Australian Competition and Consumer Commission v Volkswagen Aktiengesellschaft (No 2)
[2020] FCA 661
•15 May 2020
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Volkswagen Aktiengesellschaft (No 2) [2020] FCA 661
File number: NSD 1462 of 2016 Judge: FOSTER J Date of judgment: 15 May 2020 Catchwords: PRACTICE AND PROCEDURE – whether the Court should make an order pursuant to ss 37AE, 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) suppressing one amount in Australian dollars specified in one paragraph of an affidavit relied upon at a hearing to determine the appropriate penalty for admitted contraventions of the Australian Consumer Law on the ground that such an order is necessary to prevent prejudice to the proper administration of justice Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AF and 37AG(1)(a)
Australian Consumer Law
Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd(No 4) [2018] FCA 1243
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257
Date of hearing: Decided on the Papers Date of last submissions: 24 March 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: Dr JK Kirk SC and Ms NL Sharpe SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr GK Rich SC, Mr IJM Ahmed and Ms E Bathurst Solicitor for the Respondents: Clayton Utz ORDERS
NSD 1462 of 2016 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
AND: VOLKSWAGEN AKTIENGESELLSCHAFT
First Respondent
VOLKSWAGEN GROUP AUSTRALIA PTY LIMITED (ACN 093 117 876)
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
15 MAY 2020
THE COURT ORDERS THAT:
1.The Interlocutory Application filed by the first respondent on 12 March 2020 be dismissed.
2.By 22 May 2020, the first respondent file a copy of the affidavit of Jens Heinemann sworn on 29 October 2019 and filed on 14 November 2019 in the form as sworn by Mr Heinemann with no part of the affidavit redacted (including the figure at the end of par 16 thereof).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FOSTER J:
By Interlocutory Application filed on 12 March 2020, the first respondent, Volkswagen Aktiengesellschaft (VWAG), sought a non-publication order in respect of the following information:
(a)An amount expressed in Australian dollars which appears at the very end of par 16 of the affidavit of Jens Heinemann sworn on 29 October 2019 (or possibly 28 October 2019) and filed in this proceeding on 14 November 2019; and
(b)The contents of Annexure JH-1 to Mr Heinemann’s affidavit.
VWAG’s application was listed for hearing before me at 10.15 am on 26 March 2020. On 23 March 2020, I was informed that the Australian Competition and Consumer Commission (ACCC) and VWAG were both content for me to determine VWAG’s application on the papers, an approach which I accepted.
On 24 March 2020, I was informed that VWAG no longer wished to press its application in respect of Annexure JH-1 to Mr Heinemann’s affidavit. That concession was correctly made. Annexure JH-1 is a document in landscape format which lists the Volkswagen models which were the subject of the ACCC’s claims for relief in this proceeding and also specifies, in respect of each model, the number of motor vehicles sold in each model year. The year by year totals for each model vehicle are then added together in order to produce a total number of vehicles of that model sold in the relevant period (1 January 2011 to 3 October 2015). Those totals are then added together to produce an overall total. The aggregate number of vehicles of each model sold in the relevant period was set out in Annexure 1 to the Statement of Agreed Facts tendered before me at the penalty hearing in this matter. Almost all of that document is available to the public. No suppression or non-publication order was made in respect of Annexure 1. In the Statement of Agreed Facts, those numbers were added together to produce an overall total. The only difference between the contents of Annexure 1 to the Statement of Agreed Facts and the contents of Annexure JH-1 to Mr Heinemann’s affidavit was that the model numbers were broken down model year by model year in Annexure JH-1 whereas that information was not available in Annexure 1 to the Statement of Agreed Facts. In any event, no part of Annexure JH-1 required protection of the kind sought by VWAG in its application. Information in Annexure JH-1 is simply not confidential.
VWAG’s application was supported by an affidavit sworn and filed by Bruce Llewellyn Lloyd on 12 March 2020. Mr Lloyd is a partner in the law firm Clayton Utz. That firm represented the respondents in this proceeding throughout the litigation. Mr Lloyd is the senior lawyer at Clayton Utz dealing with this matter.
The ACCC consented to the making of orders in accordance with the claims for relief made by VWAG in its application but submitted that the operation of those orders should be limited to a period of five years or such other defined period from the date of the order as I might consider appropriate. The ACCC submitted that VWAG had not demonstrated that the orders should be made indefinitely.
VWAG also relied upon a Written Submission dated 24 March 2020 and filed on that day.
In his affidavit, Mr Lloyd said that Mr Heinemann’s affidavit had been prepared in response to a request which I had made of the parties at a hearing held on 27 September 2019. I had listed this proceeding on that day of my own motion because I was dissatisfied in a number of respects with the Statement of Agreed Facts and Written Submission which had been prepared by the parties and lodged with my Associate as part of the materials upon which I would be asked to impose a penalty upon VWAG for admitted contraventions of the Australian Consumer Law (ACL). In my view, the admissions which VWAG was prepared to make at that time in that version of the Statement of Agreed Facts did not constitute contraventions of the ACL and thus could not form the basis of the imposition of any penalty. At the hearing held on 27 September 2019, I suggested to the parties that it might be of assistance to me to have before me details of the profit which VWAG had made from the sale of the infringing vehicles in Australia when determining the appropriate penalty for such contraventions of the ACL as may ultimately be admitted.
The initial listing for the determination of the appropriate penalty to be imposed on VWAG had to be vacated so as to enable the parties to consider and take into account, as they may be advised, the remarks which I had made at the listing on 27 September 2019. Subsequently, on 15 October 2019, a revised Statement of Agreed Facts was filed on 16 October 2019. This was the document which was before the Court at the penalty hearing. In that revised Statement of Agreed Facts (at par 79) reference is made to Confidential Annexure 6 to that Statement of Agreed Facts. Confidential Annexure 6 contains information in respect of the estimated aggregate profit from the sale of the vehicles the subject of the ACCC’s claims in this proceeding by reference to the vehicle type and engine. The Annexure purports to estimate that profit for both VWAG and its Australian subsidiary, Volkswagen Group Australia Pty Limited.
At the penalty hearing which took place on 16 October 2019, I made a number of observations in which I expressed some reservations about the weight which should be accorded to the contents of Annexure 6 to the Statement of Agreed Facts then before the Court. In the course of exchanges between Senior Counsel for VWAG and me, Counsel requested an opportunity, should VWAG be so advised, to supplement the evidence before the Court on the question of the VWAG group’s profit in respect of the sale of the affected vehicles in Australia. In response to that request, I indicated that I would entertain any application which VWAG may care to make provided it was made before I delivered the penalty judgment.
Mr Heinemann’s affidavit was then prepared and, pursuant to a request from VWAG, I relisted the matter on 13 November 2019.
At the conclusion of the hearing on that day, I made the following orders:
THE COURT:
1.GRANTS leave to the first respondent (Volkswagen AG) to re-open its case in respect of the penalty to be imposed upon it for the contraventions with which the penalty hearing on 16 October 2019 was concerned.
2.GRANTS leave to Volkswagen AG to read and to rely upon the affidavit of Jens Heinemann sworn on 29 October 2019 in support of its case in respect of penalty.
3.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 administration of justice, ORDERS that the dollar amount set out in par 16 of the said affidavit not be disclosed (by publication or otherwise) to any person other than:
(a)The Court;
(b)The applicant; and
(c)The legal representatives of the applicant for the purpose of this proceeding only.
4.Pursuant to s 37AJ of the Federal Court Act, ORDERS that Order 3 above shall operate up to and including when judgment on penalty is delivered.
Orders 3 and 4 made by me on 13 November 2019 were made on a temporary basis in order to allow me properly to consider, in due course, VWAG’s application to keep confidential the amount in par 16 of Mr Heinemann’s affidavit which VWAG seeks to keep confidential.
The temporary non-publication orders which I made on 13 November 2019 were subsequently extended on two occasions. On the second occasion, I extended the operation of those orders up to and including 26 March 2020. No further extension was granted.
At pars 10–13 of Mr Lloyd’s affidavit, Mr Lloyd said:
10. The information contained in the Heinemann Affidavit includes:
(a)an estimate of the estimated aggregate profit, based on vehicle and engine type, calculated by Volkswagen AG at paragraph 16; and
(b)the volume of new vehicles sold in Australia during the Sales Period, broken down by model type, in Confidential Annexure JH-1.
11.On the basis of my discussions with Mr Jens Heinemann of Volkswagen AG, I believe that the profit figure referred to at paragraph 9 above and contained in paragraph 16 of the Heinemann Affidavit:
(a)represents an estimated aggregated profit of the Respondents for the Relevant Vehicles that has been calculated having regard to the vehicle and engine type and is not a figure calculated or recorded by Volkswagen AG in the ordinary course of business;
(b)by reason of paragraph 11(a) and the confidentiality of that information, the estimated aggregated profit is not information that has been previously disclosed publicly by Volkswagen AG or Volkswagen Group Australia;
(c)is information that is confidential and commercially valuable to Volkswagen AG and Volkswagen Group Australia and, if publicly disclosed, would harm the business interests of Volkswagen AG and Volkswagen Group Australia.
12.Volkswagen AG is a publicly listed company with disclosure obligations which include disclosure of financial information at a group level, such as disclosures made in its annual reports. The required disclosure of financial information by Volkswagen AG as a publicly listed company does not include the level of detail that is contained in the Heinemann Affidavit, which is information that is not published or available to the market.
13.I am further informed by Mr Paul du Preez, General Counsel, Volkswagen Group Australia and believe that were the aggregated profit figure contained in paragraph 16 and the volume of model vehicles sold in Australia during the Sales Period detailed in Confidential Annexure JH-1of the Heinemann Affidavit to be publicly disclosed:
(a)at the group level, competitors of Volkswagen AG would be able to use the profit per vehicle by engine type to calculate estimates of the costs and margins in respect of those vehicles, as well as to obtain commercially beneficial insights into the business strategy concerning the manufacturing, supply and distribution of Volkswagen AG at least in respect of those vehicles. For example, the information provides an insight into Volkswagen’s strategy so far as it concerns Australia and trends in sales by revealing how Volkswagen may adjust the volumes of the vehicles made available in Australia in balancing the costs and margins in respect of those vehicles against consumer demand in Australia for those vehicles. Information of this kind could be used by competitors of Volkswagen AG to determine the pricing of vehicles in a way that undercuts the pricing of Volkswagen vehicles and thereby commercially prejudices Volkswagen AG. Similarly, competitors could use such information to target their sales approach in a way that is directed to particular models offered by Volkswagen AG; and
(b)at the importer level, counterparties to Volkswagen Group Australia, such as motor vehicle dealers, could use the information to benefit those parties when negotiating the terms and conditions of supply with Volkswagen Group Australia, as the national sales company for Volkswagen branded vehicles in Australia. This risk arises from the ability to calculate the profit per vehicle and make a comparison with the sales price of the vehicles to motor vehicle dealers. Additionally, motor vehicle dealers may infer incorrect information in respect of vehicle demand based on historical data that would affect the purchasing of vehicles by dealers from the importer. The benefit to dealers and risk to Volkswagen Group Australia in this circumstance is particularly acute in respect of multi-brand dealers which also supply non-Volkswagen branded vehicles to consumers as the confidential information inadvertently result in the sharing of commercially sensitive information in respect of the vehicles and the commercial operations of Volkswagen AG and Volkswagen Group Australia to competitors.
At pars 15–17 of Mr Heinemann’s affidavit, Mr Heinemann said:
Methodology
15.Using the sources of information identified in paragraph 11, and applying them to the vehicles described at Confidential Annexure JH1, my team has estimated and provided to me the annual operating profit attributable to the sale of the Relevant Vehicles at a Volkswagen AG’s ‘s [sic] passenger cars and commercial vehicles business units in the new vehicles business for each year during the Sales Period using the methodology below:
(a)the data as to sales volumes attributable to each model year of the Relevant Vehicles in Australia during the Sales Period was provided to me by Clayton Utz as set out in Confidential Annexure JH1;
(b)because this sales volume data is referable to a model year rather than calendar year (which, for Volkswagen AG, is its fiscal year) and the model years for Volkswagen vehicles cover approximately the second half of one calendar year and the first half of the next), my team attributed half of the volume for each model year to each relevant calendar/fiscal year, except in the case of 2015 to which they allocated the full volume of MY2015 vehicles;
(c)my team received the VW Passenger Cars and VW Commercial Vehicles business units’ data as to the operating profit for each model as a) a Euro value per vehicle for 2012-2015 which is the currency we work in at the group level, b) an average across all engine variants for each respective model (model meaning “Amarok” or “Golf” without any further differentiation across engine variants, equipment lines or other vehicle specific features). My team then multiplied those amounts by the year sales volumes derived in paragraph 15(b) in order to determine the total estimated operating result in Euro for the Relevant Vehicles supplied in Australia during each year from 2012-2015 – as averages across all engine variants were used, the profit of the Relevant Vehicles in Australia, i.e. vehicles of the engine variant EA189, is not precisely reflected;
(d)As no operating profit values could be provided by the VW Passenger Cars and VW Commercial Vehicles business units’ controlling teams, my team estimated the operating profit in Euro for Relevant Vehicles supplied in Australia during 2011 as follows:
(i)for VW Passenger Cars, the same operating result data received from the VW Passenger Cars business unit for 2012 was used;
(ii)for VW Commercial Vehicles, the average fiscal year 2011 operating result for global sales for the relevant models of VW Commercial Vehicles was used,
to determine the total estimated operating result in Euro for Relevant Vehicles supplied in Australia in 2011 in the same manner as otherwise described in paragraph 15(c) above;
(e)My team received from Group Treasury the average Euro to Australian Dollar annual exchange rates for each year during the Sales Period and multiplied that rate by the operating profit determined for the relevant year as described in paragraphs 15(c) (in the case of years 2012-2015) and 15(d) (in the case of 2011) in order to determine the total estimated operating profit in Australian Dollars for Relevant Vehicles supplied in Australia for each year during the Sales Period;
(f)finally, my team estimated the aggregate value in Australian dollars of net profit earned by Volkswagen AG’s passenger cars and commercial vehicles business units in the new vehicles business in respect of the sale of the Relevant Vehicles in Australia during the Sales Period by adding together the total estimated operating results for each model of Relevant Vehicle for each fiscal year referred to in paragraph 15(e) above.
16.Based on the methodology set out above, the aggregate estimated value in Australian dollars of the net profit earned by Volkswagen AG’s passenger cars and commercial vehicles business units in the new vehicles business in respect of the sale of the Relevant Vehicles in Australia during the Sales Period may be estimated at (rounded to the nearest million): xxxxxxxxxxx
17.Having regard to the process that was followed using the methodology set out above and my familiarity with the processes and responsibilities that are in place within the Volkswagen Group, I consider this estimate of the net profit attributable to the sales of the Relevant Vehicles in the Sales Period at Volkswagen AG’s passenger cars and commercial vehicles business units new vehicles business to be reasonable given the information availa2ble to my team and to myself at this point in time and the methodology and premises outlined above.
The description of the methodology adopted by Mr Heinemann and his team set out in pars 15–17 of his affidavit is a reasonably detailed description of that methodology. However, there is no detail in those paragraphs, nor in any other paragraph in Mr Heinemann’s affidavit, of the “information identified in paragraph 11” to which Mr Heinemann refers at par 15 of his affidavit. The only information provided in par 11 is that Mr Heinemann’s team requested information and data on the profitability of the relevant vehicles from the financial controlling departments within the VWAG group and was provided information and data pursuant to that request. Specific details of the substance of that information and the contents of that data were not provided by Mr Heinemann in his affidavit. In reality, it is not apparent to a reader of Mr Heinemann’s affidavit exactly how the figure in par 16 of that affidavit was derived or calculated. While it may be true that Mr Heinemann and his team extracted information from the records of VWAG and its affiliates, analysed that information and then used it to derive the figure specified at par 16 of Mr Heinemann’s affidavit, none of the source material has been revealed in that affidavit nor has the detail of how it was analysed and operated upon by Mr Heinemann and his team been revealed in that affidavit.
VWAG submitted that the figure itself at par 16 of Mr Heinemann’s affidavit, being the estimated aggregate profit earned from the sale of the affected vehicles, is not publicly available. That is true. VWAG submitted that the disclosure of that figure could cause commercial harm to VWAG because competitors of VWAG might use the information to ascertain the point at which local sales become unprofitable for VWAG and, in light of that information, to develop pricing strategies calibrated to undermine or eliminate VWAG’s profit margin in the Australian market. VWAG also submitted that, if made available to VWAG’s dealers in Australia, they may seek to exploit the information unfairly in negotiations with VWAG.
I do not accept these submissions. In my view, the disclosure of the figure at par 16 of Mr Heinemann’s affidavit, without more, could not possibly have the consequences which VWAG submitted it would have. Without the backup information and data and without an understanding of the particular use that was made of that information and data to derive the figure at par 16 of Mr Heinemann’s affidavit, the figure itself would be next to useless.
In any event, as the figure at par 16 of Mr Heinemann’s affidavit relates to the period 2011 to 2015, I am not persuaded that, even if VWAG’s submissions were otherwise correct, the figure should be protected by a non-publication order. It is now information which relates to a period beginning approximately nine years ago and ending over four years ago.
In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd(No 4) [2018] FCA 1243 (Cascade Coal), at [31]–[36], I set out the relevant principles which should guide the Court when considering applications of the present kind. I said:
The Relevant Principles
Section 37AE and s 37AF of the FCA Act are in the following terms:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
37AF Power to make orders
(1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
In s 37AG, the legislature specified the grounds upon which a suppression order or non-publication order might be made. In s 37AG(1)(a)–(d), four such grounds are set out. In the present case, Moses Obeid relies upon the ground specified in s 37AG(1)(a). That subsection provides that a suppression order or non-publication order may be made if the order is necessary to prevent prejudice to the proper administration of justice.
Section 37AG(2) provides that a suppression order or non-publication order must specify the ground or grounds upon which the order is made.
In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68 at 73–74 [28]–[30], I said:
In Hogan v Australian Crime Commission (2010) 240 CLR 651; 267 ALR 12; [2010] HCA 21 at [30] , the High Court said, in respect of the use of the word “necessary” in s 50 of the FCA Act, the predecessor to Pt VAA that it is “a strong word”. The Court observed that the collocation of necessity to prevent prejudice to the administration of justice and the necessity to prevent prejudice to the security of the Commonwealth suggests that the Parliament is not dealing with trivialities. The Court went on to hold that:
“the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
The Court continued at [31]–[33] as follows:
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics (A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635; [2007] NSWCCA 307 at [31]).
If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50 (Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; 244 ALR 257; [2008] HCA 13 at [40] ). Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
The threshold which a suppression order applicant must satisfy is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice.
In Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741, Edelman J, when sitting as a Judge of this Court and in determining an application pursuant to s 37AF of the FCA Act that certain answers to interrogatories be suppressed, said the following at [8]–[9]:
The onus of persuading the Court to make an order which restricts publication of evidence has been described as “a very heavy one” (see Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438, 442 [16] (Madgwick J)). The order must be necessary to prevent prejudice to the administration of justice, not merely that it is desirable to address a potential prejudice to the administration of justice. In Hogan v Australian Crime Commission (664 [30]) the joint judgment of the High Court emphasised that “‘necessary’ is a strong word”. Justice Perram has explained that “[m]ere embarrassment or annoyance will not suffice”: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 [7].
Valve asserts that there is prejudice to the proper administration of justice due to its claimed confidentiality in relation to the information in each of the categories outlined above. It is important to draw a distinction between information which is not public and information which is truly confidential. The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication. The interest in confidential information can be different if the disclosure of that information could “become a vehicle for advantaging or prejudicing trade rivals”: Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J); see also Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 [25] (Barker J).
His Honour dismissed the application before him, primarily upon the ground that it had been made prematurely. In support of that conclusion, at [21]–[22], his Honour said:
Even apart from these doubts there is another fundamental obstacle for Valve. Any assessment of any prejudice to the administration of justice will require consideration of the interest in transparency and open justice. Section 37AE of the Federal Court of Australia Act provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Each of the matters over which Valve seeks confidentiality orders may be matters which are relevant to the assessment of remedies including pecuniary penalties.
Further, s 37AJ(2) of the Federal Court of Australia Act also requires that the order should operate for no longer than is reasonably necessary to achieve the purpose for which it is made. It might be open to doubt, for instance, whether it is necessary to maintain a suppression of the publication of Valve’s financial information, including in any reasons for decision which are given, even for the year 2015 beyond, say, 2017 or 2018. The extent and importance of each of these matters can only be properly assessed in light of the evidence and written submissions at the remedies hearing.
In the present case, as was the case in Cascade Coal, VWAG relies upon the ground specified in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).
A more recent exposition of the relevant principles is found in the judgment of Anastassiou J in Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257 at [11]–[17].
When proper regard is had to the primary objective of the administration of justice (as to which, see s 37AE) and the requirement that any non-publication order must be necessary to prevent prejudice to the proper administration of justice, I think that the evidence led by VWAG and the submissions made on its behalf do not justify the making of the order which it seeks in the present application.
For all of the above reasons, I will refuse VWAG’s application. I will also order VWAG to file an unredacted copy of Mr Heinemann’s affidavit.
The ACCC only faintly opposed the orders sought by VWAG. In those circumstances, I am of the view that the ACCC should not be the beneficiary of an order for costs in its favour.
There will be orders accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 15 May 2020
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