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This is a decision in the class action against Uber brought on behalf of members of the taxi and hire car industries in Victoria, Queensland, New South Wales and Western Australia. A 10-week trial of the proceeding has been set down to commence in March 2024. This decision concerned an application by the parties for the Court to make ‘soft’ class closure orders and to fix a date by which class members were to register or opt out of the proceeding. The ‘soft’ class closure orders sought by the parties operate by fixing the number of class members eligible to participate in any settlement reached prior to trial but spring back open if a settlement is not reached by that stage. The orders were sought pursuant to ss 33ZF and 33ZG of the Supreme Court Act 1986 (Vic) (SCA). 

Justice Nichols considered that the soft class closure orders, along with the scheme for notification to class members, were appropriate. Her Honour held that ss 33ZF and 33ZG of the SCA expressly empowered the Court to make soft class closure orders (at [6]). Her Honour agreed with the parties’ submissions that class closure orders were appropriate for the following reasons (at [7] – [21]): 

  • Without class closure orders, the parties’ legal representatives considered there to be a significant risk that settlement discussions would be unable to proceed. 
  • The proceeding was substantially advanced. 
  • The nature of the proceeding – a mass tort claim – was such that registration was inevitable. 
  • There was agreement between the parties that soft class closure orders should be made. 
  • Class members would have adequate notice of the need to register to participate and sufficient time in which to do so. 
  • Were a class member to fail to register by the class deadline, they would still be free to seek orders from the Court at a later stage allowing them to participate in any settlement that may be reached. 

Given the unique nature of class membership in the case – where there is no maintained central record of class members (such as a share register) – novel orders for distribution of the notice were made. In addition to the conventional orders for notice via an advertisement in newspapers, on the Court and Maurice Blackburn’s website, orders were made for Maurice Blackburn to distribute the notice to several industry bodies with those bodies to then further distribute the notice to their members and industry contacts.

Andrianakis v Uber Technologies Inc [2023] VSC 415 

Supreme Court of Victoria, Nichols J,
21 July 2023 

Plaintiff’s Solicitors: Maurice Blackburn
Defendants’ Solicitors: Herbert Smith Freehills
Plaintiff’s Funder: Harbour Fund III, L.P

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