FEDERAL COURT OF AUSTRALIA
Finnegan v Washington (No 2) [2020] FCA 1587
File number: WAD 429 of 2019 Judgment of: JACKSON J Date of judgment: 3 November 2020 Catchwords: PRACTICE AND PROCEDURE - application for leave to serve subpoena overseas - subpoena too wide - leave refused Legislation: Evidence Act 1995 (Cth) s 75
Federal Court Rules 2011 (Cth) rr 10.43, 10.44, Division 10.6
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965
Cases cited: Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 372 ALR 555
Ceramic Fuel Cells Ltd (in liq) v McGraw-Hill Financial Inc [2016] FCA 401; (2016) 245 FCR 340
Clifton (Liquidator), in the matter of Solar Shop Australia Pty Ltd (in liq) [2014] FCA 891
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 19 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Wotton & Kearney Lawyers Counsel for the Second Respondent: The second respondent appeared in person Counsel for the Third Respondent: Ms K Michael Solicitor for the Third Respondent: Aherns Lawyers ORDERS
WAD 429 of 2019 BETWEEN: PATRICK FINNEGAN
Applicant
AND: TIM WASHINGTON
First Respondent
MATTHEW KEMNER
Second Respondent
RICHARD BAIRD
Third Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
3 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The applicant's interlocutory application dated 22 June 2020 is dismissed.
2.The applicant must pay the second and third respondents' costs of the application in any event.
3.The applicant must apply for the issue of any new subpoena addressed to Slack Technologies Limited, a company domiciled in the Republic of Ireland, (Subpoena) on or before Tuesday 17 November 2020.
4.The applicant must serve a copy of any Subpoena issued pursuant to the application on each of the respondents within three business days after the issue of the Subpoena.
5.The applicant must make any interlocutory application for leave to serve the Subpoena (Service Application) within 14 days of the issue of the Subpoena. The Service Application must be accompanied by an affidavit that complies with r 10.43(3) and r 10.44(2) of the Federal Court Rules 2011 (Cth) and by an outline of written submissions of no more than five pages in length. The applicant must serve the Service Application and the affidavits in support and submissions on the respondents forthwith.
6.The respondents must make any application to set aside the Subpoena (Set Aside Application) within 14 days of being served with the Service Application. Any Set Aside Application made by a respondent must be accompanied by all affidavits in support, any…
Keep reading for free
Create a free CaseChat account to read Finnegan v Washington (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] FCA 1587
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the applicant's subpoena was too wide in scope to be served overseas and whether leave should be granted for the subpoena to be served. The court also had to consider the procedural requirements for making an application for leave to serve a subpoena overseas, including the need for an affidavit and written submissions.
The court found that the subpoena was too wide in scope, as it sought documents relating to a range of issues beyond the scope of the proceedings. The court also found that the applicant had not complied with the procedural requirements for making an application for leave to serve a subpoena overseas. As a result, the court dismissed the applicant's interlocutory application and ordered that the applicant must pay the respondents' costs. The court also set out detailed procedural requirements for any future applications for leave to serve the subpoena, including the need for affidavits and written submissions.
The court's orders included a dismissal of the interlocutory application and an order that the applicant must pay the respondents' costs. The court also set out detailed procedural requirements for any future applications for leave to serve the subpoena, including the need for affidavits and written submissions. The court ordered that any future applications for leave to serve the subpoena and any applications to set aside the subpoena would be heard together on a date to be fixed.
Orders
Orders of the court
1. The applicant's interlocutory application dated 22 June 2020 is dismissed.
2. The applicant must pay the second and third respondents' costs of the application in any event.
3. The applicant must apply for the issue of any new subpoena addressed to Slack Technologies Limited, a company domiciled in the Republic of Ireland, (Subpoena) on or before Tuesday 17 November 2020.
4. The applicant must serve a copy of any Subpoena issued pursuant to the application on each of the respondents within three business days after the issue of the Subpoena.
5. The applicant must make any interlocutory application for leave to serve the Subpoena (Service Application) within 14 days of the issue of the Subpoena. The Service Application must be accompanied by an affidavit that complies with r 10.43(3) and r 10.44(2) of the Federal Court Rules 2011 (Cth) and by an outline of written submissions of no more than five pages in length. The applicant must serve the Service Application and the affidavits in support and submissions on the respondents forthwith.
6. The respondents must make any application to set aside the Subpoena (Set Aside Application) within 14 days of being served with the Service Application. Any Set Aside Application made by a respondent must be accompanied by all affidavits in support, any affidavits in opposition to the Service Application (which for the avoidance of doubt all may be in a single affidavit for each respondent) and an outline of written submissions in respect of both applications of no more than five pages in length.
7. The applicant must file and serve any affidavits in reply within seven days after the expiry of the 14 day deadline referred to in the preceding paragraph.
8. Any Service Application and any Set Aside Applications will be heard together on a date to be fixed.
9. Liberty to apply on three days' written notice.
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
Full text does not contain this section.