NOTICE OF FILING AND HEARING This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 1/08/2017 3:42:06 PM AEST and has been accepted for filing under the Court s Rules. Filing and hearing details follow and important additional information about these are set out below. Filing and Hearing Details Document Lodged: File Number: File Title: Registry: Reason for Listing: Time and date for hearing: Place: Originating Application Starting a Representative Proceeding under Part IVA Federal Court of Australia Act 1976 - Form 19 - Rule 9.32 NSD1473/2015 Steven Roe v Skoda Auto a.s. & Ors NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA Hearing 30/10/2017, 10:15 AM Court Room 18A, Level 17 Law Courts Building Queen's Square, Sydney Dated: 1/08/2017 3:58:35 PM AEST Registrar Important Information As required by the Court s Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties. The Reason for Listing shown above is descriptive and does not limit the issues that might be dealt with, or the orders that might be made, at the hearing. The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court s Rules the date of filing of the document is the day it was lodged (if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.
Form 19 Rule 9.32 Further Amended Originating application starting a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 Federal Court of Australia District Registry: NSW Division: General No. NSD 1473 of 2015 Steven Roe Applicant Skoda Auto a.s. and others Respondents To the Respondents The Applicant applies for the relief set out in this Further Amended application. The Court will hear this Further Amended application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence. You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding. Time and date for hearing: Place: The Court ordered that the time for serving this application be abridged to Date: Signed by an officer acting with the authority of the District Registrar Filed on behalf of The Applicant Prepared by Jason Geisker Law firm Maurice Blackburn Pty Ltd Tel (02) 9261 1488 Fax (02) 92613318 Email jgeisker@mauriceblackburn.com.au Address for service Level 32, 201 Elizabeth Street, Sydney, NSW 2000 [Form approved 01/08/2011]
2 Details of claim On the grounds stated in the accompanying Further Amended statement of claim, the Applicant claims for himself and for the Group Members described below whom the Applicant represents in these proceedings: 1. an order pursuant to s 87 of the Trade Practices Act 1974 (Cth) (TPA) and s 243 of the Australian Consumer Law (ACL) requiring the Respondents to refund the money or other consideration provided by the Applicant and the Group Members to obtain their interests in the affected Skoda diesel vehicles; 1A. declaratory relief as to the conduct of the Respondents in contravention of the TPA and the ACL; 2. further or alternatively, damages pursuant to ss 74D, 74G and 82 of the TPA and ss 236 and 271 of the ACL, and at common law for the tort of deceit; 2A. alternatively, orders: a. that an account be taken of the profits earned by the Respondents attributable to the Respondents misrepresentations; and b. further, an order that the Respondents pay to the Applicant and Group Members such amount as is found to be owing after just allowances; 3. costs; and 4. such other orders as the Court thinks fit. Questions common to claims of group members The questions of law or fact common to the claims of the Group Members are: 1. Whether Skoda diesel vehicles manufactured for Australia, and fitted with a four cylinder EA 189 1.6L or 2.0L engine (identified in paragraph 38 of the Further Amended statement of claim) contained a defeat device (affected Skoda diesel vehicle). 2. Whether Skoda Auto a.s., and/or VW AG were aware at all material times that the affected Skoda diesel vehicles contained a defeat device. 3. Whether the affected Skoda diesel vehicles failed to comply with the applicable national standards, specifically Australian Design Rule 79 (ADR 79), and if so, in what regard. 4. The role of Skoda Auto a.s. in the manufacture, supply, distribution and promotion of affected Skoda diesel vehicles, and whether its conduct is conduct in Australia.
3 5. The role of VW Australia in the supply, distribution and promotion of affected Skoda diesel vehicles. 5A. The role of VW AG in the manufacture of components for inclusion in the affected Audi diesel vehicles. 6. The role of Skoda Auto a.s., and VW Australia in the application for approval of compliance with ADR 79 and in relation to compliance plates. 7. Whether Skoda Auto a.s., and/or VW Australia represented that the affected Skoda diesel vehicles complied with the applicable legal requirements for road vehicles in Australia (the Skoda Compliance Representation), and if so, whether that representation was false or misleading. 8. Whether Skoda Auto a.s. and/or VW Australia represented to the Commonwealth that the affected Skoda diesel vehicles complied with ADR 79 (the Skoda ADR 79 Compliance Representation), and if so, whether that representation was false or misleading. 8A. Whether Skoda Auto a.s. and/or VW Australia represented to the Commonwealth that the affected Skoda diesel vehicles had not been modified to operate in a different mode to that used in normal driving conditions when undergoing testing for compliance with emissions standards (the Skoda Non-Modification Representation), and if so, whether that representation was false or misleading. 9. Whether the failure of Skoda Auto a.s. and/or VW Australia to reveal the presence of a defeat device or alternatively, a defeat device equivalent in the affected Skoda diesel vehicles was misleading or deceptive. 10. Whether Skoda Auto a.s. and/or VW Australia made false or misleading representations that the affected Skoda diesel vehicles were of a particular standard and quality, or had certain performance characteristics, uses or benefits. 11. Whether Skoda Auto a.s. and/or VW AG engaged in unconscionable conduct within the meaning of s 51AB of the TPA and s 21 of the ACL. 12. Whether the affected Skoda diesel vehicles were of merchantable quality within the meaning of s 74D of the TPA or of acceptable quality within the meaning of s 54 of the ACL. 13. Whether Skoda Auto a.s. and/or VW Australia and/or VW AG made an express warranty within the meaning of s 74A of the TPA and s 2 of the ACL that the affected
4 Skoda diesel vehicles complied with ADR 79 and whether the vehicles failed to comply with that warranty within the meaning of s 74G of the TPA and s 59 of the ACL. 14. Whether ADR 79 was a safety standard which applied to the affected Skoda diesel vehicles, and if so, whether the affected Skoda diesel vehicles failed to comply with the safety standard within the meaning of s 65C of the TPA and s 106 of the ACL. 15. Whether Skoda Auto a.s., and/or VW Australia (as agent of Skoda Auto a.s.) and/or VW AG committed the tort of deceit. 15A. Whether Skoda Auto a.s. and/or VW Australia made the VW Compliance Representation and if so, whether: a) the representation was false; and b) Skoda Auto a.s. and/or VW Australia made the representation intending the Applicant and Group Members to rely upon it in deciding to acquire an affected Skoda diesel vehicle; and c) the Applicant and Group Members did in fact rely upon it. 15B. Whether Skoda Auto a.s. and/or VW Australia made: a) the Skoda ADR 79 Compliance Representation; and/or b) the Skoda Non-Modification Representation; and if so, whether: c) the representations were false; and d) Skoda Auto a.s. and/or VW Australia made those representations intending the Commonwealth to rely upon them in granting compliance plate approval; and e) the Commonwealth did in fact rely upon them. 16. Whether VW AG was knowingly concerned in the conduct of Skoda Auto a.s. and VW Australia. 17. The principles for assessing the losses caused to the Applicant and Group Members by the contraventions, and the correct measure of such loss and damage. 18. Whether any and if so what relief other than damages should be granted in favour of the Applicant and Group Members.
5 Representative action The Applicant brings this Further Amended application as a representative party under Part IVA of the Federal Court of Australia Act 1976. The group members to whom this proceeding relates are persons who: (i) prior to 3 October 2015, acquired an interest in an affected Skoda diesel vehicle, as defined in paragraph 38 of the Further Amended statement of claim, that is, one of the following types of Skoda diesel vehicles fitted with a four cylinder EA 189 1.6L or 2.0L engine and which contained the defeat device: a) Octavia; b) Yeti; and c) Superb; and (ii) still had an interest in that vehicle as at 3 October 2015, but not including: (iii) the Respondents, or any wholly or partly owned subsidiary of either of the Respondents; (iv) any Skoda authorised dealer; (v) any Judge of the Federal Court of Australia; or (vi) any group member in proceedings NSD1308 of 2015 (the VW-Skoda BL Proceedings) who has retained by Bannister Law as its legal representative in the VW-Skoda BL Proceedings as at the date of the filing of this Further Amended Statement of Claim Originating Application, except for those group members who have also retained Maurice Blackburn as its legal representative in proceedings NSD1473 of 2015 (the VW MB Proceedings) or NSD 1473 of 2015 (the Skoda MB Proceeding) as at the date of filing this Further Amended Originating Application.
6 Applicant s address The Applicant s address for service is: Place: Maurice Blackburn Pty Ltd Level 32, 201 Elizabeth Street Sydney, NSW 2000 Email: jgeisker@mauriceblackburn.com.au The Applicant s address is: Apt 303 / 169, Phillip Street Waterloo NSW 2017 Service on the Respondents It is intended to serve this Further Amended application on all Respondents. Date: 21 October 2016 1 August 2017 Signed by Jason Geisker Lawyer for the Applicant
7 Schedule Federal Court of Australia District Registry: NSW Division: General No. NSD1473 of 2015 Respondents Second Respondent: Volkswagen Group Australia Pty Ltd ACN 093 117 876 Third Respondent: Volkswagen AG Date: 21 October 2016 1 August 2017