Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2022 04768

BETWEEN:

PAUL WAWRYK & ANOR (according to the attached Schedule)	Plaintiffs
- and -
MERCEDES-BENZ AUSTRALIA/PACIFIC PTY LTD (ACN 004 411 410) & ANOR (according to the attached schedule)	Defendants

---

JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2024
DATE OF RULING:	19 March 2024
CASE MAY BE CITED AS:	Wawryk v Mercedes-Benz Australia/Pacific Pty Ltd (Subpoena Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VSC 120

---

PRACTICE AND PROCEDURE – Order 42A Subpoenas – Application to set aside – Rule 42.04(1) of Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether legitimate forensic purpose exists – Purpose of subpoenas to identify group members and composition of class and to investigate claims – Where pleadings have not closed and discovery not completed – Whether ‘for evidence’ is broader in group proceedings and includes documents sought for identifying group members and composition of class – Consideration of overarching purpose under ss 7, 8 and 9 of Civil Procedure Act 2010 (Vic) when setting aside subpoenas – Subpoenas set aside – Documents identifying group members and composition of class not a legitimate forensic purpose – As subpoenaed documents may become relevant it is appropriate that they not be returned to subpoenaed parties.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr P Cashman with Dr D Townsend	Gerard Malouf & Partners
For the Defendants	J Kirkwood SC with G Kozminsky A Martyn	Herbert Smith Freehills

Contents

A.. Introduction

B.. Background

C.. Legal Principles

D.. The plaintiffs’ purposes for the subpoenas

D.1         Composition of the class and identity of group members
D.2         Diesel software investigations
D.3         Subpoenas seek information relating to non-group members

E... Orders

HER HONOUR:

A Introduction

This is a ruling in respect of the defendants’ application to set aside eight subpoenas issued by the plaintiffs under Order 42A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’). The subpoenas were issued after the statement of claim had been filed, but prior to the filing of a defence or discovery. They are directed to motor registration authorities and are sought for the purpose of obtaining information about the group members on behalf of whom the proceeding is brought, including their identity and information about vehicles they have leased or owned. The key question is whether this is a legitimate forensic purpose for the subpoenas in the context of group proceedings, and whether it would be appropriate in furtherance of the overarching purpose to allow the plaintiffs to have access to the subpoenaed information in circumstances where the documents have been produced by the subpoenaed parties without objection.
For the reasons that follow, I am not satisfied that the subpoenas have been issued for a legitimate forensic purpose for evidence, as is required under Order 42A. Given this, I do not consider it appropriate to grant the plaintiffs access to the subpoenaed materials. However, given that a subset of the subpoenaed material may become relevant as the proceeding progresses, I will allow the materials to be retained by the Prothonotary to facilitate a future application for access. This course will avoid duplication of cost and inconvenience to the producing parties.

B Background

This proceeding was commenced on 21 November 2022 by the lead plaintiffs against two Mercedes-Benz entities. The proceeding is brought on behalf of those who have purchased, leased, or otherwise acquired a legal interest in Australia in particular models of Mercedes-Benz diesel vehicles, defined in the pleading as the ‘Affected Vehicles’. The Affected Vehicles are six diesel engine models, with model years ranging from 2009 to 2016, and from 2009 to 2018 in the case of Sprinter vans. Group members are limited to those that obtained their interest in the Affected Vehicles between 1 January 2009 and 21 November 2022.[1]
[1]Amended Statement of Claim filed on 30 June 2023, [1].
The plaintiffs claim damages and other remedies arising out of the use of alleged ‘defeat devices’ in obtaining the certification of the engine models as meeting regulatory standards for emissions. The plaintiffs allege that the engines did not meet the emissions standards that the defendants said they did during normal vehicle operation and use.[2]
[2]Summary Statement filed on 21 November 2022, [2.1].
The defendants have not yet filed their defence and have made a strike out application in respect of the Amended Statement of Claim filed on 30 June 2023. The plaintiffs have applied to join a third defendant and to file an Amended Writ and Further Amended Statement of Claim. Those applications have not yet been determined.
On 17 August 2023, the plaintiffs issued eight subpoenas to State and Territory motor registration authorities pursuant to r 42A.01. Each of the subpoenas are in the same form and seek documents relating to the application for registration of any Mercedes-Benz-branded diesel vehicles during the period from 1 January 2008 to 17 August 2023. They seek documents relating to the grant of registration of those vehicles, their unique Vehicle Identification Numbers (‘VIN’), their number plate approvals, their car models and model years, and engine variants.
The producing parties have not objected to the subpoenas and have each produced documents to the Prothonotary.
By summons filed on 5 September 2023, the defendants seek orders pursuant to r 42.04 of the Rules setting the eight subpoenas aside.[3] The defendants argue that the subpoenas have been issued for an improper purpose. In light of the fact that pleadings have not closed, the defendants argue that the subpoenas are premature, and cannot meet the requirement of seeking documents ‘for evidence’ at a hearing of an interlocutory or the other application, or the trial of the proceeding. The defendants submit that it is appropriate for the documents to be returned to the producing parties.
[3]The summons seeks that 11 subpoenas be set aside, however, by Order dated 6 February 2024, three subpoenas were set aside by consent.
The defendants rely upon the affidavit of Damian Bernard Grave sworn on 5 September 2023, and their written submissions filed on 11 December 2023 and 5 February 2024.
The plaintiffs seek orders accessing the subpoenaed materials, and rely upon the affidavit of Matthew Yan Ho Lo affirmed on 17 November 2023 (paragraphs 1 – 5 and 20 – 28 only[4]), the affidavit of Gregory John Mackey sworn on 7 February 2024, and their written submissions filed on 30 January 2024 and 7 February 2024.
[4]Transcript of Proceedings, Wawryk v Mercedes-Benz & Anor (Supreme Court of Victoria, S ECI 2022 04768, Steffensen AsJ, 13 February 2024) 18 (‘Transcript’).

C Legal Principles

Order 42A allows a party who has a solicitor acting to issue a subpoena to a non-party requiring them to ‘produce any document for evidence before – (a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding’.[5]
[5]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42A.01(1) (emphasis added).
The phrase ‘for evidence’ means that a document sought under subpoena may potentially be required for evidence, either in-chief or in cross examination.[6] That means it must have some potential relevance to the issues in dispute in the proceeding or interlocutory application.[7] That is, it must be relevant to an issue for decision by the court in the litigation.[8]
[6]Melbourne City Investments v Myer Holdings Ltd [2016] VSC 239, [44(d)] (Derham AsJ) (‘Melbourne City Investments’), citing Burchell v Hill [2010] VSC 96, [16] (Mukhtar AsJ) (‘Burchell’).
[7]Melbourne City Investments [44(d)], citing Newnham v Davis [2010] VSC 13, [6] (Kaye J).
[8]Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 181 (Mahoney AP) (‘Carroll’).
The issues in dispute are identified by reference to the pleadings (where there are pleadings), particulars, witness statements, affidavits and the legal principles which govern the claim in the proceeding or the interlocutory relief sought.[9]
[9]Portal Software v Bodsworth [2005] NSWSC 1115, [25] (Brereton J); Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, [68] (Bell P) (‘Blacktown’).
In the face of an application to set aside a subpoena, the issuing party must:
(a)identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought.[10] That is, a legitimate forensic purpose for the use of the documents in evidence at the hearing of an interlocutory or other application or trial;[11] and
(b)satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’ that the documents sought will materially assist their case.[12]
[10]Di Cesare v Bird & Anor [2021] VSC 25, [22] (Keogh J) (‘Di Cesare’), citing Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573, [55] (J Forrest J) (‘Volunteer Fire Brigades’), Messade v Baires Contracting Pty Ltd [2011] VSC 56, [6] (J Forrest J) and Woolworths Ltd v Mark Svajcer [2013] VSCA 270, [16] (Nettle, Ashley and Neave JJA) (‘Woolworths’).
[11]Melbourne City Investments (n 6) [44(c)].
[12]Di Cesare (n 10) [23], citing Volunteer Fire Brigades (n 10) [55].
Where a party fails to demonstrate legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.[13] In Carroll v Attorney-General (NSW)[14], Mahoney AP acknowledged:
But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.[15]
[13]Woolworths (n 10) [16(h)].
[14]Quoted with approval in Woolworths (n 10) [32].
[15]Carroll (n 8) 181.
Similarly, the Court will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ that the documents will assist his or her case.[16]
[16]Woolworths (n 10) [47].
Ordinarily, the requirement for legitimate forensic purpose will not be satisfied where:
(a)the issuing party is seeking to embark upon a fishing expedition,[17]
(b)where the subpoena has been issued to assist a party with the drafting of its pleading;[18] or
(c)where the subpoena has been used as a substitute for discovery or non-party discovery.[19]
[17]Ibid [16(d)].
[18]Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242, [80] (Gillard J) (‘Grocon’).
[19]The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 574 (‘Small’) (Jordan CJ, Davidson and Owen JJ); National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372, 382 (Moffit P, Glass and Hutley JJA agreeing at 374). See also McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233, [35] (Greenwood J).
I say ‘ordinarily’ as in considering whether to set aside a subpoena, the Court must have regard to the overarching obligations imposed upon it by the Civil Procedure Act 2010 (Vic), and the associated powers, to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[20]
[20]Civil Procedure Act 2010 (Vic) ss 7-9. See also Volunteer Fire Brigades (n 10) [56].
Order 42A subpoenas issued for evidence are aimed at obtaining documents after the completion of the ordinary pleading and discovery process for use, or potential use, at trial or an interlocutory hearing.[21] However, the just, efficient, timely and cost effective resolution of the real issues in dispute may justify a subpoena in advance of these procedural steps, or where non-party discovery was an alternative route to obtain production of the documents sought by the subpoena.
[21]Burchell (n 6) [15]. See also Small (n 19) 574-75.
There are a number of examples of the courts taking this approach, whether by express reference to the overarching purpose or otherwise.
In Temwell Pty Ltd v DKGR Holdings Pty Ltd,[22] the Federal Court declined to set aside a subpoena on the basis that it was improperly seeking non-party discovery. The Court held that the documents could have been the subject of an application for discovery from a non-party, but given that the documents sought appeared to be relevant to a matter that is in issue in the proceeding, the use of the subpoena was not improper or premature.[23]
[22][2002] FCA 741 (Merkel J).
[23]Ibid [4]–[6].
In British American Tobacco Australia Ltd v Peter Gordon & Anor,[24] the New South Wales Supreme Court declined to set aside two notices to produce issued prior to the exchange of pleadings.[25] The Court found that facts in issue in proceedings are not described exclusively by the pleadings, and that a fact will be in issue if it is apparent from the parties’ materials that the fact has not yet been abandoned by the plaintiff or admitted by the defendant. In that case, whilst pleadings had not yet been exchanged, it was clear from the affidavit evidence filed in support of an interlocutory injunction that the subpoenaed documents satisfied the apparent relevance test.[26]
[24][2006] NSWSC 1473 (Brereton J) (‘British American Tobacco’).
[25]Ibid [7].
[26]Ibid [8]-[9].
In Buswell v Carles,[27] the Supreme Court of Western Australia declined to set aside a subpoena that had been issued before the plaintiff had filed their statement of claim. The Court concluded that considerations of justice, convenience and limiting delays warranted the production of the documents sought prior to the plaintiff pleading their case.[28] In reaching this conclusion, the Court had regard to the plaintiff’s indorsement of claim which specified the cause of action, the fact that the subpoena was directly related to the claim. The Court found that the plaintiff was not fishing, and that the subpoena would provide simple means to enable the plaintiff to draft a precise pleading, and lessen the need for the claim to be amended.[29]
[27][2012] WASC 509 (McKechnie J) (‘Buswell’).
[28]Ibid [15], [27]. See also Palmer v CITIC Ltd (No 6) [2023] WASC 188, [31] (Lundberg J).
[29]Ibid [19]-[22].
In Volunteer Fire Brigades Victoria v CFA (Discovery ruling),[30] this Court (J Forrest J) refused to set aside a subpoena on the basis that it amounted to non-party discovery. The subpoena was issued shortly before trial, and the Court found that it was directed to a central issue in the trial, and that if the subpoena were set aside, it would result in an identical application being made for non-party discovery, with further delay and cost to the parties.[31]
[30]Volunteer Fire Brigades (n 10).
[31]Ibid [62], [69], [73].
In these four cases, the Court:
(a)was able to identify the issues in dispute;
(b)found that the subpoenas were appropriately targeted to those issues, such that the ‘for evidence’ requirement was satisfied; and
(c)considered that the just and efficient resolution of the issues in dispute is for the subpoenaed material to be produced and accessed despite the otherwise premature timing or availability of discovery for their production.
This is consistent with the observations of Lundberg J in Palmer v CITIC Ltd (No 6):
Ultimately, a conclusion to the effect that a subpoena is being used improperly will necessarily depend on all the circumstances including the scope and terms of the documents sought by the subpoena (which will need to be assessed against the scope of any discovery which is, or may be, sought in the proceedings), the status of the discovery process, and the identity of the subpoena recipient.[32]
[32][2023] WASC 188, [35].
A further example of how the Court’s obligations under the overarching purpose may affect the proper use of subpoenas in civil litigation can be found in the New South Wales Court of Appeal decision of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, where Bell P said:
An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.[33]
[33]Blacktown (n 9) [58] (Bell P, McCallum JA agreeing at [98]).

D The plaintiffs’ purposes for the subpoenas

Whilst it was not made clear until the exchange of written submissions, the plaintiffs have identified two broad legitimate forensic purposes for the subpoenas:
(a)first, to obtain information as to the identity of the group members and their vehicles, so that the plaintiffs may understand the size, nature and characteristics of the class, facilitate communication with group members, investigation of their individual claims, and undertake emissions testing of some group members vehicles; and
(b)second, to allow investigations to be undertaken as to the eligibility of each group member’s vehicle for a ‘diesel software update’ aimed at reducing the level of nitric oxide emissions during on-road use, and which of them have had the software update performed.
Given that the producing parties have complied with the subpoenas without objection, the plaintiffs submit that it would be absurd, and contrary to the overarching obligation provided in the Civil Procedure Act for the subpoenas to be set aside. They say that if the subpoenas are set aside, they will be forced to be put to the cost of re-issuing the same subpoenas at a later date, after the close of pleadings.
The defendants argue that none of the purposes articulated by the plaintiffs are legitimate forensic purposes for the use of the documents ‘for evidence’ in the proceeding or hearing of an interlocutory application. They argue that the subpoenas are premature, and should only be considered once the pleadings have closed and discovery completed. The defendants say that it would be inconsistent with the just and efficient management of this proceeding to allow production under subpoenas to occur before pleadings close. This is because all parties will be put to the costs of inspection prior to the crystallisation of the matters in dispute. In addition, the defendants submit even if it were proper to issue the subpoenas for the plaintiffs’ stated purposes of identifying the group members and their vehicles, these subpoenas cannot be justified. This is because the subpoenas seek production of the identity of vehicle owners who are not group members.
I will address each of the plaintiffs’ purposes in turn, before addressing the breadth of the subpoenas as compared to the definition of group members in the Amended Statement of Claim.

D.1 Composition of the class and identity of group members

The plaintiffs submit that the paramount legitimate forensic purpose for the subpoenaed information is to identify the group members and obtain information as to the nature and composition of the class.[34] The plaintiffs say they need to know the number of group members, who they are, and what vehicles they have. The plaintiffs wish to establish a complete record of contact details of each of the registered owners of the ‘Affected Vehicles’. They wish to use those details to facilitate communication with group members and investigation of their individual claims. The plaintiffs’ counsel submitted (without evidence) that this is unable to be done at present, as they do not know who the group members are, apart from those who have signed up with the plaintiffs’ law firm.[35]
[34]Transcript 25.
[35]Ibid 23.

The plaintiffs submit that the subpoenaed documents will allow them to gauge the size, nature and economic value of the claim and to form a view about how the case should be conducted forensically. They say both parties will benefit from access to the information and that it will enable settlement to be properly explored at an early stage.
Whilst the plaintiffs’ counsel submitted that the documents satisfied the ‘for evidence’ requirements in r 42A.01, he was not able to point to any particular part of the pleading to which documents addressing the composition of the class or identities of the group members are apparently relevant.[36] Rather, counsel submitted that “inevitably there will be a need for evidence … as to the composition and identity of the class”, which will be required “for all purposes” of the class action, irrespective of the matters pleaded.[37]
[36]Ibid.
[37]Ibid 23, 40.
In making this submission, the plaintiffs’ counsel appeared to tacitly accept that these were not a legitimate forensic purposes ‘for evidence’ at a hearing of an application or at trial, within the meaning of r 42A.01. Rather, the submission was that in the context of group proceedings, the concepts of legitimate forensic purpose should be more liberally applied to allow access to the information sought for the purpose of the plaintiffs investigating the identities and composition of the group members at this stage of the proceeding.[38]
[38]Ibid 22-3.
The plaintiffs urged the Court to take a broad view of the term ‘for evidence’ and find that a ‘matter in issue in the litigation’ extends to matters which are not the subject of dispute in the proceedings, but rather would assist in the definition, management and composition of the group. It was submitted that this is appropriate having regard to the obligations imposed upon the parties and the Court under the Civil Procedure Act.
The plaintiffs did not refer the Court to any authority in which the more liberal approach was taken to the legitimate forensic purposes for which an Order 42A subpoena for evidence may be issued, whether in the context of group proceedings or otherwise.
I am not satisfied that it is appropriate to treat group proceedings differently. Rule 42A.01 is clear on its terms. Subpoenas may only be issued to obtain documents ‘for evidence’ at a hearing of an application or at trial. It does not provide for a different approach to be taken with respect to subpoenas issued in group proceedings. Further, it is not apparent to me why a different test should be applied in group proceedings, particularly in light of the other options available to the plaintiffs, and the benefit of those options, as addressed below in paragraphs 73 and 74 below.
In my view, absent identification of the issue between the parties in respect of which the documents have the potential to be used for evidence, subpoenas should not be used. The overarching purpose in the Civil Procedure Act does not allow a court to, in effect, ignore the ‘for evidence’ requirement in Order 42A, and allow strangers to the litigation to be compelled to produce documents which are not relevant to an issue for decision by the court in the litigation. Rather, it informs a court as to the manner in which its powers should be exercised, for example, by avoiding unduly technical and costly disputes about non-essential issues.[39] Questions as to the relevance of the subpoenaed documents are not unduly technical arguments. I note that in each of the examples of the overarching purpose informing the use of subpoenas in civil litigation identified above in paragraphs 19 to 27, the Court was satisfied that the documents were relevant to a matter in issues in the proceeding. In my view, this is the correct approach, including with respect to group proceedings.
[39]See Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303, 323 [56]–[57].
I will now consider whether there are issues to be determined at the trial between the parties to which the documents going to the composition of the class or identities of the group members have apparent relevance.
I have not been able to identify an issue in dispute in respect of which material relating to the composition of the class may be relevant. The plaintiffs have not pleaded any matters which distinguish between the different Affected Models or raise an issue as to how many group members have an interest in particular Affected Models.[40] The common questions posed by the plaintiffs do not distinguish between the different models of Affected Vehicles.[41] Of course, given that a defence is yet to be filed, the composition of the class is not a matter in issue in light of the pleadings. But even casting the net more widely to evidence adduced in respect of this application, there is no evidence that the defendants deny or otherwise dispute the group composition in any way. Thus, there is no evidence from which I may conclude, as Brereton J did in British American Tabacco, that it is plain that there is a fact in issue that has not yet been abandoned by the plaintiffs or admitted by the defendants, in connection with the composition of the class.[42] It is therefore not apparent that evidence of the composition of the class will be a matter on which evidence might be led at trial.
[40]Save that some engine models, are identified in particulars as being the subject of mandatory recalls in Germany or approve emissions modifications in the United States, see Amended Statement of Claim [53]–[57] and Annexures C and D.
[41]Amended Statement of Claim 38–40.
[42]British American Tabacco (n 24) [8].
Turning now to identity of group members, it is hard to conceive how group member’s identities, or documents going to the investigation of their individual claims could be relevant to issues to be canvassed at the trial of the lead plaintiffs’ claims. If they were, it would be contrary to the group proceedings regime, where only the lead plaintiffs’ claims and common questions are to be considered at the initial trial. The Court’s findings on the common questions will frame the trials of individual claims, should the lead plaintiffs be successful. Investigation of individual claims at this early stage, will likely divert attention from the real issues in dispute, be contrary to the group proceedings regime, and may lead to unnecessary cost and expense. For these reasons I reject the submission that it would be just, convenient or cost efficient to allow the plaintiffs access to the subpoenaed documents so that these investigations may be undertaken now.
The plaintiffs submitted (without an evidential foundation) that the information is sought to facilitate emissions testing of vehicle models which are not the models owned or leased by the lead plaintiffs.[43] That is, they want to contact group members who have these other models, and seek their permission to conduct emission testing. However, without a defence, it is unclear what the defendants’ case is with respect to the emissions of the particular engine models and years, and thus what expert evidence is required. In any event, there are a number of ways in which the plaintiffs may access vehicle models for emissions testing, and subpoenaing the contact details for every owner of a Mercedes-Benz diesel engine over a 15 year period is plainly unnecessary for this purpose.
[43]Transcript 25.
The plaintiffs’ purpose of seeking the subpoenaed information to facilitate communication with group members, is similarly not ‘for evidence’. There is no fact in issue in the proceeding to which this purpose relates.
I accept that the aim of contacting group members, undertaking investigations as to the composition of the class, and individual claim investigations are all matters of great interest to the plaintiffs and those advising them. I also accept that settlement discussions may be assisted if all parties are apprised of matters going to the economic value of the group’s claims. However, this does not demonstrate that the information subpoenaed under Order 42A is for evidence in respect of an issue in dispute.
An Order 42A subpoena may be issued for evidence at the hearing of an interlocutory or other application. The interlocutory applications presently on foot in this proceeding relate to the form of the plaintiffs’ claim. It was not suggested that information as to the identity of group members or composition of the class are relevant to these applications.
The plaintiffs submitted that the information regarding the size of the group and the jurisdictions in which group members are located may be of assistance when the Court considers the manner in which opt-out notices ought to be given to group members. I agree that this may found a legitimate forensic purpose for the subpoenaed materials insofar as they relate to group members for evidence at a hearing of an application in connection with opt-out notices. In addition, if the Court considers it appropriate to issue individual opt-out notices, rather than advising the group members by advertisement or some other means, their contact details as disclosed to the motor registration authorities may well be required.
However, the Court is not at the stage of considering opt-out notices, so it cannot be said that it is presently ‘for evidence’ in respect of an interlocutory or other application under r 42A.01(a). Given the extant pleading disputes, and the potential change to the definition of group members, it is apparent that opt-out notices will not be addressed by the Court for some time. Accordingly, I accept the defendants’ submission that it was premature for the plaintiffs to issue the subpoenas for this purpose.
Accordingly, I am not satisfied that the plaintiffs’ purposes relating to the identity of group members and the composition of the class are legitimate forensic purposes.

D.2 Diesel software investigations

As set out in Mr Mackey’s affidavit, the plaintiffs have recently found out that if an Australian VIN is used to search an “overseas database”, the database will identify whether that particular vehicle was:
… the subject of a recall or ‘voluntary service measure’ and that the purpose of the recall was to update the software to improve the nitrogen oxide emissions of the vehicles in normal driving conditions (described as a ‘Diesel software update’).
The information on the database states that Mercedes Benz Service Partners in Australia were said to be prepared to take the action proposed.
To the best of my knowledge, information and belief, none of the owners of the Affected Vehicles in Australia have been informed of or notified of any recall of vehicles in Australia or of any ‘voluntary service measure’ updates to or modification of software in their vehicles by Mercedes Benz ‘Service Partners’ in Australia.[44]
[44]Affidavit of Gregory John Mackey sworn on 7 February 2024, [6]–[8] (‘Mackey Affidavit’).
Whilst they were not aware of the overseas database information at the time the subpoenas were issued, the plaintiffs submit that a legitimate forensic purpose for the subpoenaed VINs is to allow the plaintiffs to ascertain whether each group member’s vehicle is eligible for the diesel software upgrade, and if so, whether the software upgrade has been performed.
The plaintiffs say that understanding the eligibility of each group member’s vehicle for the software upgrade is critical to this proceeding, as it undermines the pleaded definition of the group members.[45] That is, it may be that some or all of the vehicles set out in the definition of group members no longer exceed permissible emissions by reason of these software upgrades.[46] Thus, the plaintiffs have flagged that further amendments to the statement of claim may be required to remove vehicles from the proceeding, or possibly to plead a fresh cause of action on the basis that the software modifications led to other problems, including increased fuel consumption.[47]
[45]Plaintiffs’ supplementary submissions dated 7 February 2024, [2.3]; Transcript 26, 28.
[46]Transcript 27.
[47]Mackey Affidavit [11]; Transcript 28.
The plaintiffs submit that they need the VINs to investigate and give proper consideration to any necessary amendments to the pleadings and to facilitate the efficient conduct of the proceedings.[48] This submission is not supported by evidence and I do not accept it. Mr Mackey’s affidavit addresses the means by which this investigation may be undertaken on an individual vehicle-by-vehicle basis. It does not give an evidential foundation for the submission that this is the only way the investigations may be undertaken. In any event, it is not clear to me why this issue needs to be understood on an individual vehicle-by-vehicle basis as is suggested by the plaintiffs. Clearly, any pleading amendment the plaintiffs may propose relating to this issue will not be pleaded on an individual vehicle basis.
[48]Plaintiffs’ supplementary submissions [2.3], [2.5], [3.3].
It was submitted that it is clear that evidence will need to be adduced at trial in connection with the vehicles that are no longer exceeding emission requirements.[49] The plaintiffs argue that this provides sufficient legitimate forensic purpose for the subpoenas for evidence in the proceeding, or at least for allowing the plaintiffs access to the materials in a manner which limited it to group member’s VINs.[50]
[49]Transcript 26.
[50]Transcript 47-8.
The plaintiffs are not seeking the VINs so that they may consider whether it should be adduced into evidence in assistance of their claim. Rather, the plaintiffs seek to use the VINs to investigate the claim against the defendants. The plaintiffs wish to understand whether or not they have a case against the defendants, and whether or not they should amend their pleading, either with respect to the definition of group members or Affected Vehicle, or to bring such claim as they may be advised in connection with the impact of the diesel software modifications.
I agree with the defendants’ submissions that this is not a permissible use for a subpoena. The authorities are clear that subpoenas ought not to be used to investigate whether a party has a claim, or to assist with the amendment of a pleading, or to bring a new cause of action.[51] This is precisely the plaintiffs’ purpose in obtaining the VINs. This is not a legitimate forensic purpose for evidence in respect of matters in issue in the proceeding or at the hearing of an interlocutory application.
[51]See, eg, Grocon (n 18); Carroll (n 7).
I do not accept the plaintiffs’ submission that it is inevitable that there will be issues in dispute between the parties concerning the diesel software upgrade in respect of which evidence will be required. The diesel software modification is yet to be pleaded by the plaintiffs or responded to by the defendants. In my view, at this point, it is mere speculation as to what the real issues in dispute are between the parties insofar as it relates to the diesel software modifications. Unlike British American Tobacco or Buswell, the issues in dispute have not been sufficiently framed by reference to the material exchanged between the parties to date. Further, the subpoenas are not specifically targeted to diesel software modification.
After the close of pleadings, these issues will have crystallised and will direct the scope of discovery to be made by the defendants. Thereafter, consideration maybe given as to whether subpoenas are required for the purpose of obtaining each group member’s VIN.
Even if the real issues in dispute were able to be ascertained in connection with the diesel software upgrade, it is not apparent to me that access to the subpoenaed information at this early stage in the proceeding will be productive of time or cost efficiencies. In fact, quite the opposite seems more likely. This is because the plaintiffs are seeking to undertake what appear to be unnecessary, and no doubt time consuming, vehicle-by-vehicle investigations with respect to the software modifications. For these reasons, I do not accept the plaintiffs’ submission that they will be prejudiced in the form of added cost, delay and uncertainty if they are not granted access to the VINs.
Accordingly, I am not satisfied that the plaintiffs have established that there is a legitimate forensic purpose for the subpoenaed information in connection with the diesel software investigations they wish to undertake.
However, I agree with the plaintiffs that it is important for the parties to understand the effect that any software modifications may have upon the definition of group members and Affected Vehicles, and for this to be understood sooner rather than later.
The plaintiffs have recently requested information from the defendants regarding the diesel software modification. They have sought information as to what modifications have been made, when they were made, if they are continuing, their purpose, their technical details, whether and how the owners of Affected Vehicles have been informed of the reason for the modifications, and what instructions have been provided to dealers and service organisations in relation to the modifications.[52] At the time of the hearing, no response had yet been received to this letter.
[52]Mackey Affidavit, Exhibit GM-1 – Letter dated 7 February 2024 from the plaintiffs’ solicitors.
The defendants will be in a position to clarify these matters through answering these queries. If the defendants refuse to provide the information sought by the plaintiffs, that may provide a basis for a targeted application for information.

D.3 Subpoenas seek information relating to non-group members

Even if an Order 42A subpoena could be justified for the purpose of seeking information as to the identity and composition of the class, or for the purposes of the diesel software investigations, it is of concern that the subpoenas are broader than the definition of group members in the Amended Statement of Claim.
The group is confined to persons who purchased or leased Affected Vehicles between 1 January 2009 and 21 November 2022. The model years of the Affected Vehicles range from 2009 to 2016, and from 2009 to 2018 in the case of Sprinter vans. The subpoenas are broader than this. They seek vehicle registrations over a longer period, commencing one year earlier (on 1 January 2008) and finishing nine months later (on 17 August 2023). Further, the subpoenas are not limited to the registration of Affected Vehicles, but extend to registration details for all diesel models of Mercedes-Benz in the period.
Counsel for the plaintiffs submitted that the broader time period was sought so as to account for vehicles registered in the year following their model year.[53] I do not accept that this justifies the breadth of the subpoenas. First, it does not explain why the subpoenas sought vehicle registrations prior to 1 January 2009. The earliest Affected Vehicle model year is 2009. On its face, a 2009 model could not have been registered prior to 1 January 2009. Secondly, it does not explain why the subpoena period ends on 17 August 2023, some nine months after the pleaded definition of group members end. The latest Affected Vehicle model year is 2018. Group members extend to those who acquired an interest in Affected Models up to 21 November 2022, which is four years later. Thus, any person who registered a 2018 model in the following year will be captured by the definition of group member. The only justification I can see for extending the subpoena scope beyond 21 November 2022 would be to capture the identity of a group member who acquired an interest in an Affected Model prior to 21 November 2022, but did not register the vehicle until after that date. A nine month period to capture this eventuality appears excessive.
[53]Transcript 47.

No explanation was proffered for seeking registration details of all diesel vehicles rather than limiting it to the pleaded engine models and years.
Further, the plaintiffs have flagged that the definition of group members and Affected Vehicles is in a state of flux by reason of the diesel software update information. Thus, the subpoenas have collected private and personal information with respect to persons who have registered Mercedes-Benz diesel vehicles who are not part of the current definition of group members, and may not ultimately be within the definition of group members, should the plaintiffs obtain leave to further amend the definition of the class. This state of flux suggests that the subpoenas are premature.
As suggested by the plaintiffs, the parties’ access to the subpoenaed information could be limited to information relating to group members, which may address the concerns of the Court and the defendants regarding the breadth of the subpoenas. However, such an order would only be appropriate if the Court were satisfied that there is a legitimate forensic purpose for the subpoenas for evidence.

E Orders

Given my findings that the plaintiffs have not established a legitimate forensic purpose for the subpoenaed material for evidence, the orders that would usually follow would be for the subpoenas to be set aside, with the documents returned to the producing parties.
The plaintiffs submit that given the producing parties have not objected to the subpoenas, and the documents have been produced, that it would be appropriate for the plaintiffs to obtain access to the documents now, rather than waiting until pleadings have closed or when they have otherwise satisfied the ‘for evidence’ requirement in r 42A.01.
There is an attraction to allowing the plaintiffs to inspect the material given that it has been produced by the motor registration authorities without complaint, and it will no doubt be of use to the plaintiffs for the purposes they have identified. However, in my view, it is not the appropriate course in the circumstances of this case. To do so would result in the plaintiffs being, in effect, rewarded for issuing subpoenas for improper purposes.
There are other means available to the plaintiffs at appropriate stages of group proceedings to seek information for the purposes they have identified. For example, it might be appropriate to make an application for non-party discovery under r 32.07 of the Rules, or an application under s 33ZF of the Supreme Court Act 1986 (Vic), as was done in Muswellbrook Shire Council v Royal Bank of Scotland NV.[54]
[54][2013] FCA 616, applying the equivalent provision in the Federal Court of Australia Act 1976 (Cth), s 33ZF(1).
Unlike Order 42A, applications for production of documents by a non-party under r 32.07 and s 33ZF require leave of the court. An applicant seeking leave will need to adduce evidence relevant to the exercise of the court’s discretion, such as evidence going to the need and purpose for which the documents are sought.[55] The court will consider whether, and if so, how, it should exercise its power to require production from the third party, and how matters of privacy and confidentiality ought to be addressed. In doing so, the court will consider whether the order sought is appropriate in circumstances where group members are under no obligation to identify themselves, and where their role in group proceeding is usually passive.[56] Applications under r 32.07 or s 33ZF allow these considerations to be properly aired, and production orders appropriately formulated, in a way that Order 42A does not facilitate.
[55]Limited evidence as to these matters was adduced by the plaintiffs on this application. As referred to in paragraph 53 above, evidence was adduced as to the means by which VINs could be used to investigate the software upgrades, however, no other evidence as to the plaintiffs’ purpose or need for the subpoenaed information was led.
[56]See P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176, [15]–[18], [32] (Finkelstein J).
As a consequence of the plaintiffs using Order 42A for purposes for which it was not designed, the Court did not have the benefit of evidence and submissions on these matters, and was not given the opportunity to appropriately frame a production order, if indeed it would be appropriate for such an order to be made at this juncture.
Whilst I am not satisfied that it is appropriate to grant the plaintiffs access to the subpoenaed information at this point, it may be that this is a temporal proposition. For example, the plaintiffs may well establish they have a legitimate forensic purpose for the subpoenaed information (or a subset relevant to group members only) in connection with an application concerning opt-out notices. Alternatively, they may establish that it is appropriate for access to be granted following an application for non-party discovery or under s 33ZF.
That being the case, I am conscious that it would not be in the interests of the just, time and cost efficient management of this proceeding to put the producing parties to the cost and inconvenience of re-producing the materials at a later point. Particularly where it seems that the materials that might be relevant to opt-out notices will be a subset of that which has already been produced.
For this reason, I do not consider that it is appropriate to follow the more usual course of setting aside the subpoenas and requiring the material to be returned to the producing parties. Rather, it is appropriate for the documents produced to remain at with the Prothonotary pending any future application the parties may make for access to subpoenaed information. Any such application should propose a form of order which ensures access is limited to the information relating to the group members.
I will hear the parties as to whether it would be appropriate to order a sunset clause which provides for the return of the subpoenaed materials to the producing parties if no application is made within a defined period of time.
Subject to any submissions that the parties seek to make on the question of costs, given my findings that the subpoenas lack legitimate forensic purpose, my preliminary view is that it is appropriate for the plaintiffs to pay the defendants costs of the defendants’ summons.
I direct the parties to confer as to the appropriate form of order arising from this ruling and to provide agreed or competing minutes of order to my chambers within three business days.

SCHEDULE OF PARTIES

S ECI 2022 04768
BETWEEN:
PAUL WAWRYK	First Plaintiff
CRAIG STUBBINGS	Second Plaintiff
- v -
MERCEDES-BENZ AUSTRALIA/PACIFIC PTY LTD (ACN 004 411 410)	First Defendant
MERCEDES-BENZ GROUP AG	Second Defendant

[2024] VSC 120

19 March 2024