Dieselgate request to protect identity of individuals and trade secrets
VW ‘dieselgate’ class action – Application by respondents for confidentiality orders to protect identity of individual wrongdoers and trade secrets – Application granted
Shortly after the recent settlement of the VW class actions, and the related ACCC proceedings, the respondents sought orders directed towards preventing the disclosure to persons not involved in the proceedings of:
- the identity of numerous persons who were involved in the ‘dieselgate’ scandal; and
- certain commercially sensitive information of the respondents (primarily concerning the design and operation of the software in the respondents’ motor vehicle engines), being information contained in various court documents.
The orders were sought on the ground that they were necessary to “prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The orders were ultimately not opposed by the applicants.
Justice Foster considered that it was appropriate to make the orders. In relation to the identity of the individuals who were involved in the ‘dieselgate’ scandal, his Honour held that:
- it was appropriate to make the orders in circumstances where many of those persons were still the subject of criminal investigations and prosecutions in foreign jurisdictions, and the disclosure of that information could unjustly and unfairly prejudice those persons; and
- although the disclosure of that information would not affect, in any way, the proceedings in the Federal Court (nor, indeed, proceedings in any other Australian court), and although the persons concerned were not themselves parties to the Federal Court proceedings, the Court nevertheless had sufficient power to make those orders.
Likewise, in relation to the information said to be ‘commercially sensitive’, it was appropriate for the Court to make those orders in circumstance where that “material comprises proprietary information of the respondents in the form of software code and software maps of the EA189 engine and other technical information which, if disclosed publicly or made available to third parties, would provide trade rivals of the respondents with information of significant value and a competitive advantage that would not otherwise have been able to be obtained” (at ).
Cantor v Audi Australia Pty Ltd (No 4)  FCA 1633
- Federal Court of Australia, Foster J, 3 October 2019
- Applicants’ Solicitors: Maurice Blackburn / Bannister Law / Australian Government Solicitor;
- Respondents’ Solicitors: Clayton Utz;
- Applicants’ Funder: N/A
Read more about this case on Austlii: Cantor v Audi Australia Pty Ltd (No 4)  FCA 1633
Andrew WatsonNational Head of Class Actions, Class actions, Melbourne
"I'm an experienced litigator in class actions, particularly for shareholders who have been victims of corporate misconduct."
Ben SladeState Managing Principal, Office Leader, Class actions, Sydney
"I am driven to give a voice to those who would otherwise have to suffer because those who have done them wrong are all too powerful."
Kimi NishimuraPrincipal Lawyer, Class actions, Melbourne
"I'm committed to fighting for the rights of victims of corporate misconduct as well as pursuing compensation on behalf of my clients."
Rebecca GilsenanExecutive Director, Principal Lawyer, Class actions, Sydney
"I have extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities."
Miranda NagyPrincipal Lawyer, Class actions, Sydney
"I have a strong conviction that the community should be able to expect our governments and the companies we deal with to comply with the law."
Julian SchimmelPrincipal Lawyer, Class actions, Sydney
"Class actions are a unique legal mechanism that have helped hundreds of thousands of people receive compensation after mistreatment at the hands of powerful companies, and it’s gratifying to help people get access to justice when otherwise it would’ve been difficult for them."
Vavaa MawuliPrincipal, Class actions, Brisbane
"The most rewarding thing about my work is the change in scale of what we are able to accomplish."