Andrianakis v Uber Technologies (Ruling No 2) - [2020] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2019 01926

NICOS ANDRIANAKIS	Plaintiff
v
UBER TECHNOLOGIES INC and others (according to the attached schedule)	Defendants

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	1 April 2020
CASE MAY BE CITED AS:	Andrianakis v Uber Technologies (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 152

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CIVIL PROCEDURE ─ Group proceeding ─ Where, having filed a proposed amended statement of claim within time permitted, plaintiff sought leave to file a second version of the amended statement of claim to add a new category of group members ─ Where new category of group member is one whose claim derives from that of a deceased or deregistered former or potential group member ─ Matters considered include explanation for lateness of application, significance of amendment, potential limitation of action, legal tenability of assignment or transfer of claim for personal tort, capacity of plaintiff to represent those with derivative claims and absence of formal application ─ Leave to file second version refused.

CIVIL PROCEDURE ─ Where leave granted to file amended statement of claim ─ Whether effective date for that part of the amended claim adding a further category of group member should be the date of filing ─ Ethicon Sarl v Gill (2018) 264 FCR 394 applied.

CIVIL PROCEDURE ─ Costs ─ Award of costs where both parties have a measure of success ─ r 63.04 Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	On the papers	Maurice Blackburn Pty Ltd
For the Defendant	On the papers	Jones Day

HIS HONOUR:

Issues for determination

In this ruling I give my reasons for the final orders I made on 31 March 2020 (annexed hereto) arising from three summonses filed by the defendants in 2019.

To date, the most current pleading which the plaintiff, Mr Andrianakis, has filed and served on the defendants (comprising the Australian defendants[1] and the Foreign defendants[2]) is an Amended Statement of Claim filed on 24 July 2019 (ASOC). The Australian defendants challenged the ASOC by a summons filed 19 August 2019 (pleading summons) and sought security for their costs by a summons filed 7 August 2019 (security for costs summons). By an amended summons handed up to the Court on 4 September 2019 and filed on 18 March 2020 (service-out summons) the Foreign defendants challenged the service out of the jurisdiction of court process upon them.
[1]4^th and 7^th defendants.
[2]1^st, 2^nd, 3^rd, 5^th and 6^th defendants.

On 20 December 2019 I made orders on each of the three summonses and published reasons for doing so (Ruling No 1):[3]
[3]Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850.

(a) On the pleading summons, I directed the plaintiff to file and serve…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrianakis v Uber Technologies (Ruling No 2)

Details

AGLC: Andrianakis v Uber Technologies (Ruling No 2) [2020] VSC 152
Case: [2020] VSC 152
Decision Date: 1 April 2020

CaseChat Overview and Summary

In Andrianakis v Uber Technologies, the dispute involved a proposed amended statement of claim filed within the permitted time frame, but the plaintiff sought leave to file a second version of the amended statement to add a new category of group members. The new category included members whose claims derived from deceased or deregistered former or potential group members. The court was tasked with determining whether the plaintiff should be granted leave to file the second version of the amended statement of claim and, if so, when the effective date of that part of the amended claim should be.

The court considered several factors in its decision. These included the explanation for the lateness of the application, the significance of the amendment, potential limitation of actions, the legal tenability of the assignment or transfer of claims for personal tort, the capacity of the plaintiff to represent those with derivative claims, and the absence of a formal application. After thorough consideration, the court decided that the leave should not be granted due to the lateness of the application and the absence of a formal application. Regarding the effective date of the amended claim, the court applied the principles from Ethicon Sarl v Gill and determined that the effective date should be the date of the original filing.

The court further addressed the issue of costs, applying rule 63.04 of the Supreme Court (General Civil Procedure) Rules 2015, which governs the award of costs where both parties have a measure of success. The court provided a detailed analysis of the costs incurred and awarded costs in accordance with the rule.

Orders