Cantor v Audi Australia Pty Limited (No 4)

• Jurisdiction: Australia Federal only
• Judge: FOSTER J
• Judgment Date: 23 September 2019
• Neutral Citation: [2019] FCA 1633
• Date: 23 September 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

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

File numbers:	NSD 1307 of 2015NSD 1308 of 2015NSD 1459 of 2015NSD 1472 of 2015NSD 1473 of 2015NSD 1462 of 2016NSD 322 of 2017
Judge:	FOSTER J
Date of Orders:	23 September 2019
Date of Publication of Reasons:	3 October 2019
Catchwords:	PRACTICE AND PROCEDURE – suppression orders – whether the names of certain individuals implicated in the Volkswagen diesel emissions scandal should be suppressed – whether certain technical data and specifications and motor vehicle engine software codes and engine maps in respect of Volkswagen, Audi and Skoda diesel motor vehicles should be suppressed as constituting trade secrets
Legislation:	Federal Court of Australia Act 1976 (Cth), Pt VAAA, ss 37AA, 37AE, 37AF, 37AG, 37AJ and 50 (now repealed) Evidence Act 1939 (NT), s 57 Trade Practices Act 1974 (Cth), s 45
Cases cited:	Australian Broadcasting Commission v Parish (1980) 43 FLR 129 Australian Broadcasting Corporation v L (2005) 16 NTLR 186 Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Australian Competition and Consumer Commission v BlueScope Steel Limited [2019] FCA 1532 Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL (2011) 283 ALR 137 Cantor v Audi Australia Pty Limited (No 2) [2017] FCA 1042 Hogan v Australian Crime Commission (2010) 240 CLR 651
Date of hearing:	8 August 2019, 16 September 2019 and 23 September 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	52
NSD 1307 and NSD 1308 of 2015:
Counsel for the Applicants:	Mr M Cobb-Clark (8 August 2019); Dr P Cashman and Mr R White (16 September 2019); Dr P Cashman (23 September 2019)
Solicitor for the Applicants:	Bannister Law
Counsel for the Respondents:	Mr NC Hutley SC and Mr IJM Ahmed (8 August 2019); Mr GK Rich SC, Mr IJM Ahmed and Ms E Bathurst (16 and 23 September 2019)
Solicitor for the Respondents:	Clayton Utz
NSD 1459 of 2015, NSD 1472 of 2015 and NSD 1473 of 2015:
Counsel for the Applicants:	Mr DJ Roche and Mr AM Hochroth (8 August 2019); Mr CA Moore SC and Mr AM Hochroth (16 and 23 September 2019)
Solicitor for the Applicants:	Maurice Blackburn Lawyers
Counsel for the Respondents:	Mr NC Hutley SC and Mr IJM Ahmed (8 August 2019); Mr GK Rich SC, Mr IJM Ahmed and Ms E Bathurst (16 and 23 September 2019)
Solicitor for the Respondents:	Clayton Utz
NSD 1462 of 2016 and NSD 322 of 2017:
Counsel for the Applicant:	Ms NL Sharp SC and Ms R Withana (8 August 2019); Dr J Kirk SC (16 and 23 September 2019)
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr NC Hutley SC and Mr IJM Ahmed (8 August 2019); Mr GK Rich SC, Mr IJM Ahmed and Ms E Bathurst (16 and 23 September 2019)
Solicitor for the Respondents:	Clayton Utz

ORDERS

		NSD 1307 of 2015
BETWEEN:	RICHARD CANTOR Applicant
AND:	AUDI AUSTRALIA PTY LIMITED (ACN 077 092 776) Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	23 SEPTEMBER 2019

BY CONSENT, THE COURT ORDERS THAT:

Respondent’s Non-Publication Application

1. Pursuant to s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), on the ground that it is necessary to prevent prejudice to the proper administration of justice, the information in the attached Schedule 1 and Schedule 2 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a) The Court;

(b) The applicant;

(c) The legal representatives of the applicant for the purpose of this proceeding only;

(d) Employees of any third party engaged to provide document management or litigation support services in relation to this proceeding; and

(e) For the information contained in Schedule 2 only, any expert witness retained by a party for the purpose of this proceeding who has signed an Expert Undertaking in the form previously agreed by the parties.

2. Pursuant to s 37AJ of the Federal Court Act, Order 1 above shall operate until the earlier of midnight on 18 December 2020 or further order of the Court.

3. Order 1 above does not affect the existing confidentiality regime including Orders 7 and 8 of the Orders made by Foster J on 12 July 2016 in this proceeding in respect of any document discovered, produced, prepared or filed in this proceeding and which is not admitted into evidence.

BY CONSENT, THE COURT NOTES THAT:

4. The parties will be notified and provided with an opportunity to be heard in the event that a person who is not a party to this proceeding makes a request to inspect any document on the Court’s file which has been highlighted in accordance with the confidentiality orders referred to in Order 3 above.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 1308 of 2015
BETWEEN:	JOSEFINA TOLENTINO Applicant
AND:	VOLKSWAGEN GROUP AUSTRALIA PTY LIMITED (ACN 093 117 876) Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	23 SEPTEMBER 2019

BY CONSENT, THE COURT ORDERS THAT:

Respondent’s Non-Publication Application

1. Pursuant to s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), on the ground that it is necessary to prevent prejudice to the proper administration of justice, the information in the attached Schedule 1 and Schedule 2 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a) The Court;

(b) The applicant;

(c) The legal representatives of the applicant for the purpose of this proceeding only;

(d) Employees of any third party engaged to provide document management or litigation support services in relation to this proceeding; and

(e) For the information contained in Schedule 2 only, any expert witness retained by a party for the purpose of this proceeding who has signed an Expert Undertaking in the...