Verber & Verber (No 2) [2025] FedCFamC1F 351 (28 May 2025)

1. Pursuant to rule 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, orders 1 and 2 of the orders made on 8 May 2025 in this proceeding be stayed until appeal number NAA226 of 2025 is determined or discontinued.
2. The costs of and incidental to the Application in a Proceeding filed on 27 May 2025 be reserved to the hearing and determination of appeal number NAA226 of 2025.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth

1. In the context of an application for property adjustment orders between the applicant, Ms Verber, and the respondent, Mr Verber, on 8 May 2025 I made an order pursuant to rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permitting the applicant access to any responses and affidavits filed by the respondent in two other identified proceedings in this court, namely files BRC10651/2021 and BRC762/2024.
2. Aside from the respondent to the principal application, there were three other respondents to that order, namely Mr C Verber (Mr Verber's father), Mr B Verber (Mr Verber's brother) and D Group Holdings Family Pty Ltd (a company controlled by Mr B Verber). They were each parties to BRC10651/2021 and BRC762/2024. Each of them opposed the permission sought by the applicant.
3. Immediately upon pronouncement of the order for access, counsel for Mr B Verber and the company applied (orally) for a stay of the order pending a yet to be formulated and filed appeal. Exercising the court's inherent power to control its own processes, I granted a limited stay conditioned upon the filing of a Notice of Appeal within a specified time. If a Notice of Appeal was filed, the stay would remain in place until 4.00pm on 27 May 2025. The application for the stay was otherwise adjourned to 9.30am on 28 May 2025 for further consideration.
4. On 16 May 2025 (within the time limited by the stay order made on 8 May 2025) Mr B Verber and the company filed a Notice of Appeal in which they seek leave to appeal. The respondent filed a Notice of Cross-Appeal on 26 May 2025 in which he too, seeks leave to appeal. For convenience I will refer to these applications for leave to appeal and the subsequent appeals (if leave if granted) as "the appeals".
5. When the application came before me on 27 May 2025, Mr B Verber, the company and the respondent each pressed for the stay to continue until the finalisation (either by way of determination or discontinuance) of the appeals. The applicant opposed that course.
6. For the reasons that follow, I have concluded that the stay should remain in place until the appeals are determined or otherwise finalised.

1. King's Counsel for Mr B Verber and the company argued that the stay order should continue pending the hearing and determination of the appeals principally because, without the stay, the appeals will be rendered nugatory. I accept that without a stay order in place, the applicant may access the relevant files and once she has done so "she cannot unknow what she learns". There is much force in the submission that the forensic advantage she might obtain will not be able to be "undone" if the appeals succeed but inspection has occurred.
2. It was submitted that to the extent to which the information accessed is privileged or confidential, "those rights and properties will have been infringed by [the applicant's] inspection and use of the information". However, I do not accept this submission as made, because the order applies only to responses and affidavits filed by the respondent together with court orders and judgments. It was not suggested that anything in any of the respondent's responses or affidavits in BRC10651/2021 and BRC762/2024 contained privileged information. Indeed, given the purpose of those documents generally, if they were to contain such information, questions of waiver of the relevant privilege would immediately arise.
3. However, the opposition mounted by Mr B Verber, the company and the respondent to permission to access the identified files was based upon the proposition that there had been a finding in BRC10651/2021 that the applicant there (Mr Verber and Mr B Verber's mother) had improperly accessed documents to which legal professional privilege attached. It is clear that the relevant claims of privilege over the material likely used by Ms D Verber were advanced not just by Mr C Verber but also the other respondents in BRC10651/2021. The precise detail is not presently important save to say that it was not just Mr C Verber who claimed privilege in respect of the relevant documents, but also Mr B Verber, the company, the respondent and another associated company not a party to that proceeding and described as "F Company". That is so clear from [70] and [72] in Venter (No 6). The claims of privilege were upheld in respect of each of the documents, or group of documents that were subject to such a claim: [139], [144] and [156]. It is tolerably clear that in respect of at least some of the documents, the relevant privilege found to subsist was that of Mr B Verber, the company and the respondent.
4. Thus it was argued that, in an indirect way, access to the respondent's affidavits and responses in those cases would be access to that privileged information or information derived from it (for example information given by the respondent in response to claims based on the privileged information).
5. More broadly, King Counsel's submission on the present application makes the point, I think, that legal professional privilege is critically important to the effective functioning of our system of justice and should be jealously protected. As Carew J observed in Venter & Venter (No 6) [2024] FedCFamC1F 94 at [60]:

It is not in contention that "legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings". The rationale for that protection is to enable a person to seek legal advice without the apprehension of those communications being disclosed at a later date. It is also not in contention that the protection extends to an agent of the client, although there is a dispute about whether the husband was acting as an agent at relevant times.

(footnotes omitted)

1. This is an important consideration.
2. King's Counsel also pointed out that there is no obvious prejudice to the applicant if the stay is continued. This submission too, has force and counsel for the applicant conceded that the only prejudice to her would be the inevitable delay in the proceedings while the appeals were heard and determined. On this point I informed the parties that as far as I was aware the appeals might be listed in the week of 25 August 2025. If that turned out to be the case, the delay might in any event be short.
3. Finally, King's counsel argued that the proposed grounds of the appeal are more than arguable. Whilst counsel for the applicant took issue with that and did an admirable job of pointing out the strength of the reasons for the making of the impugned order, the test is not so much whether the grounds are likely to succeed, but rather whether the appeal is bona fide. Ultimately, counsel has not persuaded me that the appeals are devoid of merit or are otherwise not bona fide. That is especially so given that the appeals might be seen as an effort to enforce a legitimate claim to legal professional privilege.

1. Although the applicant is entitled to presume the impugned order is correct and she is entitled to the benefit of that order, Mr B Verber and the company have discharged the onus upon them to persuade me that it is appropriate to grant a stay pending the hearing and determination of the appeals. I accept that it is inevitable that the appeals will be rendered nugatory if the stay is not continued and that this is a weighty factor where I consider that the appeals are otherwise bona fide.
2. The parties agreed that in the event that I continued the stay, the costs of the present application should be reserved to the court hearing the appeal.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.