Privilege, Access, and Transparency: Court Clarifies When Inspection of Court Files Crosses the Line

In Verber & Verber [2025] FedCFamC1A 240, a complex intersection of legal professional privilege, procedural fairness, and the right to inspect court records came before the Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ). The husband, his brother, and a family trust sought to overturn an order permitting the wife to inspect limited documents from prior family law proceedings involving the husband’s parents. The appellants argued that the wife’s access would exploit privileged information misused in earlier litigation. The Full Court dismissed the appeal, finding no evidence that the inspection would breach privilege or amount to an abuse of process.

This case provides critical guidance on Rule 15.13 of the Family Law Rules 2021 (Cth) and underscores that privilege cannot be used to shield relevant evidence where no actual misuse of confidential communications can be shown.

Facts and Issues:

• The wife applied under r 15.13 to inspect affidavits and responses filed by the husband in two prior proceedings—property settlement disputes between his parents.
• She alleged the husband had previously sworn that he controlled and owned all family assets, contradicting his position in her current property settlement claim.
• The husband’s mother in those earlier proceedings had improperly accessed privileged communications from the husband’s father’s legal files, gaining a “forensic advantage” as found in Venter & Venter (No 6) [2024] FedCFamC1F 94.
• The appellants (husband, brother, and trustee company) contended that the wife’s access would perpetuate misuse of privilege-tainted material and undermine the integrity of justice.
• The primary judge allowed the inspection, limited to the husband’s own filed documents, finding the wife had a “proper interest” in potential inconsistent statements.

The appellants appealed, claiming:

1. The order was not appealable;
2. The primary judge failed to protect privilege and procedural fairness;
3. The ruling permitted a “fishing expedition” by the wife.

Issues:

1. Whether the inspection order under r 15.13 was an appealable order.
2. Whether the primary judge erred in permitting inspection where prior proceedings involved misuse of privileged material.
3. Whether the order breached the appellants’ rights to legal professional privilege or amounted to an abuse of process.
4. Whether the wife’s inspection request was “fishing” and lacked forensic purpose.

Rule (Law):

• Family Law Rules 2021 (Cth) r 15.13: Allows inspection of court records by a person with a “proper interest,” subject to limits and safeguards.
• Legal Professional Privilege: A substantive rule protecting confidential lawyer–client communications (Grant v Downs (1976) 135 CLR 674; Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646).
• Appellate Standards:
• House v The King (1936) 55 CLR 499 — discretionary decisions reviewed for legal, factual, or reasoning error.
• Warren v Coombes (1979) 142 CLR 531 — non-discretionary findings reviewed for correctness.
• Abuse of Process: Misuse of court procedures that undermines public confidence (Rogers v The Queen (1994) 181 CLR 251).
• “Real Risk” Test: For restraining use of privileged information—future misuse must be a real and identifiable risk (Prince Jefri Bolkiah v KPMG [1999] 2 AC 222).
• Fishing Expeditions: Permissible if sought for a legitimate forensic purpose (Oates & Q (2010) FLC 93-451; Graham v Colonial Mutual Life Assurance Society Ltd (2013) 216 FCR 458).

Application (Analysis):

1. Appealability of the Order

The Court held that the order under r 15.13 was appealable, as it was an “operative judicial act” determining rights over inspection of court records—an anterior procedural step, not a mere ruling. The order affected substantive rights and, if wrongly made, would cause irreversible harm (disclosure of material).

2. Privilege and Abuse of Process

The Court reaffirmed that privilege is an immunity, not a weapon. The appellants failed to demonstrate that the husband’s affidavits or responses incorporated or relied on privileged communications.

“There is no evidence that the documents filed by the husband disclose privileged information (directly or indirectly)”.

Further, Carew J in Venter (No 6) had found misuse by the husband’s mother’s lawyers but made no orders sealing or striking out the husband’s filings, indicating no continuing taint. Thus, the Court rejected the argument that inspection would amount to an abuse of process.

3. Proper Interest and Forensic Purpose

The wife’s stated purpose—to compare the husband’s previous sworn statements about asset ownership—was legitimate and fell squarely within r 15.13(5)(a)–(b). The Court found this was not “fishing” but a targeted forensic inquiry:

“The wife has demonstrated it is material with a real forensic purpose and that it is ‘on the cards’ that the material will assist her case”.

4. Discretion and Standard of Review

The determination that the wife had a “proper interest” was not discretionary (only one correct outcome existed), but the extent of permitted inspection was discretionary. Even applying House v The King, no appellable error was identified—the primary judge considered all relevant factors, including security, proportionality, and fairness.

Judgment:

The Full Court unanimously dismissed both the appeal and cross-appeal, holding that:

1. The inspection order was appealable, but correctly made.
2. No real or evidentiary link existed between the privileged material and the husband’s own filings.
3. The wife’s purpose was legitimate and not abusive.
4. Legal professional privilege cannot serve as a blanket bar to discovery absent a clear causal nexus.

Costs of $45,360 were awarded against the appellants jointly.

Reasoning:

The Court’s reasoning rested on maintaining balance between privilege and transparency:

• Privilege protects confidential legal advice, not the facts themselves.
• Without proof of causation or ongoing misuse, inspection cannot be denied on speculation.
• The integrity of justice requires that courts do not allow privilege claims to obscure inconsistent sworn evidence.

By distinguishing between “tainted evidence” and “tainted process,” the Court reinforced that historical breaches by unrelated parties do not automatically contaminate subsequent proceedings.

Precedents Relied On:

• Grant v Downs (1976) 135 CLR 674
• Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646
• Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
• Rogers v The Queen (1994) 181 CLR 251
• House v The King (1936) 55 CLR 499
• Warren v Coombes (1979) 142 CLR 531
• Oates & Q (2010) FLC 93-451

Take-Home Lesson:

Privilege is a shield, not a sword. It cannot be stretched to block legitimate forensic inquiries where no misuse or causal link exists. Courts will protect privilege narrowly—balancing confidentiality with fairness and truth-seeking. Allegations of “taint” must be proven, not presumed.