Cyber questionnaire deemed procedural

Property – Appeal – “Entirely procedural” order for wife and her advisers to complete a cyber security questionnaire before receiving husband’s commercially sensitive disclosure documents was not a judgment capable of appeal

In Ancer [2024] FedCFamC1A 90 (29 May 2024), the Full Court (Austin, Sutherland & Schonell JJ) heard a wife’s application for leave to appeal from procedural orders made by a judge of the Family Court of Western Australia.

The husband and wife were involved in financial proceedings. An issue in dispute was the value of the husband’s interest in a commercial enterprise.

The single expert valuer was asked to sign a cyber security questionnaire (CSQ) due to the husband’s assertions of commercial sensitivity and cyber security risks ([4]). At first instance, the presiding judge ordered the provision of a CSQ ([7]).

The wife appealed, her grounds covering error of law and inadequacy of reasons.

The Full Court said (from [20]):

“The orders which are the subject of the appeal are directed to the method by which the disclosure obligations of the parties would be regularised. An order … requiring a party to nominate one of a number of experts is entirely procedural and is not a judgment amenable to appeal (Falydn & Badenoch [2022] FedCFamC1A 170 …). Likewise Orders [that provide for] … a mechanism for the provision of documents whether in hard form and/or electronic is similarly procedural and not a judgment amenable to appeal. None of the orders either individually or in combination affected or extinguished any asserted legal right of the [wife] …

( … )

[24] Even if we were wrong and the determination constituted an appealable judgment, and assuming error was established, no substantive injustice is occasioned by the refusal to grant leave. The orders as conceded by Senior Counsel for the [husband] compel the [husband] upon receipt of a completed CSQ to make available hard copies of the disclosure documents. This appeal should never have been brought.”

The application for leave was dismissed and the wife ordered to pay the husband’s fixed costs of $25,000.