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 [14]-[15] President Bell acknowledged the importance of the tolling of limitation periods:

[14] 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.

[15] 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 [40], Garling J commented that the issue ought to be resolved by way of uniform legislative reform across Australia).

Stewart v Uber Technologies Inc [2020] 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

Austlii link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2020/208.html?context=1;query=Stewart%20v%20Uber%20Technologies%20;mask_path

Share

Andrew Watson

National Head of Class Actions, Class actions, Melbourne

"I'm an experienced litigator in class actions, particularly for shareholders who have been victims of corporate misconduct."

Ben Slade

State Managing Principal, Office Leader, Class actions, Sydney

"I am driven to give a voice to those who would otherwise have to suffer because those who have done them wrong are all too powerful."

Kimi Nishimura

Principal Lawyer, Class actions, Melbourne

"I'm committed to fighting for the rights of victims of corporate misconduct as well as pursuing compensation on behalf of my clients."

Rebecca Gilsenan

Executive Director, Principal Lawyer, Class actions, Sydney

"I have extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities."

Miranda Nagy

Principal Lawyer, Class actions, Sydney

"I have a strong conviction that the community should be able to expect our governments and the companies we deal with to comply with the law."

Julian Schimmel

Principal Lawyer, Class actions, Sydney

"Class actions are a unique legal mechanism that have helped hundreds of thousands of people receive compensation after mistreatment at the hands of powerful companies, and it’s gratifying to help people get access to justice when otherwise it would’ve been difficult for them."

Vavaa Mawuli

Principal, Class actions, Brisbane

"The most rewarding thing about my work is the change in scale of what we are able to accomplish."

It doesn’t cost you anything to know where you stand

Can we help?
back
Find an office near you
Your local office

Let us contact you

It doesn’t cost you anything to know where you stand

We take calls 24/7

Call us now
1800 305 568

Free Call

Find an office near you
Your local office

Let us contact you