Protective proceeding in Uber class action is driven out of NSW
With doubt as to whether Supreme Court Act 1986 (Vic), s 33ZE applies to claims of non-Victorian class members, mirror proceeding commenced in New South Wales is transferred to Victoria
This decision arises in the context of the Uber Class Action. The Uber Class Action was commenced in the Supreme Court of Victoria on behalf of taxi and hire car industry participants in Victoria, New South Wales and Queensland. In their defences, the Australian Uber entities (being the defendants incorporated in Australia) pleaded that the filing of the proceeding in the Supreme Court of Victoria did not operate to toll the limitation period for non-Victorian class members – in other words, that s 33ZE of the Supreme Court Act 1986 (Vic) does not operate in respect of claims where the governing law in respect of the claim is other than Victoria.
Accordingly, a protective proceeding (NSW Proceeding) was filed in the Supreme Court of New South Wales on behalf of NSW class members. The NSW Proceeding was referred to the Court of Appeal for consideration as to whether the NSW Proceeding ought to be transferred back to the Supreme Court of Victoria. The transfer was opposed by the plaintiff who argued that it would cause NSW class members to lose the protection of s 182 of the Civil Procedure Act 2005 (NSW) (CPA) (the NSW equivalent of s 33ZE) as a result of the initial filing of the NSW Proceeding, and that in those circumstances the Court could not be affirmatively satisfied that it was in the interests of justice to transfer the NSW Proceeding.
At - President Bell acknowledged the importance of the tolling of limitation periods:
 The suspension of limitation periods is a feature of class action legislation… It is functionally important because, although group members are not strictly parties to group or class action proceedings, their claims are “in play”, as it were, and not necessarily to their knowledge or approval.
 Even if they have knowledge and are happy to be a member of the group or the class, they may, at a subsequent stage of the proceedings, elect to opt out of the class or group, and the legislatures have taken the view that they should not be at the risk of limitation periods having either expired or continued to run in such circumstances.
Following the hearing, both the Australian Uber entities and the foreign Uber entities (who after the hearing filed unconditional appearances) agreed to provide an undertaking that they would not rely on any defence that s 182 of the CPA ceased to operate following the transfer of the NSW Proceeding to the Supreme Court of Victoria. Following this, the plaintiff agreed to the form of the undertaking and did not oppose the transfer in circumstances where the undertakings were provided. As such, the issue was resolved without the need for the Court to rule upon the issue (noting however that in obiter at , Garling J commented that the issue ought to be resolved by way of uniform legislative reform across Australia).
Stewart v Uber Technologies Inc  NSWCA 208
New South Wales Court of Appeal,
Bell P, Meagher JA and Garling J,
3 September 2020
Plaintiff’s Solicitors: Maurice Blackburn;
Defendants’ Solicitors: Herbert Smith Freehills;
Plaintiff’s Funder: Harbour
Andrew WatsonNational Head of Class Actions, Class actions, Melbourne
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