Federal Court of Australia

Agility CIS Ltd v White (No 3) [2026] FCA 984

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and submit to the chambers of the Honourable Justice Anderson proposed minutes of orders that reflect and give effect to the reasons for judgment published today, and separate proposed orders to prepare the proceeding for trial.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANDERSON J:

1    By interlocutory application (Application) filed 13 May 2026, the applicants seek leave to file a further amended statement of claim (3FASOC) (being the second iteration of the 3FASOC propounded by the applicants), being the sixth version of the statement of claim the applicants have now sought to rely upon in this proceeding.

2    By a letter sent by Ms Nicole Wearne of Kennedys, the respondent’s solicitors, on 22 July 2026, the respondents identified with clarity the issues in dispute on this application:

…our clients object to the following amendments…:

(a)    the amendments to the particulars to paragraph 8(b)(ii);

(b)    the amendments to particular (a)(i) to paragraph 17;

(c)    particular (bb) to paragraph 17;

(d)    all of the inclusive amendments to the particulars to paragraph 17A (being particulars (aa), (ab), (bb));

(e)    the amendments to particular (a) to paragraph 48; and

(f)    the inclusion of paragraph 49A.

Our clients do not oppose the proposed amendment to the particulars to paragraph 14B to include a reference to Mr White’s affidavit at paragraph [61].

3    The applicants claim that the proposed amendments do not substantially alter the allegations of misuse of confidential information contained in the second further amended statement of claim (2FASOC). The applicants further claim that the proposed amendments do not give rise to any prejudice to the respondents.

4    The applicants rely upon the affidavits of David Fixler dated 13 May 2026 (Fixler 2) and 30 June 2026 (Fixler 3), as well as the evidence filed by both parties in the proceeding. The respondents oppose the application and rely upon the affidavit of Nicole Joy Wearne dated 10 June 2026 (Wearne 14).

5    The proposed amendments can be found at annexure DGF-20 to Fixler 3 at pages 54-79.

6    The applicants contend that the proposed amendments do not expand the case. Indeed, in two respects, the amendments represent a narrowing of the issues in dispute. The applicants no longer press the allegations in respect of the Business Requirements Specification (BRS) or meter timing codes in light of the evidence adduced by the respondents. The respondents do not object to those allegations being withdrawn.

7    The remaining amendments are, in the applicants’ submission, a matter of form rather than substance. The applicants submit that the substantive content of the confidential information (namely, the ORION Table Schemas) remains unchanged. The applicants submit that the amendments merely seek to clarify, in light of the evidence adduced by the respondents, that the applicants allege that the respondents obtained that confidential information from the Blue NRG ORION database, rather than .sql files extracted from ORION’s databases.

8    The applicants submit that the substantive content of the confidential information remains unchanged. Rather, all that has been amended is the identification of from where that information was taken.

9    I do not accept that the proposed amendments involve “a matter of form rather than substance” and that they do not alter the substantive content of the confidential information in issue. That misstates the nature of the proposed amendments in two significant respects.

10    First, it is not correct to say that the proposed amendments do not alter the nature of the confidential information sought to be relied upon by the applicants. The amendments have the effect of fundamentally changing the character of the information said to comprise the ORION Table Schemas, by untethering that information from any tangible embodiment in the specific .sql files within the relevant ORION databases relied on by the applicants, and instead leave the pleading of confidential information undefined and inadequately particularised.

11    The pleading of confidential information in the 2FASOC asserted confidentiality in the information contained in the .sql files, that were previously said to comprise the ORION Table Schemas, not simply the files themselves. The respondents submit that the change in the scope of the pleading is most apparent in the initial version of the 3FASOC (see DGF-13 at pages 11-35 of Fixler 2) where the applicants pleaded the relevant information as comprising “the structure of the ORION databases, the tables of the data which are necessary for ORION to function, the fields in those tables and the relationships between those tables and fields and other tables and fields within the database”. By contrast, the new version of the 3FASOC seeks to conceal what is essentially the same allegation by removing the reference to a particular embodiment of the ORION Table Schemas in specific .sql files, but still fails to define the relevant information within those schemas that is said to be confidential. As a result, the content of the confidential information sought to be relied on is inherently uncertain, contrary to the fundamental principle that, in a confidential information case, the confidential information in question must be defined with precision: Pioneer Concrete Services Limited v Galli (1985) VR 675 at 711 (Crockett, Murphy and Ormiston JJ), and see my summary of the principles relevant to pleading a misuse of confidential information in Agility CIS Ltd v White [2021] FCA 1145 at [10]-[18].

12    Secondly, the suggestion by the applicants that the proposed amendments “do not expand the case” ignores the fact that the effect of the amendments is to introduce an entirely new allegation relating to the use of the Blue NRG ORION Table Schema in the development of “the table schema for CORE”: see the particulars at (bb) to paragraph [17A] of the proposed 3FASOC. The previous case pleaded in the 2FASOC only involved allegations of misuse of the ORION Table Schemas in the development of the Migration Map.

13    I accept the respondents’ submission that the proposed amendments in the 3FASOC now seek to advance a fundamentally different and uncertain claim, by reference to evidence the respondents have not previously had any opportunity to address.

14    The effect of the proposed amendments is to shift the asserted confidential information from a specific software file containing instructions for the design of the ORION database which are not otherwise available without access to the underlying source code, to undefined and unspecified content and arrangement of the ORION database embodied in the customer data itself.

15    I also accept the respondents’ submission that the proposed amendments to the 3FASOC seek to reintroduce a claim which was advanced in the very first version of their pleading and abandoned after it was struck out as lacking sufficient particularity: Agility at [37(3)].

16    I accept the respondents’ submission that the proposed amendments go well beyond simply aligning the pleaded case with the ‘admitted conduct’ of the respondents, but extend the case from one related solely to the creation of the Migration Map (the generation of which is admitted by the respondents) to one concerning the use of the ORION Table Schemas as discerned in the Blue NRG database in the creation of the table schemas for CORE.

17    I am satisfied that if the amendments were to be allowed, the respondents would be required to address different confidential information (being the overarching structure of the data and the way the tables relate to each other as discerned in the Blue NRG database) and different allegations of misuse (being the use of such information in the creation of the table schemas for CORE).

18    I am also satisfied that if the amendments were to be allowed, the respondents would suffer substantial prejudice which cannot adequately be addressed by an award of costs.

19    The previous amendment application, which resulted in leave being granted for the applicants to file the 2FASOC, was a significant change in the applicants’ case that was itself only made after a substantial delay, and resulted in me requiring an undertaking from the applicants which was recorded in the orders made on 12 June 2025 as follows:

As a condition of the grant of leave in paragraph 1 of the orders below, the Applicants, by their counsel, undertake to the Court not to file any further evidence in chief on liability.

20    I sought that undertaking from counsel for the applicants on the application to grant leave for the amendments in the 2FASOC because of the persistent delay by the applicants in formulating their case and filing their evidence in chief on liability.

21    The applicants raise these new allegations, the subject of the proposed amendments, as part of their evidence in reply and in practical terms seek to depart from the assurance given to the Court on the last amendment application that the amendments embodied in the 2FASOC would represent “a line drawn in the sand” on the applicants’ liability case.

22    The respondents will suffer irreparable prejudice if the amendments are allowed as the new claim rests on the respondents’ access to and use of the customer database provided to the respondents by Blue NRG. This will require the respondents to address that claim without access to the Blue NRG database itself. That is because the applicants no longer have a copy of that database and Blue NRG itself has migrated its database to a new customer information system: Wearne 14 at [60(c)] and [68(b)]. That means the respondents will be unable to use that database to test the contentions that: the content and structure of the ORION Table Schemas can be discerned from the database; to challenge the confidentiality of that information; or to rebut the suggestion that the table schemas for CORE were derived from information contained in that database, by comparing its structure to that of the CORE Table Schemas. This will result in the respondents being left in the position of having to defend a claim of confidential information without being able to rely on, or point to, evidence of the alleged confidential information itself. This will, in my view, place the respondents at a significant forensic disadvantage which cannot be compensated by an award of costs.

23    The amendments the subject of this application in the proposed 3FASOC (second iteration) constitute the sixth version of the statement of claim which the applicants now seek to rely upon in the proceeding and come more than five years after commencement of this proceeding. The High Court has emphasised there is a harm caused to the administration of justice and public confidence in the judicial system where proceedings are subject to undue delay and a court is seen to accede too readily to applications made without adequate explanation or justification: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [24]-[30] (French CJ, and see Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111]-[116]). There has, in my view, been untoward delay in bringing the present application to amend which has not been adequately explained, let alone justified.

24    For these reasons, the applicants’ application will be dismissed with costs. The respondents seek that costs be payable on a lump sum basis forthwith and on an indemnity basis. I decline to make that order. However, due to the unexplained and inordinate delay in bringing the application, I will order that the costs of the application be assessed on a lump sum basis and be payable forthwith on a standard party-party basis. I will also order that the applicants pay the respondents’ costs thrown away by reason of the amendments which have not been opposed by the respondents.

25    I direct the parties to confer and to bring into my chambers a form of orders which reflects these reasons and also the order I proposed to make in relation to the Wearne 14 affidavit in respect of confidentiality.

Associate:

Dated:    24 July 2026

SCHEDULE OF PARTIES