Kennedy v Wallace [2004] FCA 636

Kennedy v Wallace [2004] FCA 636

Service of the two subpoenae together was flawed and a misuse of the power because the principal proceeding had not been fixed for hearing, there was no relevant interlocutory hearing fixed, Rivkin was a third party in a sensitive and vulnerable position as a target of ASIC, and at the very least service was premature. That would have justified setting aside both subpoenae. ASIC was therefore required to pay Rivkin's costs, but indemnity costs were not ordered because the Court was not prepared to find that ASIC designed the exercise to apply pressure rather than acting from a perceived forensic purpose.

Jurisdiction
Australia
Judgment Date
21 May 2004
Procedural Posture
Motion Concerning Subpoenae to a Third Party to Produce Documents and to Give Evidence Before Trial / Costs Determination After Both Subpoenae Were Set Aside by Consent
Outcome
ASIC ordered to pay Rivkin's costs of the motion on a solicitor/client basis; indemnity costs refused.
Legal Topics
['subpoenae to Third Party' 'subpoena to Produce Documents' 'subpoena to Attend and Give Evidence' 'forensic Purpose' 'abuse or Misuse of Compulsory Process' 'solicitor/client Costs' 'legal Professional Privilege' 'privilege Against Self Incrimination']
['practice and Procedure' 'costs' 'evidence'] ['subpoenae to Third Party' 'subpoena to Produce Documents' 'subpoena to Attend and Give Evidence' 'forensic Purpose' 'abuse or Misuse of Compulsory Process' 'solicitor/client Costs' 'legal Professional Privilege' 'privilege Against Self Incrimination']

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Procedural Posture

Motion Concerning Subpoenae to a Third Party to Produce Documents and to Give Evidence Before Trial / Costs Determination After Both Subpoenae Were Set Aside by Consent

Legal Issues

  1. 1 ['Whether the subpoena to produce documents and the subpoena to attend and give evidence were issued for a proper forensic purpose under O 27 r 1 of the Federal Court Rules.' "Whether service of the subpoenae on a third party before any trial date or relevant interlocutory hearing was fixed was premature or a misuse of the Court's compulsory process." "Whether ASIC should pay Rivkin's costs of the motion, and whether those costs should be on an indemnity basis or solicitor/client basis."]

Ratio Decidendi

Service of the two subpoenae together was flawed and a misuse of the power because the principal proceeding had not been fixed for hearing, there was no relevant interlocutory hearing fixed, Rivkin was a third party in a sensitive and vulnerable position as a target of ASIC, and at the very least service was premature. That would have justified setting aside both subpoenae. ASIC was therefore required to pay Rivkin's costs, but indemnity costs were not ordered because the Court was not prepared to find that ASIC designed the exercise to apply pressure rather than acting from a perceived forensic purpose.

Court Disposition

ASIC ordered to pay Rivkin's costs of the motion on a solicitor/client basis; indemnity costs refused.

Orders

  • ['Australian Securities and Investments Commission pay the costs of Rene Walter Rivkin of the motion to set aside two subpoenae addressed to him, such costs to be taxed on a solicitor/client basis and paid forthwith.']