Andrianakis v Uber Technologies; Taxi Apps Pty Ltd v Uber Technologies (Appeal)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

Common Law Division

Group Proceedings List

S ECI 2019 01926

NICOS ANDRIANAKIS	Plaintiff
v
UBER TECHNOLOGIES INC & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants
AND
S ECI 2020 01585
TAXI APPS PTY LTD (ACN 149 538 616)	Plaintiff
v
UBER TECHNOLOGIES INC & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 July 2022
DATE OF JUDGMENT:	28 October 2022
CASE MAY BE CITED AS:	Andrianakis v Uber Technologies; Taxi Apps Pty Ltd v Uber Technologies (Appeal)
MEDIUM NEUTRAL CITATION:	[2022] VSC 643

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PRACTICE AND PROCEDURE – Inspection of documents – Legal professional privilege – Misconduct exception – Whether documents prepared or communications made in furtherance of the commission of offences – Where the commission of offences is a fact in issue in the proceeding – Application where offences committed by systemic conduct, the operation of a business model – Whether advice in furtherance of systemic conduct – Evidence Act 2008 (Vic) ss 118, 125.

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APPEARANCES – S ECI 2019 01926:	Counsel	Solicitors
For the Plaintiff	Ms M Szydzik with Ms A Staker	Maurice Blackburn
For the Defendants	Mr D R Sulan SC with Ms A Campbell	Herbert Smith Freehills

APPEARANCES – S ECI 2020 01585:	Counsel	Solicitors
For the Plaintiff	Mr T Bannon SC with Mr R A Yezerski and Ms C Mintz	Corrs Chambers Westgarth
For the Defendants	Mr D R Sulan SC with Ms A Campbell	Herbert Smith Freehills

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Andrianakis proceeding............................................................................................................... 2
Taxi Apps proceeding.................................................................................................................. 4
The application at first instance.................................................................................................. 6

Grounds of appeal............................................................................................................................. 7

Error in the General Finding....................................................................................................... 8
Ground 1............................................................................................................................... 8
Ground 2............................................................................................................................... 8
Ground 3............................................................................................................................... 9

Error in application of the General Finding.............................................................................. 9
Ground 4............................................................................................................................... 9

Error in Alternative Finding........................................................................................................ 9
Ground 4A............................................................................................................................ 9

Error in Advice Privilege Findings............................................................................................. 9
Ground 5............................................................................................................................... 9

Cross-appeal.................................................................................................................................. 9
Ground 1............................................................................................................................... 9
Ground 2............................................................................................................................. 10
Ground 3............................................................................................................................. 10

Summary...................................................................................................................................... 10

Applicable principles on appeal................................................................................................... 10

Statutory provisions........................................................................................................................ 11

Reasoning of the primary judge.................................................................................................... 12

Principles...................................................................................................................................... 12
Conclusions.................................................................................................................................. 17
Commission of the offences............................................................................................. 17
Furtherance of the offences.............................................................................................. 18

Parties’ submissions........................................................................................................................ 21

Defendants................................................................................................................................... 21
Grounds 1 – 4A.................................................................................................................. 23
Ground 5............................................................................................................................. 26
Categories review.............................................................................................................. 28

Andrianakis.................................................................................................................................. 30
Grounds 1 to 4 – The misconduct exception.................................................................. 31
Ground 4A – Alternative Finding................................................................................... 38
Issues raised on categories review.................................................................................. 38
Ground 5............................................................................................................................. 40

Taxi Apps..................................................................................................................................... 42
Ground 1............................................................................................................................. 43
Grounds 2A and 2B........................................................................................................... 46
Ground 2C.......................................................................................................................... 46
Ground 3............................................................................................................................. 47
Grounds 4 and 4A.............................................................................................................. 47
Ground 5............................................................................................................................. 47

Cross-appeal................................................................................................................................ 48
Grounds 1 and 2................................................................................................................. 48
Ground 3............................................................................................................................. 48
Victoria.. 49
New South Wales................................................................................................. 49
Queensland........................................................................................................... 50
Western Australia................................................................................................. 50

Analysis.............................................................................................................................................. 51

Grounds 1 to 3............................................................................................................................. 52
Ground 4....................................................................................................................................... 59
Ground 4A................................................................................................................................... 60
Ground 5....................................................................................................................................... 61
Cross appeal................................................................................................................................. 62
Grounds 1 & 2.............................................................................................................................. 62
Ground 3....................................................................................................................................... 62

Orders................................................................................................................................................. 63

HIS HONOUR:

Introduction

During the course of discovery in two proceedings, the defendants claimed that numerous documents were privileged from inspection, protected from production by client legal privilege pursuant to pt 3.10, div 1 of the Evidence Act 2008 (Vic). The plaintiff (Andrianakis) contested that claim and applied for production in unredacted form of documents listed in a schedule annexed to his summons. The schedule contained approximately 11,800 documents. The plaintiff (Taxi Apps) likewise sought production in unredacted form of certain discovered documents identified in a schedule annexed to its summons. It will mostly be convenient to refer to the plaintiffs in each proceeding, who are the respondents to these appeals, collectively as ‘the plaintiffs’.

The key issue for the primary judge was whether client legal privilege was inapplicable by reason of s 125 of the Act, which is generally described as the misconduct exception. That issue was decided in favour of the plaintiffs.[1] The application proceeded by reference to 77 sample documents in the Andrianakis proceeding and 64 sample documents in the Taxi Apps proceeding, which the primary judge assessed. Many were held not to be privileged, either wholly or in part, and production for inspection was ordered. The defendants seek to maintain the client legal privilege claims. I will come to the specific grounds of appeal in due course. I will refer to the appellants as ‘the defendants’ or ‘Uber’.
[1]Andrianakis v Uber Technologies Inc [2022] VSC 196 (the Primary judgment). References to this judgment are also made using this template, J:[paragraph no].

Background

As was done by the primary judge and by counsel in submissions, I will summarise the issues in these proceedings by adopting Macaulay J’s observations in an earlier ruling.[2] These summaries were not contested by the parties either before the primary judge or in the appeal.
[2]Andrianakis v Uber Technologies Inc (Ruling No 1) [2019] VSC 850, [18].

Andrianakis proceeding

Macaulay J stated that, broadly speaking, the UberX ride-sharing service consists of a system for delivering a commercial point-to-point passenger transport service whereby a prospective passenger, the Rider, requests a driver, the UberX Partner, to collect him or her from one designated point and transport him or her to another point for a fee. The request is made via an app (a software application) installed on a smartphone and is received by the UberX Partner on an associated app installed on that person’s smartphone. Once the passenger transport service has been supplied, a fee is debited from the Rider’s funds by means of an electronic funds transfer to an Uber entity. A share of the fee is then distributed electronically to the UberX Partner.

These two apps and the software that lies behind them are central to the operation of the UberX service. The promoters and proprietors of the UberX service, that is, the Uber Entities, do not own a fleet of cars nor do they employ a workforce of drivers. Rather, they established the software and digital platform by and upon which the service is conducted; recruited drivers, the UberX Partners, as independent contractors who were willing to perform the service using their own vehicles; made the two apps (the rider app and the driver app) available to Riders and UberX Partners, respectively, to enable them to find one another by making and responding to a request for a transport service; promoted the service; and generally provided necessary administrative and financial infrastructure.

In each of the four Australian States where the UberX service commenced, there was an established regime of taxi-cab, hire car, limousine and/or like services supplying commercial point-to-point passenger transport services. These existing services were regulated by local regulations in each State, typically requiring the drivers, owners and operators of such services to be licensed or accredited to supply the relevant service and to only use vehicles that were also licensed or accredited for such use. Regulations extended, amongst other things, to matters such as requiring payment of licence fees, restricting the assignment of licences, stipulating the qualifications or credentials of drivers and fixing standards for vehicles. Licences were usually finite in number and, for that reason, acquired a tradeable value. They constituted a valuable commodity in the business of the service provider.

Adherence to the regulations was enforced by laws which made it an offence to own or operate a commercial passenger transport service without holding the requisite licence or accreditation, or to use an unauthorised vehicle for such a service. Arguably, the practical effect of the regulations was that they created and upheld a form of market protection for those holding the requisite licences and accreditation in the supply of commercial point-to-point passenger transport services.

When UberX services began in Australia, the UberX Partners, so it is alleged, typically were neither licensed nor accredited to be drivers, owners or operators for the provision of commercial passenger transport services in any of the four States. Nor, it is said, were their vehicles typically licensed or accredited for use in the provision of such services. Accordingly, so it is alleged, the provision of the UberX service in the four Australian States typically involved breaches of the local laws and regulations which regulated the supply and operation of commercial point-to-point passenger transport services. Not only that, the introduction of the UberX service was said to have had a dramatic, adverse effect on the incomes of the incumbent passenger transport providers and of the value of the businesses — that is to say, upon the income of the licensed drivers, owners and operators of taxi-cabs, hire cars and limousines, and the value of their businesses.

Andrianakis is a Victorian taxicab operator and driver, and he seeks damages for his lost income and the reduction in the value of his business said to be caused by the arrival of UberX in the passenger transport market in Victoria. As noted above, this is a group proceeding and Andrianakis brings it on his own behalf and on behalf of all other Victorian point-to-point passenger transport service drivers, operators and owners, and on behalf of similar drivers, operators and owners in New South Wales, Queensland and Western Australia. I shall refer to these states and Victoria collectively as the Relevant States.

The defendants are the Uber Entities alleged to be responsible for introducing UberX to Australia and operating the service.

Andrianakis alleges that Uber entered an agreement or combination of agreements among themselves to establish UberX in each of the Relevant States with the intention of harming the incumbent licensed commercial point-to-point passenger service providers. The agreed means of establishing the UberX service was through the engagement of unlicensed drivers using non-accredited vehicles. The provision of the service using unlicensed drivers with non-accredited vehicles was, at the relevant time, an offence in each of the States. Knowing and intending that the conduct of the UberX service by that means would be illegal, each of the Uber Entities that facilitated the establishment of the UberX service was complicit with the UberX Partners (that is, the drivers) in the offences which they committed when performing the service. Further, it is alleged that the establishment and conduct of the UberX service in each State by that means caused economic loss to the incumbent, licensed commercial point-to-point passenger service providers, such as Andrianakis in Victoria.

For present purposes, I note that the defendants deny the key allegations as summarised.

Taxi Apps proceeding

From around June 2011, Taxi Apps has published and made available in Australia a software application known as the ‘GoCatch’ app. From around February 2016, Taxi Apps has also published and made available a software application known as the ‘GoCatch Driver’ app. The GoCatch app, once downloaded onto a device, allowed a person to register as a GoCatch passenger and to use the app to request point-to-point passenger transport services. Drivers who used the GoCatch app to provide these services to passengers were taxi cab drivers lawfully permitted to perform those services in the Relevant States, driving vehicles lawfully permitted to be used in the provision of those services. The GoCatch app facilitated payment from the passenger to the driver, with a fee payable by the driver to GoCatch. At various times in the Relevant States between 2016 and 2017, the GoCatch app and services were extended such that drivers were not required to be licensed taxicab drivers driving licensed taxis.

In summary, Taxi Apps alleges that:

(a) one or more of the defendants committed the tort of conspiring to injure Taxi Apps by unlawful means in connection with the defendants’ operation of the ridesharing platform, UberX;

(b) the defendants provided UberX in the Relevant States in circumstances where ridesharing services in those States were unlawful. Taxi Apps’ case is that the defendants aided, abetted, counselled or procured the commission of offences in the Relevant States;

(c) while some of these offences were committed by UberX Partners, the defendants (or one or more of them) were themselves primary offenders in respect of those offences under the common law or statute by reason of their knowledge and conduct in connection with those offences;

(d) the defendants adopted, and publicised, a policy of paying the fines of UberX Partners who were fined for committing the offences. Taxi Apps contend that there is documentary evidence in support of that proposition, which is said to reveal that the defendants adopted a deliberate strategy of paying UberX Partners’ fines so as to reduce or remove the disincentive to offending created by the prospect of such fines; and

(e) the defendants engaged in a practice known as ‘greyballing’, whereby they took steps to impede the efforts of regulators to detect unlawful ridesharing and impose fines on UberX Partners. Taxi Apps contends that there is documentary evidence in support of that proposition, which is said to establish that the defendants had a stated policy, the Violation of Terms of Service or V‑TOS Policy, which involved efforts to detect users of UberX who were likely to be regulators or enforcement officers, and to prevent or frustrate their efforts to identify UberX Partners who were engaging in the offences.

The defendants deny these allegations.

As the primary judge noted, this is a very short summary of complex claims made in each proceeding. It is not necessary to identify or explore in detail the complex issues raised on the pleadings for the purposes of this appeal.

The application at first instance

The task faced by the primary judge was extensive. The defendants discovered over 82,000 documents in the proceedings, withholding approximately 12,400 as subject to a claim of client legal privilege. Andrianakis sought production of unredacted copies of certain documents from privilege schedules that were listed in a lengthy schedule attached to his summons running to some 423 pages. Taxi Apps filed a similar summons with attached schedules, seeking production of 3,971 common documents and 73 unique documents.

The parties agreed that the privilege challenges should proceed by reference to sample documents but could not agree about the number of sample documents and some other procedural aspects. The primary judge resolved these matters by directions, which are recorded in her reasons.

The primary judge, after inviting submissions on process from the parties, identified how she was approaching the resolution of the issues raised by the application, and the parties agreed to the suggested approach.

At the commencement of the hearing, I observed that the purpose of this exercise was to determine, as far as the Court was able, the position in respect of privilege claims in these proceedings at a general level by making rulings (if possible) that could be used in reviewing the remainder of the challenged documents, using the Sample Documents as a means of elucidating that. In my view, for this exercise to be of utility to the parties, the determination needs to be expressed in a way that the parties can apply it to the remainder of the challenged documents, so as to avoid or at least minimise the number of documents remaining in dispute. My aim is that by making some general rulings and then applying them to the Sample Documents, the parties will be able to use those to guide them in dealing with the remaining challenged documents. Counsel for the parties all agreed that this approach was desirable.[3]

[3]J:[33].

Before setting out the substance of her Honour’s reasons, it is convenient to note the grounds of appeal.

Grounds of appeal

Each of the two appeals proceeded on a further amended notice of appeal, in identical terms in each proceeding and two notices of cross‑appeal were filed, again one in each proceeding. The same issues arise in each proceeding and can be discussed and resolved collectively.

Three of the primary judge’s orders in each proceeding are challenged on this appeal. On 6 May 2022,[4] the primary judge ordered:
[4]Note the clarification by an amending order on 24 May 2022.

2. By 30 May 2022, the Defendants are to produce to the Plaintiff:
a. the documents listed in Annexure A in unredacted form; and
b.replacement versions of the documents listed in Annexure B with redactions reflecting the Judgment.

3.By 5 August 2022, the Defendants are to complete a further review of all documents in the Privilege Schedule, applying the principles and findings set out in the Judgment and produce any documents over which a privilege claim is not maintainable, or not maintainable over the whole of the document, including in light of the Judgment (Further Review).
4.By 5 August 2022, the Defendants are to file and serve an affidavit of documents in accordance with rule 29.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), together with an updated Privilege Schedule reflecting the outcome of the Further Review and state the basis of the privilege claimed for each document and include an indication as to whether the document:
a.has been withheld on the basis that it is an attachment to a host document that is subject to a claim of privilege; and
b.has been discovered pursuant to discovery categories 10, 16, 31 or 34 as set out in Annexure 1 to the Orders of the Honourable Justice Macaulay dated 21 December 2020.

I note that the orders reflect the agreed approach of determining objections by reference to sample documents and then applying the principles identified to the remaining documents.

Error in the General Finding

Three grounds of appeal are identified as constituting error in what is described as the General Finding.

Ground 1

The primary judge erred in finding that legal advice after the Relevant Dates (as defined in J:[287]) ‘regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those, including supporting UberX Partners’ was created ‘in furtherance of’ the commission of offences for the purposes of s 125 of the Act and were thereby not the subject of legal professional privilege pursuant to s 118 of the Act (J:[290]) (General Finding).

Ground 2

The primary judge erred in:

(a) finding that the plaintiffs had satisfied their onus of establishing that the documents fell within s 125 of the Act, in circumstances where they had not identified specific offences and how the relevant documents were in further of those offences;

(b) failing to find that whether a document falls within s 125 of the Act cannot be identified at a level of generality, but must be considered in the context of the particular document and/or a specific offence; and/or

(c) failing to find that advice obtained by Uber as to whether an act is within the scope of legislation or is lawful is not ‘in furtherance of’ the commission of offences for the purposes of s 125 of the Act.

Ground 3

By reason of Grounds 1 or 2, the primary judge erred in finding the documents (or parts thereof) set out in Annexure 1 were created ‘in furtherance of’ the commission of offences for the purposes of s 125 of the Act and were thereby not the subject of legal professional privilege pursuant to ss 118-9 of the Act.

Error in application of the General Finding
Ground 4

In the alternative to Grounds 1 to 3, if the General Finding was correct, her Honour erred in the application of the General Finding to the documents (or parts thereof) set out in Annexure 1, which did not satisfy the test posed by her Honour.

Error in Alternative Finding
Ground 4A

Further or in the alternative to Grounds 1 to 4, the primary judge erred in accepting the ‘alternate submission’ in J:[299] (including without articulating what was meant by the ‘narrower basis’) and/or finding that the documents (or parts thereof) set out in Annexure 1 fell within that ‘alternate submission’.

Error in Advice Privilege Findings
Ground 5

The primary judge erred in finding that advice privilege under s 118 of the Act did not attach to each of documents 9, 26, 28, 29 and 42 in Annexure 1 and the documents in Annexure 2.

Cross-appeal

The plaintiff cross-appealed certain findings expressed in paragraphs 280, 285, 287 and 291 of the Primary judgment. There are three grounds raised on the cross‑appeal.

Ground 1

The primary judge erred in finding that, for the purpose of s 125 of the Act, a communication was made or a document was prepared ‘in furtherance of’ the commission of the Ridesharing Offences (as defined in J:[219]) only if there existed a ‘combination’ of the defendants’ ‘knowledge of illegality’ and ‘a clear intention to launch UberX regardless’ (J:[285]).

Ground 2

By reason of Ground 1, the primary judge erred in finding that s 125 of the Act does not apply to relevant legal advice (being the advice described at J:[280] as regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those, including supporting UberX Partners) provided before the Relevant Dates as defined at J:[287].

Ground 3

In the alternative to Grounds 1 and 2, the primary judge erred in finding that the ‘combination’ of the defendants’ ‘knowledge of illegality’ and their ‘clear intention to launch UberX regardless’ (J:[285]) existed only as at the Relevant Dates.

Summary

In substance, the defendants challenged the primary judge’s rulings on the application of the misconduct exception to 39 documents identified in a schedule to the notice of appeal and challenged the ruling on the application of s 118 to 5 documents identified in Ground 5. On the cross appeal, Andrianakis challenged the primary judge’s ruling on the application of the misconduct exception to 7 documents.

Applicable principles on appeal

The appeal and cross-appeal are brought by notice under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[5] This is not a de novo rehearing. As Ferguson J explained in Oswal v Carson, in the absence of further evidence or a change in the law, the appellant is ordinarily required to show error on the part of the Associate Judge before appellate power may be exercised.[6] In addition, if the orders from which an appeal is brought relate to a matter of practice and procedure, an appellate court will exercise particular caution in reviewing the decision.[7] Such appeals are not confined to errors of law. An appellant may demonstrate factual, legal or discretionary error on the part of the Associate Judge.
[5]See, in particular, rr 77.06.1 and 77.06.7(1). See also Supreme Court Act 1986 (Vic) s 17(3).
[6][2013] VSC 355, [11].
[7]Ibid.

Statutory provisions

Section 125 of the Act relevantly provides as follows:

Loss of client legal privilege—misconduct
(1) This Division does not prevent the adducing of evidence of—
(a)a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(b)a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2)For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that—
(a)the fraud, offence or act, or the abuse of power, was committed; and
(b)a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power—

the court may find that the communication was so made or the document so prepared.
(3)In this section, power means a power conferred by or under an Australian law.

The shorthand descriptor (‘misconduct exception’) is a commonly used misnomer, as McHugh J explained in Commissioner of Australian Federal Police v Propend Finance Pty Ltd,[8] describing the position at common law. His Honour’s observations are equally apposite in describing the operation of the Evidence Act. That said, it is convenient to continue to use that descriptor.
[8](1997) 188 CLR 501, 556.

Reasoning of the primary judge

The primary judge identified three issues of general application to be determined.

(a) Have the defendants provided sufficient evidence to establish their privilege claims?

(b) Have the defendants waived privilege?

(c) Does the exception for misconduct apply here such that the defendants are not able to rely on their privilege claims?[9]

[9]J:[35].

In the context of the appeal, I can confine my analysis of the Primary judgment to the third issue.
Principles

The primary judge described the principles in respect of client legal privilege as well established, citing Elliott J’s summary following his analysis of the cases in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd.[10] No issue was taken with this summary on the appeal. Turning to the misconduct exception, her Honour noted that the proceedings involved neither communications in furtherance of the commission of a fraud nor communications concerning the commission of an act that renders a person liable to a civil penalty (a Penalty Act). The two key aspects of the section to be considered were the ‘offence’ (or offences) and the meaning of ‘in furtherance of’.
[10][2016] VSC 311, [47].

Further, it was common ground that s 125(2) of the Act applied, in that the commission of the Ridesharing Offences (see [45 below) is a fact in issue in the proceeding. The issue on appeal is whether there are reasonable grounds for finding that (a) the offence was committed and (b) a communication was made or document prepared in furtherance of the commission of the offence, such that the court may find that the communication was so made or the document so prepared.

After summarising the parties’ submissions and the authorities relied on, the primary judge noted that there was little difference between the parties as to the applicable principles. Rather, the disagreement was in their application to this case. The primary judge adopted Elliott J’s summary of the principles governing the misconduct exception in Talacko v Talacko,[11] which drew from Kyrou J’s earlier analysis in Amcor Ltd v Barnes.[12]
[11][2014] VSC 328.
[12][2011] VSC 341.

(1)The court does not need to be satisfied on the balance of probabilities that a fraud, an offence or an act that renders a person liable to a civil penalty (‘Penalty Act’) has been committed, but rather that there are reasonable grounds for finding the fraud, offence or Penalty Act has been committed.
(2)The section requires that ‘the client’ be knowingly involved in the fraud, offence or Penalty Act. A client may be knowingly involved in the fraud, offence or Penalty Act of another person by:
(a)conspiring with that person to commit the fraud, offence or Penalty Act;
(b)being a knowing participant in the other person’s fraud, offence or Penalty Act; or
(c)knowingly providing other forms of assistance to that person in relation to the fraud, offence or Penalty Act.

(3)Legal advice procured by a client for the purpose of assisting another person to commit a fraud, offence or Penalty Act falls within s 125(1)(a) and is not privileged.
(4)Where a person, who is not aware of any fraudulent purpose, obtains legal advice as agent for another person, and that other person has an undisclosed fraudulent purpose in obtaining the advice, s 125(1)(a) applies. The other person is the true client, even if the lawyer is not aware of the client’s existence.
(5)The word ‘furtherance’ in the phrase ‘in furtherance of the commission of a fraud or an offence or the commission of [a Penalty Act]’ means ‘the fact of being helped forward; the action of helping forward; advancement, aid, assistance’.
(6)There is no absolute rule that conduct occurring after a fraud, an offence or a Penalty Act has been completed cannot be held to be ‘in furtherance of the commission’ of the fraud, offence or Penalty Act. Subsequent conduct may or may not be in furtherance, depending on the nature and purpose of the conduct.
(7)Positive steps taken by a fraudster to conceal information about the fraud or to place the property beyond the legal reach of the victim once the fraud is discovered can be in furtherance of the fraud insofar as the steps continue its efficacy.
(8)Legal advice sought about what positive steps can be taken to give continuing efficacy to the fraud, such as advice on positive steps to conceal the fraud or positive steps to place the relevant property beyond the reach of any court order that the victim may obtain, fall outside the rationale for legal advice privilege and may be described as advice prepared in furtherance of the commission of a fraud.
(9)Legal advice about legal consequences of a past fraud, the legal remedies that may be invoked by the victim of the fraud and any legal defences would not be in furtherance of the commission of a fraud.
(10)Where the commission of a fraud, offence or Penalty Act is not a fact in issue in a proceeding, by operation of s 125(1) a document will not be privileged if the party who alleges that the document is not privileged satisfies the court that there is a prima facie case that a fraud, offence or Penalty Act has been committed and a document was prepared in furtherance of that fraud, offence or Penalty Act.
(11)If a communication is made or a document is prepared for the purpose of planning or otherwise furthering a fraud, offence or Penalty Act, the communication or document falls within s 125(1)(a). This position is not affected by the subsequent events by which the fraud, offence or Penalty Act either is or is not committed.[13]

[13]Talacko, [15] (n 11) (citations omitted).

What must be established before the requirements of s 125(1)(a) may be satisfied is:

(a) Although the person challenging the claim for privilege is not required to prove the alleged fraud or other improper purpose on the balance of probabilities, such a person must do more than simply allege that a fraud or other improper conduct has occurred, or was intended to occur at the time of the impugned communication or document. There must be ‘something to give colour to the charge’ at a prima facie level that has foundation in fact.

(b) What is sufficient to establish reasonable grounds to give ‘colour to the charge’ will depend upon the circumstances of the case.[14]

[14]Ibid [16].

Next, the primary judge set out, in turn, the submissions of the parties as to both fact and law, addressing the issues of identification and commission of the offences and furtherance of the offences.

The Ridesharing Offences were the offences allegedly committed by the UberX Partners and also by Uber in the course of the provision of Uber‘s point-to-point passenger transport service, UberX. Three categories of offending are alleged, being:

(a) in each of the Relevant States, UberX was provided by UberX Partners without those providers obtaining the requisite licence, permit, plate, accreditation or authorisation under the applicable transport legislation in each of those States (Transport Legislation), who thereby committed offences (UberX Partner Offences);

(b) the defendants were complicit (howsoever described in each of the States) in the UberX Partner Offences, thereby committing offences themselves (Uber Complicity Offences); and

(c) in New South Wales, Queensland and Western Australia, some of the defendants themselves committed offences against the Transport Legislation (Uber Direct Offences).

The primary judge expressed a number of ‘findings’ to provide proper context for the application of principle. These findings were not challenged on the appeal.

(a) At J:[273]:

The commission of offences, being the Ridesharing Offences, was not a theoretical possibility. It was, by virtue of the manner in which UberX was launched and operated in the Relevant States, a certainty. I accept the Plaintiffs’ submission that Ridesharing Offences were being committed systemically and on a large scale.

(b) At J:[274]:

Even were that not the case, there is ample evidence before the Court that Ridesharing Offences were in fact committed. There are instances of individual offences (both fines, and in some instances, prosecutions) being discussed in internal Uber communications; and the Defendants established set procedures for paying fines incurred by UberX Partners, the reporting about which sometimes included the details of each fine, and for dealing with the drivers who were fined or nervous about being fined.

(c) At J:[277]:

As already noted, I accept the Plaintiffs’ submission that, prior to legalisation of ridesharing in the Relevant States, a clear consequence of the launch and operation of UberX in those states was that Ridesharing Offences were committed systemically and on a large scale. I accept that the commission of Ridesharing Offences was an integral aspect of the UberX business model in respect of the Relevant States. I also accept the Plaintiffs’ submission that the Defendants’ purpose in seeking legal advice was to advance the operation of UberX in those circumstances.

(d) At J:[279]:

… The provision of UberX in the Relevant States prior to its legalisation involved, as I have already stated, the repeated commission of Ridesharing Offences on a systematic and large scale. This was an ongoing undertaking and a business model that involved, as a necessary element in the majority of circumstances, the commission of Ridesharing Offences …

(e) Uber knew that most UberX Partners would be unlicensed and that where this was the case, Ridesharing Offences would be committed (J:[272]).

(f) Uber proposed and intended that the commission of the Ridesharing Offences would continue and the legal advice was to be used to assist in that purpose (J:[279]).

(g) Uber’s purpose in dealing with fines and prosecutions was to re-assure UberX Partners and decrease the likelihood of individual drivers ceasing to provide UberX for fear of being left with fines or being prosecuted (J:[293]).

(h) To keep UberX Partners providing UberX, Uber set up a system for dealing with and paying their fines. The system set up by Uber was also designed to avoid visibility with the relevant authorities when physically paying the fines: this was to be done by other law firms and preferably not from an Uber account (J:[293]).

Taxi Apps made a submission that it called ‘the Broad s 125 Submission’, which the judge generally accepted, noting it was subject to various qualifications (J:[280]), which gave rise to the impugned General Finding, as set out above [25].

In summary, the Broad s 125 Submission was that before UberX was launched in Australia, the defendants understood that the provision of ridesharing services was unlawful in the Relevant States and likely to result in the imposition of fines. On one view, all communications and documents in furtherance of the launch and operation of UberX after that point were in furtherance of the Ridesharing Offences because those offences were an integral aspect of the UberX service. That would be so even if the lawyers involved in the specific communications or documents themselves had no knowledge of the proposed offending, and no intention to facilitate such offending. It would be sufficient that Uber’s purpose in obtaining the relevant legal advice was to advance the operation of UberX in circumstances where the UberX business model at that time depended upon the ongoing commission of the Ridesharing Offences (J:[250]).

Conclusions

The primary judge’s conclusions on these issues were:

Commission of the offences

(a) It was common ground that, as required by s 125(2)(a) of the Act, the first question was whether there are reasonable grounds for finding that the offences were committed. The applicable test in this regard is also common ground: the alleged misconduct, in this case, commission of the Ridesharing Offences, is not required to be proven on the balance of probabilities, rather, there must be ‘something to give colour to the charge’ at a prima facie level that has foundation in fact.

(b) It was uncontroversial that the Ridesharing Offences are ‘offences’ for the purposes of the misconduct exception.

(c) The Ridesharing Offences had been identified and defined at a sufficient level of particularity, rejecting the defendants’ submission that the plaintiffs needed to identify each individual commission of a Ridesharing Offence, by particularising matters such as the date and time of the offence, the name of the UberX Partner committing the offence, and the details of the actual trip in terms of pick up and destination.

(d) The plaintiffs established that there is ‘something to give colour to the charge’ that the operation and provision of UberX in the Relevant States, from the date of launch to the date ridesharing was legalised in each of the Relevant States, was carried out in the context where:

(i) the defendants knew that most UberX Partners would be unlicensed; and

(ii) the defendants knew that where that was the case, Ridesharing Offences would be committed.

(e) The commission of offences was a certainty, by virtue of the manner in which UberX was launched and operated in the Relevant States and Ridesharing Offences were, on the documents, plainly committed. The primary judge accepted the plaintiffs’ submission that such offences were committed systemically and on a large scale.

(f) The relevant conduct was a series of individual offences. The plaintiffs did not allege a single ongoing offence committed by the defendants. The allegations of the Ridesharing Offences were not to be confused with the overarching conspiracy also alleged against the defendants.

Furtherance of the offences

(g) The applicable test for the finding required by s 125(2)(b) of the Act that there are reasonable grounds for finding that a communication was made or a document prepared in furtherance of the commission of the offences is, again, that there must be ‘something to give colour to the charge’ at a prima facie level that has foundation in fact.

(h) What is required is that the communication or document must be in ‘furtherance’ of the commission of the offences, understood as being ‘the fact of being helped forward; the action of helping forward; advancement, aid, assistance’. In this sense, what is important is whether the advice has ‘helped forward’ the commission of the offence. It is the client’s purpose, not the lawyer’s (if the author of the document is a lawyer), determined objectively, which is relevant, and there is nothing in the text of s 125 of the Act, or in the numerous authorities referred to by the parties, which suggested that this must be the sole or dominant purpose.

(i) In this context, three findings were relevant:

(i) Ridesharing Offences were committed systemically and on a large scale.

(ii) The commission of Ridesharing Offences was an integral aspect of the UberX business model in respect of the Relevant States.

(iii) The defendants’ purpose in seeking legal advice was to advance the operation of UberX in these circumstances.[15]
[15]Noting the application of Watson v McLernon [2000] NSWSC 306, [116] and Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151, [24]-[25].

(j) The primary judge then expressed (J:[280]) the following conclusion, which, given the references to it in submissions, I will quote:

Therefore, in general terms I accept the Broad s 125 Submission advanced by Taxi Apps, which is effectively the same submission made by Mr Andrianakis as set out in paragraph 226 above. However and to be clear, I do not think that legal advice regarding all aspects of the operation of UberX in the Relevant States falls within the Misconduct Exception. Rather, it is legal advice after the Relevant Dates (defined in paragraph 287 below) regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement activity or detection, and dealing with fines and prosecutions and UberX Partners about those, including supporting UberX Partners, which falls within the Misconduct Exception. This requires further elaboration.[16]
[16]Emphasis in original.

(k) The primary judge concluded that there are reasonable grounds for finding that prior to launch in the Relevant States and by 22 October 2013, the defendants knew that operating UberX would involve the commission of Ridesharing Offences. The judge examined other communications referred to by the parties that suggested some knowledge of illegality, but did not satisfy her to the required standard that the defendants intended at that time to launch UberX regardless, concluding:

I do not think that knowledge of illegality alone is sufficient to establish that the advice was in furtherance of the Ridesharing Offences. Rather, it is the combination of knowledge of illegality and a clear intention to launch UberX regardless which constitutes the circumstances for the advice to be in furtherance of the Ridesharing Offences.[17]
[17]Primary judgment, [285] (n 1).

(l) Applying that test, the judge concluded that the date most clearly identified on the evidence was 23 January 2014 in respect of Victoria, and 14 April 2014 in respect of New South Wales, Queensland and Western Australia. These dates were defined as the Relevant Dates. Precisely why those dates were chosen was the subject of agreed redactions to the Primary judgment.

(m) The primary judge was satisfied that reasonable grounds existed for concluding that legal advice sought or obtained after the Relevant Dates regarding matters such as:

(i) aspects of the operation of UberX (launching and continuing to provide UberX using unlicensed drivers);

(ii) avoiding enforcement activity or detection; and

(iii) dealing with fines and prosecutions, communicating with and supporting UberX Partners, including providing legal advice or services,

was in furtherance of the commission of Ridesharing Offences. Having decided to launch in the Relevant States before it was lawful to do so, legal advice regarding these matters was ‘helping forward’ the commission of the Ridesharing Offences.

(n) Communications or documents which post-date particular offences can be in furtherance of the commission of offences as such conduct helped forward the commission of similar offences after individual drivers were fined or prosecuted. What was relevant is the nature and purpose of the conduct.

(o) Reasonable grounds existed to find that legal advice or services for the purposes of avoiding or delaying enforcement action being taken or offences being detected fell within the misconduct exception, which captured advice regarding matters such as greyballing, geo-blocking and carpooling, the latter because carpooling was contemplated as a means of concealing the commission of Ridesharing Offences.

(p) I will quote what the judge then said, at J:[299], as it features in submissions.

As indicated above, in general terms I accept the Broad s 125 Submission and the similar submission made by Mr Andrianakis. However, I also accept the alternate submission that the evidence in this case provides reasonable grounds for finding that certain documents or communications were prepared or made in furtherance of the commission of offences on a narrower basis, having regard to their nature and substance, for the reasons set out above.

The Primary judgment concluded with a schedule that documented the judge’s ruling and brief reasons in respect of each disputed sample document.

The primary judge’s orders required the defendants to produce to Andrianakis and Taxi Apps 44 sample documents (and any attachments thereto) in unredacted form and 4 sample documents with revised redactions.

Parties’ submissions
Defendants

In summary, the defendants submitted that:

(a) The instances in which courts have previously applied the misconduct exception are limited to those where the legal advice or other privileged communication is a step in the commission of the offence, or at least directly connected to or intimately tied to, the relevant offending conduct.[18] Legal professional privilege is a fundamental and substantive right.[19] The primary judge erred by departing from these concepts.
[18]Amcor, [118], [127] (n 12); Talacko, [81] (n 11); R v Cox & Railton(1884) 14 QBD 153, 175.
[19]Propend, 592 (n 8).

(b) In accepting the Broad s 125 Submission by making the General Finding, the primary judge erred by applying an impermissibly broad test to the application of the words ‘in furtherance of’. Properly applied, what is required to engage the misconduct exception is that the advice or communication be a step in the commission of the offence, or that there at least be a direct connection between the purpose for the advice and the offence (Appeal Ground 1).

(c) The plaintiffs approached their application under s 125 at an impermissible level of generality, or did not establish the requisite connection to engage the misconduct exception, and thereby failed to discharge their onus (Appeal Grounds 2 and 3).

(d) Even if the Broad s 125 Submission, and the General Finding, is correct, her Honour erred in applying that test in respect of some of the documents (Appeal Ground 4), or in applying a narrower (unarticulated) test (Appeal Ground 4A).

(e) The judge erred in finding that a limited number of documents did not satisfy the dominant purpose test for the purposes of s 118 of the Act (Appeal Ground 5).

(f) Neither the Broad s 125 Submission nor the General Finding, enabled Uber to properly assess and depose by affidavit to the proper characterisation of a very substantial number of documents. It was no answer to say that the task could be readily performed by the application of common sense. The better approach is to now examine the documents by categories to establish a collective guiding framework for Uber to apply to the totality of the privilege claims, which was developed in an annexure to the written submissions.

Grounds 1 – 4A

The defendants contended that the approach taken by the primary judge represented a significant departure from the policy that lies behind the misconduct exception. Where the document is not a step in the offending or is not directly furthering the commission of offences by directly facilitating a step in the offending or concealing the offending conduct, preserving legal professional privilege neither cloaks criminal activity nor hinders the ability to prove the offence. Authority demonstrates that misconduct must meet one or other of those objectives and usually the advice sought was advice as to how to do the very act that was improper or illegal.[20] Conversely, loss of legal professional privilege in such circumstances significantly abrogates the protection of the ‘fundamentally important’ right to consult a lawyer in private.[21]
[20]Amcor, [118], [127] (n 12); Talacko, [81] (n 11); Cox & Railton, 175 (n 18).
[21]Propend (n 8).

Other authorities demonstrate that where the advice is not a step in the offending nor sought for the purposes of directly helping forward the offence, it is not in furtherance of it.[22] Neither Watson nor Carbotech posed a different test. The client must propose to use the legal advice to assist in the purpose of continuing the dishonest conduct. Brereton J’s reference in Carbotech to advice which, ‘impact[s] upon or inform[s]’ was synonymous with ‘assist’ and suggested no lesser connection between the purpose of the document and the conduct comprising the alleged offence. The defendants’ UberX business itself was not the relevant offence so the fact that it was ongoing does not mean that a document that furthers that business meets the requirements of the misconduct exception.
[22]Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382, 387; Butler v Board of Trade [1971] Ch 680, 687; Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, Hill J, 2 October 1997, unreported); Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, [185].

Caution must be exercised to not apply the misconduct exception to advice as to whether conduct is lawful or not or as to the penalties or consequences if unlawful conduct is engaged in.[23] The mere fact that a client later does the very act they sought advice about does not suggest the advice was in furtherance of it.[24] Likewise, advice as to the legal consequences of past misconduct, the legal remedies that may be invoked and any legal defences that may be available is not in furtherance of the commission of the fraud.[25]
[23]Attorney-General (NT) v Kearney(1985) 158 CLR 500, 513-14.
[24]Varawa, 387 (n 22).
[25]Talacko, [15] (n 11); P & V Industries v Porto (No 3) [2007] VSC 113, [46]; Watson, [116] (n 15).

The consequence of the primary judge’s General Finding was that documents that only have an indirect connection (and sometimes, a very remote, indirect connection) to the commission of Ridesharing Offences have lost their otherwise privileged character. The proper application of principle required the plaintiffs to identify how a particular document was in furtherance of specific Ridesharing Offences (and not merely the operation of the UberX business). It was not shown that any sample document was itself an element of a Ridesharing Offence, directly facilitated a Ridesharing Offence or was directed to concealing a Ridesharing Offence.

Some examples were used to illustrate the point.

(a) Sample document 15 comprised legal advice prepared by external lawyers entitled ‘UberX Melbourne CAR POOLING FINAL 21-02-14.pdf’. This document, the defendants contended, was further advice that could have been included in earlier advice (sample document 12) that was held to be privileged. The finding was erroneous as the judge did not explain how the advice furthered the commission of a Ridesharing Offence, although the submission acknowledged that at J:[298] the judge stated that ‘carpooling was contemplated as a means of concealing the commission of Ridesharing Offences.’

(b) Sample document 23 was an email chain between employees of Uber, Salle Yoo (in-house counsel) to Mr Travis Kalanick (CEO, Uber Technologies Inc) and Ryan Graves (Senior Vice President Global Operations, Uber Technologies Inc), where Ms Yoo forwards both recipients an earlier email from Herbert Smith Freehills to Uber’s internal legal counsel titled ‘Confidential and Privileged - potential penalties’. This advice followed on receipt by an Uber Entity of a warrant and a broad notice to produce documents to New South Wales regulatory authorities. This finding was described as ‘plainly wrong’ as it was not a step in any alleged Ridesharing Offences, nor was there any direct connection between the advice and the alleged Ridesharing Offences. It could not be in furtherance of an offence to obtain legal advice as to regulatory action and investigations, or to conduct a defence of them.

(c) Sample document 34 comprised an email chain between Uber employees and external lawyers entitled ‘update on RMS investigation’. The subject matter of the communications was the search warrant executed by the regulator on Uber’s Sydney office and penalty notices issued to UberX Partners in New South Wales. The misconduct exception was wrongly applied as Uber could not be deprived of privilege in respect of advice about enforcement actions that may be taken against them.

(d) Further examples were presented in the schedule to the written submissions.

The defendants submitted that the General Finding was expressed with such generality that its application left significant room for doubt as to which documents were caught and that was a strong indicator that the finding was in error. Examples of such generality included―

(a) a failure to exhaustively outline the aspects of the UberX business said to fall within the finding, evident from the expression ‘such as’ in J:[280], [291];

(b) ambiguity in the concept of ‘launching’ where used to identify advice associated with the commencement of the business; and

(c) confusion between advice regarding ‘continuing to provide UberX using unlicensed drivers’ and a finding that the misconduct exception did not apply to advice regarding all aspects of the operation of UberX.

The General Finding was particularly problematic because it was intended to facilitate a sampling process for several thousand privileged documents. In the schedule of rulings on individual documents, the primary judge frequently provided little or no reasoning beyond cross-referring to the General Finding. To avoid falling into error, the primary judge ought to have made rulings on specific documents or categories of documents without making any overarching finding because it was that finding that went beyond what the authorities permitted. The court ought to set aside the General Finding and rule on the application of the misconduct exception category by category or document by document as appropriate.

Further, while the judge accepted the alternative submission that certain documents satisfied the misconduct exception on a ‘narrower basis’ at J:[299], that narrower basis was impermissibly broad or was misapplied. It was also not clearly identified so as to assist the contemplated sampling process.

Ground 5

The defendants contended that the primary judge erred in the application of the correctly identified principles[26] when concluding that each of sample documents 9, 26, 28, 29 and 42 was not subject to advice privilege pursuant to s 118 of the Act.
[26]The defendants cited AWB Ltd v Cole (No 5) (2006) 155 FCR 30, 44-5 [44]; ACCC v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232, [38]–[42], [48]–[50]; IOOF, [47] (n 10); Setka v Dalton (No 2) (Legal Professional Privilege) [2021] VSC 604, [86].

They submitted that the primary judge’s assessment was overly narrow or technical in approach,[27] when in this context the concept of legal advice is fairly broad, extending to professional advice about prudent or sensible conduct in a relevant legal context, while, at least in complex commercial transactions, the line between advice and administration may not be a bright one.[28] Context is important as a document need only form part of the continuum of communications intended for advice to be given as needed.[29]
[27]DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151, 163 [31].
[28]Ports, [40], [194]-[195] (n 26). The primary judge’s observations at J:[138] can be noted.
[29]Balabel v Air-India [1988] 1 Ch 317, 330.

Sample document 9 is an email from Ms Yoo (General Counsel) to Mr Rohrsheim (Uber management) sent 10 October 2013. The primary judge erroneously concluded that Ms Yoo was not providing legal advice. Uber contended that the advice given was professional advice as to what a party should prudently or sensibly do in a relevant legal context. It was not necessary that the email itself express legal advice.

Sample document 26 is an email between Uber employees including in-house counsel. The defendants challenged the primary judge’s conclusion that there was no evidence to confirm whether the redacted portion reflected legal advice and nothing to suggest that legal advice was sought. The defendant submitted that the court would, on inspection of this document, identify that the primary judge had misapplied the applicable principle.

Sample document 28 is an internal Uber email chain between management and in-house counsel. The defendants contended that the proper context for this email was evidenced from the first affidavit of Cameron Hanson who stated that two days prior to this email UberX drivers were issued with fines. They submitted that the primary judge incorrectly characterised the content of this email chain when concluding that setting up mechanisms for payment of fines issued to UberX Partners is not for purposes of legal advice.

Sample document 29 is an internal email chain in respect of which the primary judge found that a s 118 purpose had not been established. The defendants contended that commercial observations were intermingled with legal advice such that their claim to advice privilege should be upheld. In any event these emails form part of a continuum of communications between Ms Yoo and her client. Some non-privileged communications become privileged where they appear in this document.

Sample document 42 was originally wholly subject to a privilege claim. However, shortly prior to the hearing of the appeal, Uber released a partially redacted version of this document and sought only to maintain privilege in respect of the redactions. Uber submitted that the primary judge erred in concluding that it was clear from the content of this document that its dominant purpose was to provide an update to the Uber employee recipients, and not to seek legal advice. Uber pointed to two aspects of that document, which remain redacted, that it submitted demonstrated that this conclusion was in error. Uber also referred to Mr Hanson’s expression of his opinion about the purpose of the document.

Categories review

By a schedule to its written submission, Uber addressed specific documents by categories, contending that documents falling within each of those categories remain privileged and do not fall within the misconduct exception. It submitted that the primary judge failed to properly identify the relevant surrounding circumstances, particularly by reference to specific offences, when assessing these documents and, by applying the erroneous General Finding or the Alternative Finding, misidentified the context in which the assessment of the purpose of the document was properly to be made. In particular, the primary judge misconstrued the circumstances that established the legitimacy of the purpose of the communication and failed to identify any specific link between an identifiable offence and the communication in question.

(a) Category 1: advice as to whether the defendants’ business satisfied the ‘carpooling’ legislation in Victoria. This category affects sample documents 13‑15. Uber submitted that these documents comprise communications about whether something is lawful. The purpose of the communication is to be assessed when the document is created.[30] There was no evidence that in February 2014, Uber intended to disguise the UberX service as carpooling and obtained advice for that purpose. Legal advice pertaining to setting up carpooling as a business activity is privileged.
[30]Ding v Ding (2019) 59 FAM LR 262, [80].

(b) Category 2: advice as to penalties under legislation – sample documents 17 (in part), 21, 29, 34 (in part). Such advice does not fall either within the General Finding or the Alternative Finding and is not advice in furtherance of offences because the advice was not obtained for the purpose of advancing the commission of further offences.

(c) Category 3: advice as to legal representation for UberX Partners. The relevant sample documents are 17 (in part), 28 (in part), 32, 36, 37, 39 (in part), 41 (in part), and 43. Because the General Finding is erroneous, the connection between advice that assists Uber to ensure that UberX drivers have legal representation and the commission of the Ridesharing Offences is far too indirect to fall within the misconduct exception. Legal professional privilege should not be abrogated in such circumstances, as assisting in a lawful defence of actual or anticipated proceedings cannot be furthering the commission of an offence.

(d) Category 4: advice as to regulatory investigations and interview request. This category comprises sample documents 23, 31, 34 (in part), 40, and 43. The primary judge erred in concluding that these documents were aimed at delaying enforcement action from being taken (J:[295]). When the regulator in New South Wales served a massive electronic data request, Uber was entitled to seek to narrow the scope of the request and to delay the date by which the data had to be provided. These documents were created when a regulatory investigation was on foot. In any event, the connection between such documents in the commission of Ridesharing Offences was too indirect. Legal advice is plainly privileged in such circumstances. Sample document 31 is a prime example of a document that on proper application of principle could not be described as an abuse of the professional relationship even in the context of the systems allegations.

(e) Category 5: advice as to options available for fines and prosecutions (including challenges). The relevant sample documents for this category are 24, 26, 27, 28 (in part), 33, 34, 39, 41, 42, 49, 51, 53, 57, 59, 70, 72, 81, and 89. Although Uber accepted that this category would fall within the General Finding, if that finding were correct, this conduct was not an element of the Ridesharing Offences and did not directly result in Ridesharing Offences. Further, there was no causal relationship between the advice and the willingness of drivers to provide services using UberX. Properly characterised such advice did not fall within the misconduct exception.

(f) Category 6: a document regarding advice as to operational aspects of the contractual arrangements with UberX Partners, sample document 22. The primary judge’s finding that this document was in furtherance of the Ridesharing Offences, as its purpose was to keep the unlawful UberX service operating, was in error, that being a mischaracterisation of the document.

(g) Category 7: a document regarding the alleged practice of greyballing, sample document 86. This document is an email chain in the context of an article published about greyballing tactics. There was no basis for the primary judge to find the alleged greyballing tactics were occurring in March 2017 when document 86 was created. The only document relied on regarding this practise was dated April 2015. The document cannot comprise advice regarding avoiding enforcement or detection.

Uber sought that orders 2 to 4 made by the primary judge on 6 May 2022 be set aside and that the proceeding be remitted to the primary judge for further determination in accordance with the court’s ruling.

Andrianakis

Andrianakis submitted there was a disconnect in Uber’s position with respect to what was defined in the notice of appeal as the primary judge’s ‘General Finding’. Andrianakis observed that the primary judge accepted the Broad s 125 Submission in general terms only and subject to various qualifications (J:[280]). Noting how the primary judge described the Broad s 125 Submission earlier in her Honour’s reasons (J:[250]), Andrianakis put his submissions by reference to the General Finding, as it appeared that the Broad s 125 Submission was intended to correspond with the General Finding. Andrianakis further submitted that there was a lack of clarity between the grounds identified in the notice of appeal and Uber’s submissions that makes it difficult to understand how each ground of appeal is advanced and to make submissions in response by reference to the individual grounds. Following the structure of Uber’s submissions, Andrianakis first addressed the misconduct exception grounds. Next, he turned to the schedule to the submissions before dealing separately with Ground 5.

Grounds 1 to 4 – The misconduct exception

Uber’s challenge to the primary judge’s General Finding was flawed as it was not supported by either the text of s 125 nor by case law regarding the meaning of the words ‘in furtherance of’ and the scope and application of the misconduct exception generally. Uber contended that s 125 only applied where a document or communication is ‘a step in the offending’ or is ‘directly furthering the commission of offences by directly facilitating a step in the offending or concealing the offending conduct’, which they expressed in a number of ways.

(a) The document or communication is a step in the commission of the offence, or at least directly connected to or intimately tied to the relevant offending conduct;

(b) There must be a direct connection between the purpose for the advice and the offence;

(c) The advice or request for advice is of itself an element of a Ridesharing Offence, directly facilitated a Ridesharing Offence or was directed to concealing a Ridesharing Offence.

Andrianakis submitted that the case law demonstrates that s 125 is intended to apply flexibly to a broad range of circumstances and is not to be construed narrowly or prescriptively. Further, there is no basis in the text of s 125 for reading into the section a requirement that the communication or document ‘directly’ further a particular offence or ‘directly facilitate’ a step in the commission of an offence or that the communication or document be ‘directly connected to’ or ‘intimately tied to’ an offence. Reading such limitations into the section was by reference to well established principles of statutory construction, impermissible.[31]
[31]Certain Lloyd’s Underwriters Subscribing to Contract Number IAOOAAQS v Cross (2012) 248 CLR 378, 388 [23]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-7 [47].

Uber’s restricted construction, based on a review of certain cases, overlooked the fact-sensitive nature of s 125. The decided cases do not articulate a complete set of guiding principles. As a rule grounded in public policy, flexibility in its operation is important.[32] The narrow reading of the section for which Uber contended was inconsistent with the policy underpinning the misconduct exception.
[32]Kearney, 522 (n 23).

Further, Andrianakis submitted that Uber appeared to misunderstand what was said in Amcor, which established that advice sought after the relevant misconduct is completed that cannot directly connect to an element of the crime or fraud may nevertheless be ‘in furtherance of’ the crime or fraud. Uber submitted that Cargill illustrated that where the advice is not a step in the offending or sought for the purpose of directly helping forward the offence it is not in furtherance of it. On the contrary, submitted Andrianakis, Cargill concerned fraudulent practice at a systemic level and not individual instances of such conduct.

Andrianakis next submitted that the primary judge, correctly, considered the factual context. First, the alleged offences, described in the pleading as the Ridesharing Offences, constituted systemic conduct.

Secondly, as the primary judge noted (J:[220]), when the UberX Partner was not licensed to provide point-to-point passenger transport services or was not driving a vehicle that was licensed for that purpose, an offence was committed every time the UberX Partner provided the service.

Thirdly, the nub of Andrianakis’ claim against Uber in this proceeding is that the Uber defendants conspired by unlawful means to establish, promote and operate UberX in the Relevant States. The commission of the Ridesharing Offences was therefore ‘integral to the establishment and operation of UberX’ in the Relevant States. In this context, Andrianakis noted that the primary judge had identified relevant contextual circumstances that he had pleaded:

(a) Uber’s stated intention to launch UberX using unlicensed drivers, and that reviews regarding regulatory risk were to be carried out prior to and at launch. Such regulatory reviews were for the purpose of identifying the risks associated with enforcement and strategies regarding that enforcement, rather than ascertaining whether UberX would be lawful (J:[227]).

(b) Uber’s stated aim when launching in a city was to build scale quickly so as to grow the business, get positive media and leave the government with no choice but to accept UberX. For example, when launching in Melbourne and Sydney, Uber’s aim was to reach 2,000 weekly UberX trips in each city as quickly as possible to ensure they had ‘as many people as possible to support uberX [sic] leading up to what will inevitably be a regulatory fight in both cities’ (J:[231]).

(c) It must follow that the Ridesharing Offences were being systemically committed on a mass scale.

(d) In order to legalise UberX, Uber lobbied State governments, including by engaging government relations consulting firms who facilitated meetings and opportunities for ongoing dialogue with ministers, their chiefs of staff and/or policy advisors (J:[234]).

(e) Uber adopted strategies to avoid regulatory enforcement, such as hiding from and/or deceiving regulators. These strategies were documented in documents such as ‘Hack the Police’ and ‘Global V-TOS Program’. Uber also tried to ‘disguise’ UberX as carpooling (J:[236]-[239]).

(f) Other measures to avoid enforcement action included removing users (Riders) of UberX who were suspected of being enforcement officers (called ‘greyballing’) or imposing ‘blackout geofences’ that prevented requests for UberX from high-risk areas such as around the office buildings used by enforcement officers and regulators (J:[240]).

(g) When enforcement action occurred, Uber took active steps to avoid it having a chilling effect on the supply of drivers. That included devising a sophisticated scheme for the payment of fines, including engaging multiple external law firms to pay fines on behalf of UberX Partners. This resulted in the payment of at least $4.29m by Uber for fines and related fees over a period of three years in Australia (J:[241]-[243]).

(h) Uber also actively reassured drivers about the fines. That reassurance was for the purpose of protecting driver supply (J:[244]-[254]).

These allegations supported the findings made by the primary judge (set out above at [46]).

Andrianakis drew my attention to a number of documents that he submitted demonstrated that UberX was understood to be inherently unlawful, carrying an inevitability of potential enforcement action. Consequently, Uber went to great lengths, including through external consultants, to anticipate the extent and cost of enforcement activity that it would suffer, or its drivers would suffer, in advance of launching in a particular jurisdiction, or even following the launch. In this way, Uber informed its approach to the decision as to whether to launch, what enforcement risk it would face, and also how it would launch.

One document was ‘International P2P Launch Guide’ [for P2P read UberX] where the following appeared.

0 - Should we launch P2P?
The very summarized outline of the green light process should be the following.
Few questions you want to have responses to:
• Is it legal → Yes: Launch; no ...
• ... Is it enforced (frequency, capacity, willingness, etc.) → No: Launch; yes ...
• ... How serious is enforcement (civil v. criminal, fine amount, license revocation (sic), etc.) → No: Launch, yes ... Make a difficult decision

The whole document is consistent with such themes.

Another example was document 34 in the Tender Bundle that demonstrated Uber, in preparation for launch, was following through on the launch guide, asking for a survey of enforcement mechanisms, the appetite for enforcement and ability to enforce the regulations against ride sharing in Victoria, New South Wales and Western Australia. Further examples were given during submissions. The crux of Andrianakis’ submission was that there was documentary evidence demonstrating that enforcement risk was the key integer in the decision whether to launch UberX. The clear inference, a material circumstance that informed the primary judge’s analysis of individual documents, was that Uber anticipated that the regulator was going to likely enforce quite strongly, which would cause difficulties for Uber with supply of UberX Partners to operate the business.

Once launched, other features of the UberX business were relevant. The documents showed that Uber adopted a number of strategies to permit the continued commission of the Ridesharing Offences including delaying enforcement action, stifling enforcement action, and supporting UberX Partners subjected to enforcement action. The end game was to achieve regulatory reform by which the UberX business model would no longer be unlawful, referred to as ‘flipping the city’. This particular strategy was premised on the UberX business model involving unlawful activities, namely the Ridesharing Offences, that would be scaled up while popular acceptance was maintained in order to apply maximum pressure on governments to make that regulatory reform.

Taxi Apps submitted that the primary judge correctly identified advice obtained on a wide variety of issues arising on the UberX business model to be directly in furtherance of the illegal object, because it maximised Uber's return on its business development. Of particular note, was the fact that advice of the type sought assisted to both retain the efficacy of committed offences and promote the continued commission of offences. In context, it may be accepted that advice to an offender with no intention to reoffend would remain privileged, but the context precluded assessment of the offences as isolated incidents for which Uber effectively contended.[35]
[35]Amcor, [61] (n 12); Watson, 680 [116] (n 15).

Taxi Apps contended that in asserting that the primary judge’s finding at J:[280] and [291] was impermissibly broad and gave rise to practical difficulties, Uber misstated her Honour’s findings. The primary judge made plain that legal advice regarding all aspects of UberX will not fall within the misconduct exception. Her finding was that only legal advice after the Relevant Dates regarding aspects of the operation of UberX such as launching and continuing to provide UberX using unlicensed drivers, avoiding enforcement or detection, and dealing with fines and prosecution and UberX Partners about those matters, including supporting UberX Partners, fell within the exception. While there may be some complexity in applying the primary judge’s ruling at the margins, it is a clearly expressed principle, free of error, readily applicable to resolve the issues in respect of all the documents.

Grounds 2A and 2B

Uber’s submission that greater specificity was required in relation to the Ridesharing Offences should be rejected. Neither the text of the legislation nor any of the authorities supports the proposition that the plaintiff would have to identify each individual commission of an offence (the date, time, name of offending UberX Partner, actual trip details, pick up and destination). As the primary judge correctly identified there was ‘something to give colour to the change’ where Uber knew that most UberX Partners would be unlicensed and that Ridesharing Offences would be committed. The primary judge was entitled to find that commission of such offences was a certainty and that the ride sharing offences were being committed systemically and on a large scale. There was ample evidence in the documents that this was so.

Ground 2C

This ground should be rejected because Uber’s business model involved interrelated strategies to use unlicensed drivers and operate UberX knowing that it relied upon unlawful conduct, evading enforcement activity, maintaining ‘supply’ in the face of enforcement and otherwise avoiding or stymying regulatory action, on a continuing basis. Obtaining legal advice, in this context where that advice will or may impact or inform the client in the course of undertaking such activities, is properly to be regarded as in furtherance of the improper purpose.

Ground 3

Taxi Apps contended that Ground 3 was predicated on the success of Grounds 1 or 2 and therefore must fail.

Grounds 4 and 4A

The ‘narrower basis’ or Alternative Finding accepted by the primary judge was that legal advice in relation to Uber strategies of paying fines and legal fees for UberX Partners, delaying or frustrating regulatory enforcement activities and greyballing, were in furtherance of the Ridesharing Offences and fell within the terms of the misconduct exception. The reason that this basis was narrower than the Broad s 125 Submission or General Finding was because it did not depend on the proposition that the Ridesharing Offences were integral to the UberX business model and focused instead on these three specific instances of conduct. There was no error in that conclusion.

Taxi Apps next submitted that the primary judge’s application of the General Finding to particular documents as set out in the annexure and the application of the Alternative Finding to those documents was without error. In summary, Taxi Apps contended that each document was caught by the misconduct exception whether or not the court applied the broad or narrow formulation. Further, Taxi Apps did not accept that each category as identified by Uber accurately or completely described the nature of the documents notwithstanding that Taxi Apps had not seen them.

Ground 5

Taxi Apps contended that, for each of the four sample documents the primary judge found were not protected by advice privilege, Uber failed to establish that the dominant purpose, as required by s 118, was the provision of legal advice to it. Further submissions were provided by Taxi Apps in an annexure to assist the court when inspecting each of these documents.

Cross-appeal
Grounds 1 and 2

Andrianakis submitted[36] that the primary judge erred in finding that the misconduct exception only applied if there existed a ‘combination’ of Uber’s ‘knowledge of illegality’ and ‘a clear intention to launch UberX regardless’. The primary judge observed at J:[285]:

I do not think that knowledge of illegality alone is sufficient to establish that the advice was in furtherance of the Ridesharing Offences. Rather, it is the combination of knowledge of illegality and a clear intention to launch UberX regardless which constitutes the circumstances for the advice to be in furtherance of the Ridesharing Offences.

Andrianakis submitted that to so find was in error because the primary judge imposed factual preconditions on the application of s 125 that were neither necessary nor consistent with the flexible nature of the provision. Consequently, relevant legal advice as defined in J:[280] only fell within the misconduct exception if it was obtained after the Relevant Dates.

[36]Taxi Apps supported Andrianakis’ submissions but made no separate submission on the cross-appeal.

The error was framing an overarching principle that was not responsive to each individual document in context.[37] The principle was exhaustively applied by reference to the two criteria of knowledge and intention.
[37]Carbotech, [23] (n 15).

Ground 3

Andrianakis’ alternative submission (Ground 3) was that the primary judge erred in finding that the combination of knowledge and intention existed only as at the Relevant Dates. The Relevant Dates were 23 January 2014 in respect of Victoria and 14 April 2014 in respect of New South Wales, Queensland and Western Australia (J:[287]). Andrianakis contended that the primary judge ought to have found that the relevant dates were:

(a) Victoria: 10 October 2013;

(b) New South Wales: 16 February 2014;

(c) Queensland: 14 February 2014;

(d) Western Australia: 4 November 2014.

He contended that the documentary evidence demonstrated in respect of each State the date at which Uber had knowledge of illegality and the date of Uber’s intention to launch UberX regardless. For the purposes of Ground 3, the later of these two dates for each state was selected as the relevant date.
Victoria

Andrianakis submitted that an email dated 22 September 2013 established that, at least as at that date, Uber employees can be shown to have knowledge of illegality in the UberX business model. Andrianakis further submitted that subsequent emails confirmed that, from this stage, Uber knew that UberX would be unlawful in Victoria and that their main concern was enforcement.[38]
[38]These documents, which I have reviewed, are identified in Andrianakis’ written submission.

Next, Andrianakis submitted that there was clear evidence that at least as at 10 October 2013, Uber had a clear intention to launch UberX in Melbourne regardless of illegality. Andrianakis pointed, in particular, to internal emails dated 4, 6 and 10 October 2013. This intention is confirmed by numerous emails between 12 October 2013 and 13 November 2013.

New South Wales

Andrianakis contended that an internal email dated 17 October 2013 established that, from as early as that date, Uber knew that UberX was unlawful in New South Wales and that the key issue was enforcement risk. Again, subsequent emails confirm this knowledge of illegality and Uber’s concern about enforcement.

An email dated 16 February 2014, demonstrated that Uber’s preparations had crystalised into a clear intention to launch UberX in Sydney regardless of illegality as at that date. Again, there are subsequent emails consistent with this clear intention. The primary judge ought to have found the relevant combination was present in respect of New South Wales by 16 February 2014.

Queensland

Andrianakis submitted that a PowerPoint presentation, dated November 2013, demonstrated that Brisbane was a launch candidate for UberX, particularly when read with an earlier internal email dated 17 October 2013. A number of emails in early 2014 confirmed this knowledge.

An email dated 14 February 2014, evidenced an intention to launch UberX in Brisbane and Uber had knowledge of illegality in Queensland from as early as 17 October 2013. Accordingly, the combination of knowledge and intention existed in Queensland from 14 February 2014. Again, a subsequent document[39] confirmed these conclusions.

Western Australia

[39]As referenced in Andrianakis’ written submission.

Andrianakis submitted that an email dated 12 October 2013, established that Uber had knowledge of the illegality of the UberX business model for, as the primary judge noted (J:[290]), ‘If UberX was lawful, or not known to be unlawful, then there would have been no need to embark on a strategy to change the regulations or the regulatory framework’. Again, subsequent communications confirm this conclusion.

Uber’s clear intention to launch UberX in Perth regardless of illegality was established, Andrianakis submitted, by an email dated 4 November 2013. Accordingly, in respect of Western Australia, the combination of knowledge and intention was evident from 4 November 2013.

It will be recalled that the primary judge’s conclusion in respect of the Relevant Dates was that those were the dates on which Uber obtained external legal advice to the effect that UberX was unlawful in the Relevant States, the judge considering that particular communication ‘most clearly demonstrated’ Uber’s knowledge of the illegality. Taxi Apps contended that the primary judge had given Uber the benefit of the doubt in finding that the first round of advice to establish that the Ridesharing Offences were unlawful was not in furtherance of the offending. The error in this reasoning, it submitted, was that there were reasonable grounds for concluding that at all relevant times Uber intended to launch UberX in these States notwithstanding illegality and subject only to an assessment of the likelihood of enforcement action and its consequences. So much is demonstrable from its business model as explained in the White Paper, Launch Playbook and Launch Guide, among other documents. Taxi Apps submitted that the primary judge erred in finding that there needed to be the ‘combination’ of knowledge and intention and that advice provided before the Relevant Dates was not caught by the misconduct exception to the extent that a ‘combination’ was necessary. Taxi Apps otherwise adopted Andrianakis’ submissions.

Uber submitted that the plaintiffs’ contentions either fail to establish that a decision had been taken at all or that a final decision had been taken. It further submitted that seeking advice about enforcement provisions or enforcement risk is insufficient to reveal knowledge of illegality. Put another way, the plaintiffs mischaracterised many documents when submitting that the primary judge fell into error.

Analysis

Before turning to the grounds of appeal, I pause to reject Uber’s proposal to refocus the application from the manner in which it was dealt with, by consent, by the primary judge, to an analysis based upon Uber’s seven categories. I reject Uber’s submission that the General Finding, her Honour’s reasons and the schedule thereto cannot be sensibly applied to the remaining documents, such that the issue of Uber’s claims to legal privilege can be fully and properly determined.

I do not foresee that a judicial officer or a special referee would experience difficulty in applying the primary judge’s ruling on the sample documents in the context of her full reasons to the remaining documents, if Uber were to maintain, as it has on this appeal, that it is unable to do so itself. Were Uber to maintain this position, I would be inclined, subject to any further submission, to exercise power under s 48(1) of the Civil Procedure Act2010 (Vic) to implement a process for independent assessment of the remaining documents. I will hear argument from the parties as to whether any particular process for this further review ought to be ordered.

Grounds 1 to 3

For the following reasons, Grounds 1 to 3 of the appeals are rejected.

I am not persuaded that the primary judge erred as Uber submitted. Uber’s contention that the primary judge’s approach represented a significant departure from the policy that lies behind the misconduct exception was misconceived. It was inappropriate to reason from the fundamental importance of the right to consult a lawyer in private rather than from the text of s 125 and the context of the Act. Uber’s contentions drew on a selective reading of common law authorities when attention must properly be focussed on the text of the section in the context of pt 3.10, div 1 of the Act. I accept the submissions of the plaintiffs as to how those authorities are to be properly construed.

When read with s 131A, the text of s 125 makes it clear that client legal privilege, as protected by the Division, does not prevent disclosure of a communication in furtherance of the commission of relevant misconduct. The manner in which that right is presently protected is specified in the Act. I am using the expression ‘misconduct’, which also appears in the heading of the section, as a convenient shorthand summary for a communication or document described by the statutory phrase ‘the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty’.

Section 125 of the Act does not require the identification of specific offences or how relevant communications were in furtherance of those specific offences. The text of s 125, having regard to its context within the framework of the Act and the broader legislative purpose, neither makes nor implies any such requirement.

Having regard to the origins of the misconduct exception in notions concerning the proper administration of justice,[40] Parliament clearly intended that s 125 would capture a broad range of circumstances in which a document or communication is not merely relevant to the misconduct but in some way advances it, either directly or indirectly. Two aspects of the exception may be emphasised in this case.

(a) Whether a document or communication is ‘in furtherance’ of misconduct is ultimately a question of fact to be determined in the context of each case. In particular, a document or communication may be ‘in furtherance’ of misconduct even if the document or communication is not a ‘step’ in the commission of an offence, or directly connected to carrying out an element of the fraud or crime.

(b) In the context of systemic misconduct, it is sufficient for the purposes of s 125 that the document or communication was ‘in furtherance of’ that systemic misconduct more generally. It is not necessary to establish a direct link between the document or communication and a specific instance of the offending or fraudulent conduct.[41]

[40]Propend, 563ff (n 8).

[41]The cases from which these conclusions are drawn include Carbotech, [26] (n 15); Amcor, [57] (n 12); Talacko, [15] (n 11); Cox & Railton, 175 (n 18); Porto, [27] (n 25); Watson, [116] (n 15); Cargill, [185] (n 22).

The primary judge correctly identified that the conduct that excludes otherwise privileged communications from the protection afforded by the Division, is whether it was ‘in furtherance of’ an ‘offence’. There was no error in her Honour’s analysis of either concept.

I pause to note that it was, as the primary judge recorded, common ground that s 125(2) applied. The commission of the Ridesharing Offences is a fact in issue in the proceeding. In determining the application of s 125(1), the plaintiffs are not required to do more than demonstrate that there are reasonable grounds – a foundation of factual allegations made on a proper basis – for finding that offences were committed (misconduct) and communications were made or documents prepared in furtherance of the alleged misconduct. Subsection (2) enables the court to find that a communication was so made or a document so prepared if such reasonable grounds exist. Although the convenient expression of argument appeared, at times, to assume that offences had actually been committed, there was no error in the primary judge’s reasoning on this account.

What is required is more than a bald allegation that an offence has been committed or other improper conduct has occurred or was intended to occur. The authorities speak of the need for ‘something to give colour to the charge’ at a prima facie level that has foundation in fact. Reasonable grounds are identified by reference to all the circumstances of the case. The existence of reasonable grounds was not in dispute because it was plainly alleged, and proper basis for such allegations readily appeared from discovery, that Ridesharing Offences were committed, prosecutions occurred, and fines were paid, albeit that there were instances where charges were dismissed.

Uber’s primary submission was that it was necessary for the primary judge to identify specific offences and how the relevant documents to be stripped of client legal privilege were connected with such offences, so as to be ’in furtherance’ of those offences. This was misconceived. Contrary to Uber’s contentions, that purport to artificially narrow the scope of application of s 125, it was unnecessary for the primary judge to identify how any particular document was in furtherance of a specific Ridesharing Offence. Yet, it was this proposition that lay at the heart of Uber’s contention that the primary judge fell into error.

The plaintiffs correctly submitted that the statutory text ‘in furtherance of’ misconduct is not to be interpreted narrowly or prescriptively. Whether a document meets that statutory description such that client legal privilege is inapplicable in respect of it, is fact sensitive. It is erroneous to apply a policy overlay, drawn at a high and abstract level, that a narrow or prescriptive interpretation is required by the sacrosanct status of the right to consult a lawyer in private as a component of the proper administration of justice, when no warrant for that narrow or prescriptive interpretation can be identified in the text of the section, its context and the purpose of the Act.

The relevant misconduct enlivening the application of s 125 was the pleaded allegations of the Ridesharing Offences. This conduct was correctly identified by the primary judge as offences allegedly committed by UberX Partners and by Uber in the course of providing its business, UberX (see [45] above). There were three categories of such offences: the UberX Partner offences, the Uber complicity offences and the Uber direct offences. It can be assumed that particulars could be given of each separate occurrence of each category of offence and one of the key issues debated was whether such particulars were necessary. They were not.

The task for the primary judge was to identify whether communications and documents fell within the statutory description as not protected by the privilege. The Act does not require that this task be approached in the manner for which Uber contended. Rather, the primary judge was required to identify whether in the circumstances, the challenged communications or the contents of the challenged documents (or at least the agreed sample) were made or prepared in furtherance of misconduct. The section addresses the making of a communication or the preparation of a document. These are activities identified by analysis of the factual allegations.

The primary judge expressed a number of ‘findings’ that were not challenged. The substance of these findings, in the context of s 125(2), were circumstances that gave colour to the pleaded allegations of misconduct. The principal findings of fact made by the primary judge are summarised above at [46]. There was no error on the part of the primary judge in doing so. As Andrianakis’ submissions, set out above at [75]-[82], correctly identified, there was no merit in Uber’s attempt to distinguish between the UberX business model and the commission of the Ridesharing Offences. Likewise, no distinction can properly be drawn between Uber’s system for defending UberX Partners and for paying fines and its intention to achieve the untainted continuation of its business model towards regulated legality.

I am satisfied that it was entirely appropriate for the primary judge to regard the misconduct alleged in the circumstances of these proceedings as systemic. Once that conclusion is reached the narrow limitations for which Uber contended are exposed as lacking merit. That is why it was uncontroversial that the Ridesharing Offences were misconduct or ‘offences’ in the sense required by the section. It was not necessary, as the primary judge correctly concluded, that the Ridesharing Offences be identified and defined by a particularisation of each individual Ridesharing Offence and identification of a connection between specific documents and specific offending. There was no error in identifying the connection between specific documents and systemic misconduct, namely that the former were ‘in furtherance’ of the latter.

In Carbotech, Brereton J, after citing observations by Hodgson CJ in Eq in Watson concluded:

In other words, if the client is obtaining legal advice in the context of an ongoing dishonest or fraudulent undertaking, so that the advice will or may impact upon or inform the client in the course of that undertaking, it will be regarded as being in furtherance of the improper purpose.[42]

[42]Carbotech, [26] (n 15).

In Amcor, Kyrou J, while recognising that the rationale of legal advice privileges is to enable clients to obtain advice from their lawyers to facilitate the organisation of their affairs within the law, stated:

In my opinion, so does legal advice that is sought about what positive steps can be taken to give continuing efficacy to the fraud, such as advice on positive steps to conceal the fraud or positive steps to place the relevant property beyond the reach of any court order that the victim may obtain. Advice about the taking of such steps can be described as advice prepared in furtherance of the commission of a fraud.[43]

[43]Amcor, [61] (n 12).

With respect, I agree with these statements of principle. Legal advice for the purposes of maintaining, promoting, concealing, or in any way giving continuing efficacy to misconduct is distinguishable from legal advice about the consequences of past conduct, including in that category advice about the future consequences of that past conduct in terms of remedy that might be available to victims of such misconduct or legal defences or strategies that may be available to the perpetrator should the victim make a claim against it. Such advice would not be in furtherance of the commission of the misconduct because ‘furtherance’ is to be given its ordinary meaning, which is ‘the fact of being helped forward; the action of helping forward; advancement, aid, assistance’. The precise nature of systemic misconduct and advice in furtherance of it remains a factual inquiry.

Appropriately, no criticism was levelled at Elliott J’s summary of the principles governing the misconduct exception in Talacko that I set out earlier in these reasons.

As the primary judge rightly recognised, whether legal advice was in furtherance of misconduct requires close attention to the allegations made in the pleading subject to being satisfied that there is a proper basis, a foundation in fact to be proved at trial, that will give colour to the charge.

The primary judge turned her mind to this precise requirement and made appropriate findings that Uber did not challenge on this appeal. Further, the plaintiffs in their submissions have compellingly explained how the identified factual context demonstrates that Uber’s systemic conduct, which included seeking legal advice, was the setting up, launching and operation of the UberX business in order to achieve the outcomes that Uber is reasonably alleged to have intended. I refer particularly to Andrianakis’ submission set out above at [75]-[85] and Taxi App’s submissions noted above at [109]-[111].

Once this conclusion is reached, as it must be, Uber’s contention that greater specificity was required in relation to offences, before advice might be said to be in furtherance of misconduct, must also be rejected. It finds no support in either the legislative text or in the authorities. There was no error in the primary judge’s finding that the commission of the Ridesharing Offences was a certainty and that the Ridesharing Offences were being committed systemically and on a large scale. That conclusion was well supported as the plaintiffs’ submissions, recorded above and which I largely accept, demonstrated, particularly through setting out the detail of the correct identification by the primary judge of the context in which legal advice was obtained. The plaintiffs’ submissions amply demonstrated how advice could and did help forward, advance, aid or assist Uber’s activities, its UberX business, and may be regarded as in furtherance of the alleged misconduct, its systemic commission of the Ridesharing Offences. The documents need not have been a ‘step’ in any of the specific, individual offences.

Uber has not identified a single document that evidenced a communication wrongly classified as being in furtherance of the commission of the Ridesharing Offences on the proper application of principle. I do not accept Uber’s contentions in respect of the specific documents referred to earlier when setting out the parties’ submissions. I prefer the submissions made by the plaintiffs, particularly after having examined those documents for myself.

Uber pointed to what it described as the primary judge’s failure to exhaustively outline the aspects of the UberX business said to fall within the finding, but that step was not necessary. The primary judge identified the aspects of the UberX business that were in furtherance of its misconduct. Nor do I think that, properly understood, any ambiguity was introduced by the use of concepts such as ‘launching’ to identify advice associated with the commencement of the business and the manner in which it was in furtherance of the Ridesharing Offences. It is clear from the statement of the General Finding, and a reading of it in the context of the Primary judgment’s reasons as a whole, that the General Finding does not extend to every advice given after the Relevant Dates. It is qualified, not by the words ‘such as’ but by the matters listed by the primary judge (matters of particular fact) after the words ‘such as’. A closed list would be too limiting. The word ‘launching’ is similarly confined by ‘using unlicensed drivers’, not launching simpliciter.

A general reference to ‘advice’ concerning ‘leasing matters’ in connection with establishing premises does not make out Uber’s contention that the general finding lacks sufficient specificity to identify the organising principles for a comprehensive review of all of the documents. Such a document would not fall under the General Finding. Counsel submitted that sample document 22 was an analogous type of document which the primary judge did rule fell under the General Finding. It is not analogous. The context in which a leasing matter is raised places it squarely within the General Finding.

Having concluded that the General Finding was correct, and capable of functioning as a rule for categorising the discovered documents, it is not necessary to consider whether the narrower Alternative Finding could be applied to similar effect. Nevertheless, I consider this below, commencing at [163].

Ground 4

It will be recalled that this ground accepted that the General Finding was correct but contended that it was erroneously applied by the primary judge to the sample documents. Uber contended that specific cross-referencing to the General Finding in the review of the sample documents by the primary judge provided little or no reasoning about how that sample document was being assessed. I do not agree. A common entry was:

s 125 – Document is in furtherance of Ridesharing Offences, see paras 280, 287 and 291 of Reasons.

Other entries referred to other paragraphs of the reasons, or gave brief reasons that identified that redaction was appropriate as some communications were not in furtherance of the Ridesharing Offences. I could not identify any instance where the primary judge’s reasoning in respect of any particular document was not supported by reference to her reasons or to a submission that she accepted or to a failure to satisfy an onus, such as, for example, document 26. In some cases a further factual finding is noted to clarify why s 125 is applicable (document 31 is an example).

There was no error in cross-referencing to the General Finding and particular aspects of the reasons to identify the organising principles in order to identify how each individual document was being assessed. That assessment also needed to take place in the context of the primary judge’s findings as to the broad circumstances that identify factual context for the application of the General Finding to any individual document.

I cannot accept Uber’s submission that the General Finding was in error because it expressed the organising principles with such generality that their application left significant room for doubt as to which documents were caught. As earlier stated, in my view, Uber cannot have been applying the General Finding in a common sense way to the remaining documents. Consistently, Uber’s principal contention in this context remained that specific documents needed to be related to specific offending, contrary to the primary judge’s clear findings, a proposition that it has been unable to establish on this appeal. It is specifically rejected.

Having assessed the individual examples to which I was directed by submissions, and the annexure to the order under appeal, by inspection of the documents in the context of the parties’ submissions, I can find no merit in this ground.

Ground 4A

By like reasoning, I do not accept that the ‘narrower basis’ (see above at [49(p)]) was either not clearly identified, impermissibly broad, or misapplied. It was clearly identified: see J:[299] and J:[255]. The point about the narrower basis was that it did not depend on the General Finding, which I accept in any event as correctly made, that the Ridesharing Offences were integral to the UberX business model. It was narrower in the sense of applying s 125 to advice in relation to three particular strategies as Taxi Apps submitted (noted above at [116]). I could not understand how it was being put that the narrower basis was impermissibly broad, except by reference back to Uber’s contention that the section required that the advice or communication be a step in the commission of a particular offence, or that there be a direct connection between the purpose for the advice and the offence. I have explained why I do not accept that submission.

What the primary judge observed was that several of the sample documents satisfy the misconduct exception because the nature and substance of the communications on their face made the application of the section sufficiently clear. Once the full implications of rejecting Uber’s specific offence/specific communication theory as to the application of the misconduct exception are appreciated, and the communications are examined in the context of the primary judge’s finding of systemic commission of offences, there was no misapplication of the narrower basis. As Taxi Apps submitted, s 125 consistently applied to communications/documents in the circumstances of this proceeding irrespective of which basis was used to make the assessment.

This ground must fail.

Ground 5

I deal with this ground on the basis of my inspection of the relevant documents, disregarding the evidence of Mr Hanson that indirectly addressed the purpose of the communications. In most cases, while it might be thought possible to perceive a purpose of seeking or giving advice, I find it unnecessary to determine whether Uber failed to discharge the burden of proving dominant purpose. It is unnecessary because, in all cases, s 125 would otherwise apply.

Dealing first with sample document 9, considered in context, if Uber’s contention be accepted that professional advice was being given as to what a party should prudently or sensibly do in a relevant legal context and that the communication was therefore privileged, I am satisfied that the misconduct exception deprives the communication of privilege because that relevant legal context is the systemic commission by Uber of Ridesharing Offences and how that objective could be achieved.

Sample document 26 contains an observation that has been redacted that Uber contended would, on examination by the court, be identified as derived from legal advice. I accept that submission. I consider the inference is open from the sentence immediately following the redaction, but an inference as to dominant purpose may not be available. Again, though, examination of the document makes it plain that the relevant legal context is the systemic commission by Uber of Ridesharing Offences and how that objective could be achieved.

Sample document 29 is another document capable of being considered, as Uber submitted, to be a communication in which commercial considerations were intermingled with communications containing legal advice in the form of the participation of in-house counsel. Yet again, the objection to the primary judge’s conclusion is pointless. Even if it be accepted, the commercial considerations with which such advice communications are intermingled, plainly demonstrate that the misconduct exception is applicable and the communications cannot be considered to be privileged.

Finally, sample document 42, which ceased to be wholly subject to a privilege claim when Uber provided a version with partial redactions, is not privileged either on the basis determined by the primary judge, or if that be considered in error, by the application of the misconduct exception.

Ground 5 also fails.

Cross appeal
Grounds 1 & 2

I do not accept Andrianakis’ contention that the primary judge imposed unnecessary factual preconditions on the application of the misconduct exception that rendered it inflexible in the sense that only communications made after the Relevant Dates fell within s 125. By that finding, the primary judge expressed that she was satisfied there were reasonable grounds to contend that Uber had a clear intention to launch Uber X. Identification of an overarching principle did not mean that each individual document was not considered in context. Rather, until satisfied that there were reasonable grounds for the contention that Uber clearly intended to launch UberX, knowledge that the proposed business model would involve Ridesharing Offences could not be said to be in furtherance of the commission of those offences. The primary judge so observed at J:[285].

I reject these grounds.

Ground 3

That said, having considered Andrianakis’ submissions, summarised above at [121] – [130], Uber’s submissions put in an aide memoire, and the documents to which those submissions refer, I am persuaded that there are reasonable grounds for finding that a communication was made or document prepared in furtherance of an offence, when Uber clearly intended to launch UberX, regardless of whether such advice was in furtherance of the Ridesharing Offences from earlier dates than were identified by the process adopted by the primary judge. While the communication identified by the primary judge clearly supports the conclusion that she reached, I accept, after review of the relevant documents, that the primary judge ought to have found that the Relevant Dates are the earlier dates identified in paragraph [121] above. In that regard, I considered that the question was whether there was a clear intention rather than, as Uber contended, a final decision to launch UberX.

Orders

Uber’s appeal is dismissed.

Ground 3 of the cross appeal succeeds.

I invite the plaintiffs to submit a minute of order that accords with these reasons and I will hear from counsel on the issue of the costs of the appeals.

---

SCHEDULE OF PARTIES

S ECI 2019 01926

BETWEEN:

NICOS ANDRIANAKIS	Plaintiff
-and-
UBER TECHNOLOGIES INCORPORATED (4849283)	First Defendant
UBER INTERNATIONAL HOLDING B.V. (RSIN 851 929 357)	Second Defendant
UBER B.V. (RSIN 852 071 589)	Third Defendant
UBER AUSTRALIA PTY LTD (ACN 160 299 865)	Fourth Defendant
RASIER OPERATIONS B.V. (RSIN 853 682 318)	Fifth Defendant
UBER PACIFIC HOLDINGS B.V. (RSIN 855 779 330)	Sixth Defendant
UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463)	Seventh Defendant

S ECI 2020 01585

BETWEEN:

TAXI APPS PTY LTD (ACN 149 538 616)	Plaintiff
-and-
UBER TECHNOLOGIES INCORPORATED (4849283)	First Defendant
UBER INTERNATIONAL HOLDING B.V. (RSIN 851 929 357)	Second Defendant
UBER B.V. (RSIN 852 071 589)	Third Defendant
UBER AUSTRALIA PTY LTD (ACN 160 299 865)	Fourth Defendant
RASIER OPERATIONS B.V. (RSIN 853 682 318)	Fifth Defendant
UBER PACIFIC HOLDINGS B.V. (RSIN 855 779 330)	Sixth Defendant
UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463)	Seventh Defendant

[2022] VSC 643

28 October 2022