Mr Kemner also points out that Mr Finnegan had differing details for his place of birth in some of those ASIC records.

30    In response to the above, Mr Finnegan has put on evidence in the form of a credit report from Equifax, showing that his credit rating is 'Excellent'. He has also put on evidence to the effect that he has paid legal bills of about $62,000 in total which he has received in this matter in the past.

31    Mr Finnegan says that he has two businesses, one of which is the business E-Station. He says that he intends to continue to run both businesses.

32    As to the companies owned by him that have been deregistered, Mr Finnegan provides evidence that they were incorporated for purposes that did not eventuate or did not continue, but he says that those companies expired without leaving any unpaid debts.

33    Turning to the evidence in relation to Mr Finnegan's residency, Mr Kemner relies on United Kingdom company records variously between 1998 and 2019 showing Mr Finnegan's residential address as places in the United Kingdom or Ireland. Mr Kemner also relies on Irish company records showing that a company which Mr Finnegan owned in Ireland was voluntarily wound up in 2024, and he also points out that Mr Finnegan has not provided his current residential address in various documents filed in the Court (because documents that Mr Finnegan has provided which may have included that address have been redacted).

34    In response to this, Mr Finnegan provides evidence stating that he is ordinarily resident in Australia. He says that he intends to live here for the rest of his life. There is evidence showing that he is an Australian citizen with an Australian passport, having become a citizen in 2003. Mr Finnegan gives evidence that he was married in Australia in 2006, and the marriage certificate shows a residential address in Scarborough, although, of course, that was some 19 years ago. Mr Finnegan was divorced in 2012. He has an adult son who was born in Subiaco and who lives in Scarborough. Mr Finnegan says he has set up and conducted businesses in Australia since 2010.

35    Mr Finnegan served in the Australian Army Reserve, seemingly until at least 2017. He has a Bachelor of Laws from Edith Cowan University and in 2021 was admitted as a lawyer of the Supreme Court of Western Australia.

36    As late as July 2025, Mr Finnegan was a tenant of residential property. The evidence for this is a tenancy statement, and although the address is redacted, I infer from it that the address is in metropolitan Perth. Mr Finnegan has also been a member of the Scarborough Surf Club since 2001 and is a member of the Liberal Party of Australia.

Consideration

37    The starting point is that while it is open to the Court to make an order for security for costs against an individual, the Court's discretion in relation to these matters being unconfined, the Court is generally disinclined to do so. While there can be circumstances which lead the Court to order security against an individual, I do not consider that the circumstances here justify making an order of that kind.

38    The evidence as to Mr Finnegan's financial position on which Mr Kemner relies is at a high level of generality. Even if it is to be accepted, it establishes no more than Mr Finnegan likely owns no real estate; that three years ago, a company that he owned and operated was unprofitable and had no significant goodwill and did not pay some creditors, including employees, in a timely way; and that Mr Finnegan has also had other companies that have been deregistered. This raises doubt about Mr Finnegan's ability to pay a large cost bill in this matter, but I would not describe the doubt as strong. It only goes to the financial health of one of his two businesses, and the information in question is now three years old. Other companies that have been deregistered did not appear to leave any debts.

39    The fact that Mr Finnegan seems to own no real property means that he cannot negative a claim that he will be unable to meet a costs debt by pointing to assets of that kind. But the inability to negative that allegation does not prove the allegation.

40    In weighing all of this, I do take into account that it was in Mr Finnegan's power to produce any evidence that he could pay a costs debt, and he has not. Nevertheless, even putting that against Mr Finnegan in terms of the weight to be given to the evidence as a whole, I do not consider that the evidence presents a clear picture of an inability to pay. Further, it is somewhat negatived by the credit report which was admitted into evidence without objection. The fact that Mr Finnegan has apparently expressed concern that losing the case will bankrupt him is merely an acknowledgement of risk that faces any person who is engaged in litigation in Australia, unless the person has substantial means.

41    As to the likelihood that Mr Finnegan will leave Australia, the evidence that he maintains connections overseas is scant, and in contrast to the financial evidence he has presented, he has provided comprehensive and convincing evidence that he is an Australian resident and has no wish to live anywhere else. The evidence I have summarised above speaks for itself.

42    The different birthplaces referred to in the ASIC records, as pointed out on behalf of Mr Kemner, merely appear to be different ways of describing the same place. For example, one says that Mr Finnegan was born in Ireland and one says it was Galway, Ireland.

43    Turning to other grounds for the application for security of the costs, save for one thing, there is no real evidence that Mr Finnegan has not complied with court orders.

44    The one thing is that it does appear that Mr Finnegan has refused to discover financial information. That is out of a concern that Mr Kemner may use it for some purpose other than litigation. That is, at least, the concern that Mr Finnegan has expressed in submissions. That concern is misguided. It provides no good excuse for failing to comply with discovery orders. As Mr Finnegan knows, Mr Kemner is subject to an implied undertaking to the Court not to use documents discovered in the litigation for any purpose other than the litigation. Therefore I do take into account Mr Finnegan's non-compliance with discovery orders in this regard, which is to be deprecated. But, in my view, that non-compliance does not establish any wider pattern of disregard of court orders.

45    Similarly misguided is Mr Finnegan's apparent reluctance to disclose his residential address in the litigation, which, as I have said, appears to have been redacted in documents. But I do not infer from this that it is anything other than a local address, given the strength of the evidence Mr Finnegan has given as to his Australian citizenship and residency.

46    So, in summary, while I accept that Mr Finnegan does appear not to have complied with certain court orders, I do not place great weight on that in terms of the application for security for costs.

47    I do accept, given my own knowledge of the history of the litigation, that Mr Finnegan has shown a tendency to pursue the litigation in a way that is likely to increase costs, and I take that into account, given that, as is said in Etnyre at [8], the issue is essentially one of risk management.

48    But taking all of the above matters into account - in particular the strength of the evidence that Mr Finnegan is an Australian resident, the high level of generality of the evidence that he is impecunious, the credit report contradicting that which was admitted into evidence without objection, and the fact that Mr Finnegan is an individual, and not somebody standing behind a company engaged in litigation - I will not order security for costs on the application of the respondent.

Costs

49    Counsel for the respondent properly accepted that given his client's relative lack of success on the interlocutory applications, there should be no order as to costs.

Associate:

Dated:    19 September 2025