Rehman v Rasier Pacific Pty Ltd

[2024] NSWCATCD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3

Hearing dates:

1 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC, Senior Member

Decision:

1   The application is dismissed.

2   Any evidence, and submissions not exceeding five pages, upon which the respondents wish to rely in relation to costs are to be provided to the Tribunal and the applicant within 14 days of the date of these orders.

3   Any evidence, and submissions in response not exceeding five pages, upon which the applicant wishes to rely in relation to costs are to be filed and served within the following 14 days.

4   Any evidence, and submissions not exceeding two pages, upon which the respondents wish to rely in relation to costs, strictly in reply, are to be filed and served within the following 7 days.

5 Each party’s submissions should indicate whether it is agreed that an order should be made, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), for costs to be determined on the papers, without the need for a further hearing.

Catchwords:

CONSUMER LAW - Termination of Uber driver - breach of contract - reinstatement - damages - observations on such claims

Legislation Cited:

Australian Consumer Law

Civil and Administrative Tribunal Act 2013 (NSW)

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Cases Cited:

Ahmad v Portier Pacific Pty Ltd,

21 September 2023, Member Ringrose

Ali v Rasier Pacific V.O.F.,

3 August 2023, Member Lynch

Ashby v Slipper [2014] FCAFC 15

BPU v NSW Trustee & Guardian

[2016] NSWCATAP 87

Briginshaw v Briginshaw [1938] HCA 34

Burns v Corbett [2017] NSWCA 3

Commonweatlh v Amann Aviation Pty Ltd

[1991] HCA 54

eMove Pty Ltd v Dickinson [2015] NSWCATAP 94

Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue

[2015] NSWCATAD 103

Gallagher v Masters Installation Pty Ltd

[2017] NSWCATAP 117

Gerrard v Slamar [2004] WASC 253

Mahon v Air New Zealand Ltd [1984] AC 808

McCrohan v Harith [2010] NSWCA 87

Megerditchian v Kumond Homes Pty Ltd

[2014] NSWCATAP 120

Oshlack v Richmond River Council [1998] HCA 11

Pacorp Holdings Pty Ltd v Waller

[2017] NSWCATAP 167

Rodney v Stricke [2018] NSWCATAP 136

Sabouni v Develop Building and Developments Pty Ltd [2021] NSWSC 31

Troulis v Vanvoukakis (1998) NSWCA 237

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Muhammad Zia Ur Rehman (Applicant)
Rasier Pacific Pty Ltd (First Respondent)
Uber B.V. (Second Respondent)

Representation:

Solicitors:
M Murray-Baptista, Dentons (Respondents)
Applicant (self-represented)

File Number(s):

2023/00373879 (formerly GEN 23/43741)

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. The business of Uber involves (1) receiving requests from people who wish to be driven from one location to another (users), (2) providing those requests to drivers, who are independent contractors rather than employees, (3) receiving payment from users, and (4) making payments, net of Uber’s charge, to drivers.

2. That pairing of users and drivers is achieved by using proprietary software which enables users and drivers to each install an app(lication) on their mobile telephone to send and receive the relevant details. Each driver enters into an agreement with Uber which can activate or deactivate the driver’s account.

Outline

3. The applicant (the Driver) asserted that his account with the respondents (Uber) was wrongfully deactivated. Their case was that the Driver breached the Community Guidelines (the Guidelines) compliance with which was required by the Services Agreement between the Driver and Uber (the Agreement), being an Agreement which gave Uber the right to deactivate the Driver’s account “in its sole discretion” if he breached either those Guidelines or another requirement of the Agreement.

4. The Tribunal determined that:

1. The Driver had breached the Guidelines and thereby the Agreement.

2. As a result, Uber had not breached the Agreement by deactivating the Driver’s account.

3. Even if Uber had breached the Agreement, no order should be made for reinstatement, ie for the Driver’s account with Uber to be reactivated.

4. Even if Uber had breached the Agreement, the Driver had not provided sufficient evidence to prove his loss.

History of the proceedings

5. After the application was filed on 26 September 2023, directions hearings were held on 16 October 2023 and 3 November 2023. On the first of those occasions, directions were made for the provision of the documents upon which the parties intended to rely at the hearing. Extensions of time were subsequently granted on 3 November 2023, 4 December 2023, and 6 December 2023.

6. On 7 November 2023 a notice of hearing was issued to advise the parties of the date and time allocated for the hearing.

7. At the second directions hearing it was recorded, at [8]:

The Tribunal notes that it is not in dispute that the claim is a consumer claim that has been lodged within time. The Tribunal further notes that the [Driver] seeks damages in the sum of $4,000 and reinstatement. The issues for determination will include:

(a)   Did [Uber] breach its contract with the [Driver] by deactivating his account?

(b)   If so, what loss has the [Driver] suffered as a result of the breach?

(c)   Should [Uber] be ordered to reactivate the [Driver’s] account?

Representation

8. On 10 October 2023 the respondent’s application to be legally represented was refused, on the basis that (1) the amount in dispute was small, (2) the Driver would be disadvantaged, (3) the Driver objected, and (4) there was nothing complex about the application. However, on 16 October 2023 a different Tribunal member granted the respondent leave to be legally represented.

Jurisdiction

9. By reference to the provisions of the Fair Trading Act 1987 (the FTA), it is clear that the applicant is a consumer (within s 79D) bringing a consumer claim (within s 79E), for a supply of services (within s 79F), and that the supply was made in New South Wales (within s 79K).

10. In the FTA, s 79L limits the time by requiring that the cause of action first accrued not more than three years before the commencement of these proceedings. The Driver’s account was deactivated on 31 August 2023, and he commenced these proceedings on 26 September 2023. As a result, these proceedings have been commenced within the applicable time limit for a consumer claim.

11. The Tribunal notes that the matters recorded on 3 November 2023 serves to confirm those matters. Since s 79I of the FTA entitles the applicant to have this claim determined by the Tribunal as a consumer claim, the Tribunal has jurisdiction to hear and determine these proceedings.

Hearing

12. At the hearing, the Driver was self-represented. Uber was represented by a solicitor.

13. The parties were advised that the three stages of the hearing would be (1) identification of the documents that were to form the evidence in the proceedings, (2) any questioning of the other party’s witness(es), ie cross-examination, and (3) closing submissions, as to what it was contended should be the outcome of the application, and why, by reference to the evidence and/or the law.

14. Documents admitted as evidence were as follows:

Exhibit A   Documents received from the Driver on 11 December 2023

Exhibit B   Documents received from the Driver at the hearing

Exhibit 1   Documents received from Uber on 11 January 2024

Exhibit 2   Documents received from Uber on 31 January 2024

15. The documents which became Exhibit B and Exhibit 2 were not filed in compliance with the Tribunal’s directions and appear to be the result of a mistaken belief that parties can submit whatever documents they like, whenever they like. Neither party objected to the late provision of documents by the other party, presumably on the basis that if they did then their belated documents may not be admitted as evidence.

16. Despite the inclusion of a statutory declaration in the Driver’s evidence and affidavits in the evidence of Uber, neither party wished to cross-examine any witness for the other party.

17. It therefore remained to provide an opportunity for oral submissions, following the usual sequence of applicant then respondent then applicant in reply so that each party was able to speak both in support of their case and in response to the case of the other party.   

Driver’s evidence

18. Exhibit A contained a brief statutory declaration of the Driver, three account overview pages, three pages of messages from Uber, copies of Uber-issued “Tax summary” documents for the period from 2016 to 31 August 2023, a statement/submission from the Driver, and four testimonial letters.

19. The Driver’s statement, which was not challenged, included an explanation of the app for users and the app for drivers as well as the application process for drivers. It was said that, after a driver accepts a request, there are four possibilities: (1) the request is cancelled before arriving at the pick-up location, (2) the request of cancelled after arriving at that location but before picking up the user, (3) cancelling the trip after picking up the user but before the trip is completed, and (4) completing the trip.

20. Exhibit B comprised a spreadsheet which set out the Driver’s response to complaints numbered from 1 to 18, plus four photos and an Incident Report Form dated 8 August 2017.

21. It is convenient to here note that it is not uncommon in Tribunal hearings for parties to seek to prove their case by tendering photographs (photos). The question which then arises is what do those photos prove? By way of illustration, if a person provides a family photo to a stranger, that stranger would not know when the photo was taken, who or what is shown in that photo, and what it is suggested that photo shows.

22. Accordingly, apart from the need for photos to be marked with numbers or letters to facilitate reference to them during the hearing and in the reasons for the Tribunal’s decision, a photo may prove very little unless it is accompanied by evidence as to (1) when that photo was taken, (2) what is shown in that photo, and (3) how it is suggested that photo provides support for the case of the party tendering that photo.

Uber’s evidence

23. Exhibit 1 was made up of two parts. In Part A was a chronology, submissions, a copy of the Agreement, and copies of three decisions, namely (1) Ahmad v Portier Pacific Pty Ltd, 21 September 2023, Member Ringrose, (2) Ali v Rasier Pacific V.O.F., 3 August 2023, Member Lynch and (3) Burns v Corbett [2017] NSWCA 3 (Burns).

24. Part B commenced with an affidavit from Ms McCormack, an in-house solicitor at Uber, and annexures to that affidavit. Those annexures were copies of the Agreement, the Guidelines, complaints from passengers, messages between Uber and the Driver, a screenshot of two account profiles, and a schedule which set out the “Uber service fee” for the Driver for each week from 27 February to 21 August in 2023.

25. Exhibit 2 was another affidavit of Ms McCormack which referred to the pre-deactivation investigation, and then her further investigation before making the suggestions that (1) “All User complaints are similar in nature”, and (2) “Uber was acting reasonably in deactivating the [Driver’s] account”.

Driver’s submissions

26. The Driver said that, for the 17 January 2017 complaint upon which Uber relied, he could not recall the passenger. Further, for the 27 August 2023 complaint, he did not have the rider’s words, only what the passenger’s daughter claims her mother told her. He said his access was temporarily blocked on 27 August 2023 and that his account was permanently deactivated on 31 August 2023.

27. It was also suggested by the Driver that he never continued with a cancelled ride and that Uber had the facilities to check his location to check if he was the driver. It was noted that it was not said if he charged the passenger at all. In response to Ms McCormack’s second affidavit, it was disputed that the complaints were similar in nature. The Driver maintained that he had undertaken 12,800 trips for Uber and had 1.2 complaints per 1,000 rides.

28. The Driver also submitted that there were complaints that were resolved in his favour, such as the occasion when a passenger vomited on both the interior and exterior of his car. It was noted that Uber’s terms and conditions entitle it to give 30 days’ notice without any reason. The Tribunal was asked to look at the Driver’s overall rating. This case was said to raise the question of whether drivers should use a dash(board) cam(era) to guard against false complaints.

29. When asked what remedy he was seeking, the Driver said (1) he wanted to have his account reactivated, (2) that he wanted “to do mediation”, and (3) that he sought compensation of $4,000. The Tribunal confirmed with the Driver that there was no evidence as to what his operating costs are.

Uber’s submissions

30. Reference was made to the written submissions which suggested there were 18 complaints in relation to the conduct of the Driver and that he had created a duplicate account. It was contended that the Driver had not indicated that Uber had breached any clause of the Agreement.

31. Further, that even if the Driver succeeded on liability (1) the fact that damages were an adequate remedy meant that reinstatement, ie reactivation of the Driver’s account was not justified, and (2) that the Driver had failed to prove his loss.

32. Uber relied on the evidence of the 18 complaints and the provisions of the Agreement and Guidelines. There was a suggestion that s 79N(c) enabled the Tribunal to make a new contract on the same terms, but it was noted that there is a clause which entitles Uber to terminate, without cause, on 30 days’ notice.

33. It was also suggested there would be difficulties with reactivation created by the fact that Uber BV (the second respondent) permits the Driver to receive access to “the app” (ie the system whereby passengers book trips with Uber who arrange for its drivers to fulfill those bookings) and Uber BV is based in the Netherlands. Reference was made to the written submissions which cited Burns at [95], per Leeming JA. It was also noted that, after the Driver was reminded of the Guidelines in March 2022 there were four further complaints. It was also alleged that the Driver had two Uber accounts.

Submissions in reply

34. The Driver denied having two accounts, saying that in 2015, when he first created an account with Uber, he found he was not eligible. As a result, he created a new account in 2016 when he was eligible, and the first account was never a driver account.

35. He also referred to two of the complaints included by Uber which he maintained were resolved in his favour. For cancelled rides, the Driver maintained that he never met the passenger, never drove the passenger, and that the passenger is charged when the ride is cancelled, which gives rise to complaints. As to the complaint relating to 27 August 2023, it was said that there was no evidence he was the driver on that occasion, that he never met the passenger, and that he had provided an explanation to Uber.

Consideration

36. As previously noted, the issues which require determination are:

1. Did Uber breach the Agreement by deactivating the Driver’s account?

2. If Uber breach that Agreement, should Uber be ordered to reinstate the Driver, ie reactivate Driver’s account?

3. If Uber breached that agreement, what are the damages caused to the Driver by that breach?

Chronology

37. Based on the evidence, the following chronology sets out the events relevant to the issues in these proceedings:

25 Nov 15   Driver created an account with Uber

24 Oct 16   Driver created an account with Uber

04 Nov 16   The Driver entered into an Agreement with Uber

17 Jan 17   Complaint 1

06 Apr 17   Complaint 2

06 Aug 17   Complaint 3

01 Dec 17   The Driver entered into another Agreement with Uber

30 Jun 18   Complaint 4

03 Nov 18   Complaint 5

03 Nov 18   Complaint 6

05 Mar 19   Complaint 7

21 Apr 19   Complaint 8

29 Sep 19   Complaint 9

21 Jan 20   Complaint 10

01 Mar 20   Complaint 11

10 Apr 21   Complaint 12

20 Feb 22   Complaint 13

13 Mar 22   Complaint 14

13 Mar 22   Uber temporarily deactivated the Driver’s account

16 Mar 22   Uber reactivated the Driver’s account

16 Mar 22   Complaint 15

19 Aug 22   Complaint 16

23 Feb 23   Complaint 17

27 Aug 23   Complaint 18

28 Aug 23   Uber temporarily deactivated the Driver’s account

31 Aug 23   Uber permanently deactivated the Driver’s account

Later      Driver sent messages, seeking a review of that decision

20 Sep 23   Uber’s review result in the decision being confirmed

Contractual provisions

38. It is necessary to first set out the relevant contractual provisions before considering whether the complaints constitute a breach of those provisions.

39. In the Agreement, there are very lengthy clauses. The words in the Agreement relevant to these proceedings are extracted as follows (emphasis original):

4   Your relationship with Uber Group. … Uber group retains the right to, at any time at its sole discretion, deactivate or otherwise restrict you from accessing the identification and password key assigned to you by Under (“Driver ID”) and/or the Driver App, in the event of a violation of this Agreement, any relevant Uber policy, including the Community Guidelines …

…

6   Requirements. … You acknowledge and agree that you will provide the Transportation Services with due skill, care and diligence and that you will maintain high standards of professionalism, service and courtesy. … You acknowledge and agree that your vehicle … must be … kept in a clean and sanitary condition, and maintained in good operating condition consistent with industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements in the applicable Territory. You acknowledge and agree that Rasier Pacific reserve the right, at any time in its sole discretion to restrict you from using the Uber Services, if you fail to meet the requirements of 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.

…

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’ notice to the other parties; (b) immediately, without notice, for any other party’s material breach of this Agreement, …

…

35   Governing Law and Jurisdiction. Except as otherwise set forth above, these (sic) Agreement shall be exclusively governed by and construed in accordance with the laws of New South Wales …

40. The Guidelines provided to the Tribunal indicated that they were last modified on 17 January 2022, which means that wording post-dates the first 12 complaints. No issue was taken with that aspect during the hearing.

41. The Tribunal proceeds on the basis that the document provided does not materially differ from the Guidelines that applied at the time of those complaints. From the 15-page document headed “Uber Community Guidelines”, the passages referred to during the hearing were:

Treat everyone with respect

…

We believe that everyone should feel supported and welcomed when interacting with others in the Uber community. That’s why we’ve created standards and policies on physical contact, inappropriate conduct and sexual assault and misconduct, threatening and rude behaviour, post-trip contact, discrimination and property damage.

…

Proper maintenance and upkeep

…

If you are involved in a road accident, we may restrict your access to the Uber app while we review whether your vehicle continues to meet roadworthiness requirements.

…

Follow the law

We have standards based on applicable laws and regulations that everyone must follow.

…

Everyone is responsible for knowing and obeying all applicable laws … And rules of the road – including complying with traffic laws, signs and signals - at all times when using the Uber Marketplace Platform.

…

How Uber enforces our guidelines

…

Uber receives feedback through a variety of channels, reviews reports submitted to our Support team that may violate our Community Guidelines, and may investigate through a specialised team. If we are made aware of any potentially problematic behaviour, we may contact you so we can look into it. We may, at our sole discretion, put a hold on your account or turn your account inactive until our review is complete.

Not following any one of our guidelines may result in the loss of access to all or part of the Uber Marketplace Platform. This can include violations of our Community Guidelines and certain actions you make take outside of the Uber Marketplace Platform, including but not limited to other platforms, if we determine that those actions threaten the safety of the Uber community, our employees and contractors, or cause harm to Uber’s brand, reputation or business. And if the issues raised are serious or a repeat report, or you refuse to cooperate, you may lose access to the Uber Marketplace Platform. Any behaviour involving violence, sexual misconduct, harassment, fraud or discrimination, or deceptive, illegal or unsafe activity, while using the Uber Marketplace Platform can result in the immediate loss of access to the Uber Marketplace Platform. …

Complaints

42. The Driver numbered the complaints from 1 to 18 and it is convenient to use those numbers. Set out below is a summary of the complaint, a summary of the response, and the Tribunal’s determination in relation to each complaint.

43. However, before doing so, it should be noted that the belated affidavit of Ms McCormack (Exhibit 2) lacked probative force for the following reasons.

44. First, to the extent that she provided evidence of Uber’s procedure, any evidence of what should be done and is not evidence of what was done. Secondly, to the extent that she provided evidence of what she maintains was done, that is second hand evidence because it was not evidence from the decision-maker. Thirdly, Ms McCormack’s own investigation is no more than attempt to justify a decision after that decision was made.

45. Fourthly, Ms McCormack said “All User complaints are similar in nature, which further support my view that Uber was acting reasonably in deactivating the [Driver’s] account …” but the suggestion that the complaints were all similar in nature is contradicted by the evidence and is, for that reason, is rejected by the Tribunal. Fifthly, it is not the role of Ms McCormack, who described herself in her first affidavit as “a solicitor engaged by Uber Australia Pty Ltd”, to express an opinion on what is and what is not reasonable. Sixthly, even if that was her role, her opinion was expressed to be based, at least in part, on the complaints being similar in nature which is not the case. It is also noted that Uber Australia Pty Ltd is not a party to these proceedings.

46. The evidence relating to the complaints is found in (1) 20 pages in Exhibit 1 (pages 33-52 in Part B), which contain details of what was said to be correspondence between users and Uber, (2) 22 pages in Exhibit 1 (pages 53-74 in Part B), which contain what was said to be correspondence between Uber and the Driver, and (3) the Driver’s response, being the first eighgt pages of Exhibit B.

47. Complaint 1. On 17 January 2017 a user informed Uber that the Driver’s vehicle had only one headlight working. The details provided were:

he had one working headlight .. don’t need a refund but it should be repaired before being allowed to drive in the evenings again

48. Uber’s reply began with the words:

Hi Zia. We’ve received feedback from a rider that they felt unsafe on one of your trips recently. …

49. The Driver said that he was not aware that he had a headlight that was not working and that it was fixed before taking the next ride.

50. The Tribunal notes that the communication from the user appears to have been edited, with words between the words “headlight” and “don’t” omitted. Further, that there is no evidence before the Tribunal that supports Uber’s claim that the user felt unsafe.

51. This complaint involves a normal incident of driving which was remedied by the Driver. From the evidence, it appears this incident involves a user advising Uber rather than complaining to Uber. There is no evidence of any subsequent, similar event. The Tribunal does not consider this incident provides support for deactivation of the Driver’s account.

52. Complaint 2. On 6 April 2017 a complaint was made that the Driver drove past the pick-up address and then cancelled the booking which the person making the complaint had booked for their father. It was also suggested that the Driver was “rude and aggressive” to the father of the person making the complaint who was said to have heard what the Driver said, which language was said to have included a threat to involve the police.

53. When Uber passed on this complaint to the Driver four days after the complaint, on the afternoon of 10 April 2017, the information provided was plainly insufficient to enable identification as it commenced with the words:

Hi Mz. We recently received feedback in relation to a recent trip.

54. Ironically, having not provided sufficient details, after using general words to describe the complaint, the Driver was then asked if he would like to provide further details. Understandably, his response was to request Uber to tell him more about which ride it was. There is no evidence that Uber provided more details in response to that plainly reasonable request.

55. The responses of the Driver are set out below:

The rider was extremely rude. Rider passed racial comments. Rider asked me to stop at no stopping to wait for her friend as there was no parking there .. rider was extremely unfriendly.

Rider was accompanied by her friend. Both of them were extremely drunk. Instead of asking me to stop the car, ruder vomited outside the car through window but a lot of drops of vomit came on my door. Rider said bad words.

56. Again, Uber appears to have edited the evidence provided to the Tribunal by not providing what the Driver said after the word “there” and before the word “rider”.

57. The Driver provided photos said to show the vomit inside and outside his vehicle. Uber replied to the Driver on 10 and 11 April 2017. Curiously, the 10 April response to the Driver included the following words:

A s (sic) a result of your report, we will be following up with your driver about this incident and will be re-evaluating whether they are a partner who will continue to have access to our app.

58. Presumably, in those quoted words, the word “driver” should have been “rider”. The 11 April response from Uber to the Driver suggests the incident to which he referred was determined in his favour because it included the words:

We understand that not all trips will have 5-star riders, and we trust and appreciate your professionalism and judgment to handle challenging situations like this.

59. In his response that was submitted to the Tribunal, the Driver said:

I literally do not remember this trip. I think this trip was cancelled because of “NO SHOW”. There is no evidence of threat given. This was a cancelled ride and I am not sure if I was the person who spoke to the rider’s father.

However, if driver warned ride to complain to police that means driver is being harassed and forced to pick up the customer on cancelled ride.

Uber did not ask my feedback about this “cancelled ride”. I do not have any record in my App messages.

60. This complaint is one where the person making the complaint was not the passenger. It is clear the response of the Driver to Uber relates to a different booking due to Uber failing to provide sufficient details to enable the Driver to respond to the complaint which Uber was considering. It may be considered unfair to hold against a Driver a complaint to which he was unable to respond due to the lack of details provided to him by Uber.

61. Complaint 3. On 6 August 2017 a user sent a message to Uber and on 10 August 2017 it was said that:

The driver side swiped a parked cars (sic) mirror, while driving down a narrow street

62. The Driver maintained that the rider opened the door and hit the passenger-side mirror of the Driver’s car which cost $249 to repair. In a message sent by Uber to the Driver on 10 August 2017, Uber offered to pay that amount to the Driver, which offer he accepted. A subsequent message from Uber to the Driver included a sentence which said:

It's ok to tell others you’ve ‘amicably resolved’ this matter with us.

63. In his response to the Tribunal, the Driver maintained that the user damaged his vehicle by opening the door while the vehicle was moving and referred to the evidence he provided in support of his answer to this complaint, notably an Incident Report Form dated 8 August 2017.

64. While this complaint involved competing explanations for what occurred, the fact that Uber paid the cost of the damage to the Driver’s vehicle does not favour the view that Uber considered him to be at fault. The Driver provided a statutory declaration in support of his version of events and was not cross-examined.

65. In Ashby v Slipper [2014] FCAFC 15 at [77] it was said that:

… as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

66. Being unaware of any circumstances that would warrant the rejection of the Driver’s version of events in relation to this complaint, that evidence is accepted with the consequence that this complaint does not provide support for a decision to deactivate the Driver’s account with Uber.

67. Complaint 4. On 30 June 2018 a user said to Uber:

Driving was very bad, sped a lot, nearly got hit by a car I want a refund

68. When Uber communicated with the Driver, that complaint was expressed as:

We received a concerning report from one of your drivers that your driving led the rider to feel unsafe.

69. That communication also warned that further complaints of unsafe driving could result in permanent deactivation of the Driver’s account with Uber. In response, the Driver suggested he always drives carefully and suggested: “This complaint is a plot for a refund.”

70. Allowing for the possibility that this complaint may have been motivated by a desire to obtain a refund, and for the fact that there does not appear to have been any prior complaint in relation to the Driver’s standard of driving, the Tribunal does not consider this complaint sufficient, if considered in isolation, to warrant deactivation. The approach of Uber, in providing a warning, appears to be reasonable.

71. Complaint 5. There are two complaints dated 3 November 2018. The first of those complaints needs to be set out by quoting the two communications from the user. The first was in the following terms:

Speeding: true

Swerving, Jerking Or Harsh Braking: true

Illegal Traffic Meneuvers (sic): true

Appeared Sleepy: true

Was Distracted By Phone Or Other: true

Nervous Or A Non-Confidant Driver: true

Reporting About Any Unsafe Driving Practices Will Help Uber Ensure Sufficient Feedback And Reviews Are Done To Partner Accounts. Please Provide IUs With Extra Details Below.: I want my f***ing money back this c*** didn’t even pick me up when I told him where to pick me up from. I better get my f***ing money back. He was a f***ing a**hole.

72. The second said:

I waited for my driver for 15 mins then I was trying to tell him where I was and he was extremely rude to me. After trying to tell him where 8 was for 15 mins he hung up on me and charged me 10 dollars for the fare. I want my money back. This guy was extremely rude to me and swore at me when he couldn’t take simple directions, I want my money back

73. When this complaint was passed on to the Driver, he was told that: “one of your riders has reported that you may have verbally abused them (sic)”.

74. The Driver replied: “I have never verbaly (sic) abused anyone and I cannot think about it. This is a wrong complain[t].”

75. The Driver’s submission to the Tribunal in relation to this complaint was that this was a false complaint, that it was a cancelled ride, that he did not meet the rider, and that the rider was making the complaint to obtain a refund.

76. It is difficult to see how sufficient details were provided by Uber to the Driver when all that is said is that one user has suggested the Driver “may” have verbally abused that user. The fact that the trip was cancelled suggests the six answers “true”, quoted above, are not true. Further, it must be noted that the complaint that the Driver swore at the user was made by a user who swore in his complaint and that there appears to be influenced if not motivated by a desire to obtain a refund. The Tribunal does not consider there is reliable evidence that supports this complaint. As a result, this complaint does not provide a sufficient basis for deactivation.

77. Complaint 6. The second complaint dated 3 November 2018 alleged that, when the user said she was going to her boyfriend’s house for dinner, the Driver said: “so I don’t have a chance for dinner with you”. It was also said that was verbal harassment and that the rider felt unsafe and “it was 4 in the morning”. This complaint did not contain any explanation of how the user could be going to her boyfriend’s house for dinner at 4am.

78. When this complaint was passed on to the Driver, Uber said to him:

I’m writing to inform you that we received a report that you made sexually suggestive remarks while on the trip, behaviour that is in direct violation of our Community Guidelines.

79. It is difficult to see how such a message from Uber would alert a Driver to the complaint that was made to Uber. The Driver responded to what he thought was the complaint:

I got a non english speaker customer from Brazil on Friday night and She was very drunk and she was riding with her Boy friend. They were doing in (sic) inappropriate sexual and intimate activity at the back seats of my car and they also removed their seat belts. I told them 2 times not to do that because it is disturbing my driving and I was on Motorway but they did not listen and started getting rude to me. I believe this complain[t] is from the same customers.. they took Uber from Kogarah and I dopped then to Rosehill.

80. That response of the Driver to Uber, which referred to two passengers, did not appear to relate to the complaint, which suggested one passenger. However, the Driver’s response that was provided to the Tribunal did appear to respond to the user who submitted the complaint:

I remember this ride now, even after 5 years. The rider was from South America with very less English Verbal Understanding. Rider was very talkative and asked me since when I am driving. I replied to her that “I am driving for few hours and I have not had a chance to do dinner”. It did not mean what she thought. I already explained to her several times but because of lacking in English she did not understand. Who do dinner at 4am in the morning? This was an error because of communication GAP. Please understand.

81. The fact that the complaint suggests the rider was going to dinner at 4am provides support for the version of events given by the Driver. It is considered this complaint has not been proved.

82. Complaint 7. On 5 March 2019 Uber received a complaint which relevantly stated:

My driver was not professional. He was not polite, even insulted one of my friend[s] at the back.

83. Later the same day it was said to Uber:

First I did not find the driver, he was not exactly at the point he said Then he was not polite, he was driver fast he seemed in a rush He even insulted at some point because he was speaking too loud

84. When this complaint was passed on to the Driver for a response, he was told:

I’m writing to inform you that one of your riders has reported that you may have verbally abused them or made threatening remarks towards them.

85. The general response of the Driver reflects that he was unable to identify the passenger(s). That is not surprisingly because the message to the Driver, sent by Uber, included a suggestion of “threatening remarks” which does not appear to match the message sent to Uber. The response was as follows:

I am working for Uber for more than 2 years and I have done thousands of trips. I have never abused any Rider or I cannot even think about getting rude with riders. Some riders accuse drivers falsely and given them bad ratings because they do mess in the car and being charged cleaning fees through Uber. Please ask them to provide you evidence.

86. There was no response to this complaint in the spreadsheet included in the Driver’s evidence which is consistent with an inability to respond due to lack of details.

87. This is another instance where it may be considered unfair to hold against a Driver a complaint to which he was unable to respond due to the lack of details provided to him by Uber, especially when the Driver asked Uber to provide additional evidence and that was not done.

88. Complaint 8. On 21 April 2019 a user complained in the following terms:

He was talking to me and made me feel very uncomfortable. I think he was assuming I was drunk and that he could get away with making nasty comments. I was glad when the drive was over.

89. There was no evidence provided of either what Uber said to the Driver in relation to this complaint or of what was the Driver’s response to Uber. The Driver’s response to the Tribunal was truncated:

I have completed thousands of rides by that time and ne

90. This is yet another instance where it may be considered unfair to hold against a Driver a complaint to which he was unable to respond due to the lack of details provided to him by Uber.

91. Complaint 9. On 29 September 2019 a complaint suggested the Driver’s conduct included speeding and “Swerving, Jerking Or Harsh Braking”. The details provided were: “He was all over the place, he almost went into a one way part of the high way and was swerving”.

92. When this complaint was communicated by Uber to the Driver, it was suggested that: “One of your riders let us know that they felt uncomfortable with sudden traffic manoeuvre on a recent trip, like swerving, jerky movements, or sharp turns”. The Driver was reminded that such conduct may result in permanent deactivation of the Driver’s account.

93. There was no indication in Uber’s evidence of either what was said by Uber to the Driver or what the Driver’s response. In his statement to the Tribunal, the Driver suggested this was a false complaint.

94. The lack of details provided to the Driver are a cause for concern because it would be difficult to identify to which trip it related, and that difficulty was not made greater by what was said by Uber not accurately reflecting what was said to Uber. This complaint, considered in isolation, does not warrant deactivation of the Driver’s account but it could provide support for that if there were other complaints that were sufficient and similar.

95. Complaint 10. On 21 January 2020 a complaint was lodged with Uber that suggested “Swerving, Jerking Or Harsh Braking” by the Driver. The details provided were:

Awful driving all over the boulevard road then when I told him to turn right he would not listen and I had to walk home from bonds road. Absolutely terrified for my life.

96. As with the previous complaint, there was no indication in Uber’s evidence of either what was said by Uber to the Driver or what the Driver’s response.

97. The Driver’s response, in his statement to the Tribunal, was:

In this complaint[t] rider has admitted that I was not speeding and not breaking any Traffic Laws. I was following the Google Navigation.

Sometimes the Google Navigation is different to the rider’s preferred way.

Uber responded to this rider and provided a refund.

Some rider’s (sic) are habitual of giving bad ratings to every organisation who serve them. It can be because they are having a bad day or some other personal reason.

98. Being unable to determine any reason why this user would make a false allegation, the Tribunal considers this complaint not sufficient, in isolation, to warrant deactivation but that it could provide a basis for deactivation if combined with other, similar complaints.

99. Complaint 11. On 01 March 2020, Uber received a complaint which said: “Driver insulted me. Called me a f***ing idiot”. However, when that complaint was communicated to the Driver, it was expressed in the following terms:

We received a report from one of your riders that you made discriminatory remarks towards them while on a trip. We’d like to remind you that Uber does not tolerate any form of unlawful discrimination, harassment or abuse.

100. The Driver’s response to Uber was to deny the accusation and then say he thinks this complaint came from a user who wanted a bottle of water and to be able to use Bluetooth which the Driver was unable to provide with the contended result that the user got upset, lodged a complaint, and gave the Driver a 1-star rating.

101. The Driver’s submission to the Tribunal was that this is a false accusation and that no evidence of this complaint had been provided to him.

102. It does appear that Uber’s report to the Driver did not accurately reflect the complaint, which made it difficult for the Driver to respond until he saw the documents upon which Uber relied in these proceedings.

103. This another allegation where (1) the details provided to the driver make it difficult for him to identify the user, and (2) the details provided to the Driver by Uber do not mirror the details of the complaint made by the user to Uber. As a result, it is difficult to determine whether the complaint is accurate. The Tribunal considers this complaint not sufficient, in isolation, to warrant deactivation but that it could provide a basis for deactivation if combined with other, similar complaints since it is a reasonable inference that the likelihood of a false complaint decreases as the number of complaints increases. On the other hand, the rating of the driver must also be a relevant consideration.

104. Complaint 12. On 10 Apr 21 Uber received a complaint that was expressed as follows:

Constant [braking]. Also accepted the job, but too over 15 minutes to get us when the ETA said 5 minutes. He had to drop someone else’s phone off to them. Tried to cancel and get another driver but he accepted again. I was late to my dinner because of this. Not happy at all.

105. Yet again, there was no indication in Uber’s evidence of either what was said by Uber to the Driver or what the Driver’s response.

106. The response provided by the Driver to the Tribunal is set out below (emphasis original):

Half of this complain[t] is true. The last rider left phone in my car who was very close to the next pickup. The rider was constantly calling me through Uber and requested to return the phone. It was just 5 minutes detour and I accept my fault here that I was late for pickup. However, the rider “checked” FALSE in swerving, jerking and harsh braking but he write constantly braking. In this case the customer was frustrated because He/She was a bit late for dinner and I was stopping at traffic lights. I normally advise the rider that we cannot go faster than legal speed when [the] rider [is] in [a] rush.

107. There is a need to balance the complaint of this user with the need for the Driver to provide customer satisfaction to the previous user. The Tribunal does not consider it would be reasonable to permit this complaint to provide support for deactivation.

108. Complaint 13. On 20 Feb 22 Uber received a complaint which suggested that the Driver made the user “feel unsafe or was inappropriate” and expressed a desire not to be paired with the Driver again. No further details were provided to the Tribunal despite Uber’s response to this compliant saying that: “A member of our team will be in touch with you shortly”.

109. There is no evidence of what information was provided by Uber to the Driver and it is not surprising that the Driver’s statement to the Tribunal, in relation to this complaint, commenced with the words “This is incomplete information.”

110. It is clear this complaint has not been proved as being a matter that provides support for a decision to deactivate the Driver’s account with Uber.

111. Complaint 14. On 13 March 2022 a user made a complaint which was, in two messages. The first of those messages said:

My girlfriend was being sick so I requested we enter a 7/11, the driver agreed. [U]pon arriving at the 7/11 the driver began telling me to “f*** off” and “get the f*** out”. I was happy to leave as at [that] point I also no longer wanted to be in the care with this aggressive driver. My girlfriend and I [proceeded] to order another Uber which was exemplary.

112. The second message was in the following terms:

I was verbally assaulted by the driver first, and in response rem0ved myself from the Uber quickly as I did not want the situation to progress any further. The driver was intimidating and had 0 respect for myself or the health of my girlfriend, I hope this not continue this behaviour as I will not be using this app for a while after this experience.

113. On 13 March 2022 he was advised that his account had been temporarily deactivated, based on a recent allegation of verbal abuse. Less than 20 minutes later the Driver responded, saying:

The last ride I had has some issues. A man and his girl friend hired uber to go to McDonalds and the girl she vomited in the car. I stopped the car at the petrol station and she vomited the rest outside the car. I requested the rider that I have to end the trop and you do another uber. The rider was very drunk and he stated abusing me and pass[ed] racial comments. I ended the ride and asked him to leave. He then left but complained and my account is blocked. I cant drive under because of [the] mess in my car and now Uber closed my account because of [a] false complain[t]. I have forwarded the images of vomit as well. I am platinum driver with 4.9 ratings.

114. After Uber responded to that message, on 13 and 15 March 2022 the Driver asked when his account would be reactivated. On 15 March 2022, seemingly after another complaint, Uber sent the Driver a message which suggested that he needed to read and acknowledge the Guidelines. After he did so, the Driver’s access to the Uber app was reactivated early on 16 March 2022.

115. The Driver’s statement in relation to this complaint, which was not challenged by cross-examination, is set out in full below:

Riders were in very good conversation when [I] picked them up. They were drunk. Rider’s girl friend opened the car window and she was vomiting all over the car from the window and seat. When I saw that I stopped the car at the 7-Eleven, she went outside the car to continue with Vomit. The vomit was all over the back seats, head rest of left rear passenger seat and outer body of the car from left. The rider offered me cash of $40 bucks. I refused politely and told them that I will take the cleaning fee from Uber. Upon listening this rider got angry and he said he started using abusive language. He was getting upset when I was taking the picture of the vomited seats and window. He was insisting me to resolve the matter on $50 cash he even went to 7 eleven ATM. I just tried to move away from there and he abused me.

116. This incident reflects adversely on the users rather than the Driver. The Driver’s version of events is accepted because (1) he had supporting photos, (2) his evidence on this complaint was not challenged, and (3) Uber reactivated his account soon after his explanation was provided, which would not have occurred if his explanation had not been accepted. Accordingly, the Tribunal does not consider this complaint provides a valid basis for deactivation now, noting that would contradict the reactivation shortly after this complaint was made. The highest this complaint could be put is that the Driver may have used intemperate language in response to what occurred, but it would be unreasonable to hold that against the Driver in these circumstances.

117. Complaint 15. On 16 March 22 there was a complaint, but the supporting evidence was no more than the words: “My driver made me feel unsafe or was inappropriate: true”. When Uber communicated this complaint to the Driver, it was expressed as: “we’ve received a concerning report from your rider on a recent trip regarding verbally abusive behaviour”. Again, there is a significant difference between what was said by the user to Uber and what was said by Uber to the Driver.

118. It appears that it was this incident that the Driver was asked to read and acknowledge the Guidelines. Less than an hour later he complied with that request and less than an hour after that the Driver’s access was reactivated.

119. The Driver’s statement to the Tribunal noted that the user did not provide information as to why they did not feel safe.

120. There is a lack of information enabling identification of the trip and no supporting information was provided to Uber or by Uber. In those circumstances, the Tribunal considers it unreasonable to treat this complaint as one that would either justify deactivation or provide support for deactivation.

121. Complaint 16. On 19 August 2022 a complaint suggested the Driver had made a user feel unsafe or was inappropriate. The details provided were:

He asked me for my number and didn’t unlock the door when it’s arrived. It was a very uncomfortable situation and I am afraid that if I say no, he will attack me.

122. That complaint was passed on to the Driver as follows:

We’ve received a report from a rider from one of your recent trips that you may have asked them inappropriately asked then personal questions.

123. The Driver’s statement denied this allegation, saying that he is married within two children. He suggested that (1) Uber can and should listen to any conversation in his vehicle, (2) noted that the user did not ask that she not be paired with hm again, and (3) that no other such complaint had been made from 12,800 completed rides.

124. This is a complaint which the Tribunal considers does not, of itself justify deactivation but could, if there were other similar complaints, provide support for that outcome.

125. Complaint 17. On 23 February 2023 a user complained to Uber that the Driver was distracted by his phone, but no further details were provided. This complaint was passed on by Uber to the Driver in a message which said: “One of your riders let us know that they felt uncomfortable with your phone use on a recent trip”.

126. The Driver’s response, both to Uber and the Tribunal, was that he does not use his phone during a ride. In short, he denied this complaint.

127. This is a complaint which could provide support for a deactivation decision if there were other, similar complaints but does not, considered on its own, provide a sufficient basis for such a decision.

128. Complaint 18. On 27 August 2023 a complaint was made to Uber that “My driver’s language was inappropriate/threatening”. The details provided in support of that complaint are set out below:

What did the driver say or do?: Got my mum an Uber to go (redacted). Noticed the trip was cancelled so I then called her to see if she was still waiting outside so that I could call her another Uber. Turns out the Uber trip was cancelled and the driver took her to the location. She told me the driver was being very flirty and was “too nice” which made her very uncomfortable.

129. It is not known what time on 27 August 2023 that complaint was lodged. However, shortly before 2 am the next day, 28 August 2023, the Driver was sent a message which included the following words:

We were notified of some concerning feedback from one of your trips. Your access to the app has been temporarily blocked while we review this matter.

130. Not surprisingly, just after 7.30 am that day, the Driver sought further details in relation to that complaint. There is no evidence such details were ever provided prior to the documents lodged by Uber in these proceedings (Exhibit 1).

131. Three days later, just before 7.30 am on 31 August 2023, Uber advised the Driver that his account had been permanently deactivated. After further messages were sent by the Driver to Uber, on 19 September 2023 he was advised that the outcome of the review was to uphold the deactivation decision.

132. With the benefit of details in relation to this complaint, provided in documents received by the Tribunal on 11 January 2024, but not before, the Driver said:

I never continue with the cancelled ride. This ride must be “RIDER NO SHOW” customer got charged cancellation fees I got paid and move on.

I believe Uber has algorithm to check my location and match it with rider’s drop [off] location. I never completed this ride it was cancelled ride.

There is no evidence.

I do not drop anyone for a fee. I assume customer must be picked up by random person.

Uber is more than welcome to share my profile picture to rider’s MUM and ask her to identify if I picked[d] her up.

133. While this complaint was not made by the passenger, it clearly suggests the mother of the person complaining was driven by the Driver. This complaint is considered by the Tribunal as being capable of providing support for a decision to deactivate the Driver’s account with Uber.

134. Complaint 19. It is also necessary to consider Uber’s allegation that the Driver had/has duplicate accounts. Pages 75 and 76 in Part B of Exhibit 1 establish that the Driver set up a Uber account on 25 November 2015 and on 24 October 2016, prior to the date on which it is suggested, in Uber’s chronology, the Driver first entered into an Agreement with Uber. It must be noted that the account set up in 2015 suggests there were no trips and no riders.

135. There is a difficulty with an allegation that the Driver breached the Agreement by having a duplicate account when both accounts were created prior to that Agreement. That suggests the term of the Agreement upon which Uber relies is too late to bind the Driver. Even if that aspect is overlooked, the Driver’s explanation accords with the documents provided by Uber. Any breach of the Agreement was only a technical breach and the Tribunal considers the existence of a duplicate account not to provide a reasonable basis for a decision to deactivate the Driver’s account with Uber.

Breach

136. It is desirable to have a way to view the entirety of the complaints in a manner that enables a fair assessment of them, both individually and overall. In developing the following table, the rows categorise the allegations and columns to indicate the columns indicate the Tribunal’s determination. Entering the complaint numbers in the appropriate cell assists with a decision in relation to whether the Driver can be said to have breached the Agreement, either by breaching the Guidelines or in some other respect.

137. While each complaint has been considered in detail in these reasons, in any future proceedings against Uber it may be that the following table will provide a convenient way for multiple complaints to be considered within the available time, having regard to the evidence and submissions of the parties.

138. The headings used in the following table should be interpreted as follows:

Not proved    Driver’s explanation is accepted or the evidence insufficient

Unreasonable   To hold this complaint against the driver would be unreasonable

Support      Not sufficient for deactivation but provides support for that

Sufficient   Sufficient to warrant deactivation of the driver’s account

Complaint category	Not proved	Unreasonable	Support	Sufficient
Vehicle	1
Driving	3	12	4, 9-10
Driver	5, 6, 13	2, 7-8, 14-15	11, 16-18
Duplicate account	19

139. Fairness requires that any assessment of a decision to deactivate take into consideration both the driver’s rating and any testimonials provided.

140. The evidence of the Driver, which was neither challenged nor contradicted, was that (1) he has had 10,914 riders and has made 120 deliveries, (2) that he has a 92% satisfaction rate, (3) that his rating is 4.91 out of a possible 5, and (4) that 485 of his last 500 ratings were 5-star ratings, (5) that he has been with Uber for six years, and (6) that he has had more than 4.500 5-star rated trips.

141. Four references were included in the Driver’s evidence (Exhibit A). The first three were from the Driver’s friends and the last was from his family doctor. Each of those referees spoke favourably of the Driver’s character. They were:

1. Osama Khan, who is the Contract Administrator of Apollo Fabrications Pty Ltd,

2. Ata ur Rehman Kan of Eight Shades Media,

3. Saqib Khan, an electrical engineer, and

4. Dr Syed Zia Hussain.

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.

145. What might be termed the driving matters are the complaints numbered 4, 9 and 10, each of which related to the quality of the Driver’s driving.

146. What might be termed the conduct matters are the complaints numbered 11, 16, 17, and 18 which respectively involved complaints of bad language, asking a female passenger for her phone number, using a phone, and conduct described as “being flirty”. The second and fourth of those complaints, being the complaints numbered 16 and 18, involve similar conduct.

147. Having regard to the ten matters listed above, the Tribunal considers the conduct matters sufficient to find that the Driver breached the Guidelines, and thereby the Agreement, noting that (1) there were four such matters, (2) three of them arose after a warning was provided by temporary deactivation in March 2022, and (3) two of them, namely the complaints numbered 16 and 18, involved similar conduct. The Tribunal determines that the Driver breached the requirement in the Guidelines that he treat everyone with respect.

148. While the answer the Tribunals’ decision in relation in relation to the issue of whether the Guidelines and/or Agreement were breached is sufficient to determine the outcome of this application, the Tribunal considers and determines each of the other issues raised by the proceedings.

Reinstatement

149. The suggestion that reinstatement would be difficult because one of the respondent companies is based overseas is rejected: the fact that the respondents choose to structure their business in a particular manner does not provide any impediment to the grant of a remedy in these proceedings. As the respondents choose to conduct business in New South Wales, they are thereby subject to the laws of New South Wales, as stated in clause 35 of the Agreement, and cannot avoid the operation of those laws by using a company incorporated in another country. Uber provides services to the Driver in New South Wales and the FTA is applicable.

149. Secondly, the reference to Burns does not assist the respondents. The litigation in Burns, noting that submissions in Exhibit 1 referred to the decision of the Court of Appeal and not the High Court, raised an issue between two individuals, one of whom was resident of an Australian state other than New South Wales. The outcome of that litigation, which was based on provisions in the Australian Constitution, (1) does not apply to a company, and (2) relates to different States, not different countries.

150. While s 79N(c) of the FTA does provide the Tribunal with the power to make “an order the requires [Uber] to supply the [Driver] specified services …”, such an order would not be appropriate in this case for the following reasons.

151. First, courts and tribunals are reluctant to make an order that involves the provision of personal services. Secondly, it appears that damages would provide the Driver with an adequate remedy. Thirdly, it is important to note that if any reinstatement of the Driver would leave Uber with the right to terminate, without cause, by giving 30 days’ notice. As a result, a reinstated driver may well (1) receive a notice of termination that resulted in termination after 30 days and (2) be provided with little or no work during that period.

152. The power provided by s 79N(c) of the FTA is discretionary because of s 79N commences with the words (emphasis added):

In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Division, make any one or more of the following orders that it considers appropriate:

154. Support for that view derives from s 79U of the FTA which is set out in full below:

(1)   When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim.

(2)   Without limiting subsection (1), when determining whether or not to make an order under this Division, the Tribunal is to take the following factors into consideration if they are material to the particular circumstances of the case:

(a)   whether or not there was any material inequality in bargaining power between the parties to the claim,

(b)   whether or not any party to the claim was not reasonably able to protect the party’s interest because of the age or physical or mental capacity of that party,

(c)   whether or not any person who represented any of the parties to the claim was not reasonably able to protect the interests of the party represented because of the age or physical or mental capacity of that person,

(d)   the relative economic circumstances, educational background and literacy of the parties to the claim and of any person who represented any of those parties,

(e)   whether or not and when independent legal or other expert advice was obtained by the claimant,

(f)   whether any undue influence, unfair pressure or unfair tactic was exerted on or used against the claimant:

(i)   by any other party to the claim, or

(ii)   by any person acting or appearing or purporting to act on behalf of any other party to the claim, or

(iii)   by any person to the knowledge of any other party to the claim or of any person acting or appearing or purporting to act on behalf of any other party to the claim,

(g)   the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party,

(h)   where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract:

(i)   whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and

(ii)   whether or not it was reasonably practicable for the claimant to negotiate for the alteration of the contract or to reject any of its provisions, and

(iii)   whether or not any provisions of the contract impose conditions that are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the claim, and

(iv)   if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and

(v)   the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and

(vi)   the commercial or other setting, purpose and effect of the contract.

(3)    Without limiting subsection (1), when determining whether or not to make an order or orders under section 79N, 79O or 79P, it is appropriate for the Tribunal to consider (if relevant to the particular circumstances of the case):

(a)   any code of practice prescribed under this Act, and

(b)   if the Secretary has brought to the attention of the Tribunal any other code of practice (whether or not prescribed by or under any other Act)—that code of practice.

155. If the Driver had established an entitlement to relief, the Tribunal would not have been persuaded to make an order for reinstatement, ie reactivation of the Driver’s account with Uber, because such an order would provide no appreciable relief to the Driver in view of the clause of the Agreement which entitles Uber to terminate, without cause, by giving 30 days’ notice.

156. It must be observed that if respondents such as Uber, by the terms of the contract they use and/or by how those words are applied, engage in conduct that attracts attention then the NSW government may avail itself of s 79U(3)(a) of the FTA to prescribe a Code of Conduct. That is no more than a reflection of the reality that, if a company acts in a way considered to be objectively unreasonable, there may be a legislative response.

Damages

157. The Driver provided documents said to indicate the amounts he had received from Uber. Uber also provided a schedule, without providing the documents upon which that schedule was based, that purported to set out the service fees paid by Uber to the Driver each week, during the period from 27 February to 27 August in 2023.

158. From that evidence, the Tribunal is only able to estimate the income of the Driver. There is no evidence of his expenses.

159. Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 (Gallagher) is often cited in support of the proposition that, in circumstances where precision is not possible, the Tribunal must do the best it can, based on the evidence that is available. However, by reference to what was said in that case at [49-51], there is an important distinction between the principle that difficulty of assessment is not a barrier, as indicated in Commonweatlh v Amann Aviation Pty Ltd [1991] HCA 54, and the situation in Gerrard v Slamar [2004] WASC 253 where there was a lack of evidence and an estimate or guess should not be made to make good that omission.

160. Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] is but one example of the application of what was said in Gallagher and the position was succinctly stated in that case as being that “provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can.”

161. The courts have taken the same view, in cases such as McCrohan v Harith [2010] NSWCA 87 at [128] and Sabouni v Develop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42]. However, the position has been clear for many years, as can be seen by what was said by Gleeson CJ in Troulis v Vanvoukakis (1998) NSWCA 237 at 14, namely that where there has been a failure to adduce evidence, “then there is absence of the raw material to which good sense may be applied. Justice does not dictate that, in such a case, a figure should be plucked out of the air”.

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

165. From the Tribunal’s determinations in relation to breach, reinstatement, and damages in this case, it follows that even if it could be said that Uber was not entitled to deactivate the Driver’s account, he would not be entitled to either reinstatement or damages.

Observations

166. There are matters arising from these proceedings which need to be recorded.

Late documents

167. While documents submitted on the day before of the hearing and during the hearing were admitted as evidence in this instance, it should not be thought that will be the case in any other application. Both the parties and their legal representatives have a duty to comply with the Tribunal’s directions that is imposed s 36 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CATA). Directions are made so that each party knows what evidence the other party will be relying on at the hearing. What may be termed “ambush evidence” is not condoned.

168. Any party seeking to rely on evidence that is not provided in accordance with directions of the Tribunal needs to obtain leave (ie permission) to rely on such documents and it should not be presumed that such leave will be granted.

Paginated documents

169. Directions for parties to number the pages of the documents upon which they rely is not pedantic but practical. This Division of the Tribunal deals with well over 50,000 applications each year with the result that hearing time is a scarce resource. Applications such as this are commonly listed for as little as 90 minutes and rarely more than 180 minutes. During that time, the presiding member is expected to decide what documents will be admitted as evidence, provide an opportunity for any cross-examination, allow time for submissions, then reach a decision and provide reasons, commonly with another application before and/or after the application that is being heard.

170. To conduct hearings efficiently, it is necessary for the presiding member and both parties to be able to go quickly to any specific page in the evidence. In this case, the Driver’s documents (Exhibit B) had no page numbers and valuable hearing time had to be used adding page numbers, while Uber’s documents (Exhibit 1) had pages numbered from 1 to 85 and then from 1 to 77 with the result that the objective of “easy identification … at the hearing”, as stated in the documents issued following the directions hearings on 16 October 2023 and 3 November 2023, was not achieved, seemingly because what was published on those occasions was either not read or was read but not obeyed.

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.

Uber’s evidence

173. 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.

174. 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.

175. Any editing of the user’s communication to Uber, and any redactions in that communication, may be relevant matters. There may also be a question of whether Uber has provided sufficient information to the driver to enable identification of the trip. In addition, the complaints considered in these proceedings included occasions where there were significant differences between what was said by the user to Uber and what was said by Uber to the Driver.

176. It is difficult to understand why the Driver was finding out details of some complaints for the first time when Uber lodged the documents upon which it intended to rely at the hearing. If those details can be provided shortly prior to the hearing, there does not appear to be any reason why those details cannot be provided shortly after the complaint is first made.

177. A person faced with the prospect of being fined for speeding is entitled to know when and where that is said to have occurred. In like manner, a person faced with the prospect of losing their source of income must be entitled to have sufficient information to be able to identify the relevant user who is making the complaint. Even accepting there may be an issue of privacy due to a need to not disclose some details, such as the residential address of the person making the complaint, there must be a balance between the rights of the user and the rights of the driver. By way of example, in relation to a complaint involving an allegation of bad language, a driver who took a parent and children home from Sydney during a day and an inebriated person home from Sydney late on the same day may be unable to tell which of those trips gave rise to the complaint unless sufficient details are provided.

178. The second area of surrogacy in the evidence of Uber occurs when evidence of the decision that was made is given by anyone other than the person who made the decision. Evidence of what is the procedure is only evidence of what should happen and not evidence of what did happen. Evidence of what documents were considered reveals upon what the decision was based but not the basis for the decision that was made. It is not for the Tribunal to advise Uber how to prove its case and that is why the Tribunal does no more than note those distinctions, which may be a relevant consideration in a particular case.

Australian Consumer Law

179. The effect of s 28 of the FTA is that the provisions of the Australian Consumer Law (the ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth), became part of the law of New South Wales and applies to these proceedings.

180. In the ACL the provisions relating to unfair terms in a contract, which are set out in Part 2.3 of Chapter 2, from s 23 to s 28, may be relevant. However, as neither party made any reference to any of those statutory provisions, it is not appropriate to determine this case on a basis that the parties did not have an opportunity to consider and address during the hearing: Mahon v Air New Zealand Ltd [1984] AC 808.

Costs

181. The effect of s 60 of the CATA is that s 60(1) provides that “Each party to proceedings in the Tribunal is to pay the party’s own costs” but s 60(2) relaxes that default position by providing that “The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs”. A list of considerations is set out in s 60(3):

(a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)   whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)   the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)   the nature and complexity of the proceedings,

(e)    whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)   any other matter the Tribunal considers relevant.

182. It is well-established that the adjective “special” requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120.

183. It is also necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs: Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].

184. Since s 60(2) commences with the words “The Tribunal may award costs ...”, it is clear the Tribunal has a discretion which must be exercised (BPU v NSW Trustee & Guardian [2016] NSWCATAP 87 at [9]). That discretion must be exercised judicially (eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [48]), and not either arbitrarily or capriciously (Oshlack v Richmond River Council [1998] HCA 11 at [22]).

185. The respondent sought an order for costs. Accordingly, provision will be made in the orders for written submissions to be lodged in relation to costs. Any such submissions should address the question of whether it is agreed that the Tribunal should exercise the power conferred by s 50(2) of the CATA and dispense with the need for a hearing on the question of costs.

Orders

186. For the reasons set out above, the following orders are made:

1. The application is dismissed.

2. Any evidence, and submissions not exceeding five pages, upon which the respondents wish to rely in relation to costs are to be provided to the Tribunal and the applicant within 14 days of the date of these orders.

3. Any evidence, and submissions in response not exceeding five pages, upon which the applicant wishes to rely in relation to costs are to be filed and served within the following 14 days.

4. Any evidence, and submissions not exceeding two pages, upon which the respondents wish to rely in relation to costs, strictly in reply, are to be filed and served within the following 7 days.

5. Each party’s submissions should indicate whether it is agreed that an order should be made, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), for costs to be determined on the papers, without the need for a further hearing.

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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: 14 February 2024