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 [49]).

Case details

Cantor v Audi Australia Pty Ltd (No 4) [2019] 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) [2019] FCA 1633

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