FEDERAL COURT OF AUSTRALIA
Finnegan v Kemner (No 2) [2025] FCA 1164
File number: WAD 429 of 2019 Judgment of: JACKSON J Date of judgment: 15 September 2025 Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal of interlocutory application - alleged failure to comply with s 37N of the Federal Court of Australia Act 1976 (Cth) - alleged failure to confer prior to filing interlocutory application - application for summary dismissal dismissed
PRACTICE AND PROCEDURE - objection to admitting document prepared in connection with mediation into evidence - document inferred to have been provided on a without prejudice basis - clear connection between mediation and document - objection upheld
PRACTICE AND PROCEDURE - application against individual for security for costs - consideration of general evidence of impecuniosity - evidence of the financial positions of companies owned by applicant - strong evidence of applicant's Australian residency - application dismissed
Legislation: Evidence Act 1995 (Cth) s 131
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 53A
Cases cited: CJ Redmond Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173
Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 49 Date of hearing: 12 and 15 September 2025 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr JF Raftos Solicitor for the Respondent: Argos Legal ORDERS
WAD 429 of 2019 BETWEEN: PATRICK FINNEGAN
Applicant
AND: MATTHEW KEMNER
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
15 SEPTEMBER 2025
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…
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- Case
- [2025] FCA 1164
- Decision Date
CaseChat Overview and Summary
The court first addressed the issue of whether the applicant had complied with section 37N of the Federal Court of Australia Act 1976 (Cth) by conferring with the respondent prior to filing the interlocutory application. The court found that there was no evidence of such a failure and dismissed the application for summary dismissal. Next, the court considered an objection to admitting a document prepared in connection with mediation into evidence. The document was inferred to have been provided on a without prejudice basis, and the court upheld the objection, noting the clear connection between the mediation and the document. Lastly, the court evaluated an application for security for costs against Mr Finnegan, considering the general evidence of impecuniosity and the financial positions of companies owned by Mr Finnegan. The court dismissed the application, finding that the evidence did not convincingly establish Mr Finnegan's inability to pay a large cost bill and that he had provided comprehensive evidence of his Australian residency.
The court dismissed several paragraphs of the applicant's amended interlocutory application and the respondent's interlocutory application. It ordered the applicant to serve a proposed minute of substituted statement of claim on the respondent and set out a timeline for the parties to confer, agree on the terms of the substituted statement of claim, and file any objections or responses. The court also required the respondent to file and serve a substituted defence and for the parties to list the matter for an interlocutory hearing if necessary. The court reserved costs in respect of the application for security for costs, while no order was made as to the costs of the interlocutory applications, except for those related to the security for costs application.
In summary, the court dismissed the applications for summary dismissal and security for costs, upheld the objection to admitting the document into evidence, and set out a detailed timeline for the remaining procedural steps in the litigation.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 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. 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. 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. 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. 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. 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.