Lamson Concepts Pty Ltd v Oscuro (No 2)

[2025] FCA 1100

FEDERAL COURT OF AUSTRALIA

Lamson Concepts Pty Ltd v Oscuro (No 2) [2025] FCA 1100

File number:

NSD 501 of 2025
NSD 564 of 2025

Judgment of:

VANDONGEN J

Date of judgment:

8 September 2025

Catchwords:

PRACTICE AND PROCEDURE - application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting disclosure of commercially sensitive information - whether orders necessary to prevent prejudice to proper administration of justice - application granted

Legislation:

Evidence Act 1995 (Cth) s 75

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Federal Court Rules 2011 (Cth) r 9.02

Cases cited:

Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100

Lamson Concepts Pty Ltd v Oscuro [2025] FCA 579

Lamson Concepts Pty Ltd v Schmidt [2025] FCA 677

Leigh v National Disability Insurance Agency [2025] FCA 623

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

22

Date of hearing:

13 May 2025

Counsel for the Applicants:

Mr D Mahendra

Solicitor for the Applicants:

Citation Legal

Counsel for the Respondents:

Dr M Wolff

Solicitor for the Respondents:

Prior Law

ORDERS

NSD 501 of 2025

BETWEEN:

LAMSON CONCEPTS PTY LTD

Applicant

AND:

NICHOLAS OSCURO

First Respondent

DAVID SCHMIDT
Second Respondent

AIR-LOG AUSTRALIA PTY LTD (ACN 684 381 691)
Third Respondent

ORDER MADE BY:	VANDONGEN J
DATE OF ORDER:	8 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The applicant's application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is allowed.

2.By 4.00 pm (AWST) on 10 September 2025, the parties are to file a joint minute of proposed orders or, if they are unable to agree, competing minutes of proposed orders, to give effect to these reasons.

3.There be liberty to apply generally upon giving 24 hours' notice.

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

ORDERS

NSD 564 of 2025

BETWEEN:

LAMSON CONCEPTS PTY LTD

Applicant

AND:

DAVID SCHMIDT
First Respondent

AIR-LOG AUSTRALIA PTY LTD (ACN 684 381 691)
Second Respondent

ORDER MADE BY:	VANDONGEN J
DATE OF ORDER:	8 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The applicant's application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is allowed.

2.By 4.00 pm (AWST) on 10 September 2025, the parties are to file a joint minute of proposed orders or, if they are unable to agree, competing minutes of proposed orders, to give effect to these reasons. 

3.There be liberty to apply generally upon giving 24 hours' notice.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1. I have previously summarised the relevant background to these proceedings in Lamson Concepts Pty Ltd v Oscuro [2025] FCA 579 and in Lamson Concepts Pty Ltd v Schmidt [2025] FCA 677. I will use the defined terms that I adopted in those decisions. These reasons concern applications made by Lamson for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FC Act) with respect to several affidavits that were filed in relation to Lamson's various interlocutory applications that were made in both of the proceedings from which those decisions emanated:  NSD 501 of 2025 and NSD 564 of 2025 (Oscuro proceedings and Schmidt proceedings, respectively).

2. Since Lamson applied for suppression orders, I have made an order pursuant to r 9.02(1) of the Federal Court Rules 2011 (Cth) that Mr Schmidt and Air-Log Australia (who are the respondents in the Schmidt proceedings) be joined as respondents in the Oscuro proceedings. That order was made because the Oscuro proceedings give rise to questions of fact and law that are in common with those that arise in the Schmidt proceedings. Further, the relief sought against Mr Oscuro is in respect of, or arises out of, the same series of transactions.

3. Although Lamson made applications for suppression orders in both the Oscuro proceedings and in the Schmidt proceedings, it is convenient that I deal with the applications together.  However, I will make orders in both proceedings, reflecting the different scope of the orders sought.

4. In determining whether to make the orders sought by Lamson, I will apply the summary of statutory provisions and principles relevant to making a decision about whether to make suppression orders pursuant to s 37AF of the FC Act that I set out in Leigh v National Disability Insurance Agency [2025] FCA 623 at [6]-[13]. To that summary I also refer to, and gratefully adopt, what was said by Stellios J in Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100 at [16] about the circumstances in which commercial sensitivity may be an appropriate basis for making an order under s 37AF on the ground that such an order is necessary to prevent prejudice to the proper administration of justice, as required by s 37AG(1)(a):

   [I]t has been accepted 'that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order' by reason of s 37AG(1)(a). In Motorola Solutions[, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17] at [9], Perram J explained that the reasons for this are 'generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit'. As Katzmann J said in Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278, at [148] … '[i]t is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished'. Conversely, '[i]t is not in the interests of the administration of justice that proceedings "become a vehicle for advantaging or prejudicing trade rivals"'.

   (citations omitted)

   The affidavits

5. Lamson seeks orders pursuant to s 37AF of the FC Act in relation to the following affidavits:

   (a)confidential affidavit of Kate Kershaw sworn 7 April 2025;

   (b)confidential affidavit of Kate Kershaw sworn 14 April 2025;

   (c)confidential affidavit of Kate Kershaw sworn 16 April 2025;

   (d)confidential affidavit of Kate Kershaw sworn 28 April 2025;

   (e)confidential affidavit of Glenn Lucas affirmed 7 April 2025;

   (f)confidential affidavit of Glenn Lucas affirmed 14 April 2025;

   (g)confidential affidavit of Glenn Lucas affirmed 16 April 2025;

   (h)confidential affidavit of Peter Kershaw sworn 7 April 2025;

   (i)confidential affidavit of Peter Kershaw sworn 16 April 2025;

   (j)affidavit of David Schmidt dated 23 April 2025;

   (k)affidavit of Nicholas Oscuro sworn 29 April 2025; and

   (l)affidavit of David Schmit affirmed 9 May 2025,

   by reason of the commercial sensitivity of the information contained in those affidavits.

6. I have referred to some of these affidavits as 'confidential'. This is because that is the way in which Lamson has referred to them, to distinguish them from other affidavits sworn or affirmed by the relevant deponents and filed in these proceedings in respect of which no orders under s 37AF are sought. In the balance of these reasons I will refer to the affidavits listed at [5], collectively, as 'the Affidavits'.

7. Lamson initially sought orders prohibiting the publication or other disclosure of the entire contents of all of the Affidavits.  However, after considering the submissions that were made on behalf of all parties, I provided the parties with my views about the specific information in each of the Affidavits that I considered, on a preliminary basis, might properly be regarded as commercially sensitive information, which might then properly be the subject of a suppression order on the ground that it was necessary to preserve the integrity of the litigation process.  Lamson subsequently refined its applications to seek suppression orders only in relation to those parts of the Affidavits that corresponded with my preliminary views.  Lamson also identified a small number of other pieces of information it submitted should also be suppressed on the ground that it was necessary to prevent prejudice to the proper administration of justice.

   The evidence in support of the applications for orders pursuant to s 37AF

8. In support of its applications for suppression orders, Lamson relies on two affidavits affirmed on 7 May 2025 by Lisa Qiu, a solicitor who has carriage of both matters on Lamson's behalf.  In each of those affidavits, Ms Qiu says that she has specialised in the practise of employment law since 2015, and that because of her experience, legal training and studies, she considers that she understands what information belonging to a business may be confidential in nature.

9. Ms Qiu also says that she has been informed by Ms Kershaw, Mr Kershaw and Mr Lucas, and believes, that the confidential affidavits likely contain Lamson's commercially sensitive information.  She says that if this information were to be made public, it may allow one or more of Lamson's competitors to gain an advantage with respect to several broad streams of Lamson's revenue, including service or maintenance contracts, repair contracts, break down services and spare parts contracts, as well as projects or opportunities which Lamson tenders for or otherwise attempts to secure outside the usual tender process.

10. Ms Qiu considers that the confidential affidavits also refer to matters that provide context to that type of information, as well as information about or belonging to current or prospective clients, contractors or suppliers.  Ms Qiu says that if that information were to be made publicly available, it may undermine the confidence those current or prospective clients, contractors or suppliers have in Lamson's ability to secure their confidential information.

11. In both of her affidavits, Ms Qiu identifies specific parts of the confidential affidavits which she says contains information about Lamson's active tenders and opportunities, the number of projects Lamson responded to in 2021 to 2024, as well as the estimated revenue for, and the total approximate value of projects won over, that period.  Ms Qiu also says that parts of the confidential affidavits reveal the estimated commercial value of Lamson's open opportunities for 2025 and 2026, information about Lamson's service and maintenance contracts, its repair contracts, its successful and unsuccessful tenders, its tendering process, as well as contextual and client information.  She also identifies several other paragraphs in those affidavits that she believes contain information with respect to:

    (a)a particular confidentiality agreement;

    (b)an enterprise agreement;

    (c)previous Lamson employees (including Mr Schmidt);

    (d)Lamson's relationship with a preferred supplier;

    (e)a current project in Queensland; and

    (f)how competitors may be able to obtain a commercial advantage.

12. Ms Qiu was not required for cross-examination.  However, objections were taken to several paragraphs in her affidavits.  It is unnecessary to deal with those objections in any detail.

13. To the extent that it was contended that Ms Qiu's affidavits contained hearsay, those objections fall away because of s 75 of the Evidence Act 1995 (Cth). Ms Qiu's affidavits were relied on in interlocutory applications and, where those affidavits contained any hearsay evidence, Ms Qiu adduced evidence of its source.

14. The objections made to Mr Qiu's affidavits on the basis that they contained irrelevant evidence have no substance.  I am well satisfied that the contents of both of her affidavits amounted to evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in Lamson's applications for suppression orders.

15. Insofar as objections were taken to parts of Ms Qiu's affidavits on the footing that they amount to inadmissible opinion evidence, I have not taken any such opinions into account.

16. Somewhat curiously, objections were also taken to aspects of the confidential affidavits themselves.  As the confidential affidavits are the subject of the application for suppression orders, those objections go nowhere.

    Determination

17. In my view, it is appropriate to make an order under subss (1)(b)(i) and (iv) of s 37AF of the FC Act, in respect of the information in the Affidavits that was the subject of my preliminary views, on the ground in s 37AG(1)(a). I am of the same view about the additional information in the Affidavits identified by Lamson after I provided the parties with my preliminary views. I will refer to this information collectively as 'the Information'.

18. Based on Ms Qiu's evidence, and having particular regard to the nature of the Information itself, it is plainly confidential.  Speaking generally, it would clearly be of benefit to Lamson's competitors, and to Lamson's detriment, if the Information were to be disclosed.

19. It is, of course, not possible to identify the Information to any great extent.  To do so would defeat the very purpose of the orders that I think should be made.  However, it is possible to describe the Information in very general terms.  The Information includes details about:

    (a)the various commercial projects in which Lamson has engaged, continues to engage, and plans to engage into the future, and their estimated revenue;

    (b)Lamson's other commercial opportunities, and their estimated revenue;

    (c)Lamson's pricing structure;

    (d)Lamson's financial results, past and ongoing revenue sources, and information about the circumstances in which Lamson has sustained certain losses;

    (e)past and current tender proposals submitted by Lamson, including successful and current tenders, and information about the way in which Lamson responds to tender opportunities;

    (f)Lamson's clients, including information about their identities, where they are located, the terms of their contracts with Lamson (including termination dates), the total value of contracts entered into with those clients, and the basis on which any such contracts may periodically be renewed;

    (g)Lamson's suppliers, the quality of their products, and information about the terms on which those suppliers engage with Lamson; and

    (h)Lamson's business operations, including how it deploys its resources, its pricing methodology, and its method of business development.

20. The Information also includes some of the very information that Lamson alleges in these proceedings was misappropriated, as well as details about where that sort of information is stored within Lamson.

21. In my view, it is necessary to prevent prejudice to the proper administration of justice that a suppression order be made to prohibit the disclosure of the Information.  Lamson commenced this litigation to, in large part, prevent the further dissemination of what it alleged was confidential information that had been misappropriated.  The value to Lamson of its confidential information should not be destroyed or diminished because it was necessary to take that step.

22. I will make suppression orders in respect of the Information, pursuant to s 37AF of the FC Act, on the ground that such orders are necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a). However, the parties should have the opportunity to bring in a joint minute of proposed orders or, if they cannot agree, competing minutes of proposed orders to be made in both the Oscuro proceedings and Schmidt proceedings, to give effect to these reasons.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.

Associate:

Dated:       8 September 2025