Kennedy v Wallace

The case of Kennedy v Wallace involves the Australian Securities and Investments Commission (ASIC) and Rene Walter Rivkin. The dispute centres on whether subpoenas served on Rivkin were validly issued under the relevant rules of court. The case was heard in the Federal Court of Australia. The primary legal issue was whether the subpoenas were issued for the correct purpose, specifically to produce documents and give evidence, or if they were issued for a collateral purpose such as to compel Rivkin to assert privilege or medical inability to give evidence. ASIC argued that the subpoenas were issued to obtain documents relevant to the principal proceeding and to ascertain the availability of these documents or evidence for the proceedings. Rivkin contended that the subpoenas were not issued for the purpose permitted by the rules, but rather to compel assertions of privilege and medical inability.

The court considered the arguments and submissions from both parties, including reliance on the judgment in Waind v Hill. The court found that the subpoenas were issued for the purpose of obtaining evidence and documents relevant to the principal proceedings. The subpoenas were conventional and there was a proper basis for ASIC to serve them, even if it was anticipated that Rivkin might decline to produce documents or give evidence. The court emphasised that the phrase ‘to give evidence’ should not be construed too narrowly. Consequently, the subpoenas were validly issued and the motion to set aside them was dismissed.

In its orders, the court ruled that ASIC must pay the costs of Rene Walter Rivkin for the motion to set aside the subpoenas. These costs were to be taxed on a solicitor/client basis and paid forthwith.