Finnegan v Washington

The costs orders sought 5 Mr Finnegan applied for non-standard discovery, and for leave to administer interrogatories. The referee found that the orders Mr Finnegan sought in that regard should not be made (Mr Finnegan had, in the meantime, accepted that it was premature for any order for interrogatories to be made). In Finnegan (No 4) I accepted those findings (reserving the position as to three categories of discovery, which are addressed below). 6 The referee also concluded that Mr Finnegan should be ordered to pay the respondents' costs of the application for discovery and interrogatories, on a party-party basis. Mr Finnegan nevertheless seeks an order that the respondents pay his costs of the application, on a party-party basis and forthwith. 7 The referee also found that a more limited scope for a subpoena than had been sought by Mr Finnegan was appropriate. It was not necessary for me to rule on that finding in Finnegan (No 4) because Mr Finnegan withdrew his application for leave to issue the subpoena. The referee concluded that there should be no order as to the costs of that application and of an application by the third respondent, Mr Baird, to set that subpoena aside. Mr Finnegan nevertheless seeks his costs of applying for leave to issue the subpoena, on an indemnity basis, payable forthwith. 8 The respondents seek the adoption of the referee's conclusions as to costs.

Why Mr Finnegan seeks costs orders in his favour 9 In broad terms, Mr Finnegan seeks costs orders in his favour because, he says, if the respondents had complied with their discovery obligations, then he would not have needed to pursue aspects of his application for discovery and interrogatories, or to apply for leave to issue the subpoena or a previous version of the subpoena (with which I dealt with in Finnegan v Washington (No 2) [2020] FCA 1587 (Finnegan (No 2))). That is in a context where the Court had made orders for standard discovery. 10 Further, Mr Finnegan says, the respondents knowingly misled the Court, and knowingly withheld documents which they had in their possession, custody or power. It is on that basis that he seeks indemnity costs in connection with the subpoena. 11 Mr Finnegan's submissions focus on categories of potentially discoverable documents which he had sought before the referee and which came to be numbered 14, 17 and 18. In broad terms, they concern the appearance, settings, message history and members of the 'off_topic' channel on the 'Tesla Australia' Slack workspace, where the allegedly defamatory matter was posted, as well as 'analytics' (certain other information) concerning that workspace for a period in 2019. The information sought mainly pertains to the numbers, identity and activity of the members of the off_topic channel. Mr Finnegan maintains that this information is relevant to the extent of publication of the defamatory matter. 12 Essentially, Mr Finnegan now submits that he has been able to gain access to the information himself by using the Slack login details of another person who was a member of the workspace. He says that the respondents always had access to the information. He also says that they have at all material times also been members of the workspace and, in the case of the first respondent Mr Washington and the second respondent Mr Kemner, its 'owner' and 'administrator', respectively. 13 Mr Finnegan says in particular that Mr Baird misled the Court by contending that not all members of the Tesla Australia workspace were members of the off_topic channel. He submits that this contention influenced my decision not to grant leave to serve the original subpoena overseas in Finnegan (No 2) because it seemed that the subpoena was likely to capture information of private individuals who had no involvement in the alleged defamation. Mr Finnegan submits that is not so; he says that all the members of the Tesla Australia workspace were also members of the off_topic channel. He claims that Mr Washington and Mr Kemner knowingly stood by as Mr Baird misled the Court. 14 Mr Finnegan's applications for me not to adopt the conclusions of the referee, and to make the orders as to costs described above, are based on three affidavits sworn on 27 May 2024, 31 May 2024 and 5 June 2024 which contain evidence of the results of searches and other operations he has conducted in the Tesla Australia workspace. Since these contain evidence that apparently postdates the reference to the referee, and the referee did not have regard to them, I am prepared to consider the affidavits as additional evidence not before the referee: r 28.67(1)(d) of the Federal Court Rules 2011 (Cth). 15 In summary, the affidavits annex spreadsheets Mr Finnegan has compiled, he says, from the Tesla Australia workspace, as well as screenshots of the workspace. A full description of the spreadsheets and screenshots would run to several pages; this is the welter of detailed evidence mentioned above. It is enough to say that they appear to contain information showing the members of the Tesla Australia workspace and of the off_topic channel, levels of activity on the channel such as posting messages, and certain settings and messages on the workspace. Much of the information is contained in spreadsheets known as 'analytics' spreadsheets that Mr Finnegan downloaded from the workspace. Mr Finnegan submits that this information shows, among other things, that the membership of the workspace and of the channel are identical. He submits that this demonstrates the alleged failure of the respondents to comply with their discovery obligations mentioned above. 16 At the hearing regarding the referee's report, counsel for Mr Washington objected to the entirety of the affidavits on the ground of relevance, saying that they seek to impugn the adequacy of Mr Washington's verified discovery. Counsel submitted that, ordinarily, an affidavit verifying discovery is conclusive as to the adequacy of the discovery and cannot be impugned by contentious affidavits: Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 at [21] (Mansfield J) and similar cases. But while that principle is ordinarily applied in applications where the purpose is to seek further or better discovery, it is not clear whether it also applies where a party is claiming he has wasted costs as a result of a failure to comply with discovery obligations. No party referred me to any authority on that point. In any event and as will be explained below, Mr Finnegan has not established that the respondents failed to comply with their discovery obligations. In the circumstances, I assume (without deciding) that the principle does not apply in relation to the present dispute about costs, and admit the affidavits into evidence.

Did the respondents comply with their discovery obligations? 17 It is worth noting that Mr Finnegan is a litigant-in-person so, absent any legislative exception, he is only entitled to legal costs actually incurred: Cachia v Hanes (1994) 179 CLR 403 at 410, 417; see also Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 at [1]-[3]. The last time Mr Finnegan had a lawyer on the record as his representative was in November 2023. He does not claim to have engaged any legal representative after this time. Therefore, the alleged non-compliance with the discovery obligations can only conceivably be relevant to the issue of costs up until that time. 18 By the time Mr Finnegan's application for non-standard discovery and interrogatories and Mr Finnegan's and Baird's subpoena applications came to a head, the parties had been ordered to give standard discovery. Under r 20.14(1) of the Federal Court Rules, that meant that the documents to be discovered were only those that were, or had been, in each party's control (meaning 'possession, custody or power': Schedule 1 of the Federal Court Rules), of which the party was aware after a reasonable search, and that were directly relevant to the issues raised by the pleadings. 19 I do not accept that Mr Finnegan has established that the information he now relies on was (or had been) in the respondents' control at the time they were ordered to provide standard discovery (or at any time during which he was legally represented and so incurring costs that it was open to him to claim from the respondents). Most of the information appears to consist of 'analytics' spreadsheets that Mr Finnegan downloaded in December 2023, and screenshots that he took in and after that time, all of which seems to have occurred after he upgraded the membership type of the Tesla Australia workspace to 'Pro'. While the terms of membership and use of the workspace were not in evidence, it can be inferred that a Pro plan involves enhanced rights to access information from the workspace compared with an ordinary plan. The workspace did not operate under a Pro plan until Mr Finnegan upgraded it in December 2023. After a free trial period, it appears that a Pro plan requires monthly payments to maintain. 20 Generally, a document is in a party's control if the party has physical possession of it, or an immediate right or ability to obtain possession of it or to inspect it: see Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 6) [2020] FCA 64 at [70]-[72] (Anderson J). In the absence of a presently enforceable right, there is nothing in the rules that compels a party to acquire such a right: Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 at 635-636 (Lord Diplock) applied in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 8) [2011] FCA 221 at [20]-[22] (Logan J). As the latter case confirms (at [22] in relation to similar wording in the previous version of the Federal Court Rules), the requirement for possession, custody or power in relation to documents fixes the scope of the obligation to discover documents, and 'the "reasonable search" requirement serves to delimit the length to which the party having that obligation must go in discharging it'. 21 To upgrade the Tesla Australia workspace to a Pro plan appears to be to take an extra step to obtain a right to acquire the analytics spreadsheets. Also, many if not all of the screenshots annexed to Mr Finnegan's affidavits appear to have been taken while the workspace was on a Pro plan. It is also unclear on Mr Finnegan's evidence whether the option to view certain analytics, such as the membership numbers of a channel on specific past dates, was available before the workspace was upgraded to a Pro plan. Mr Finnegan asserted from the bar table that much of the information was available when the workspace was only on an ordinary plan, but he adduced no evidence to that effect. 22 Mr Finnegan appeared to rely on Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5 as authority relevant to whether the respondents should have upgraded to a Pro plan, but in my respectful view that case sheds no light on whether or when a party is obliged to take a step to secure a right of access to documents it would not otherwise have. 23 All in all, the evidence does not satisfy me for the purposes of these costs applications that, in the absence of the upgrade to a Pro plan, an owner, administrator or member of the Tesla Australia workspace had an immediate ability or right to acquire the information said to have been omitted from the respondents' discovery. As explained, this means that Mr Finnegan has not established that the information was within the scope of the respondents' discovery obligations at any time before Mr Finnegan himself upgraded the plan in December 2023. 24 For completeness I note that Mr Finnegan also relied on a spreadsheet he said he had prepared himself by extracting information from the workspace about its members, before it was on a Pro plan. However, he has not established that the respondents were required by the order for standard discovery to disclose that information. He says that the information was relevant because it could assist him to identify the members of the off_topic channel so as to ask them whether they read or downloaded the allegedly defamatory comments, and whether they thought the comments were defamatory. This includes eight non-parties identified by their usernames in his amended statement of claim, who he alleges participated in the conversation in which the comments were made. However the details of those eight individuals are not directly relevant in the sense required under the Federal Court Rules. That is because they are relevant only to a train of inquiry: see Davis v Quintis Ltd (Subject to Deed of Company Arrangement) [2022] FCA 553 at [6] (Lee J). As for the other non-party members of the off_topic channel, their names and identities are irrelevant. 25 I also note that Mr Finnegan's evidence included screenshots of messages of this proceeding being discussed on the off_topic channel in May 2020, which appear to include a message from Mr Washington. Mr Finnegan submits that Mr Kemner and Mr Baird deliberately sought to limit the date range for the discovery of messages because they knew about this discussion and that Mr Washington was aware of this because he had participated in that discussion. However Mr Finnegan has not established for the purposes of this costs application that Mr Washington still had copies of the messages (noting the evidence indicates that messages and files on the off_topic channel that are older than 90 days require a Pro plan to view and that standard discovery was ordered in November 2020). He has not established that Mr Washington recalled sending or seeing those messages. Also, having now reviewed the messages he now relies on, their relevance is peripheral at best. He therefore has not established any failure on the part of the respondents to comply with their discovery obligations, or any knowingly misleading behaviour. 26 Mr Finnegan also submitted that Mr Kemner falsely denied that he was the administrator of the Tesla Australia workspace. But there is nothing in this claim. To begin with, it is entirely unclear why it matters who is or was the administrator. Mr Finnegan claims to have obtained all the necessary information in his capacity as an ordinary member of the workspace. Mr Finnegan appeared to submit that the administrator and owner of the workspace have always had the capacity to download a list of its members, but he did not point to any evidence to support that claim. 27 But even if it does matter, the claim that Mr Kemner has falsely denied his relationship to the workspace is not made out. Mr Kemner's amended defence does not say that he is the administrator of the workspace, but nor does it deny that. In a response to a notice to admit, Mr Kemner did not admit that fact, but he did not deny it. I discern nothing misleading in the conduct of Mr Kemner concerning his role in relation to the Tesla Australia workspace.

Did the respondents mislead the Court? 28 The other aspect of Mr Finnegan's submissions concerns whether the respondents misled the Court. He says they did so in two respects: first, that they misled the Court as to their ability to provide data from the Tesla Australia workspace relevant to publication; and secondly, that they led the Court to deny leave to serve a subpoena overseas on the false basis that it would require the disclosure of personal information of users of the workspace who were not members of the off_topic channel. 29 An allegation that a person has misled the Court is a serious one. The Court will only act on it if it is distinctly proved. 30 Mr Finnegan's submission that the respondents misled the Court on their ability to provide data relevant to publication appears to be an allegation that the respondents stayed silent on their ability to provide discoverable documents the subject of the applications in Finnegan (No 2). As I have found above, Mr Finnegan has not established any failure on the part of the respondents to comply with their discovery obligations. 31 As for whether the respondents misled the Court about membership of the workspace, when one looks at what they are alleged to have done in that regard, the allegations cannot be made out. Specifically, Mr Finnegan claims that Mr Baird said in an affidavit and submitted that the subpoena to Slack Ireland that was the subject of Finnegan (No 2) would have compelled the disclosure of private messages sent by a potentially large number of people who had nothing to do with this litigation. 32 Mr Baird did indeed say that may occur, both in an affidavit of 9 July 2020, and in written submissions filed on that date and in February 2021. The tenor of Mr Baird's evidence and submissions was that the export of the Tesla Australia workspace in toto, as Mr Finnegan appeared to be seeking, would contain information including the IP addresses of Slack users who accessed channels other than the off_topic channel, which was irrelevant to the proceeding. But nowhere did Mr Baird base that on a contention that the members of the off_topic channel were not the same as the members of the Tesla Australia workspace. Rather, Mr Baird appears to have said that details such as IP addresses of Slack users who only accessed other channels were irrelevant and posed a potentially serious incursion into online privacy, and that only an export of the off_topic channel from the day of the alleged defamatory comments should have been required. 33 Even if it is assumed that the members of the workspace and the members of the off_topic channel are identical, those propositions remain arguable and supportable by the evidence. While data about membership of the off_topic channel and activity on that channel may be relevant to the issue of publication, it does not follow that private information about each member of the channel, and information about their activity in other channels, was relevant. I consider that this is the point that Mr Baird was making. The evidence that Mr Finnegan has adduced about membership of the channel and of the workspace (as at December 2023) does not permit me to conclude with any confidence that Mr Baird misled the Court. 34 In any event, Finnegan (No 2) was not decided on the basis that the members of the off_topic channel were not identical to the members of the Tesla Australia workspace. The relevant submissions of the respondents, as recorded at [6], were that they complained: … about the scope of the subpoena, in that it seeks data about the whole workspace when, as I have said, the publication took place in one private channel within the workspace. The third respondent, Mr Baird, also says that Mr Finnegan has not made any allegation about publication in one to one or group direct messages, as distinct from posts generally viewable in the off_topic channel. He says that the exports and metadata sought will include data pertaining to members of the workspace who are not parties to the action or relevant to it at all. 35 The basis of the decision, as set out at [11]-[12], was that the evidence did not: … persuade me that there is good reason to obtain data about posts and users outside the off_topic channel. Mr Finnegan also asserts that the extent of publication can only be discovered by examining all the channels and private communication between Slack members. While that may be correct in theory, it is not clear what reason there is to think that publication took place anywhere other than in the off_topic channel. … Those concerns must be weighed against the need for caution and restraint in circumstances where Mr Finnegan is seeking to enlist the powers of the court to compel a foreign company to disclose private data posted and sent by a potentially large number of people, many of whom, it can be expected, had nothing to do with the issues in this litigation. … 36 The information produced by Mr Finnegan in his three most recent affidavits does not undermine those conclusions. It may still be expected that many of the 216 or so members of the off_topic channel and/or of the workspace had nothing to do with the alleged defamation. Mr Finnegan's own evidence is that around the relevant time, only 58 of them were active on a weekly basis and there were only 45 daily active members. So, as indicated in Finnegan (No 2), the concern would remain that a subpoena seeking an export of all the messaging and membership data for the Tesla Australia workspace and/or off_topic channel during a defined period would result in the disclosure of data about activities of private individuals with no involvement in the subject matter of the litigation. 37 Mr Finnegan's allegations that the respondents misled the Court do not provide any firm foundation for an order that the respondents pay his costs, on an indemnity basis or otherwise.

Adoption of the referee's report and costs 38 Mr Finnegan's arguments as to costs are not successful. On the basis of the principles concerning the adoption of referees' reports summarised in Finnegan (No 4), I adopt the conclusions of the referee concerning costs, namely that there should be no order as to the costs of the applications concerning the subpoena to Slack Ireland, and that Mr Finnegan should pay the respondents' costs of his application for non-standard discovery and for leave to administer interrogatories on a party-party basis. 39 For completeness I also adopt the referee's finding that no order should be made for discovery of documents in categories 14, 17 and 18. Mr Finnegan no longer presses for those categories in any event. 40 Mr Finnegan's various challenges to findings in the referee report have consumed the parties' and the Court's time and resources to an extent that is disproportionate to the significance of the issues he has raised. That is all the more so given the nature of his application as a response to a referee report. Therefore Mr Finnegan should pay the respondents' costs of the parties' applications made in respect of the adoption of the referee report. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.