Finnegan v Kemner

FEDERAL COURT OF AUSTRALIA

Finnegan v Kemner [2025] FCA 863

File number:

WAD 429 of 2019

Judgment of:

JACKSON J

Date of judgment:

25 July 2025

Catchwords:

PRACTICE AND PROCEDURE - application to set aside a subpoena under r 24.15 of Federal Court Rules 2011 (Cth) - application successful in part

Legislation:

Federal Court Rules 2011 (Cth) r 24.15

Cases cited:

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Etnyre v Australian Broadcasting Corporation [2021] FCA 610

Harvard Nominees Pty Ltd v Tiller [2019] FCA 1672

Division:

General Division

Registry:

Western Australia

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

22

Date of hearing:

25 July 2025

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Second Respondent:

Mr JF Raftos

Solicitor for the Second Respondent:

Argos Legal

ORDERS

WAD 429 of 2019

BETWEEN:

PATRICK FINNEGAN

Applicant

AND:

MATTHEW KEMNER

Second Respondent

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	25 JULY 2025

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…