Federal Court of Australia

AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2025] FCAFC 97

ORDERS

THE COURT ORDERS THAT:

Confidential judgment and figures

1.    Subject to further order, and subject to paragraph 2 below, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice:

(a)    the unredacted judgment of the Full Court delivered on 9 July 2025 (the Full Court Judgment) be marked “confidential” on the Court file and not be published or made available and not be disclosed to any person or entity until 15 July 2030; and

(b)    the following parts of the Full Court Judgment be treated as confidential, not be published or made available, and not be disclosed to any person or entity until 15 July 2030:

(i)    the dollar figure in line four of [40] of the Full Court Judgment (but not the dollar sign immediately preceding it);

(ii)    the number that appears before the % symbol in the first line of the quotation from [2429] of the judgment of the primary judge set out in [64] of the Full Court Judgment; and

(iii)    the word that appears before “per cent” (twice) in the third and fourth lines of the last paragraph of the quotation in [159] of the Full Court Judgment

(together, the Confidential Figures).

2.    Paragraph 1 above shall not prevent disclosure of the Confidential Figures and the unredacted version of the Full Court Judgment to:

(a)    the respondent and Mercedes-Benz AG;

(b)    the solicitors and counsel for the appellants; and

(c)    any officer of any appellant who has signed a confidentiality undertaking in a form reasonably proposed by the respondent.

Other confidential materials

3.    Subject to further order, and subject to paragraph 4 below, pursuant to s 37AF of the Federal Court of Australia Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the following documents be marked “confidential” on the Court file and not be published or made available and not be disclosed to any person or entity until 15 July 2030:

(a)    the affidavit of Jason Nomikos affirmed on 14 July 2025;

(b)    the affidavit of Evan Stents sworn on 18 July 2025; and

(c)    the appellants’ outline of submissions dated 18 July 2025.

4.    Paragraph 3 above shall not prevent disclosure of the affidavit of Mr Nomikos affirmed on 14 July 2025, the affidavit of Mr Stents sworn on 18 July 2025 and the appellants’ outline of submissions dated 18 July 2025 to:

(a)    the respondent and Mercedes-Benz AG; and

(b)    the solicitors and counsel for the appellants.

Further orders

5.    There be no order as to costs in relation to the respondent’s interlocutory application dated 14 July 2025.

6.    There be liberty to apply.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 9 July 2025, the Full Court gave judgment in this appeal: AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd [2025] FCAFC 86 (the Full Court Judgment). These reasons should be read together with the Full Court Judgment. We will adopt the abbreviations used in the Full Court Judgment.

2    The Full Court Judgment was initially published on a confidential basis, in circumstances where parts of the judgment of the primary judge had been redacted for reasons of commercial confidentiality. The parties were given a short period of time to indicate if they sought suppression or non-publication orders over any parts of the Full Court Judgment.

3    By interlocutory application dated 14 July 2025, Mercedes Australia applied for suppression or non-publication orders in relation to four figures that appear in the Full Court Judgment. The figures that Mercedes Australia seeks to have suppressed are identified in an affidavit of Jason Nomikos affirmed on 14 July 2025 (the Nomikos affidavit) at [15] and [26], and are as follows:

(a)    the dollar figure in line four of [40] of the Full Court Judgment (but not the dollar sign immediately preceding it);

(b)    the number that appears before the % symbol in the first line of the quotation from [2429] of the judgment of the primary judge set out in [64] of the Full Court Judgment; and

(c)    the word that appears before “per cent” (twice) in the third and fourth lines of the last paragraph of the quotation in [159] of the Full Court Judgment

(together, the Confidential Figures).

4    Mercedes Australia also seeks a suppression order in respect of the Nomikos affidavit, on the basis that it discloses the Confidential Figures and commercially sensitive material.

5    In support of its application, Mercedes Australia filed an outline of submissions dated 14 July 2025.

6    Pending the determination of the application, the Full Court made interim suppression orders on 16 July 2025. These orders suppress the figures in respect of which the application is brought for a period of 14 days (subject to a carve out for certain persons, including representatives of some of the appellants who have signed a confidentiality undertaking). This enabled a redacted version of the Full Court Judgment to be published to the public.

7    In accordance with a timetable set by the Court, on 18 July 2025, the appellants filed an affidavit of Evan Stents dated 18 July 2025 (the Stents affidavit) and an outline of submissions of the same date. The appellants’ position as expressed in those submissions is as follows. The appellants oppose any continuation as against them of the suppression or non-publication orders, both in respect of the figures identified above and the Nomikos affidavit. They state that whether a general suppression order is made is a matter for the Court. However, for the reasons set out in their submissions, they do not accept that any more general suppression order is warranted.

8    The timetable set by the Court provided for Mercedes Australia to file any material in reply by 4.00 pm on 22 July 2025. By an email to chambers on 21 July 2025, Mercedes Australia indicated that it did not intend to file any material in reply. However, Mercedes Australia indicated that it also sought suppression orders in respect of the Stents affidavit and the appellants’ outline of submissions.

9    The orders dated 16 July 2025 stated that the application would be determined on the papers. Neither party sought an oral hearing.

10    There is no issue between the parties as to the applicable principles relating to the making of suppression or non-publication orders under s 37AF of the Federal Court of Australia Act 1976 (Cth). It is sufficient for present purposes to refer to Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; 275 FCR 377 at [4]-[9], citing Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30], [33].

11    Insofar as suppression orders are sought by Mercedes Australia in relation to the public generally (as distinct from the appellants), we are satisfied that it is appropriate to make the orders sought. The Nomikos affidavit provides cogent material to support the argument that Mercedes Australia and Mercedes Germany could suffer commercial harm if the figures were released to the public. This is because competitors could use the figures to their advantage and to the disadvantage of Mercedes Australia or Mercedes Germany. It would be contrary to the interests of justice for Mercedes Australia and Mercedes Germany to be exposed to that commercial harm in circumstances where Mercedes Australia relied on the relevant information for the purposes of defending itself in the proceeding. The period in respect of which the orders are sought (until 15 July 2030) is supported by the material. We note also that the figures are not necessary for the public to understand the Full Court’s reasoning.

12    We now turn to the question whether the suppression orders that are sought should apply in relation to the appellants. The evidence of commercial harm that would arise if the information were released to the appellants is slight to non-existent. The Nomikos affidavit is almost entirely concerned with commercial harm that would arise if the figures were made available to competitors as distinct from dealers. The section of the Nomikos affidavit dealing with the dollar figure in line four of [40] of the Full Court Judgment (i.e. [15]-[22] of the Nomikos affidavit) does not say anything specific about harm that would arise if the appellants were to have access to this figure. The section of the affidavit dealing with the other figures sought to be suppressed (i.e. [23]-[33] of the affidavit) has only one paragraph ([32]) dealing with harm that would arise if the appellants were to have access to the figures, and that paragraph merely asserts, without elaboration, that disclosure could disadvantage Mercedes Australia in current and future negotiations with its network (including future agents).

13    Further, we note that Mercedes Australia did not file any reply evidence pointing to harm that would arise if the figures were disclosed to the appellants, in circumstances where the appellants had filed submissions contending that any suppression order should not apply to them.

14    Having regard to the above matters, insofar as suppression is sought in relation to the four figures, we are not satisfied that it is necessary for the suppression order to apply to officers of the appellants, provided that any officer who is to receive the figures has first signed a confidentiality undertaking (in a form reasonably proposed by Mercedes Australia). We are not satisfied that Mercedes Australia or Mercedes Germany will suffer commercial harm if the figures are released to those persons. We consider that the requirement that such individuals first sign a confidentiality undertaking is sufficient to protect the commercial interests of Mercedes Australia and Mercedes Germany. We will reserve liberty to apply in case there is any issue between the parties as to the form of the confidentiality undertaking.

15    However, insofar as suppression is sought in relation to the Nomikos affidavit, the Stents affidavit and the appellants’ outline of submissions, we consider it necessary for the suppression order to extend to the appellants. These documents were prepared solely for the purpose of supporting or responding to the application for suppression orders. The material they contain goes beyond the figures in issue, and refers to other facts or matters that may well cause commercial harm to Mercedes Australia and Mercedes Germany if disclosed to the appellants. While we do not have specific evidence from Mercedes Australia about the contents of the Stents affidavit and the appellants’ outline of submissions, we are prepared to infer based on their subject matter that they could cause harm.

16    We note that there is already an arrangement between the parties for eight named individuals who are representatives of some of the appellants, and who have signed confidentiality undertakings, to have access to the Confidential Figures and the unredacted version of the Full Court Judgment. This was explained in correspondence with the Court following delivery of the Full Court Judgment. In subsequent correspondence, the appellants sought to have an additional individual included in that group. This was opposed by Mercedes Australia. It follows from the conclusions we have reached above that that individual (who is an officer of one of the appellants) will be able to have access to the figures provided that he first signs a confidentiality undertaking.

17    It is unclear from the affidavit material and submissions whether it is agreed that the eight named individuals referred to above should also have access to the Nomikos affidavit, the Stents affidavit and the appellants’ outline of submissions. We do not propose to make orders permitting this at this stage. If necessary, the parties can apply, pursuant to “liberty to apply”, for an order permitting this.

18    In the circumstances, we consider it appropriate that there be no order as to costs in relation to the interlocutory application.

Associate:

Dated:    30 July 2025

SCHEDULE OF PARTIES