Reiche v Neometals Ltd (No 3)

Reiche v Neometals Ltd (No 3) [2025] FCA 1197 is a Federal Court decision about when a non-party can inspect affidavits and exhibits from a court case, and when publication of information can still be restricted. A journalist from the ABC sought access to documents used in the proceeding. The Court said documents read or relied on in open court will generally be open to inspection because of open justice.

But the Court did not treat every document on the file as public. It refused access to affidavits that were unsigned, not read in open court, or not relied on in open court. It also made non-publication orders over specified struck-out paragraphs and over private personal information concerning individuals. The result was a practical compromise between public access and protection of non-public material.

The judgment does not retell the full commercial background between Mr Reiche and Neometals Ltd. What it does explain is a later dispute about access to court material. Adele Ferguson of the Australian Broadcasting Corporation, who was not a party to the proceeding, applied for leave to inspect affidavits and other exhibits received in evidence at the trial. The application was made under rule 2.32(4) of the Federal Court Rules 2011 (Cth).

The Court dealt with the application on the papers. On 5 September 2025, Justice Feutrill provided proposed orders to the parties. Those proposed orders reflected a preliminary view that leave should be granted to inspect documents read and relied on in open court, but subject to non-publication orders over certain struck-out paragraphs and personal information. By 17 September 2025, all parties had consented to orders in those terms. On 26 September 2025, the Court made the orders and then published reasons explaining why.

The documents sought included a number of affidavits tendered as evidence. The Court listed the affidavits and exhibits that could be inspected, including affidavits from Christian Gerhard Reiche and several other witnesses. It also listed four affidavits for which inspection was refused. The distinction between those two groups was central to the case.

The first question was whether a non-party should be allowed to inspect the requested affidavits and exhibits. The Court approached that question through the principle of open justice. In modern litigation, much evidence is given in writing and much of the real work of a case happens through affidavits, exhibits and written submissions. Because of that, public access to documents actually read or relied on in open court can be necessary to preserve the public character of proceedings.

The second question was whether inspection, if granted, should be subject to publication restrictions. The Court had to consider whether non-publication orders should be made under Part VAA of the Federal Court of Australia Act 1976 (Cth). The judgment specifically referred to sections 37AA, 37AE, 37AF and 37AG. The Court explained that a non-publication order restricts publication of information, but does not otherwise prohibit or restrict disclosure of information. The statutory ground relied on here was necessity to prevent prejudice to the proper administration of justice under section 37AG(1)(a).

The Court therefore had to balance two public interests. One was open justice. The other was the proper administration of justice, including protection of material that had not truly become public through the proceeding and protection of private personal information about individuals.

Justice Feutrill said the Court will generally grant leave to inspect a document, including evidence, if the document has been read or relied upon in open court. The judgment linked that approach to the need to preserve and give effect to open justice in modern litigation. The exhibits tendered as evidence in the proceeding, except for paragraphs struck out before being read in open court, were received as the evidence-in-chief of witnesses. The Court held that it was consistent with open justice for a non-party to have leave to inspect the public information in those documents.

That is why the Court granted leave to inspect the affidavits and exhibits listed in paragraph 1 of the orders. These included two affidavits of Christian Gerhard Reiche, several affidavits from other named witnesses, and one affidavit sworn on 12 March 2025. The Court's reasons make clear that the key feature of these documents was that they had been tendered and used as evidence in the proceeding.

The Court refused leave to inspect the four affidavits listed in paragraph 2 of the orders. Those documents were one or more of not signed, not read in open court, or not relied on in open court. Because they were not part of the evidence received in the proceeding, they did not engage the principle of open justice. The Court also noted that, unless a document falls within a category for which the Rules permit inspection, leave to inspect documents not read or relied on in open court will ordinarily be refused.

The judgment is especially useful because it shows that access questions are often document-specific. The Court did not make a broad all-or-nothing ruling. Instead, it separated the material into categories based on how the documents had been used in the proceeding.

First, there were affidavits and exhibits that had been tendered and received as evidence. Those documents were generally inspectable because they had been read or relied on in open court. Second, there were affidavits that had been filed but were unsigned, not read in open court, or not relied on in open court. Those were not inspectable. Third, there were parts of otherwise inspectable affidavits that had been struck out before the affidavits were read in open court. Those parts had not formed part of the witnesses' evidence-in-chief and did not engage open justice in the same way.

This distinction matters in practice. Businesses often assume that once a document is filed, it is either wholly public or wholly private. This case shows that the Court may take a more precise approach. Whether a document, or part of a document, can be inspected may depend on what happened to it at trial and whether it actually entered the public side of the proceeding.

The Court did not simply grant or refuse access. It granted inspection of certain evidence while also making targeted non-publication orders. The judgment explains that Part VAA of the Federal Court of Australia Act allows the Court to prohibit or restrict publication of information relating to a proceeding, including evidence and filed documents. The specific ground used here was that the orders were necessary to prevent prejudice to the proper administration of justice.

One order covered specified paragraphs in several affidavits. These were paragraphs that had been struck out before the affidavits were read in open court after objections to their contents were upheld. Because those paragraphs did not form part of the witnesses' evidence-in-chief, the Court said they did not engage the principle of open justice. Rather than refuse inspection of the whole affidavit, the Court treated a non-publication order as the way to protect the non-public parts while still facilitating access to the public parts.

The second order covered personal information concerning individuals, meaning natural persons. The Court said the public interest in open justice does not generally require disclosure of private information of that kind, even if it appears in documents received in evidence. The order therefore prohibited publication, until further order, of names except where already published in the reasons in Reiche v Neometals Ltd (No 2), as well as postal, residential, business and employment addresses, email addresses, telephone numbers and other contact details.

The judgment is careful on an important point. A non-publication order restricts publication, but it does not otherwise prohibit or restrict disclosure of information. That distinction matters for anyone dealing with court documents, because access and publication are related but not identical questions.

For businesses, the practical lesson is about evidence preparation and litigation risk management. If your company is involved in Federal Court proceedings, material used in open court may later be inspected by non-parties. That can include journalists. Once that happens, the business may lose much of the practical privacy it assumed existed around affidavits and exhibits.

The case also shows that privacy protection in litigation is usually not absolute. The Court may be willing to protect specific categories of information, but it will still try to preserve open justice where it can. That means a business should not rely on broad assertions that a whole affidavit or exhibit should stay hidden. A more realistic approach is to identify the exact information that is private, unnecessary, or not properly part of the public evidence and seek targeted protection for that material.

Another practical point is timing. Here, the Court circulated proposed orders, the parties consented, and the matter was resolved on the papers. That suggests there can be value in dealing with access and publication issues in an organised and focused way, rather than waiting for a broader dispute to develop after documents have already been used in court.

Business owners often assume that court files are either fully public or fully private. This decision shows the position is more nuanced. The Court focused on whether documents had been read or relied on in open court, whether parts of them had been struck out, and whether publication of personal information would prejudice the proper administration of justice.

That means the practical answer to access questions usually depends on the status and use of the document. A filed but unused affidavit may be treated very differently from an affidavit tendered and relied on at trial. And even if inspection is allowed, publication of some information may still be restricted by order.

The application was determined on the papers. The Court provided proposed orders on 5 September 2025. By 17 September 2025, all parties had consented to orders in those terms. The orders and reasons were dated 26 September 2025.

The judgment records a procedural outcome only. It should be read together with the separate substantive reasons in Reiche v Neometals Ltd (No 2) if you need the broader background to the dispute.

This page is based on the Federal Court of Australia judgment in Reiche v Neometals Ltd (No 3) [2025] FCA 1197. The reasons are short and focused on the access application, the consent orders made, and the statutory basis for the non-publication orders.

Because the judgment is procedural, it does not provide a full narrative of the underlying commercial dispute. The practical guidance here is therefore directed to court document access, open justice and handling of personal information in litigation.