Reiche v Neometals Ltd (No 3)

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FEDERAL COURT OF AUSTRALIA

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

File number: NSD 1273 of 2024
Judgment of: FEUTRILL J
Date of judgment: 26 September 2025
Catchwords: PRACTICE AND PROCEDURE – non-party request for leave to inspect affidavits and exhibits under r 2.32(4) of the Federal Court Rules 2011 (Cth) – principle of open justice – documents read and relied on in open court – parts of documents not received in evidence – parts of documents containing private information about individuals – leave to inspect subject to non-publication of private information and information not received in evidence
Legislation:

Federal Court of Australia Act 1976 (Cth) Pt VAA; ss 37AA, 37AE, 37AF, 37AG

Federal Court Rules 2011 (Cth) r 2.32

Cases cited:

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609

Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377

Hartnell v Federal Commissioner of Taxation (No 1) [2009] FCA 230; 254 ALR 71

John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512

Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142

Re Universal Music (Australia) Pty Ltd v Sharman License Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; 222 FCR 580

Reiche v Neometals Ltd (No 2) [2025] FCA 125

Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 12
Date of hearing: Determined on the papers
Date of last submissions: 16 September 2025
Counsel for the Applicant: No appearance
Solicitor for the Applicant: Gillis Delaney Lawyers
Counsel for the Respondent: No appearance
Solicitor for the Respondent: Herbert Smith Freehills Kramer

ORDERS

NSD 1273 of 2024
BETWEEN:

CHRISTIAN GERHARD REICHE

Applicant

AND:

NEOMETALS LTD (ACN 009 116 631)

Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

26 SEPTEMBER 2025

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.

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Details
Case
[2025] FCA 1197
Decision Date

CaseChat Overview and Summary

The application for leave to inspect documents was brought by Adele Ferguson of the Australian Broadcasting Corporation, a non-party to the proceeding. The proceeding involved a dispute between Reiche and Neometals Ltd. The Federal Court of Australia was tasked with deciding whether the non-party could inspect certain documents under rule 2.32(4) of the Federal Court Rules 2011 (Cth) and, if so, whether publication of certain information contained in the documents should be prohibited.

The court was required to balance the principle of open justice, which supports transparency in legal proceedings, against the need to protect private information and information that had not been received in evidence. The non-party argued that the documents were relevant to matters of significant public interest and that publication would not prejudice the administration of justice. The parties to the proceeding opposed the application, asserting that the documents contained sensitive and private information about individuals that should not be disclosed.

The court found that the principle of open justice favoured the non-party's application to inspect the documents. However, it also recognised the importance of protecting private information and information not received in evidence. The court granted leave for the non-party to inspect the specified documents, subject to conditions that prohibited publication of certain paragraphs and personal information about individuals. The court concluded that these conditions were necessary to prevent prejudice to the proper administration of justice.

The orders of the court granted leave for the non-party to inspect certain documents but prohibited the publication of specific paragraphs and personal information about individuals. The orders also allowed for the possibility of further applications to set aside or vary the non-publication provisions.

Orders

Orders of the court

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.

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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