Finnegan v Washington (No 4) - [2024] FCA 1054

FEDERAL COURT OF AUSTRALIA
Finnegan v Washington (No 4) [2024] FCA 1054

File number: WAD 429 of 2019

Judgment of: JACKSON J

Date of judgment: 6 September 2024

Date of publication of reasons: 10 September 2024

Catchwords: PRACTICE AND PROCEDURE - referee appointed pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) to prepare a report in respect of questions arising in interlocutory disputes - disputes involved the scope of a proposed subpoena, discovery, interrogatories and costs - issues as to scope of proposed subpoena and interrogatories not pressed - consideration of procedure on receipt of referee report - consideration of general principles applicable to the exercise of the Court's discretion to adopt, vary or reject referee report - referee report adopted in respect of certain categories of discovery and interrogatories - referee report not adopted in relation to subpoena issues not pressed - remaining questions as to balance of referee report and costs reserved

Legislation:
Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 37N, 37M, 54A, Part VB

Federal Court Rules 2011 (Cth) rr 1.41, 20.13, 20.14, 28.67, Division 28.6

Defamation Act 2005 (WA) s 36

Cases cited:
Brookfield v Yevad Products Pty Ltd [2002] FCA 1376

Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784

CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590

Finnegan v Washington (No 2) [2020] FCA 1587

Finnegan v Washington (No 3) [2020] FCA 1654

Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245

Kadam v Miiresorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298

Mulley v Manifold (1959) 103 CLR 341

Division: General Division

Registry: Western Australia

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 71

Date of hearing: 22 July 2024

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: Mr NG Olson

Solicitor for the First Respondent: Wotton + Kearney

Counsel for the Second Respondent: The second respondent appeared in person

Counsel for the Third Respondent: Ms D Blane

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:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to s 54A(3)(a) of the Federal Court of Australia Act 1976 (Cth), the referee report dated 16 May 2024 is adopted in respect of its conclusions on the following questions:
(a)'Is it necessary and/or appropriate to allow the applicant to administer interrogatories and, if so, what questions should be included in those interrogatories?'; and
(b)'What further orders, if any, should be made in relation to discovery?', in so far as those conclusions relate to discovery of documents in the designated categories 1(a), 2(b)(i), 8, 9, 10(a) and 10(b).

2.The referee report is not adopted in respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FCA 1054
Decision Date: 6 September 2024

CaseChat Overview and Summary

Finnegan v Washington (No 4) involved a dispute between the parties concerning various interlocutory issues including the scope of a proposed subpoena, discovery, interrogatories, and costs. The matter was heard in the Federal Court of Australia. The key issues before the court were the scope of a proposed subpoena, the appropriateness of certain interrogatories, the extent of discovery, and the allocation of costs relating to the referee's report. The court had to determine the appropriate procedure to adopt, vary, or reject the referee's report, which was prepared under section 54A(1) of the Federal Court of Australia Act 1976 (Cth). The parties focused primarily on the necessity and scope of the subpoena, the content of the interrogatories, and the categories of documents to be discovered.

The court considered the general principles applicable to exercising the discretion to adopt, vary, or reject the referee's report. It concluded that while the report was comprehensive, not all of its recommendations should be adopted. Specifically, the court adopted the referee's conclusions on the necessity of interrogatories and certain categories of discovery, but it did not adopt the referee's conclusions regarding the scope of the subpoena, as this issue was not actively contested by the parties. The court also noted that some of the categories of documents sought by the applicant were not relevant to the proceedings, leading to the dismissal of the application in part. The court reserved its decision on the remaining questions, including the balance of the referee's report and the costs, for a later date.

In summary, the court adopted the referee's report in part, dismissing the application in relation to certain interrogatories and categories of documents while reserving its decision on the balance of the report and costs. The final orders included the adoption of the referee's report for specific interrogatories and categories of discovery, a dismissal of the application for other interrogatories and documents, and a reservation of the decision on the remaining issues for a later date.

Orders

Orders of the court

1. Pursuant to s 54A(3)(a) of the Federal Court of Australia Act 1976 (Cth), the referee report dated 16 May 2024 is adopted in respect of its conclusions on the following questions:

(a) 'Is it necessary and/or appropriate to allow the applicant to administer interrogatories and, if so, what questions should be included in those interrogatories?'; and

(b) 'What further orders, if any, should be made in relation to discovery?', in so far as those conclusions relate to discovery of documents in the designated categories 1(a), 2(b)(i), 8, 9, 10(a) and 10(b).

2. The referee report is not adopted in respect of its conclusions on the question of 'What is the appropriate scope of any subpoena that is to be served on Slack Technologies Ltd overseas?'

3. The applicant's interlocutory application accepted for filing on 15 September 2020, as revised before the referee, is dismissed in so far as it seeks:

(a) orders for interrogatories to be administered; and

(b) discovery of documents in the designated categories 1(a), 2(b)(i), 8, 9, 10(a), 10(b), 14, 17 and 18.

4. The questions of:

(a) the adoption or otherwise of the balance of the referee report; and

(b) the costs of the parties' applications in respect of the referee report;

are reserved to judgment at a later date.

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.

File number:	WAD 429 of 2019
Judgment of:	JACKSON J
Date of judgment:	6 September 2024
Date of publication of reasons:	10 September 2024
Catchwords:	PRACTICE AND PROCEDURE - referee appointed pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) to prepare a report in respect of questions arising in interlocutory disputes - disputes involved the scope of a proposed subpoena, discovery, interrogatories and costs - issues as to scope of proposed subpoena and interrogatories not pressed - consideration of procedure on receipt of referee report - consideration of general principles applicable to the exercise of the Court's discretion to adopt, vary or reject referee report - referee report adopted in respect of certain categories of discovery and interrogatories - referee report not adopted in relation to subpoena issues not pressed - remaining questions as to balance of referee report and costs reserved
Legislation:	Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) ss 37N, 37M, 54A, Part VB Federal Court Rules 2011 (Cth) rr 1.41, 20.13, 20.14, 28.67, Division 28.6 Defamation Act 2005 (WA) s 36
Cases cited:	Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590 Finnegan v Washington (No 2) [2020] FCA 1587 Finnegan v Washington (No 3) [2020] FCA 1654 Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245 Kadam v Miiresorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 Mulley v Manifold (1959) 103 CLR 341
Division:	General Division
Registry:	Western Australia
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	71
Date of hearing:	22 July 2024
Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Mr NG Olson
Solicitor for the First Respondent:	Wotton + Kearney
Counsel for the Second Respondent:	The second respondent appeared in person
Counsel for the Third Respondent:	Ms D Blane
Solicitor for the Third Respondent:	Aherns Lawyers

ORDER MADE BY:	JACKSON J
DATE OF ORDER:	6 SEPTEMBER 2024