Class action against Uber continues after all four grounds of appeal are dismissed

Uber appeals unlawful means conspiracy, threshold requirements, the meaning of ‘claims’ in s 33C and whether service on foreign Uber entities should be set aside

Background

This decision arises from the appeal of Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850. There, Macaulay J dismissed summonses filed by the defendants in the Uber Class Action (the Uber Entities) seeking:

  • that the statement of claim be struck out for failing to disclose a cause of action (but granting leave to replead the formulation of intention);
  • the proceeding be declassed under s 33N of the Supreme Court Act 1986 (Vic) (SCA); and
  • further or alternatively, the lead plaintiff be directed pursuant to s 33ZF of the SCA to amend the class member definition to remove class members outside of Victoria.

An additional summons was filed by those Uber Entities not incorporated in Australia (Foreign Uber Entities), who sought to have service on them set aside. That summons was also dismissed by Macaulay J.

The Uber Entities raised four grounds of appeal, contending that the primary judge:

  1. Erred in his statement of the intention element of the tort of conspiracy by unlawful means.
  2. Erred in refusing to strike out the pleading which the Uber Entities claimed was embarrassing.
  3. Erred in considering that the requirements of s 33C(1) of the SCA had been made out.
  4. As submitted by the Foreign Uber Entities only, erred in refusing to set aside service on the Foreign Uber Entities because:
  5. the claim did not have sufficient prospects of success; and
  6. the SCA did not give the Court the power to make r 7.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which permits service out of Australia in circumstances where the claim arises on a tort done or which occurred in Australia or where damage occurred in Australia.

All four grounds of appeal were unanimously dismissed.

Appeals Grounds 1 & 2 – Strike Out

Grounds 1 & 2 of the appeal centred on Macaulay J’s refusal to strike out the pleadings. In considering the applicable law regarding striking out pleadings, the Court stated (at [35]) “… where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context” – an approach consistent with the High Court’s authority in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25. The Court of Appeal also endorsed the reasoning of John Dixon J in Wheelahan v City of Casey (No 12) [2013] VSC 316 concerning the general principles regarding the sufficiency of pleadings.

Regarding the intention element, the cause of action in the Uber Class Action is the tort of conspiracy by unlawful means. A central element of the cause of action is the requirement that, by partaking in unlawful means, the defendants intended to cause harm to the plaintiff/s. At first instance, Macaulay J considered the relevant authorities, stating that for the tort of conspiracy by unlawful means it is not necessary that the intention to cause harm to the plaintiff be the predominant intention. As noted above, although Macaulay J refused to strike out the pleadings, he granted the plaintiff leave to replead the formulation of intention, finding that there was a “discernible case”. On appeal, the Uber Entities argued that the primary judge misstated the intention element of the tort in suggesting that intention could be established in circumstances of unlawful competition where it would consequentially cause loss. The Uber Entities argued that even when repleaded, the pleadings still failed to meet the requisite standard by alleging that the loss suffered was consequential. This narrow reading of the amended pleadings was rejected by their Honours, who (at [40]) endorsed Macaulay J’s reasoning where his Honour summarised that the case was:

  • that Uber intended to establish its business by means of Uber drivers unlawfully competing with the plaintiff and the other class members ‘in an otherwise exclusive market’;
  • in circumstances where the economic advantages of that exclusivity were critical to the maintenance of their incomes and business values; and
  • ‘so that [i.e. with the intention that] the intrusion of the unlawful competition would necessarily cause them loss’.

At [42], the Court of Appeal summarised the intention element as follows:

In summary, to establish an unlawful means conspiracy, a plaintiff is required to establish that the purpose of the defendants in combining to engage in or to be complicit in the unlawful conduct included an intention to injure the plaintiff, and that the plaintiff in fact suffered injury by reason of the unlawful conduct. The defendants’ intention to injure the plaintiff need not be the predominant motive for engaging in the unlawful conduct, but may be mixed with other purposes or motives — such as the pursuit of gain for the defendant or others — which may be the predominant motive.

Their Honours continued, noting (at [43]) that where there were a number of motives for engaging in the unlawful conduct, the intent could be made out where the plaintiff is able to prove that the unlawful conduct was aimed or directed at the plaintiff. Their Honours further emphasised (at [45]) that the intention of the conspirator to injure the plaintiff will “… almost always be a matter of inference drawn from the evidence as a whole”.

In respect of their second ground of appeal, the Uber Entities took objection to the use of the language of “one or more” of the Uber Entities performing acts, which demonstrated the requisite agreement or combination aspect of the conspiracy element of the tort. The Uber Entities sought to argue that the plaintiff ought to have stated which of the Uber Entities performed the specific acts pleaded and that it was not for the Uber Entities to “try and work out, or speculate, which allegation is made against which defendant” (at [60]). This line of argument was promptly dismissed by the Court of Appeal, with their Honours stating (also at [60]) that “it is in the nature of conspiracy allegations that the precise facts are not within the knowledge of the plaintiff. All that the plaintiff can do is plead the overt acts which were performed and rely on inferences from the evidence as a whole at trial to establish the necessary elements of the tort.”.

Appeal Ground 3 – s 33C

The third appeal ground centred on the primary judge’s refusal to make an order under s 33ZF of the SCA to direct the plaintiff to amend the class member definition to exclude non-Victorian class members. The Uber Entities argued that the primary judge erred in considering that s 33C(1) had been satisfied. At [79] of their reasons, their Honours set out the core principles underpinning s 33C.

The Uber Entities argued that the claims of the lead plaintiff, a Victorian taxi licence owner, operator and driver could not be representative of those of non-Victorian class members because they did not arise from similar or related circumstances. The Uber Entities posited that the ruling of Finklestein J in Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; [2003] FCAFC 153 concerning the concept of “similar or related circumstances” ought be to “only those facts and circumstances that constitute the essential material facts … that provide the cause of action” ([at 85]). This argument was dismissed by the Court of Appeal, who emphasised that the concept of a claim is much broader and that the connection between them by reason of similar or related circumstances “may arise by reference to either underlying facts or underlying legal principles” (at [87]). At [89]-[90] their Honours summarised those facts which were common between all of the class members and not directly referrable to Victoria.

The Uber Entities contended that those common facts were superficial and that there were “radical differences” between the different state based claims on the basis of the different legislative frameworks which were the underpinning of the “unlawful means” element of the tort in each of the states. This too was dismissed by the Court of Appeal, who held (at [92]) that there was a similarity of issues based on “the obvious intention of the legislative provisions in each state”.

Appeal Grounds 4a and 4b – Foreign Service

Appeal Ground 4a was dismissed for the same reasons given by the Court in dismissing Ground 1. As to Ground 4b – the argument by the Foreign Uber Entities that the Court did not have rule making power to make a rule regarding service out of the jurisdiction – the Court of Appeal also dismissed this ground. Their Honours held (at [109]) that s 25(1) of the SCA (which grants the Court the power to make rules) “… must be construed broadly, consistently with the general principle that a grant of power to a court (including the conferral of jurisdiction) should not be construed as subject to a limitation not appearing in the words of that grant”. An additional argument was also put by the Foreign Uber Entities, being that the Parliament of Victoria did not have the power to enact s 25(1) of the SCA. This too was dismissed by their Honours, who held (at [118]) that “…a law providing for service of process out of Victoria in respect of a proceeding over which the Supreme Court has jurisdiction under the cross-vesting legislation is clearly a law ‘in and for Victoria’.”, applying Gleeson CJ’s reasons in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 (which concerned a similar issue as to the power of the Parliament to enact Part 4A of the SCA).

Uber Australia Pty v Andrianakis [2020] VSCA 186

Victorian Court of Appeal, Niall, Hargrave and Emerton JJA,

21 July 2020

Plaintiff’s / Respondent’s Solicitors: Maurice Blackburn;          

Defendants’ / Applicants’ Solicitors: Jones Day;

Plaintiff’s Funder: Harbour

Austlii link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2020/186.html?context=1;query=uber%20;mask_path

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