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In an earlier judgment in this case (Andrianakis v Uber Technologies Inc (Ruling No 3) [2021] VSC 744), Macaulay J made orders requiring the identification of several sample class members, reflecting the different industry segments to which class members in the proceeding belong.

After several extensions of time, and despite extensive efforts, the plaintiff’s solicitors were unable to identify a ‘hire car driver’ who was willing to act as a sample class member. The defendants therefore applied for the claims of all class members falling into that industry segment to be struck out. In this judgment, Nichols J refused the defendants’ application, essentially for the following reasons:

  • the order sought by the defendants would not be an order that is appropriate or necessary to ensure that justice is done in the proceeding, within the meaning of s 33ZF of the Supreme Court Act 1986 (Vic);
  • there was sufficient evidence that class members who are hire car drivers do exist and do wish to have their claims prosecuted in this proceeding, but for various (legitimate) reasons do not wish to take on the role of being a sample class member – as such, “striking out those parts of the proceeding would cause real prejudice to hire car driver group members and would not facilitate the efficient determination of their claims: it would prevent them from having their claims heard and determined in this proceeding” (at [14]); and
  • although calling evidence from a sample class member from the ‘hire car driver’ industry segment was seen as desirable, it was not essential to enable the defendants to properly defend the claims against them, and was ultimately a case management question.

Her Honour concluded (at [34]):

Returning to the essential question, namely whether an exercise of power under s 33ZF to make the order sought by the defendants, meets the statutory criterion for its exercise, I have concluded that it does not. Bringing to an end the prosecution in this proceeding of the claims of hire car driver group members who do exist in not insignificant numbers and who do wish to have their claims determined in the proceeding, in circumstances where the defendants do not say that their claims have no real prospects of success or cannot be understood, is neither appropriate nor necessary to ensure that justice is done in the proceeding. The balancing of the relevant interests does not favour the defendants. It plainly favours the plaintiff, who brings the proceeding on behalf of group members. I reject the defendants’ submission that there will be no efficiencies gained by facilitating the determination of claims for these group members by these proceedings, and that the risk of any real prejudice to group members is very low. The proposed order would diminish efficiency by leaving hire car drivers to pursue their claims individually and would cause real prejudice by requiring them to so do so [sic]. I accept the submission that that result would occur because of an inability to comply with the case management order and not because of any relevant identified underlying deficiency in the claim.

Andrianakis v Uber Technologies Inc (No 4)
[2023] VSC 56

Supreme Court of Victoria, Nichols J,
20 February 2023

Plaintiff’s Solicitors: Maurice Blackburn
Defendants’ Solicitors: Herbert Smith Freehills
Plaintiff’s Funder: N/A

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