Finnegan v Washington (No 5)

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FEDERAL COURT OF AUSTRALIA

Finnegan v Washington (No 5) [2025] FCA 25

File number: WAD 429 of 2019
Judgment of: JACKSON J
Date of judgment: 30 January 2025
Catchwords: COSTS - 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 included the appropriate costs orders in respect of applications concerning discovery, interrogatories and subpoenas - applicant seeks different costs order - applicant alleges non-compliance with discovery obligations by respondents - applicant alleges respondents knowingly misled the Court - allegations not established - referee report adopted in respect of its conclusions as to costs
Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 20.14, 28.67, Schedule 1

Rules of the Supreme Court 1971 (WA) O 1 r 4B

Cases cited:

Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333

Brookfield v Yevad Products Pty Ltd [2002] FCA 1376

Cachia v Hanes (1994) 179 CLR 403

Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5

Davis v Quintis Ltd (Subject to Deed of Company Arrangement) [2022] FCA 553

Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64

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

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

Kidd v State of Western Australia [2015] WASCA 62 (S)

Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221

Division: General Division
Registry: Western Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 40
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:

30 JANUARY 2025

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)'What costs orders, if any, should be made in respect of:

(i)The applicant's interlocutory application filed on 29 January 2021; and

(ii)The third respondent's interlocutory application filed on 16 February 2021?';

(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 14, 17 and 18; and

(c)'What costs orders should be made in respect of the applicant's interlocutory application filed 1 September 2020?'

2.There is no order as to the costs of:

(a)the…

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Details
Case
[2025] FCA 25
Decision Date

CaseChat Overview and Summary

Finnegan v Washington (No 5) involved the applicant seeking varied costs orders in relation to several interlocutory applications, alleging non-compliance with discovery obligations and knowing misrepresentations to the Court by the respondents. The Federal Court of Australia was tasked with determining these cost disputes.

The primary legal issues the Court addressed were the appropriate costs orders concerning the interlocutory applications related to discovery, interrogatories, and subpoenas. Additionally, the Court needed to decide whether the applicant's allegations of non-compliance and misleading the Court were substantiated. The Court's role was to assess the referee's report, which had already concluded on the costs and discovery issues, and to determine whether to adopt the referee's findings.

The Court found that the allegations of non-compliance with discovery obligations and knowing misrepresentations to the Court were not substantiated. The Court adopted the referee's report in its entirety regarding the costs orders and discovery issues. Consequently, the Court ruled that no costs order should be made for the interlocutory applications filed on 29 January 2021 and 16 February 2021. However, it ordered that the costs of the applicant's interlocutory application filed on 1 September 2020, as well as the costs of the applications related to the referee report, were to be borne by the respondents.

The Court also ordered that there should be no order as to the costs of the interlocutory application filed on 29 January 2021, and the costs of the third respondent's interlocutory application filed on 16 February 2021 were to be borne by the respondents in any event. Furthermore, the costs of each party's applications concerning the referee report were also to be borne by the respondents in any event. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.

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) 'What costs orders, if any, should be made in respect of:

(i) The applicant's interlocutory application filed on 29 January 2021; and

(ii) The third respondent's interlocutory application filed on 16 February 2021?';

(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 14, 17 and 18; and

(c) 'What costs orders should be made in respect of the applicant's interlocutory application filed 1 September 2020?'

2. There is no order as to the costs of:

(a) the applicant's interlocutory application filed on 29 January 2021; and

(b) the third respondent's interlocutory application filed on 16 February 2021.

3. The costs of the applicant's interlocutory application filed 1 September 2020 are the respondents' in any event.

4. The costs of each of the parties' applications made in respect of the referee report are the respondents' in any event.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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