Federal Court of Australia

Reiche v Neometals Ltd (No 3) [2025] FCA 1197

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted for Adele Ferguson of the Australian Broadcasting Corporation to inspect the following documents in the proceeding.

(a)    Affidavit of Christian Gerhard Reiche sworn 13 September 2024 and tendered as exhibit 1.1 including exhibits tendered as 1.1.2 to 1.1.58 in the proceeding.

(b)    Affidavit of Christian Gerhard Reiche sworn 30 October 2024 and tendered as exhibit 1.2.

(c)    Affidavit of Heike Kaehler-O’Shea sworn 23 October 2024 and tendered as exhibit 14.

(d)    Affidavit of Douglas Campbell Walter Ritchie sworn 24 October 2024 and tendered as exhibit 11.

(e)    Affidavit of Christian David Kelsall affirmed 24 October 2024 and tendered as exhibit 13.

(f)    Affidavit of Christopher John Reed affirmed 7 November 2024 and tendered as exhibit 8.

(g)    Affidavit of Lee Gordon Guthrie affirmed 24 October 2024 and tendered as exhibit 10.

(h)    Affidavit of Amanda Jayne Di Virgilio affirmed 25 October 2024 and tendered as exhibit 6.

(i)    Affidavit of Steven Cole affirmed 28 October 2024 and tendered as exhibit 9.

(j)    Affidavit of Cathal Anthony Smith affirmed 28 October 2024 and tendered as exhibit 3.

(k)    Affidavit of Jennifer Marilyn Purdie sworn 5 November 2024 and tendered as exhibit 5.

(l)    Affidavit of Olga Janina Klimczak sworn 12 March 2025.

2.    Leave to inspect the following documents in the proceeding be refused.

(a)    Affidavit of Elizabeth Iris Kessel filed 9 October 2024.

(b)    Unsigned affidavit of Steven Cole filed 24 October 2024.

(c)    Unsigned affidavit of Amanda Jayne di Virgilio filed 25 October 2024.

(d)    Unsigned affidavit of Christian Gerhard Reiche filed 30 October 2024.

3.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration under s 37AG(1)(a), publication of the following paragraphs of the affidavits identified in paragraph 1 of these orders be prohibited until further order.

(a)    Paragraphs [76], [83], [94], [97]-[99], [102], [107], [110], [113]-[115] of the affidavit of Christian Gerhard Reiche tendered as exhibit 1.1 and identified in para 1(a) of these orders.

(b)    Paragraphs [9], [10], [21]-[25] of the affidavit of Christian Gerhard Reiche tendered as exhibit 1.2 and identified in para 1(b) of these orders.

(c)    Paragraphs [28], [30], [37] and [45] of the affidavit of Christian David Kelsall tendered as exhibit 13 and identified in para 1(e) of these orders.

(d)    Paragraphs [30], [48], [51] and [66] of the affidavit of Amanda Jayne di Virgilio tendered as exhibit 6 and identified in para 1(h) of these orders.

(e)    Paragraphs [25], [27], [28], [71] and [94] of the affidavit of Steven Cole tendered as exhibit 9 and identified in para 1(i) of these orders.

(f)    Paragraphs [97], [103], [131] and [132] of the affidavit of Jennifer Marilyn Purdie tendered as exhibit 5 and identified in para 1(k) of these orders.

4.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) the following information concerning individuals (natural persons) be prohibited until further order of the Court:

(a)    names, except where published in the reasons for decision in Reiche v Neometals Ltd (No 2) [2025] FCA 125;

(b)    postal addresses;

(c)    residential addresses;

(d)    business addresses;

(e)    employment addresses;

(f)    email addresses;

(g)    telephone numbers; and

(h)    other contact details.

5.    Any person who is able to demonstrate a sufficient interest may apply for leave to set aside or vary paras 3 and 4 of these orders on 48 hours written notice to the Court, the parties and Adele Ferguson of the Australian Broadcasting Corporation.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    A non-party made an application for leave to access certain documents in this proceeding comprising affidavits and other exhibits received in evidence at the trial under r 2.32(4) of the Federal Court Rules 2011 (Cth).

2    On 5 September 2025 the Court provided proposed orders to the parties setting out the Court’s preliminary view that the grant of leave to inspect documents read and relied on in open court should be granted subject to a non-publication order made under s 37AF of the Federal Court of Australia Act 1976 (Cth) over certain paragraphs of affidavits that were struck-out and personal information on the ground, that if leave to inspect were granted, such a non-publication order was necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the Federal Court Act.

3    By 17 September 2025 all parties to this proceeding had consented to orders made in the terms proposed. On 26 September 2025 I made those orders. These are my reasons.

Why leave was granted to inspect the documents in paragraph 1 of these orders

4    The Court will generally grant leave to inspect a document (including evidence) if the document has been read or relied upon in open court: Access to Documents and Transcripts Practice Note (GPN-ACCS) at [4.3]; Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1 at [27] (Sackville J); Hartnell v Federal Commissioner of Taxation (No 1) [2009] FCA 230; 254 ALR 71 at [9] (Perram J). The rationale for permitting such inspection is to preserve and give effect to the principle of open justice in the context of the modern approach to litigation in which far less evidence is given orally and parties rely extensively on written submissions and other pre-trial processes that make hearings more efficient, but less ‘public’: see, e.g., Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 at [3]-[7] (Finkelstein J).

5    The exhibits tendered as evidence in this proceeding and identified in paragraph 1 of the orders, except for any paragraphs struck out prior to being read in open court, were received as the evidence-in-chief of witnesses in the proceeding. It is consistent with the principle of open justice a non-party have leave to inspect the public information in those documents.

Why leave to inspect the documents in paragraph 2 was refused

6    The principle of open justice does not apply to all documents in a proceeding. The principle is only engaged once documents are read and relied on in open court. Otherwise, members of the public, including journalists, have no common law right to inspect the Court record: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [29]-[31] (Spigelman CJ, Mason P and Beazley J agreeing). Unless the document is in a category for which the Rules permit inspection (r 2.32(2), r 2.32(2A)) leave to inspect documents not read or relied on in open court will ordinarily be refused: Re Universal Music (Australia) Pty Ltd v Sharman License Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; 222 FCR 580 at [43] (Jacobson J); Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142 at [63].

7    The affidavits identified in paragraph 2 of these orders, while filed in the Court and within the control of the applicable District Registrar, were one or more of not signed, not read in open court, or not relied on in open court and, accordingly, were not part of the evidence received in the proceeding. The documents do not engage the principle of open justice.

Why non-publication orders were made

8    While leave to inspect documents read or relied on in open court will generally be granted, leave may be granted subject to conditions where inspection would result in disclosure of confidential information, information to which the principle of open justice does not apply, and (or) personal information that would usually be protected by the Australian Privacy Principles: Pigozzo (No 3) at [70].

9    Part VAA of the Federal Court Act provides for the Court to make non-publication orders. A non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information): s 37AA. The Court has power to make an order that prohibits or restricts the publication of information that relates to a proceeding before the Court and is information that comprises evidence or information about evidence or information lodged with or filed in the Court (including documents): s 37AF(1)(b)(i), s 37AF(1)(b)(iv). Non-publication orders may be made on the ground that the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a).

10    The Court must balance the public interest in the proper administration of justice with the obligation to safeguard the public interest in open justice: s 37AE. As explained in Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 at [8] (Allsop CJ, Wigney and Abraham JJ), the paramount consideration is ‘the need to do justice’ and ‘publication can only be avoided where necessity compels departure from the open justice principle’. For the reasons that follow, necessity compels non-publication in respect of paragraphs struck out of and personal information contained in the documents for which leave to inspect is sought.

Struck out paragraphs

11    Paragraph 1 of these orders grant leave to inspect certain affidavits filed and read in this proceeding. Before these documents were read in open court, various paragraphs were struck out following objections being upheld to their contents. These paragraphs did not form part of the witnesses’ evidence-in-chief in the proceeding and did not engage the principle of open justice. Inspection of documents not received in evidence would generally be refused. That the document contains information that is not public provides a ground for refusing to grant leave to inspect the documents. Balancing the public interest in open justice against the generally private nature of information on the Court record can be achieved by making a non-publication order with respect to that part of the information that is not ‘public’. Accordingly, a non-publication order is necessary to prevent prejudice to the proper administration of justice so as to otherwise facilitate the public interest in open justice.

Personal information

12    Certain of the information contained in the affidavits and exhibits for which leave is granted in paragraph 1 is of a personal and private nature concerning individuals (natural persons). The public interest in the principle of open justice does not generally require disclosure of information of that kind to the public notwithstanding that it is referred to in documents received in evidence. Rather than refuse inspection on the ground that the documents contain personal information, again, to balance the competing public interests, inspection will be permitted subject to a non-publication order with respect to personal information that has not already been made ‘public’ through the proceeding. Therefore, a non-publication order is necessary to prevent prejudice to the proper administration of justice so as to otherwise facilitate the public interest in open justice.

Associate:

Dated:    26 September 2025