FEDERAL COURT OF AUSTRALIA

Cantor v Audi Australia Pty Limited (No 8) [2025] FCA 134

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non-Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non-Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non-Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non-Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non-Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non-Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non-Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non-Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non-Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

ORDERS

THE COURT ORDERS THAT:

Respondents’ Non-Publication Application

1.    Pursuant to sections 37AF and 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 (Non-Publication Material) not be disclosed (by publication or otherwise) to any person other than:

(a)    the Court;

(b)    the applicants;

(c)    the legal representatives of the applicants for the purposes of one or more of the proceedings only; and

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

2.    Pursuant to section 37AJ of the Federal Court Act, Order 1 operate until the earlier of midnight on 31 December 2026 or further order of the Court.

3.    Order 1 above does not affect the existing confidentiality regime including:

(a)    Orders 7 and 8 of the Orders of the Court made on 12 July 2016 in Proceedings NSD1307/2015, NSD1308/2015, NSD1459/2015, NSD1472/2015 and NSD1473/2015;

(b)    Orders 1 and 2 of the Orders of the Court made on 26 October 2016 in Proceeding NSD1462/2016; and

(c)    Orders 17 and 18 of the Orders of the Court made on 13 April 2017 in Proceeding NSD322/2017,

in respect of any document discovered, produced, prepared or filed in the proceedings and which is not admitted into evidence.

4.    Such further or other orders as the Court thinks fit.

Schedule 1

Information Subject to Non-Publication Order

(a)    the names of the individuals identified as Employee01, Employee1A, Employee02, Employee03, Employee04, Employee05, Employee06, Employee06A, Employee06B, Employee07, Employee08, Employee08A, Employee08B, Employee08D, Employee09, Employee10, Employee11, Employee12, Employee13, Employee14, Employee15, Employee15A, Employee17, Employee18, Employee18A, Employee18B, Employee19, Employee19A, Employee20, Employee21, Employee22, Employee23, Employee24, Employee25, Employee26, Employee27, Employee28, Employee29, Employee31, Employee32, Employee34, Employee35, Employee36, Employee37, Employee38, Employee39, Employee40, Employee41, Employee42, Employee43, Employee46, Employee47, Employee48, Employee49, Employee50, Employee51, Employee52, Employee53, Employee54, Employee55, Employee56, Employee57, Employee58, Employee59, Employee60 and Employee61 (the Non Publication Group) as set out in:

(i)    Column A1 of the first table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018 [MSC.010.028.0001] (Table 1 in Schedule 3 of the 20 March Answer);

(ii)    Column A1 of the first table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018 [AID.010.001.0001] (Table 1 of the Consolidated Interrogatories);

(iii)    Column 1 of the first table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 1 in Schedule 2 of the 31 January Answer);

(iv)    Column 1 of the second table in Schedule 2 to the affidavit of Manfred Doess sworn on 31 January 2019 (Table 2 in Schedule 2 of the 31 January Answer); and

(v)    the Affidavit of Claudia Oakeshott affirmed on 17 August 2018 as marked in yellow pursuant to the orders dated 29 August 2019 (Oakeshott Affidavit)

which tables set out the answers to interrogatories 1, 2 and 1.3 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018, 9 March 2018 and 30 August 2018 respectively;

(b)    the employing or retaining entity of an individual in the Non-Publication Group (except where that entity is VWAG) at:

(i)    Column A2.1 of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.1 of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(c)    the positions, titles and responsibilities held during the Relevant Period by the Non Publication Group as set out in:

(i)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked in Table 1 of the Consolidated Interrogatories) of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    Column A2.2 (entire cell), A2.3 and A2.4.1 (content as marked) of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(d)    the current positions held by the Non-Publication Group as set out in:

(i)    the final column headed "A 9 March 2018" of Table 1 in Schedule 3 of the 20 March Answer;

(ii)    the final column headed "A 9 March 2018" of Table 1 of the Consolidated Interrogatories; and

(iii)    the Oakeshott Affidavit.

(e)    the names of the persons identified as Supervisors A - F and Attorney A at:

(i)    the third table in Schedule 3 to the affidavit of Manfred Doess sworn on 20 March 2018;

(ii)    the third table in the Consolidated Questions and Answers to Interrogatories dated 21 March 2018,

which table sets out the answers to interrogatories 4 and 5 ordered in the Maurice Blackburn and ACCC proceedings on 21 February 2018 and 9 March 2018; and

(iii)    the Oakeshott Affidavit.

(f)    the names of the persons identified as Supervisors A - F and Attorney A at paragraphs 16 to 22 of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001];

(g)    for the individuals in rows 2 to 15 and 17 to 21 in Annexure A of the Notice to Admit served in the ACCC proceedings on 9 March 2018 [CRT.030.014.0001], the names and positions identified in Columns 1 and 3;

(h)    Confidential Exhibit A: 1-5 tendered by the respondents on 29 August 2018 in the hearing of the Second Further Amended Interlocutory Application filed by the Australian Competition and Consumer Commission in proceedings NSD 1462 of 2016 and NSD 322 of 2017;

(i)    Confidential Annexures BLL-20, BLL-21 and BLL-22 to the Affidavit of Bruce Llewellyn Lloyd affirmed 13 September 2019;

(j)    Confidential Annexures BLL-24 and BLL-25 to the Affidavit of Bruce Llewellyn Lloyd affirmed 9 December 2020;

(k)    Confidential Annexure BLL-27 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 26 April 2023; and

(l)    Confidential Annexure BLL-29 to the Affidavit of Bruce Llewellyn Lloyd affirmed on 19 December 2024.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    INTRODUCTION

1    By an interlocutory application filed on 19 December 2024, the respondents to seven proceedings in this Court seek to extend the operation of orders previously made and extended by this Court. The application is supported by affidavits of Mr Bruce Lloyd, a partner of Clayton Utz, the solicitors for the respondents, made on 26 April 2023 and 19 December 2024.

2    The applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 consent to the application. The applicants in the remaining proceedings, namely NSD1307 of 2015, NSD1308 of 2015, NSD1462 of 2016 and NSD322 of 2017, neither consent to nor oppose the application .

B.    BACKGROUND

B.1    Procedural history and previous orders

3    The nature of the proceedings and an overview of some of the issues raised is described in the reasons for judgment of Foster J in Cantor v Audi Australia Pty Limited (No 2) [2017] FCA 1042 at [1] to [16]. In broad terms, and at the risk of oversimplification: five of the proceedings were class actions and two were commenced by the Australian Competition and Consumer Commission; all of the proceedings concerned alleged conduct of one or more of Audi AG, Audi Australia Pty Ltd, Volkswagen Group Australia Pty Limited, Volkswagen AG (VWAG) and Skoda Auto A.S.; and the alleged conduct included misleading or deceptive conduct and unconscionable conduct with respect to motor vehicles sold in Australia.

4    On 23 September 2019, Foster J made orders in each of the proceedings (23 September 2019 orders), pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) relevantly prohibiting, with some exceptions, the disclosure of certain information, including information as to the identity of persons who are related to or associated with VWAG and who may have been involved in conduct which may become the subject of criminal charges. Some of that information was disclosed in answers to interrogatories administered during the proceedings .

5    On 3 October 2019, his Honour published his reasons for making the 23 September 2019 orders: Cantor v Audi Australia Pty Limited (No 4) [2019] FCA 1633 (Cantor (No. 4)). His Honour set out at [18] to [37] an extensive analysis of authorities concerning Part VAA of the FCA Act . At [37], his Honour explained:

The exercise by this Court of the judicial power of the Commonwealth in connection with applications of the kind presently before the Court may require this Court to consider the impact of the deployment of its compulsory processes (such as the power to compel a party to give discovery of documents or to answer interrogatories or to respond to a Notice to Admit Facts) upon individuals who may or may not be parties to the particular proceeding in this Court in the traditional sense, who ordinarily reside in places other than Australia and who may well be subject to the criminal law of countries other than Australia. Such individuals will necessarily have some connection with the proceeding in this Court but the connection may be quite tenuous. For example, in an appropriate case, this Court may suppress information which concerns any person named in evidence in a proceeding (see the extended definition of “party” in s 37AA of the Act and s 37AF(1)).

6    His Honour then considered the various categories of information in respect of which suppression orders had been sought. At [38] to [48] his Honour stated:

38.    The first category of information sought to be protected by the order sought in the respondents’ IA is information that reveals or tends to reveal the identity of persons who are related to or otherwise associated with VWAG (former or current employees of VWAG, its related corporations and affiliates) which, of course, is a party in five of the seven proceedings presently before the Court and which is the parent company of other parties to those proceedings, or otherwise concerns VWAG and/or its subsidiaries. As I noted at [8] above, such information is within the type of information described in s 37AF(1)(a) of the Act. In the circumstances of the present case, that information may also fall within the type of information specified in s 37AF(1)(b)(iv) of the Act.

39.    The answers to interrogatories provided by the respondents contain the names of 67 current or former employees of VWAG, its related corporations or affiliates, who VWAG believes were involved in some way in the development, installation, modification or approval of the switching or 2 mode software installed in motor vehicles fitted with the EA189 diesel engine (affected vehicles). In its answers to interrogatories, VWAG stated that it believed that the purpose of some of those persons in engaging in that conduct was to enable the affected vehicles to pass emissions tests required to be conducted in Europe and in the US even though they would not have passed such tests if they had been tested in road mode. In other words, the answers to interrogatories provided by the respondents, if made available publicly without restriction, might well serve not only to identify those responsible for conceiving the scheme and putting it into effect but might also serve to incriminate those persons in a manner which could visit a serious injustice upon them. The respondents’ response to the relevant Notice to Admit Facts also contains the names of individuals whom the respondents consider were implicated in dieselgate.

40.    None of the individuals named in the respondents’ answers to interrogatories or in their response to the relevant Notice to Admit Facts has appeared before me in relation to the respondents’ IA. None of them is a party to any of the proceedings before the Court. The identity of each of the persons comprising the Non-Publication Group has been disclosed to the applicants and to the Court by the respondents under compulsion and not by the individuals themselves. All of those individuals have been made aware of the fact that certain interrogatories were required to be answered by the respondents in the Australian proceedings and have also been made aware generally of the substance of the answers that VWAG intended to give in response to those interrogatories. Many of those persons advised VWAG’s lawyers that they had concerns that any form of disclosure in the present proceedings might prejudice their criminal trial and that they supported the respondents’ claims for relief in their IA.

41.    As at mid-September 2019, the evidence before me proved that:

(a)    Potentially more than 40 current and former VWAG employees, many of whom are referred to in the respondents’ answers to interrogatories, are the subject of criminal investigations in Germany in connection with dieselgate. In addition, the Public Prosecutor in Braunschweig in Germany has submitted to the Court there, for its consideration, indictments of five individuals all of whom are mentioned in the answers to interrogatories. Further indictments in Germany of approximately 27 other persons named in the answers to interrogatories are likely to be filed. A number of other individuals are formal suspects in ongoing investigations. Some of these will be persons who are mentioned in the materials specified in Schedule 1 to the 23 September Orders;

(b)    The hearings of the criminal prosecutions in Braunschweig are likely to commence later this year and may continue for a period of up to a year thereafter. These proceedings will likely be tried before two professional judges and two lay judges. German law contains a number of provisions designed to protect lay judges from being influenced by prejudicial material and to maintain their impartiality;

(c)    The offences alleged against those persons who have been indicted in Germany and the offences the subject of investigations by authorities in Germany are very serious. They all carry penalties by way of imprisonment, in some cases for a maximum term of ten years; and

(d)    Several persons have been charged, convicted and imprisoned in the US for their role in dieselgate. Others are under indictment and yet others are being investigated. Investigations by the US Department of Justice are continuing. Other criminal proceedings have been instituted in the US including a proceeding recently brought by the US Securities and Exchange Commission. At the moment, it is not possible to be certain as to the identity of further individuals who may be the subject of prosecutions in the US. All of the criminal matters in the US would be tried before a judge and a jury. All of those matters involve very serious offences.

42.    The evidence before me established that, despite the fact that there has been some publicity overseas in relation to criminal investigations in Germany and in the US, with the exception of those individuals in relation to whom an indictment has been made public in the US or who have been convicted of a crime in the US, no employee identified in the answers to interrogatories or the relevant Notice to Admit Facts has yet been identified in any publicly available documents as being involved in the conduct the subject of the Australian proceedings in the manner and with the specificity described in the answers to interrogatories and the Notice to Admit Facts.

43.    The respondents submitted that, absent an order under s 37AF of the Act, the involvement in dieselgate of the individuals named in the answers to the interrogatories and in the other materials specified in Schedule 1 to the 23 September Orders will become public in connection with dieselgate for the first time in the present proceedings. Once made public, that information could easily be disseminated in Germany and in the US. It is very likely that it would be so disseminated. After all, there has been considerable public interest and public reporting of the dieselgate scandal both in Australia and elsewhere and it is reasonable to assume that the media and the relevant authorities will continue to maintain a keen interest in developments around the world including in Australia. The internet would, of course, facilitate the speedy dissemination of such information.

44.    In the circumstances which I have outlined, there is a real risk that the judges in the German criminal proceedings as well as the judges and juries in the US criminal proceedings would not only learn of the detail of the answers to interrogatories and the response to the relevant Notice to Admit Facts provided by the respondents in the present proceedings but would find it difficult to put that detail out of their minds.

45.    This gives rise to a real risk of compromise to the fairness of the criminal trials of those persons in the Non-Publication Group who are already the subject of charges in Germany and in the US and who may, in the future, be subject to such charges. If, for example, a lay judge in one of the German trials or a jury member in one of the US trials becomes aware of the fact that the respondents have given verified answers to interrogatories in connection with the Australian proceedings that, to the best of their knowledge, information and belief, the particular accused was involved in the development of the impugned software and that his or her purpose in being so involved was to defeat the European or US vehicle emissions tests, that lay judge or jury member, even acting conscientiously, would find it difficult to place that fact out of his or her mind. As far as the evidence before me went, the essence of many of the criminal charges of which the respondents are aware relates to the development of the impugned software or the concealment of its existence in motor vehicles sold in Europe and the US.

46.    In my judgment, there is a substantial risk that the revelation in the Australian proceedings of the identity of those whom the respondents consider to be responsible for the development of the impugned software and the installation of that software in vehicles around the world will unfairly prejudice the trial of many members of the Non-Publication Group in Germany and in the US and is prejudicial to the administration of justice by this Court and, more than likely, by courts in Germany and in the US.

47.    For the above reasons, I consider that the making of a suppression order which protects from public disclosure the identity of the members of the Non-Publication Group is well-warranted.

48.    In addition, I am satisfied that the Stage 2 Trial of the five class actions and the two regulatory proceedings with which I am concerned would not have been rendered unworkable by the making of a suppression order in respect of the first and second categories of information referred to above had that trial proceeded. It must be remembered that all of the applicant parties and the Court have access to the respondents’ answers to interrogatories and the other materials described in Schedule 1 to the 23 September Orders and the applicant parties would have been free to tender so much of that material as they may have been advised. The material would have been important had the Stage 2 Trial proceeded because the applicant parties bore the onus of proving that the relevant conduct was engaged in by persons whose conduct can be attributed to the respondents for liability purposes. However, discharging that onus did not require that the identity of the relevant persons be made public. Furthermore, none of the individuals named in the answers to interrogatories was likely to give evidence at the Stage 2 Trial. In any event, this Court has at its disposal a number of ways of managing the need for confidentiality during the course of a trial and would have been well equipped to manage that need in the present case as required during the run of the trial.

7    On 16 December 2020, Yates J made orders in each of the proceedings, effectively extending the operation of the 23 September 2019 orders, until 30 April 2023. The information the subject of the orders made by Yates J was broadened to include confidential annexures to an affidavit of Mr Lloyd affirmed on 9 December 2020 in support of the extension application.

8    On 27 April 2023, the respondents filed an interlocutory application seeking a further extension of the orders. On 28 April 2023, Yates J made an order in effect extending the previous orders until that application was determined.

9    On 1 February 2024, Yates J made an order in effect extending the previous orders until 31 December 2024. The information the subject of these orders was broadened to include a confidential annexure to an affidavit of Mr Lloyd affirmed on 26 April 2023 in support of the extension application.

10    On 24 December 2024, following the filing of the present application on 19 December 2024, Sarah C Derrington J made an order that had the effect of extending the existing orders until the determination of the present application.

B.2    The updating evidence

11    The affidavit evidence in support of the previous orders has addressed potential and actual criminal charges in Germany and the United States of America against persons named in the answers to interrogatories. Mr Lloyd’s 19 December 2024 affidavit provides an update to that earlier evidence. The present position is as follows.

B.2.1 Germany

12    Some 45 current and former employees of VWAG, Audi AG or associated entities, who include individuals referred to in the answers to the interrogatories, are the subject of criminal investigations in Germany.

13    The public prosecutor in Braunschweig – who is one of the public prosecutors who has been conducting an investigation of current and former employees of VWAG – has submitted various indictments to the Court in Braunschweig. As of 9 September 2024, the public prosecutor had submitted to the Court in Braunschweig for its consideration:

(1)    an indictment of five individuals who were identified in the answers to interrogatories (first indictment group);

(2)    a second indictment of a further six individuals who are among the persons referred to in the answers to interrogatories (second indictment group);

(3)    a third indictment of a further eight individuals who are among the persons referred to in the answers to interrogatories (third indictment group);

(4)    a fourth indictment of further individuals, seven of whom are among the persons referred to in the answers to interrogatories (fourth indictment group); and

(5)    a fifth indictment of further individuals, seven of whom are among the persons referred to in the answers to interrogatories (fifth indictment group).

14    The public prosecutor in Braunschweig has indicated that there are no other investigations ongoing and that no additional prosecutions will follow.

15    The alleged criminal offences under German law which are the subject of the indictments are serious offences and include:

(1)    fraud in a serious case under s 263 para. 1, 3 German Criminal Code (StGB) which carries a maximum sentence of up to 10 years’ imprisonment;

(2)    illegal advertising according to s 16 para. 1 German Unfair Competition Act which carries a maximum sentence of up to two years’ imprisonment;

(3)    causing wrong entries to be made in public records in a qualified case under section 271 para 1, 3 StGB which carries a maximum sentence of up to five years’ imprisonment; and

(4)    tax evasion according to s 370 para. 1 Fiscal Code of Germany which carries a maximum sentence of up to five years’ imprisonment.

16    The hearings for each of the first, second, third, fourth and fifth indictment groups will be heard by a panel of five judges, comprising three professional and two lay judges. A formal step which occurs shortly before formal prosecutions commence under typical German criminal prosecution procedures, is the provision to the accused of access to the investigation file so that the accused has disclosure to the evidence that will be adduced at trial. This has occurred for all 45 indicted individuals referred to at [12] above.

17    For the first indictment group, the hearings before the Regional Court in Braunschweig started on or about 16 September 2021 and will continue in the first instance through the first half of 2025. There may be appeals from the first instance Court decision which may last through 2026. In relation to one individual in the first indictment group, their proceeding will commence before a different Chamber in the first quarter of 2025 and will continue until 2026.

18    The hearings for the second, third, fourth and fifth indictment groups have not yet been set down but are unlikely to commence before the first half of 2025. It is also possible that these hearings will not commence until after the conclusion of the hearings for the first indictment group. The length of the trial of the second, third, fourth and fifth indictment groups cannot presently be estimated with precision, but such hearings can last many months or years, in some cases, depending on the individual defence strategies of the accused. As the indictments involve significant amounts of documentary material and a large number of expert and lay witnesses, it is expected that the hearings in these cases will be at the upper end of the estimated duration for such proceedings.

B.2.2 The United States of America

19    There is and has been a high level of public and media interest in Germany in the proceedings, and considerable publicity and media attention in relation to these trials.

20    The likely offences for which relevant individuals could be prosecuted include: conspiracy to defraud the United States; conspiracy to commit wire fraud; conspiracy to violate the Clean Air Act; wire fraud; obstruction of justice; violation of the Clean Air Act by means of false statements; and introducing imported merchandise into the United States by means of false statements (US Offences). Each of the US Offences is serious and, upon conviction, may give rise to a period of imprisonment.

21    Several individuals named in the answers to interrogatories are currently under indictment, which indicates that a prosecution of those persons is currently active and they are regarded as fugitives, and the US Government has undertaken efforts to extradite some of those persons. Another has been charged by criminal complaint in the United States; and two former VWAG employees have each been convicted and were imprisoned in the United States.

22    The US Offences are the same as or overlap with those offences for which VWAG was charged and which were the subject of a plea agreement in September 2020.

23    The US Offences will be determined by trial by judge and jury in the United States. The conventional procedure in a jury trial in the United States is for the impartiality of the potential jury members to be ascertained by questioning before empanelment and, at the time of jury instruction, for the Judge to instruct the jury to put out of its mind any material not before the Court including any pre-trial publicity of which they might be aware.

24    Although the limitation period for the US Offences has now expired in relation to conduct which occurred prior to 2015, and therefore there is no risk of further indictments, that limitation period does not operate where an individual has been formally charged or indicted. Future prosecution of those individuals currently under indictment in the United States and referred to above would not be precluded by those limitation periods.

25    VWAG has an ongoing obligation to cooperate with and assist the US Department of Justice (DOJ) in its investigations and prosecutions of implicated individuals. These cooperation obligations extend beyond the expiration of the plea agreement. It is the general practice of the DOJ not to name individuals in charging and related documents, such as plea agreements, other than the individual charged. This practice is primarily based on the presumption of innocence, the protection of privacy and reputational interests, and to protect the integrity of ongoing investigations.

26    The answers to interrogatories identify the individuals referred to in the plea agreement by pseudonyms assigned by the DOJ. In the United States, materials utilised in grand jury trials are perpetually protected and the identities of the individuals named under these DOJ pseudonyms remain under seal.

C.    CONSIDERATION

27    As noted above, in three of the proceedings the applicants consent to the orders sought and in the remaining four proceedings the applicants neither consent nor oppose the making of such orders. Nevertheless, the Court must satisfy itself that the orders sought are appropriate.

28    I have reviewed the reasons for judgment of Foster J in Cantor (No. 4). I have also reviewed the 26 April 2023 and 19 December 2024 affidavits of Mr Lloyd, including the evidence in earlier affidavits referred to therein, and the submissions of the respondents. Having done so, I am comfortably satisfied that the making of the orders sought is necessary to prevent prejudice to the proper administration of justice. In particular, the potential prejudice to the individuals concerned remains (and may have been heightened) and the reasoning of Foster J in Cantor (No. 4) remains apposite.

29    The orders sought in the interlocutory application (which, in addition to extending the operation of the previous orders, include the protection of a confidential annexure to Mr Lloyd’s 19 December 2024 affidavit that replicates parts of the information that has been the subject of previous orders ) should be made. I will make orders accordingly.

Associate:

Dated:    27 February 2025