Najafi v Rasier Pacific Pty Ltd

[2023] NSWCATCD 153

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Najafi v Rasier Pacific Pty Ltd [2023] NSWCATCD 153

Hearing dates:

23 February 2023

Date of orders:

24 February 2023

Decision date:

24 February 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. The respondents’ application that applicant's claim be struck out or dismissed on the basis that it is misconceived, frivolous and lacking in substance is dismissed.

2. The applicant’s application is dismissed.

Catchwords:

CONSUMER LAW – deactivation of Uber driver’s access to Uber App - breach of contract - reinstatement - damages

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 38(2), 55

Corporations Act 2001 (Cth)

Fair Trading Act 1987 (NSW), ss 79I, 79J, 79N, 79U,

Cases Cited:

Ali v Raisier Pacific VOF, published on 28 July 2023 (being the reasons for decision in matter GEN 23/16166)

Burns v Corbett; Burns v Gaynor, Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns New South Wales v Bums [2018] HCA 15

Burns v Corbett; Gaynor v Burns [2017] NSWCA 3;

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186

Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3

Category:

Principal judgment

Parties:

Arif Najafi (Applicant)
Raisier Pacific Pty Ltd (First Respondent)
Uber B.V. (Second Respondent)

Representation:

Solicitors:
Dentons (Respondents)
Applicant (self-represented)

File Number(s):

2023/00370668

REASONS FOR DECISION

Introduction

1. By application filed 18 October 2023, the applicant seeks an order that the respondents pay him $10,000.00.

2. To use colloquial language, the applicant was an Uber driver.

3. The reasons for seeking the order are stated in his application as:

On 03/02/2023 time 1.30 am I picked up a man Rider from [XXSX] first he asked me what time to you finish I said maybe you are last trip or maybe more request come when we arrived at drop off location, I stopped he told me go on left street to [XXXX]

I gone at there at the corner he said stop here I stopped he asked me do you like to have sex with me I said sorry I don't than he gets off from my car. In the morning around 9.00 am I waked up I saw Uber send me text message the Uber said we call your mobile was switched off a rider gave a report, I thing around 12.30 pm someone called me from Uber he asked have you got any problems with rider do you remember.

I said no I can't remember I had any problems with Riders in the evening I wanted start the job I saw the Uber deactivated my account, I read the message Uber said you talked sexually with rider then I checked my Riders which Rider gave report when I understand this rider gave report again I reactivated my account the Uber said we can't do if have any prove we do I asked them you should be asked the prove from rider he got prove for this report. Uber said before you had same report.

A few months ago when I picked up a Pakistani Muslim lady she asked me what is your background I said Afghanistan she now is good Taliban take the power, I said no Taliban is no good she got angry when I drops off her she gave lie report when Uber called me I said the story Uber said me sorry about it I was driving for Uber full time 3 years 6 months I didn't have any problems with Rider. I lose weekly up $1000”.

4. On 17 November 2023, by order of Principal Member Rosser, the applicant was permitted to amend his application to also seek an order to have his Uber App account reinstated.

Procedural matters

Appearances

5. At the hearing today the applicant represented himself, and was assisted by an interpreter in the Persian language.

6. The respondents were represented by Ms Chanel Murray-Baphista, Solicitor.

7. I note that, in Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 (Rehman), published on 13 February 2024, the Tribunal stated:

Legal representation

171   While leave for legal representation was granted in this instance, it is difficult to see how that will remain appropriate. With Uber using its standard form documents, any case commenced by another driver should involve little more than a consideration of whether the passenger complaints and the driver’s response were such as to render deactivation of the driver’s account reasonable.

172 For the reasons set out above, reinstatement is not appropriate, and damages are not likely to be large. In those circumstances, there is likely to come a time when an assessment of the relevant considerations, as set out in Rodney v Stricke [2018] NSWCATAP 136 at [88], do not support a grant of leave for legal representation to either party”.

8. I agree with those remarks.

9. I will not revoke the grant of leave as it was made by a Principal Member of the Tribunal. But the respondents are well and truly on notice that in the future it will have to justify why leave to be legally represented should be granted in a matter of this nature (that is, where an amount $10,000.00 is in dispute).

Evidence

10. A directions hearing was held on 17 November 2023, at which the usual orders for the filing of evidence and submissions were made: the applicant by 5 December 2024, the respondents by 19 January 2024.

The applicant’s documents

11. The applicant had already filed documents with his application. These relevantly included documents titled:

1. “Small Claims Court Summary”.

2. “Small Claims Court Statement”.

3. “Small Claims Court Submissions”.

12. In this last document the applicant states that, amongst other matters:

“On 3 Febuary [sic – February] 2023 the respondent terminated the Services Agreement between it and the applicant in accordance with the Deactivation Policy. According to uber, the Services Agreement was terminated as a result of breaching the Community Guidelines.

…

I am an independent contractor with my own ABN (Australian Business Number) in the Rideshare Industry providing rideshare trips/services for Uber Technologies Inc. Prior to being allowed to provide Services on the Uber Platform I have to 'Agree’ to Services Agreement Uber Australia Pty Ltd Uber B.V. which is a subsidiary company of Uber.

…

I was driving for Uber on full-time hours some weeks more than 40+ Hours. I received invoices for every trip I completed for Uber and I was getting paid weekly with deposits made into my bank account every Tuesday. I was making on average $1000+ a week on the Uber Platform in which I am in a Legal Services Agreement with.

…

WHY I AM FILING THIS CLAIM - MY REASONS

The key reason into why I am filing this claim against Uber Australia Pty Ltd Uber B.V. is due to the fact that I have been wrongfully permanently deactivated from the Uber Platform because I had apparently violated the Uber Community Guidelines' which in turn has breached the Service Agreement which I have agreed to in order to provide transportation services on the platform. Uber has mentioned that I had violated the Community Guideline for . This accusation is inaccurate and false.

Uber has not undertaken due process and provided me a fair chance to appeal for my deactivation or offered me a second chance. As a result of this, I have lost weeks of earnings that I otherwise would have made, had I NOT been deactivated wrongfully. I have calculated my average weekly earnings above and have multiplied them by the week's where I was financially set back and impacted due to the unfair deactivation from the Uber Platform. I have filled this out in my claim.

For more details/context into the reasons behind where the unfair report (The alleged reason for violation of the Community Guideline's) that led to my deactivation has possibly originated from please refer to my statement below. I have also demonstrated the impact of this wrongful deactivation below:”.

13. Pursuant to directions, the applicant also filed further documents being a bundle of Business Activity Statements (BASs) on 6 December 2023.

The respondents’ documents

14. The respondents filed their documents, on 22 January 2024. These documents relevantly included a chronology of events, submissions, case law and an affidavit of Ms Harriet McCormick dated 19 January 2024.

15. In its submissions, in summary, the respondents seek orders under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dismissing or in the alternative striking out all of the applicant’s claims against it because no reasonable cause of action has been articulated.

16. Alternatively, and in answer to the claim generally, the respondents submit that the applicant has failed to prove any liability on the part of the respondents any breach of the terms of the agreement on the applicant’s “Uber App account” by which he agreed to be bound by Uber’s Community Guidelines dated 2 October 2014, revised by an agreement on 17 January 2023 ,in which the applicant agreed to be bound by an updated version of those Guidelines dated 17 January 2023, which would give rise to any entitlement to damages, or otherwise.

The hearing

17. Ms Murray-Baphista did not cross-examine the applicant.

18. The applicant had not required Ms McCormick for cross-examination.

Factual findings

19. An essential task of the Tribunal is to set out the relevant facts. Before doing so, I note that a court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent.

20. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case.

21. It is one matter to have a meritorious case. It is another matter to prove by evidence that one has a meritorious case. The uncorroborated say so of a party that work has been undertaken poorly or that a loss has been suffered in a particular amount is rarely, if ever, sufficient proof of the poor work or the loss being suffered.

22. As the Appeal Panel observed in Kora v Ian’s Roofing Pty Ltd [2023] NSWCATAP 42 at [111], “In short, there is a difference between having “a good case” and having the evidence to prove that one has “a good case”.

23. All that said, I make the following findings.

The parties

24. The respondents to the proceedings are Raisier Pacific Pty Ltd (Raisier) and Uber B.V. Clearly enough, Raisier is a corporation incorporated in Australia under the provisions of the Corporations Act 2001 (Cth). I accept that Uber B.V. is a company registered in the Netherlands.

25. As noted, Ms Harriet McCormick, solicitor, has sworn an affidavit on 19 January 2024 which is relied on by the respondents. Ms McCormick is a solicitor “engaged” by Uber Australia Pty Ltd, and she says that she is authorised to make her affidavit on behalf of “the Respondent”, which appears to be a reference to each of the two respondents.

26. There is no information in her affidavit of the relationship between Uber Australia Pty Ltd and either of the two respondents. Indeed, Ms McCormick states that:

3. For the purposes of responding to the matters raised in these proceedings, I have not sought to define the roles of the different Uber entities in the particular conduct referred to and references made generally to the Uber group of companies (including the Respondent) as "Uber" throughout this affidavit. Uber operates a business known as "Uber" via a proprietary technological platform (Uber App).

27. I do not find that approach to be particularly helpful. I really do not know to which entity or person Ms McCormick refers when she states that “Uber operates a business known as "Uber" via a proprietary technological platform (Uber App)”.

28. That said, Ms McCormick states:

5. The Uber App is used to connect:

a. users who search for and request Transportation Services from one location to another (Users): and

b. independent providers of Transportation Services (Driver Partner) (such as the Applicant) who provides Transportation Services to Users as an independent contractor.

29. Ms McCormick then states that, on 6 March 2019, the applicant entered into a Services Agreement with the respondents by digitally accepting the terms of the agreement on his Uber App account (Services Agreement) and agreed to be bound by Uber's Community Guidelines dated 2 October 2018.

30. There is no evidence before me supporting that submission. The highest the evidence rises to is a “screenshot”, I imagine from the Uber App, which shows that, at some unspecified point in time, the applicant had undertaken some 13,905 trips as a driver, over 4 years 7 months and 21 days, his driving services having commenced on 6 March 2019.

31. While the evidence is inchoate, I am prepared to accept for the purposes of these proceedings (and the applicant when asked did not dispute that he had a legal relationship with “Uber”), that the parties entered into a Services Agreement on 6 March 2019 as alleged by the respondents.

32. Relevant terms of the Services Agreement included:

1. cl 4, which relevantly provided that:

“4. Your Relationship with Uber Group. ... Rasier Pacific retains the right to, at any time at its sole discretion, restrict you from using the Uber Services in the event of a violation of this Agreement or any relevant Uber policy, including the Community Guidelines

…

Pacific also retains the right to restrict you from using the Uber Services for any other reason at the sole and reasonable discretion of Rasier Pacific.

…

Uber also retains the right to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, for any other reason at the sole and reasonable discretion of Uber.

2. cl 6, which provided that:

1. the applicant accepted that in providing “Transportation Services” to the public via the “Uber App” those services needed to be completed with “due skill, care and diligence and [maintaining] high standards of professionalism, service and courtesy”;

2. “Requirements … You acknowledge and agree that Rasier Pacific reserves the right, at any time in its sole discretion to restrict you from using the Uber Services, if you fail to meet the requirements in this Agreement. You also acknowledge and agree that Uber reserves the right, at any time in its sole discretion to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, if you fail to meet the requirements in this Agreement.

3. cl 16 which relevantly provided:

“16. Term & Termination. This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and will continue until terminated by you, Rasier Pacific or Uber, which any party can do (a) without cause at any time on 30 days' prior written notice to the other parties; (b) immediately, without notice, for any other party's material breach of this Agreement; or …”

33. The Community Guidelines relevantly state that:

1. all Driver partners are responsible for knowing and obeying all applicable laws;

2. creating improper duplicate Uber App accounts is considered fraudulent;

3. if there is a violation of any applicable terms of uses, the “[Services] Agreement, or the Community Guidelines, it can result in loss of access to the Uber App.”

34. In summary, pursuant to the terms of the Services Agreement, the applicant: agreed:

1. to be an independent contractor providing Transportation Services to Users who use the Uber App to seek, receive and fulfill requests for Transportation Services from Driver Partners;

2. to be bound by the terms of the Services Agreement;

3. to comply with the Community Guidelines; and

4. that the respondents had the right to immediately restrict or deactivate access to the Uber App if the applicant committed a material breach of the Services Agreement or engaged in an act or omission which was in violation of the Community Guidelines or any other applicable policies.

The applicant’s services

35. On 9 March 2019, the applicant started providing transportation services by reason of access to the Uber App as a Driver Partner.

36. In the period 17 July 2019 to 7 September 2020, the respondents received a series of complaints about the applicant’s conduct in relation to:

• “heading in the wrong direction” (17 July 2019)’;

• being rude (18 July 2020);

• “nearly caus[ing] an accident” (11 November 2020;

• “touching his phone” (7 February 20021)

• not wearing a mask in breach of the applicable COVID health order (20 June 2021);

• being “aggressive and very rude” (17 August 2021);

• being “rude, yelling at me” (7 September 2021) and, in a separate complaint of the same day being aggressive:

37. On 7 September 2021, the applicant’s Uber account was temporarily deactivated, but reactivated later that same day.

38. Further complaints followed including being “intimidating, abusive … [and] aggressive” on 12 October 2021. On this occasion, the applicant’s Uber account was temporarily deactivated, but reactivated later that same day.

39. Further complaints followed, being swearing at a customer on 16 November 2021. On this occasion, the applicant’s Uber account was temporarily deactivated, but reactivated later the following day.

40. Further complaints followed, being:

• "changing apps distracted at phone very often, the car smelled horrid personal belongings in the backseat floor and ran a few stop signs" (24 November 2021);

• "useing [sic] phone as driving" (17 December 2021);

• “nearly colliding with other cars numerous times he was occupied by looking at his social media feeds throughout the journey. I nearly vomited from the constant jerking from harsh acceleration and breaking was all over the road I'm surprised I arrived at my destination alive” (25 March 2022);

• making inappropriate comments about the customer’s weight and asked why he, she or they were the size they were (28 April 2022);

• being rude (25 May 2022);

41. On this last occasion, the applicant’s Uber account was temporarily deactivated, but reactivated on 9 June 2022.

42. Complaints continued to follow, being:

• “seatbelts don't retract back, unsafe. Seat belt clips unreachable under back car seat cover. We where halfway through the trip before we managed to find them, the driver also didn't wait and continued driving without us properly restrained" (22 July 2022);

• Making the customer feel “unsafe” (3 September 2022);

• calling the customer and asked "all sorts of strange questions and made me feel uncomfortable and that he was not going to come so I cancelled" (27 October 2022);

• "talking about my love life and asking personal questions he stated he was married but wasn't happy and then when I was getting out he put down his window and asked me for my number and I said no" (4 November 2022).

• being a “racist & abusive & confused driver” (10 December 2022);

• asking the customer “if I would like to give him sexual oral favour as I was his last drop off home" and further "implied if I would like to suck his penis"  (4 February 2023).

43. On this last occasion, the applicant’s Uber account was temporarily deactivated on 4 February 2023, but permanently deactivated the following day.

44. In the period 5 February to 2 March 2023, the applicant sent multiple Uber App messages to the respondent requesting a review of his Uber App account deactivation. The respondent conducted the review and notified the applicant that the initial decision would be upheld as a result of the User complaints.

Submissions

The applicant’s submissions

45. In summary, in his written submissions, the applicant submitted that:

1. all of the allegations made against him were false and incorrect, and had no supporting evidence

2. the respondents deactivated his Uber driver account without warning on 3 March 2023;

1. the respondents gave no justification for that deactivation or of any right of reply to defend the allegations. He submits that while some of the allegations were that he sexually harassed a customer, in fact the customer sexually harassed him;

2. he has been denied natural justice;

3. he has suffered financial losses of $1,000.00 per week;

4. the respondents breached their contract with him, resulting in significant financial loss and mental suffering.

46. In his written submissions, the applicant also states:

On 03/02/2023 time 1.30 am I picked up a man Rider from [XXXX] first he asked me what time to you finish I said maybe you are last trip or maybe more request come when we arrived at drop off location, I stopped he told me go on left street to Canonbury Street

I gone at there at the comer he said stop here I stopped he asked me do you like to have sex with me I said sorry I don't than he gets off from my car. In the morning around 9.00 am I waked up I saw Uber send me text message the Uber said we call your mobile was switched off a rider gave a report, I [think] around 12.30 pm someone called me from Uber he asked have you got any problems with rider do you remember.

I said no I can't remember I had any problems with Riders in the evening I wanted start the job I saw the Uber deactivated my account, I read the message Uber said you talked sexually with rider then ! checked my Riders which Rider gave report when I understand this rider gave report again I reactivated my account the Uber said we can't do if have any prove we do l asked them you should be asked the prove from rider he got prove for this report. Uber said before you had same report.

A few months ago when I picked up a Pakistani Muslim lady she asked me what is your background id Afghanistan she now is good Taliban take the power, I said no Taliban is no good she got y when I drops off her she gave lie report when Uber called me I said the story Uber said me about it I was driving for Uber full time 3 years 6 months I didn't have any problems with Rider. I lose weekly up $1000.

47. The applicant also says that:

I tried to appeal the situation numerous times by communicating to Uber customer support and a letter was even mailed to the Uber Legal Department at PFK Sydney asking for evidence and for my account to be reinstated. I have attempted these forms of contact to Uber multiple times and I have been rejected and not given a sufficient explanation into my deactivation reason. I have evidence of all these forms of appeal into the Uber App and also emails provided by Uber Support to me, as well emails from Uber's Legal Office PKF Sydney.

48. In conclusion, the applicant submits that:

These claims are false and there is no evidence that was applied by Uber to prove the allegations. Therefore, I did not breach any of the community guideline that was provided by Uber. there has been absolutely no violation of the Community Guidelines.

Summary

As a result of the wrongful deactivation, I have faced severe financial hardship due to this loss of income/money and have calculated damages for this claim to be $10,000 due to the unfair deactivation and termination of my contract. I have been set back multiple weeks of work and my claim has totalled that amount based on my average weekly earnings multiplied by the number of weeks I have been setback.

As explained above I am asking for the orders as I have been deactivated unfairly on the platform as Uber stated that I had breached the Community Guidelines. I have NOT done this and therefore I did NOT breach the contract terms and Uber has not done a proper investigation or given me a chance to appeal the deactivation. This has caused me financial damages and hardship and I have lost my full-time career due to the unfair deactivation. The outcome I would like to achieve is to claim the damages owed to me.

The respondents’ submissions

49. The respondent’s submissions are dated 19 January 2024 and comprise some 15 pages.

50. By way of a high level summary, the respondent makes the following submissions.

51. First, no identifiable cause of action has been pleaded by the applicant.

52. Secondly, the application is not supported by evidence that supports the alleged net financial loss claimed by the applicant.

53. Relevant terms of the Services Agreement included:

1. cl 4, which relevantly provided that:

“4. Your Relationship with Uber Group. ... Rasier Pacific retains the right to, at any time at its sole discretion, restrict you from using the Uber Services in the event of a violation of this Agreement or any relevant Uber policy, including the Community Guidelines

…

Pacific also retains the right to restrict you from using the Uber Services for any other reason at the sole and reasonable discretion of Rasier Pacific.

…

Uber also retains the right to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, for any other reason at the sole and reasonable discretion of Uber.

2. cl 6, which provided that:

1. the applicant accepted that in providing “Transportation Services” to the public via the “Uber App” those services needed to be completed with “due skill, care and diligence and [maintaining] high standards of professionalism, service and courtesy”;

2. “Requirements … You acknowledge and agree that Rasier Pacific reserves the right, at any time in its sole discretion to restrict you from using the Uber Services, if you fail to meet the requirements in this Agreement. You also acknowledge and agree that Uber reserves the right, at any time in its sole discretion to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, if you fail to meet the requirements in this Agreement.

3. cl 16 which relevantly provided:

“16. Term & Termination. This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and will continue until terminated by you, Rasier Pacific or Uber, which any party can do (a) without cause at any time on 30 days' prior written notice to the other parties; (b) immediately, without notice, for any other party's material breach of this Agreement; or …”

54. Fourthly, the Community Guidelines which relevantly state:

1. that all Driver partners are responsible for knowing and obeying all applicable laws;

2. creating improper duplicate Uber App accounts is considered fraudulent;

3. if there is a violation of any applicable terms of use, the “DP Agreement”, or the Community Guidelines, it can result in loss of access to the Uber App.

55. Fifthly, clauses in almost identical terms have been considered by the Tribunal: Ali v Raisier Pacific VOF, being the reasons for decision in matter GEN 23/16166 published on 28 July 2023 (Ali). To this can be added the decision of the Tribunal in Rehman.

56. Sixthly, Ms McCormick’s affidavit demonstrates that there were many complaints made in relation to the applicant's conduct and behaviour, as well as the creation of an Uber App duplicate account, on which the respondents relied on in making the decision to deactivate the Uber App account of the applicant to ensure members of the public were provided with safe Transportation Services and community safety was upheld.

57. Seventhly, the applicant has not proved the quantum of damages sought as he has failed to provide accurate evidence substantiating his loss.

58. Eighthly, the applicant has failed to mitigate any alleged loss.

59. Ninthly, in relation to the reinstatement of the applicant’s Uber App Account:

1. the applicant's consumer claim can be wholly resolved by an order to pay money, and damages are an adequate remedy. No submission or evidence has been provided by the applicant to demonstrate why monetary compensation for the loss of income claimed is inadequate in all of the circumstances;

2. an order reinstating the applicant's Uber App should not be granted, either because it is unnecessary (because the consumer claim can be wholly resolved by an order to pay money) or because it is beyond the jurisdiction of the Tribunal, in the circumstances where Uber B.V. is a licensor of the Uber App and an entity registered outside of NSW: Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 at 95 per Leeming JA, which was upheld on appeal: Burns v Corbett; Burns v Gaynor, Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns New South Wales v Bums [2018] HCA 15);

3. relief under s 79N of the Fair Trading Act 1987 (NSW) (FT Act) is discretionary. As damages are an adequate remedy in all of the circumstances of the claim made by the applicant, it is submitted that it is unnecessary to make any further orders. It is further submitted that to do otherwise would not be "fair and equitable to all the parties" (FT Act, s 79U) in circumstances where the respondent would be required to permit a party identified by users of the applicant's transportation services as having breached standards of behaviour and safety set out in the Community Guidelines to recommence providing transportation services to such users.

60. In answer to the whole of the claim the respondents submit that:

1. the applicant has failed to articulate any reasonable cause of action against the respondent which could justify an award for loss and damage. Rather, the applicant alleges the respondent's actions were unjustified, and Uber has breached the Services Agreement by removing access to the Uber App account, which is denied by the respondent;

2. the applicant has failed to identify any clause of the Services Agreement that the respondents is alleged to have breached;

3. the applicant's claim is misconceived, frivolous and lacking in substance, and ought to be dismissed and/or struck out in whole.

61. If, the Tribunal determines the claim should proceed, the respondents submit that they:

1. acted in accordance with the terms of the Services Agreement and the Community Guidelines to enforce public safety measures for all Users on the Uber App;

2. were entitled to (and did) deactivate the applicant's Uber App account when there were multiple reports made against the applicant for misconduct or behavioural and safety concerns in direct violation of cll 4, 6 and 16 of the Services Agreement and Uber Community Guidelines (under sub-headings "Treat everyone with respect", "Fraud:, "Follow the law" and "How Uber enforces our guidelines"); and that

3. as a result of these matters the respondents are not liable for any monetary losses arising from the applicant’s removal from the Uber App.

Consideration

Jurisdiction

62. I am satisfied (as was the Tribunal in Ali and Rehman) has jurisdiction to deal with this application as a consumer claim under Part 6A of the Act, namely ss 79I and 79J. The services were supplied in NSW: s 79K(1)(a). The application was been made to the Tribunal within the three-year limitation period specified by s 79L. And the claim falls within the monetary limit of the Tribunal’s order making power: s 79S(6).

63. I note that s 79U of the FT Act requires the Tribunal, when making orders under Part 6A of that Act, to be satisfied that the orders will be fair and equitable to all the parties to the claim: s 79U(1). However, this provides no warrant for Tribunal to act otherwise than in accordance with law: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [134].

64. I was greatly assisted by the Tribunal’s recent decision in Rehman which, in terms of the issues raised, was very similar to the application before me.

65. I note in particular the Tribunal’s remarks that:

49.   It must be recognised that the evidence upon which Uber relied in these proceedings is surrogate in two respects: (1) the evidence of complaints is confined to what the passenger said to Uber, and (2) the evidence of the deactivation decision was not that of the decision-maker.

50. As to the former aspect, it is unrealistic to expect Uber to obtain a statutory declaration or affidavit from complaining passengers. However, it must be recognised that complaints are not made to Uber under circumstances where (1) the passenger is obligated to be truthful, (2) there may be matters which warrant clarification, (3) the Driver cannot question the complaining passengers, and (4) the Driver may have difficulty knowing which passenger complained. Plainly, those are matters which any presiding member will need to take into consideration when assessing the evidence of any complaint. Briginshaw v Briginshaw [1938] HCA 34 is commonly cited in support of the proposition that the evidence required to prove an allegation will depend on how serious is that allegation. All that can be said is that, in circumstances where a driver is facing a loss of livelihood, the quality of the supporting evidence may be an issue requiring consideration.

66. I further note the Tribunal’s very useful approach to the application before it:

142. A decision as to deactivation depends on the nature and extent of the breach(es) of the Guidelines and/or Agreement. The following matters are considered relevant:

(1) the number of complaints,

(2) the nature of those complaints,

(3) whether they are similar or dissimilar,

(4) the quality of the evidence provided in support of each complaint,

(5) the ability of the driver to identify the trip to which a complaint relates,

(6) the response of the driver,

(7) how long ago were the complaints made,

(8) the period over which those complaints were made,

(9) the number of trips undertaken by the driver, and

(10) the rating of the driver.

143. It is convenient to here note that Uber did not contend that the words “in its sole discretion” in the Agreement meant that any decision as to deactivation was a matter for Uber, did not have to be reasonable, and could not be reviewed. Indeed, the fact that Uber suggested its decision was reasonable provides support for two points: first, that the decision to deactivate must be made on reasonable grounds; secondly, that the decision to deactivate can be reviewed by the Tribunal.

144. In this case, there is no individual complaint which is considered sufficient to warrant deactivation of the Driver’s account with Uber. However, there are three matters relating to the Driver’s driving and four relating to his conduct that could provide support for such a decision.

Should the applicant's claim be struck out or dismissed on the basis that it is misconceived, frivolous and lacking in substance?

67. The short answer to this question no.

68. While the claim may be a weak one, I would not describe it as misconceived. Clearly the applicant has a genuine grievance about being denied access to the Uber App and thus being prevented from earning a livelihood from that source to support his wife and three young children.

69. Nor would I describe the claim as frivolous. It is obviously a very serious matter to the applicant and, I would have thought, to the respondents.

70. Nor would I describe the claim as lacking in substance. While the evidence may not establish the applicant’s claims, it could not be said that the claim itself lacks substance.

Has the applicant established a basis for the relief sought?

71. Here again the answer is no. This is for the following reasons.

72. The applicant says that there is no evidence to support the complaints on which the respondents relied to deactivate the applicant’s access to the Uber App. That is not correct; the evidence is found in the messages of the passengers sent to the respondents via the Uber App, which are summarised at [36] to [43]. True it is this is not sworn evidence given directly by each passenger, and true it is that the evidence was not tested, nevertheless in a jurisdiction where the Tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)), I find that the frequency of the complaints and the cumulative effect of their subject matter sufficient to establish the respondents exercising their rights under cl 4 of the Services Agreement.

73. I refer to the list of factors identified in Rehman which I answer as follows:

1. the number of complaints; there were 20 complaints;

2. the nature of those complaints:

1. being distracted or on phone, 6 complaints;

2. being verbally abusive, 3 complaints;

3. inappropriate sexual behaviour, 2 complaints;

4. not complying with COVID mask requirements, 1 complaint;

5. maintenance of vehicle, 1 complaint;

6. miscellaneous, 3 complaints;

3. whether the complaints are similar or dissimilar; as above

4. the quality of the evidence provided in support of each complaint, what was produced by Uber from the Uber App entered by the complainant. The evidence suffers from the same defects identified by the Tribunal in Rehman and reproduced above;

5. the ability of the driver to identify the trip to which a complaint relates; not known;

6. the response of the driver; denials, particularly in relation to the complaints of sexually inappropriate behaviour;

7. how long ago were the complaints made; in the period July 2019 to February 2023;

8. the period over which those complaints were made, in the period July 2019 to February 2023

9. the number of trips undertaken by the driver, 13,905

10. the rating of the driver. 4.82

74. I accept that the applicant denies each and every complaint, in several cases with great particularity, but the weight, volume and nature of the complaints in my view outweighs the applicant’s denials.

75. I do accept that the final deactivation of the applicant’s access to the Uber App was made without notice or warning, but thereafter I do not accept that he was denied procedural fairness or natural justice. The timeline is as follows:

• on 4 February 2023, the applicant was informed that his access to the Uber App had been temporarily blocked or deactivated while a review was undertaken;

• on 4 February 2023, after the review was undertaken, the applicant was informed that his access to the Uber App had been permanently deactivated;

• later that day the applicant denied any complaint of sexually inappropriate behaviour, emphasising that driving for Uber was his only job and he had children with special needs to support;

• later that day, the applicant was informed that a review of the deactivation decision had been undertaken, and that “we’ve determined that our initial decision will stand, due to repeated reports about behaviour which violates our Community Guidelines”. The applicant was invited to provide further information to the respondents and that a further review would be undertaken;

• later that day, the applicant provided further information, again denying the recent complaint about sexually inappropriate behaviour;

• approximately 24 hours later, on 6 February 2023, after a further review, the applicant was informed that the initial decision (that is, deactivation) would stand. However, the applicant was again invited to submit additional information, and a further review would take place.

• on 9 February 2023, the applicant provided further information, again denying the recent complaint about sexually inappropriate behaviour.

76. Following those events, on 2 March 2023, the applicant was informed that a decision had been made to uphold the deactivation.

77. While this was not the outcome the applicant was seeking, I do not conclude that the respondents failed to offer the applicant sufficient opportunity to be heard in relation to the deactivation of his access to the Uber App.

Conclusion

78. I find therefore that:

1. the respondents acted in accordance with the terms of the Services Agreement and the Community Guidelines to enforce public safety measures for all Users on the Uber App;

2. the respondents were entitled to (and did) deactivate the applicant's Uber App account for misconduct or behavioural and safety concerns in direct violation of cll 4, 6 and 16 of the Services Agreement and Uber Community Guidelines; and that

3. as a result of these matters:

1. the respondents are not liable for any monetary losses arising from the applicant’s removal from the Uber App;

2. the applicant’s access to the Uber App should not be reinstated.

79. Finally, in relation to the claim for $10,000.00, I note the following.

80. The amount sought appears to be an ambit one, and bears no relationship to the applicant’s earnings from Uber, which were not stated in the evidence. True it is the applicant provided some BASs to the Tribunal. I accept that in one of the Uber App messages the applicant said that Uber driving was his only source of income, so I will assume for the purposes of the argument that that is the case.

81. However, as the Tribunal stated in Rehman:

162. There is absolutely no evidence as to what expenses are incurred by the Driver while acquiring income from Uber. He plainly incurs such expenses with the result that his damages are his net income (ie income less expenses), not his gross income (ie income with no deduction for expenses).

163. Even if there was evidence of the Driver’s expenses (such as fuel, registration and insurance and perhaps even depreciation), there would be question of the period for which such damages should be awarded. Given that the Agreement contained a clause that permits Uber to terminate, without cause, on 30 days’ notice, it is difficult to see how the Driver could recover more than net income for a period of 30 days from the date of termination, ie from the date when the Driver’s account was deactivated by Uber.

164. The reality is that even if the Tribunal awarded damages for a greater period, it may be expected that Uber would thereafter cease to terminate based on a breach of the Agreement and/or Guidelines and instead give 30 days’ notice to remove the need for any reason and to avoid any claim for damages.

Conclusion

82. For the above reasons the application is dismissed.

Orders

83. The Tribunal orders that:

1. The respondents’ application that applicant's claim be struck out or dismissed on the basis that it is misconceived, frivolous and lacking in substance is dismissed.

2. The applicant’s application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 March 2024