Federal Court of Australia

Finnegan v Kemner (No 3) [2026] FCA 1402

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted for the applicant to amend his substituted reply filed on 5 December 2025 by substituting paragraph 4(c)(i) of that document with the proposed amendment at Annexure A to the minute of proposed orders provided by the applicant to Chambers on 19 September 2026.

2.    The applicant must file and serve an amended substituted reply, confined to the amendment referred to in paragraph 1 above, by 10.00 am AWST on 22 September 2026.

3.    The applicant must pay in any event the respondent’s costs of the application for leave to amend his reply and to withdraw the admission and any costs thrown away as a result of the amendment and/or withdrawal of the admission.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 21 September 2026, the first day of the trial of this proceeding, the applicant, Patrick Finnegan, sought leave to amend one paragraph of his substituted reply. The amendment involved the withdrawal of an admission. The respondent, Matthew Kemner, opposed the application, but I granted leave, with written reasons to follow. These are those reasons.

2    The proceeding involves a claim by Mr Finnegan that Mr Kemner defamed him. The events in question followed an Email that Mr Finnegan sent to a number of recipients on 8 April 2019. One of the allegedly defamatory matters is a post by Mr Kemner on an online noticeboard to the effect that Mr Finnegan had, in sending the Email, been ‘trying to be anonymous and failing’.

3    Paragraph 4(c)(i) of Mr Kemner’s substituted defence filed on 20 November 2025 pleads that the Email ‘had been sent anonymously by the Applicant using an email address of externalaffairs@tutanota.com at 9:00am on 8 April 2019’. While the defence does not make this abundantly clear, it appears that this allegation may go to a defence of justification. So whether the Email was indeed sent anonymously may be an issue in the proceeding.

4    In paragraph 4(c)(i) of his substituted reply filed on 5 December 2025, Mr Finnegan responded to the allegation by simply admitting it. However, shortly before trial Mr Finnegan indicated that he sought leave to amend the reply so as to admit, in effect, all the allegations in that sub-paragraph save the characterisation of the Email as having been sent anonymously. By the proposed amended plea, Mr Finnegan sought to admit that the Email did not identify him by name, but to deny that it was sent anonymously, apparently on the ground that the Email identified the sender as ‘External Affairs’, which Mr Finnegan claims is a business name that he was using.

5    Mr Finnegan requires leave to amend paragraph 4(c)(i) of the substituted reply by r 16.53 of the Federal Court Rules 2011 (Cth). Also, under r 26.11(2) a party requires the consent of the other party or the leave of the Court to withdraw an admission or any other plea that benefits another party in a defence or subsequent pleading.

6    I respectfully adopt the following summary of principle given by Stewart J in Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 at [27]-[28]:

27    The applicable principles with regard to whether leave to withdraw an admission or other pleading that benefits another party are, relevantly, the following, noting that for simplicity I will refer only to the withdrawal of an admission:

(1)    The court has a broad discretion to weigh up all matters with the overall question being to ensure that there is a fair trial: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 at [18] and [23] per Hill, Madgwick and Conti JJ.

(2)    The court will require an explanation for the making of the admission which is now sought to be withdrawn; the explanation must be a sensible one based on evidence of a solid and substantial character: Celestino v Celestino [1990] FCA 449 at 8 [12] per Spender, Miles and von Doussa JJ...

(3)    The object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases; if the mistake is not fraudulent or intended to overreach, can be corrected without injustice to the other party, and if not corrected will not lead to a decision on the real matters in controversy, it should generally be corrected: Celestino at 7 [10].

(4)    The overriding consideration is the interests of justice: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 at [4] per Finn J.

(5)    The court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal; if the other party has in good faith relied on the admission to its detriment so as to give rise to an estoppel the court will not permit the admission to be withdrawn: Celestino at 10 [14].

28    There are also other relevant factors to be considered that are applicable more generally to the amendment of pleadings. In Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (No 2) [2020] FCA 863 at [6], with reference to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5], [30], [71], [90], [93], [94], [98] and [102], I identified those factors to include the following:

(1)    prejudice to another party that cannot be adequately compensated by an award of costs, which would include the inevitable prejudice of unnecessary delay where that exists;

(2)    inefficiencies in the use of the court as a publicly funded resource arising from the vacation or adjournment of trials;

(3)    the need to maintain public confidence in the judicial system, which has a potential to be lost where a court is seen to accede to applications made without adequate explanation or justification;

(4)    the objective of doing justice between the parties;

(5)    the objective that the pleadings identify the ‘real’ issues between the parties;

(6)    the overriding purpose of the civil practice and procedure provisions in s 37M of the Federal Court of Australia Act 1976 (Cth), namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and

(7)    the nature and the importance of the amendment to the party that is seeking it.

7    In an affidavit sworn on 7 September 2026 in support of the application for leave, Mr Finnegan gave the following explanation for why he admitted paragraph 4(c)(i) of the substituted defence:

36    Paragraph 4(c)(i) of the Substituted Defence is a composite allegation. It alleges that the Email was sent by me, anonymously, using the address externalaffairs@tutanota.com, at 9.00 am on 8 April 2019. Four of those five matters are matters of primary fact and each is correct. The fifth, that the Email was sent anonymously, is a characterisation and is contested.

37    When settling the Reply I directed my attention to the four matters of primary fact, each of which is true. The composite form of the allegation obscured that a contested characterisation had been folded into the same subparagraph and admitted with them. That was an error on my part and I am self-represented.

8    Mr Kemner opposed Mr Finnegan’s application on the following bases:

(a)    the explanation just quoted, being the only explanation given, makes no sense and is a ‘verbose hallucination characteristic of the Artificial Intelligence that Mr Finnegan has used to produce nearly all recent communications relating to this matter’ (written submission handed up on 21 September 2026, para 13);

(b)    the explanation also lacks detail, and in particular gives no indication of when Mr Finnegan discovered his alleged mistake – it is therefore not ‘based on evidence of a solid and substantial character’ (see Selvaratnam at [27(2)]);

(c)    paragraph 4(c)(i) of the substituted defence was clear, as was the effect of Mr Finnegan’s admission;

(d)    in an affidavit sworn on 28 January 2026, Mr Finnegan said that the Email ‘was sent anonymously’ and purported to explain why, so the admission is consistent with Mr Finnegan’s evidence;

(e)    the application for leave was brought a long time (namely nine months) after the substituted reply was filed;

(f)    the amendment ‘arguably’ prejudices Mr Kemner in that it would require him to change important aspects of his case, including in cross-examination of witnesses and opening and closing submissions; and

(g)    public confidence in the legal system may be lost when the Court is seen to accede to applications that lack adequate justification.

9    I decided nevertheless that a grant of leave was in the interests of the administration of justice. This was essentially because it would permit a genuine issue in the proceeding to be agitated in circumstances where the likely change to the course of the trial, and resulting prejudice to Mr Kemner, was minimal. It was minimal because it involved only a dispute about the characterisation of undisputed primary facts about the Email. And, as Mr Finnegan submitted, at other points in the pleadings the parties have joined issue on that characterisation; this was recorded in a joint statement of the legal and factual issues in dispute filed on 28 July 2026.

10    I did not accept that Mr Finnegan’s explanation for the admission made no sense or was characteristic of an artificial intelligence hallucination. It is plausible and reflects the relatively minimal nature of the withdrawal as just described. While the explanation could have been fuller, especially in relation to when the mistake was discovered, in the circumstances described above, it was sufficient.

11    As for Mr Finnegan’s affidavit sworn on 28 January 2026, he withdrew the relevant paragraph so that it was not read into evidence. That was his choice to make, although it has not prevented counsel for Mr Kemner cross-examining Mr Finnegan on it. The withdrawal of the admission is thus consistent with Mr Finnegan’s evidence-in-chief.

12    Importantly, there was no evidence that the withdrawal was going to prejudice Mr Kemner in the conduct of the case, and no reason to infer that it would. In oral submissions his counsel mentioned the need to change opening and closing submissions, and the approach to cross-examination. None of that presents much difficulty in relation to a modest change in the issues, as this one is. The same may be said for counsel’s broader submission that Mr Kemner’s ‘case strategy’ would need to be changed. I therefore did not put much weight on the lateness of the withdrawal and the amendment.

13    In all the circumstances above, I did not consider that permitting a modest change of this kind presented any risk of loss of public confidence in the legal system.

14    All in all, I was satisfied that the admission was the result of inadvertence, that it could be corrected without injustice to Mr Kemner, and that the correction would permit the Court to determine the real matters in controversy. I therefore gave leave to amend the reply in the manner proposed, on the usual terms as to costs.

Associate:

Dated:    23 September 2026