Volkswagen and Audi are each facing lawsuits by the ACCC alleging they violated the Australian Consumer Law through their diesel emissions claims, as well as three class actions by Maurice Blackburn and two by Bannister Law that claims the car companies are strictly liable under the ACL for compensating drivers of affected vehicles. One of the Maurice Blackburn class actions names Volkswagen and its subsidiary Skoda as defendants.

During a case management hearing on Wednesday, Justice Lindsay Foster said he would push the start date for stage two of the six-week trial against Volkswagen and subsidiaries Audi and Skoda back — from September 9 to September 23 — to allow time for the car makers to examine an expert report on loss and damage delivered late by Maurice Blackburn.

The judge also added two weeks for closing submissions, beginning December 4.

ACCC barrister Naomi Sharp, SC, resisted the schedule change, saying it would “cause very serious prejudice” to the regulator. In particular, Sharp pointed to her own unavailability after November 1.

“There is no persuasive reason for starting any later than what had been set down in people’s diaries,” she told the judge.

Sharp told the court that as a “public regulator in the public purse,” the ACCC has a smaller team than both Volkswagen and Maurice Blackburn, which has taken a dominant role in the class action proceedings.

“This will be a major and costly imposition to the regulator,” she said.

Noel Hutley, SC, representing the car makers, pushed for the postponement, despite it also affecting counsel for his client.

“To an extent it hits us harder than anyone else because we’re meeting three cases simultaneously.”

The barrister said the new trial schedule would assist the court and avoid the chaos of submissions given on the run.

“I have a great deal of sympathy to what you’re putting to me, Mr Hutley,” Justice Foster said.

On the defence

The upcoming trial follows the stage one hearings, held over 13 days in March of last year, which focused on technical issues, such as whether the vehicles contained the illegal defeat device.

The stage two hearings will deal with whether the car makers caused loss by installing the defeat device software, whether this was done deliberately, and whether any loss that is found should be compensated. A third stage hearing is scheduled for some time next year, with the issues to be decided at a later point.

Volkswagen has applied to amend its defence in the case, which the court will hear arguments for on June 5. Cameron Moore, SC, representing the Maurice Blackburn class actions, said an admission had been withdrawn related to Volkswagen’s German companies and the role they had in advertising the vehicles with the defeat device in Australia.

Justice Foster said the fact the amendments stemmed from Volkswagen’s own discovery pursuits was “interesting”.

Moore pressed for a further explanation from Volkswagen about why the admission had been withdrawn. “We say the evidence doesn’t come close to explaining that,” he said.

A “welter” of evidence

Noel Hutley, SC, representing Volkswagen and its subsidiaries, also resisted an order that evidence given during the upcoming hearing in one case be evidence in the others.

He raised concerns about the “great welter of material” to be submitted to Justice Foster by all parties during the upcoming trial.

“In effect the cases we are meeting are quite precise in the way they’re [put] and they seek to deploy a lot of material in quite different fashions.”

With court cases tending to evolve during a hearing, Hutley warned of a potential “side wind” changing the case Volkswagen thought it was meeting.

Hutley conceded that if the ACCC and the class actions stuck to their original cases, the court should be able to handle the evidence. However, he stressed that Volkswagen would object to any irrelevant material submitted.

Moore backed presenting evidence in one case as though it was in all, saying the parties had been preparing for trial on this basis and that it would be “administratively problematic” to change at this stage.

Both Dr Peter Cashman, representing the Bannister Law class action, and Moore told the judge they had made an effort to avoid duplication in how they presented their evidence.

Volkswagen AG pleaded guilty last year to fraud, obstruction of justice and falsifying statements as part of a US$4.3 billion settlement over the diesel emissions scandal, which erupted in 2015 when it admitted to intentionally cheating on emissions tests for at least six years with dual-mode software that can detect when certain diesel engine cars were being tested for emissions and being driven on roads.

A former executive was recently jailed for seven years and fined US$400,000 and a former engineer was jailed last year for three years. Former VW boss Martin Winterkorn was charged in the US and Germany in May with conspiracy and fraud. Winterkorn stepped down in 2015 after the scandal.

Volkswagen, Audi and Skoda are represented by Hutley, Imtiaz Ahmed and Emma Bathurst, instructed by Clayton Utz. The ACCC is represented by Sharp and Radhika Withana. The Maurice Blackburn class actions are represented by Moore and Adam Hochroth.

The Bannister Law cases are Richard Cantor v Audi Australia Pty Ltd and Josefina Tolentino v Volkswagen Group Australia Pty Ltd.

The Maurice Blackburn cases are Alister Dalton & Anor V Volkswagen AG & Anor, Robyn Tanya Richardson V Audi AG & Ors, and Steven Roe V Skoda Auto A.S. & Ors.

The ACCC cases are Australian Competition and Consumer Commission V Volkswagen Aktiengesellschaft & Anor, and Australian Competition and Consumer Commission V Audi Aktiengesellschaft & Ors.