Singh v Rasier Pacific Pty Ltd

[2024] NSWCATCD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Singh v Rasier Pacific Pty Ltd [2024] NSWCATCD 4

Hearing dates:

11 December 2023

Date of orders:

03 June 2024

Decision date:

03 June 2024

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Senior Member

Decision:

The Respondents, Rasier Pacific Pty Ltd and Uber B.V. are to pay the applicant Ranjit Singh the total amount of $10,000 by 28 days from the date of this decision.

Catchwords:

CONSUMER LAW---Consumer claim---Part 6A Fair Trading Act 1987(NSW)---Uber driver---Contract---Termination for breach---Whether conduct of driver justified termination---Damages---Loss of income

Legislation Cited:

Australian Consumer Law 2010 (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Ahmad v Portier Pacific Pty Ltd [2023] NSWCATCD, unreported, 21 September 2023

Ali v Raisier Pacific VOF, [2023] NSWCATCD unreported, dated 3 August 2023

Attorney General NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 245

Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Cherry v Steele-Park [2017] NSWCA 295

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221

Forklift Engineering Australia Pty Ltd v Powerlift (Nissan) Pty Ltd [2000] VSC 443

Koompahatoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61; (2007) 233 CLR 115

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

Productivity Partners Pty Ltd (trading as Captain Cook College) v ACCC [2023] FCAFC 54

Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3

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

Tramways Advertising Pty Ltd v Luna Park (NSW) Pty Ltd (1938) 38 SR (NSW) 632

Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Ranjit Singh (Applicant)
Rasier Pacific Pty Ltd (First Respondent)
Uber B.V. (Second Respondent)

Representation:

R Singh, self-represented (Applicant)
B Allen, solicitor (Respondents)

Solicitors:
Dentons (Respondents)

File Number(s):

2023/00375315 (Previously GEN 23/42416)

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a claim for damages of $10,000 by a former Uber driver on the basis that he was wrongfully terminated from the Uber platform.

2. The applicant is not seeking he be reinstated to the Uber platform. The only remedy sought is damages.

3. The applicant was a full time driver for Uber for a period of approximately 3 years and 4 months prior to being terminated from access to the Uber app.

4. The respondents, in their outline of written submissions contained in the body of the affidavit of an in-house Solicitor Ms McCormick dated 6 December 2023, refer to both Rasier Pacific Pty Ltd and Uber B.V. as being parties to the Services Agreement with the applicant.

5. In this decision, any reference to “Uber” is a reference to the respondents.

6. The applicant commenced proceedings in the Tribunal on 18 September 2023.

The Application

7. The application states that the applicant is “an independent contractor/sole trader with my own ABN” who commenced as a Uber driver in April 2020. To drive for Uber involves agreeing to a Services Agreement which was drafted by Uber.

8. On 10 August 2023, the applicant was permanently deactivated form accessing the Uber platform. Uber asserted that the applicant had breached the Policies of Uber, which are relevantly set out in the Community Guidelines. Uber deactivated the applicant on the basis of “sexually inappropriate behaviour-commenting upon a rider’s appearance.”

9. The applicant asserts that the allegation that he engaged in such behaviour is false, and that Uber provided no evidence or details to substantiate the rider’s complaints. According to the applicant he unsuccessfully sought that Uber review the decision.

10. According to the applicant, he sustained loss of income an amount of greater than $10,000, but seeks damages of $10,000.

Procedural History In the Tribunal

11. The matter was listed for a directions hearing before Rosser PM on 20 October 2023.

12. Procedural directions were made for the filing and serving of documentary evidence. Both parties were granted leave to be legally represented in the proceedings. The matter was set down for a special fixture hearing. Relevantly, the procedural directions state:

9. The application is amended to seek the following orders:

(a) Access to the Uber driver platform.

(b) Compensation in the sum of $10,000

10. The Tribunal notes the issues to be determined include:

(a) Is the claim a consumer claim as defined by s 79E of the Fair Trading Act?

(b) Does the Tribunal have power to make the orders sought under the Fair Trading Act?

(c) Did the respondent properly terminate the services agreement with the applicant for reason of breach of the community guidelines that form part of the service agreement between the parties?

(d) If not, did the respondent repudiate the service agreement?

(e) If so, should the respondent be ordered to provide services under the agreement to the applicant?

(f) Has the applicant proven his net financial loss arising from any proven breach of the services agreement by the respondent?

(g) If so, should the Tribunal make an order for compensation in favour of the applicant?

13. The applicant filed and served documentary evidence on 10 November 2023.

14. The respondents filed and served documentary evidence on 6 December 2023. The respondents’ documents included a written submission.

15. The matter was listed for hearing on 11 December 2023. The applicant appeared self-represented. Mr Allen, Solicitor, appeared for the respondent.

16. There was a delay in commencing the hearing because a Punjabi interpreter booked by the Tribunal did not attend. Arrangements were made by the Tribunal Registry to engage a new interpreter. That interpreter was only available to appear by audio-visual link. The applicant did not object to the interpreter appearing by audio-visual link, and those arrangements were made. The applicant stated that he would communicate primarily in English during the hearing, and use the interpreter when he believed it would assist him to understand what was said, or when he felt more comfortable expressing himself in Punjabi.

17. The applicant gave oral evidence at the hearing. The respondents did not seek to cross examine the applicant. The applicant did not seek to cross examine Ms McCormick who had provided an affidavit dated 6 December 2023 for the respondents. Ms McCormick was the only person who provided evidence for the respondents.

18. Both parties made oral submissions at the hearing.

19. At the commencement of the hearing the applicant confirmed that the only order he was seeking from the Tribunal was an order for damages or compensation in the amount of $10,000. He did not seek reinstatement as a driver with the Uber platform.

20. Pursuant to the procedural directions of Rosser PM, the applicant had filed and served Points of Claim; and the respondent had filed and served Points of Defence. The applicant’s Points of Claim did not clearly set out the legal basis of his claim.

21. However, at the hearing, the Tribunal identified that the relevant legal issues that appeared to be in dispute involved:

1. Breach of contract;

2. Whether there was unconscionable conduct under ss 21-22 of the Australian Consumer Law 2010 (NSW) (ACL);

3. Whether there were unfair contract terms for a small business contract under ss 23-28 of the ACL.

Applicants Documentary Evidence

22. The applicant’s documentary evidence is summarised as follows:

23. Services Agreement with Uber and Uber Community Guidelines – Australia and New Zealand. The relevant contents of such documents are detailed later in this decision.

24. Statutory declaration of the applicant dated 9 November 2022. The statutory declaration is brief. The statutory declaration states that “the accusations made against me are all false and not valid;” “I have always treated by passengers with the utmost respect and integrity and have followed Uber’s community guidelines and policies;” and “I would frequently encounter intoxicated riders who would complain about the surge pricing and lodge a report in order to get a refund and a free trip.”

25. A statement of the applicant dated 29 August 2023, addressed to Uber’s legal department and headed “wrongful deactivation of my Uber driver account”. The statement contains assertions that the applicant has been with multiple positive ratings and satisfactory reviews. The applicant states that the respondent gave no formal notice or indication that his account would be deactivated on or about 10 August 2023. The statement requested that the respondents reactivate is Uber account within 10 business days, or the applicant would take legal action and also “reserves the right” to “publish my deactivation on all social media platforms”.

26. The statement contains the following passage:

“the allegations are absolutely false and very inaccurate as I can say with certainty that no circumstances as of such have occurred during my time driving for Uber. As I work late nights especially on Friday and Saturday passengers that are very intoxicated tend to request trips with large surge prices and then ask for a refund as they went in a state of awareness when they requested the Uber. This is a common ongoing practice amongst riders as this has occurred to many of my fellow driver partners who are also innocent. I will be following that up with further legal action in the small court if no resolution is achieved and I will review reiterate that further below.”

27. An email conversation thread between the applicant and Uber in the period from 10 August 2023 to 19 August 2023.

28. The email thread commences with a message from “Mary from the community operations team at Uber” to the applicant. It states as follows:

“We’ve received a concerning report from your rider from a recent trip that you may have made comments about a riders appearance due to the nature of this feedback, with temporarily removed your access to the Uber app while we investigate further. If you have any information as to why this feedback may have been received, you can let us know by replying to this message and will take this on board. We look forward to hearing from you.”

29. The applicant responded on 11 August 2023 by stating he had not made any comments about a riders appearance, and if either “mentioned which report you got I can explain”. The applicant then sent a series of messages to Uber on 11 August 2023 and 12 August 2023 seeking a response from Uber. The applicant stated as follows in various messages:

“I had one customer yesterday pushing me for speed up and rushing me out. That customer was inrush and I told I can do my best but I can’t break rules it’s dangerous for us and other people. That customer was very rude but I did not make any comments stop I just focus on my drive. I dropped safely stop I gave her low rating. I hope you understand.”

“I been driving Uber as driver last three years. I always take care of my customers and my responsibilities. I never had any problem. Please try to fix it so I can go back to work. Thanks.”

“Hi Mary. This Ranjit Singh. I have not made any comments on customer appearance. I had one customer was pushing for speed up and rushing me make illegal turns I just explained to customer you fast as fast as I can but I can’t debeak (sic) rules it’s not safe for us and other people. She was very rude in behaviour very bad towards me. I did not say anything and just focus on my drive. And dropped on destination safely. I’ve been driving Uber last three years I always respect or customers and do my job with care and responsibilities and I never made any silly comments to anyone. You can check my records with Uber. I always stay in good rating. I hope you understand because I drive Uber as full-time worker. Please try to fix it put me back to work. I will be thankful. Thanks Mary.”

30. On 13 August 2023, the applicant received the following message from Uber:

“Hi Ranjit, as previously mentioned, we’ve received a report from a rider on one of your recent trips that you may have sexually inappropriate behaviour. Reports of this behaviour are extremely concerning and are in direct violation of our community guidelines. As such, in the interests of maintaining the safety of all users of the Uber app we decided to permanently deactivate your account as a result of this feedback. User safety is something we take very seriously here at Uber, so we hope you understand our position. This was not an easy decision as we value everyone who partners with us. If you believe that our decision to deactivate your account should be reviewed, you are able to request an appeal by following this link you may provide additional information or documents, however, please ensure that they are relevant, or have not been previously shared with us. Please also ensure that you have a valid legal basis to provide us with this information… A member of our team will begin the review process. Please note this can take up to 7 – 10 business days, but it may take longer. Rest assured we’ll send you a message letting you know the outcome of your request. By providing this information to Uber, you hereby confirm that you have the appropriate legal basis to do so, including with respect to any personal data belonging to 3^rd parties. Please note that any information provided will be subject to our privacy notice.”

31. On 13 and 14 August 2023, the applicant sent the following message to Uber:

“I had not done anything. It was wrong feedback from customer. Only because customer was upset because there was traffic and I could not make speed up because it was dangerous please try to understand. I did not do anything.”

“You should check my records with Uber. I never made anything like that. It was only something made it because he wants me put in trouble. Please I beg you verify it again proper. So I can go back to work.”

32. On 19 August 2023, the applicant sent a lengthy message to Uber. That message relevantly stated as follows:

“… Your company has restricted my access from the Uber platform due to a false accusation of sexually inappropriate behaviour – commenting on a riders appearance by a rider. The allegations are absolutely false and very inaccurate that no circumstances is of such have occurred during my time driving for Uber. As I work late nights especially on Friday and Saturday passengers that are very intoxicated tend to request trips with large surge prices and then ask for a refund as they went in a state of awareness this is a common ongoing practice amongst riders as this has occurred to many of my fellow driver partners who are also innocent… What has unfolded in front of me is nothing less than completely unacceptable and I have lost my career by doing nothing but following the exact community service to my riders. My rating is high and I have received multiple compliments from riders demonstrating my high quality of service provided to my riders on the Uber platform… This wrongful deactivation has caused an immense impact on my physical and mental health and well-being… That your company unilaterally deprives its employees of the right to work and earn income with no notice or opportunity to appeal is an unacceptable and actionable offence… If you do reinstate my Uber driver account in the given notice. Then I will consider the matter resolved and no further legal action will be taken….”

33. On 22 August 2023, Uber sent the following message to the applicant:

“Hi Ranjit, thank you for reaching out we have taken a further look into your account and determined our initial decision will stand. Uber takes the safety of all our users very seriously so we hope you understand our initial decision. This decision is final, please do not attempt to contact Uber again regarding this matter. In the event that circumstances changed or additional information is brought to our attention, we will let you know.”

34. The applicant provided a table summary of his earnings before the deactivation of the Uber account, and his earnings after the deactivation of the account. The gross earnings from Uber are identified as $206,850.99. He identifies “other potential deductions “being “in the service fee;” “other charges from Uber;” and “charges from third parties (tolls\airports) in the amount of $78,426.40.

35. On the basis of this, the applicant identifies his “net earnings” as $133,169.23 in the 2022 – 2023 financial year. The applicant calculates net weekly earnings on the Uber platform of $2,560.95 per week the table then identifies that after deactivation of his Uber account, earnings were “nil”.

36. The applicant states that the deactivation date was 10 August 2023, and he is claiming damages to the date “claim was completed” being 18 September 2023. This is identified as six weeks. On the basis that his average weekly earnings on Uber (net) was $2,560.95, he calculates the loss for a “six week period” as $14,268.13. However, the applicant states that “I will only be claiming $10,000 from that amount for my NCAT claim”.

37. The applicant provided a “tax summary” from Uber for the period 1-30 September 2023. That states document states the applicant’s earnings were nil.

38. The applicant provided a “tax summary” from Uber for the period 1-31 October 2023. That document states the applicant’s earnings were nil.

39. The applicant provided a “tax summary for the period “FY 2022/2023” from Uber. That document identifies a “transportation income” of $206,850.99. Further there was a quote miscellaneous” and “tips” amounts in the total sum of $4,744.64. The document then lists “other potential deductions,” being “Uber service fee;” “other charges from Uber;” “charges from third parties (tolls/airports/government);” and “on trip milage.” The total amount of the “other potential deductions” is identified as $78,426.40.

40. The applicant provided an extract from Uber under the heading “Uber earnings – trip invoices” which identifies 10 trips on 10 August 2023 with the first name of various passengers.

41. The applicant provided a tax invoice issued on 10 August 2023 by Uber on behalf of the applicant identifying various fees and charges in the amount of $54.90.

42. The applicant provided an extract of the applicant’s “profile” on Uber indicating that the applicant had made 19,956 trips over 3 years, and a brief extract of some of the “compliments” the applicant had received. It stated as follows:

1. “Gold Diamond” rating.

2. 4.98 stars out of a possible 5 stars.

3. 19,956 trips over 3 years.

4. 87% satisfaction rate.

Respondents Documentary Evidence

43. The respondents’ documentary evidence was filed on 6 December 2023. The respondents bundle of documents included a chronology, and a written outline of submissions. There is reference in the respondent’s submissions to previous unreported decisions of the Tribunal at first instance dealing with Uber where applicants had been unsuccessful.

44. However, the evidentiary material was contained in the affidavit of Ms McCormick dated 6 December 2023. Ms McCormick is an in house solicitor who works for Uber.

45. Ms McCormick asserts that she is “authorised to make this affidavit on behalf of the respondent, being an entity within the Uber group of companies in Australia.”

46. The affidavit contains a copy of the “Services Agreement” that the parties entered into on 13 April 2020.

47. Clause 1 of the services agreement relevantly states:

“…In order to use the Uber services and driver app you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this agreement you, Raiser Pacific and Uber shall be bound by the terms and conditions set forth below. Reference herein to “Uber group” shall be taken as a reference to Raiser Pacific, Uber and each of their if affiliates.”

48. Clause 4 of the services agreement relevantly states:

“You acknowledge and agree that Raiser Pacific’s provision of the Uber services creates a legal and direct business relationship between Raiser Pacific and you…Raiser 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, your disparagement of Raiser Pacific, Uber or any of their affiliates, or your act or omission that causes harm to Raiser Pacific’s, Uber’s, or their affiliates brand, reputation or business as determined by Raiser Pacific in its sole discretion. Raiser Pacific also retains the right to restrict you from using the Uber services or any other reason at the sole and reasonable discretion of Raiser Pacific. Uber 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 Uber (“driver ID”) and/or the driver app, in the event of a violation of this agreement, any relevant uber policy, including the community guidelines… Your disparagement of Raiser Pacific, Uber or any of their affiliates, your act or a mission that causes harm to Raiser Pacific’s, Uber’s, or their affiliates brand, reputation. 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.”

49. Clause 16 of the service agreement states as follows:

“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, Raiser 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 parties’ material breach of this agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of any other party, or upon such other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Raiser Pacific may restrict you from using the Uber services and/or Uber may deactivate or otherwise restrict you from accessing or using the Driver ID and/or Driver App immediately, without notice, in the event that you no longer qualify, under applicable law or this standards and policies of Raiser Pacific, Uber and their affiliates, to provide transportation services or to operate the vehicle, or as otherwise set out in this agreement.”

50. Clause 35 of the service agreement states:

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…

51. The affidavit contains a copy of the Uber Community Guidelines – Australia and New Zealand. A dated 1 June 2020, and 17 January 2022. The guidelines are substantially similar for the relevant time periods, but do contain slight differences in respect of “inappropriate conduct and sexual assault and misconduct.” Accordingly, it is relevant to set out the applicable provisions of both guidelines as the respondent relies upon conduct before and after 17 January 2022 to justify its suspension and/termination of the services agreement with the respondent.

52. The Community Guidelines dated 1 June 2020 relevantly states as follows:

Inappropriate conduct and sexual assault

We all value our personal space and privacy. It’s okay to chat other people but it’s not okay to comment on someone’s appearance or personal circumstances. Be mindful that people may not appreciate being asked about their personal life,, work, where they live or their relationship status.

Personal space and privacy should be respected at all times.

The following list provides examples of conduct that is inappropriate (that may also be considered sexual harassment), but is not exhaustive:

Behaviours and comments that could make people feel uncomfortable. Some examples include nudges, sexual gestures, whistles and winks. Don’t touch or flirt with people you don’t know.

Certain conversations that could be perceived as harmless can be offensive. Don’t comment on appearance, perceived gender identity or sexual orientation. Unrelated personal questions may offend, such as “are you in a relationship?” Avoid discussions about your using explicit language or making jokes about sex.

Any sexual conduct. Uber has no sex rule. Sexual contact is prohibited while using the Uber apps, including during a trip or delivery, regardless of whether you know the person or they give their consent. This includes activities such as sexual intercourse, solicitation of sexual intercourse, masturbation or touching an exposure of sexual body parts.

Sexual assault and sexual harassment of any kind is prohibited and may also be against the law. Sexual assault and misconduct refers to sexual contact or behaviour without explicit consent of the other person.

Threatening and rude behaviour

Aggressive, confrontational or harassing behaviour is not allowed. Don’t use language or make gestures that could be disrespectful, it may be a good idea to stay away from personal topics thank potentially be divisive, as these may unlawfully discriminate, like religion and political beliefs.”

53. The Community Guidelines dated 17 January 2022 relevantly stated as follows:

“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 have 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.

Inappropriate conduct and sexual assault and misconduct

We all value our personal space and privacy. It’s okay to chat with other people. But please don’t comment on someone’s appearance or ask whether they are single or about their personal circumstances. Be mindful that people may not appreciate being asked about their personal life, including about children, work, where they live or their relationship status.

Sexual assault and sexual misconduct of any kind is prohibited. Sexual assault and misconduct refers to sexual contact or behaviour without explicit consent of the other person.

Personal space and privacy should be respected at all times. The following list provides examples of inappropriate conduct but is not exhaustive:

Do not engage in behaviours or make comments that could make people feel uncomfortable.

Do not ask personal questions (for example, about relationship status or sexual orientation). Certain conversations that could be perceived as harmless can be offensive. Avoid discussions about your own or someone else’s sex life, using explicit language, or making jokes about sex.

Do not comment on appearance (for example, derogatorily or “complimentary unquote comments), perceived gender identity or sexual orientation.

Do not make explicit comments or gestures (for example, slurs, or graphic or suggestive messages).

Do not flirt (for example, non-verbal (example, nudges, whistles, winks), suggestive flirting or being to physically close).

Do not display indecent material (for example, sexually suggestive objects or pictures).

Any sexual conduct. Uber has a no – sex rule regardless of whether you know the person or they give you their consent. This includes activities such as sexual intercourse, masturbation touching or exposure of sexual body parts.

Threatening and rude behaviour

Aggressive, confrontational or harassing behaviour is not allowed. Don’t use language, make gestures or take actions that could be disrespectful, threatening, or in appropriate. For example, don’t share graphic images (such as those that are sexually explicit or depict physical violence) with others in the Uber community; this includes unsolicited sharing of such images through Uber’s online support systems or in conjunction with an Uber marketplace platform experience. It is also a good idea to stay away from personal topics they can potentially be divisive, like religion and political beliefs.

…”

54. The affidavit of Ms McCormick sets out the correspondence between the respondents and passengers from 24 March 2021; and the correspondence between the respondents and the applicant from 24 March 2021. That correspondence is the contemporaneous written record of the complaints by passengers and the interaction between Uber and the applicant in response to those complaints. Uber did not communicate with the applicant other than through the Uber app.

55. The affidavit does not provide screenshots of the said correspondence, but there is no reason to believe the written material is not an accurate record of the interactions.

56. Names of persons making complaints about the applicant have been redacted, as has the name of the person from the “community operations team” at Uber interacting with the applicant.

57. Although some of the interactions were contained in the applicant’s documents and referred to previously in this decision, it is appropriate to set out the whole of the interactions.

58. According to the affidavit of Ms McCormick, the following complaints were made; and the following interactions occurred between the applicant and Uber:

The App Communications Involving the Complaints and the Decision to Terminate

24 March 2021

59. The passengers stated:

“Driver was nice enough and made small talk, but then it spiralled to asking me inappropriate questions such as where I live – I mentioned the suburb that he want to know specifically where (what number, what building, do you live alone) stop then he made comments about how attractive I was and described me as “exotic,” “chocolate,” “sexy.” It’s a hell no from me. I don’t want to be paired with this driver again.”

60. The response to this complaint by the applicant, and the follow up by Uber was as follows:

61. Applicant:

“Hi, I have not done anything that someone feels uncomfortable while I ride. I respect my riders and always take care of them, I done today one ride from city to botany and she don’t have mask I just told her about mask is mended Tory and she sounds not happy I think she might be made a wrong complaint, you can check my history and my record, I always got good feedback from customer, please let me know if anything you need to know more thanks.”

62. Uber:

“Thank you for reaching out, Ranjit. We can understand your concern regarding feedback of this nature, however it is important to let you know about this kind of feedback. We also want to make you aware of it and is as it is something we take very seriously here at Uber. The safety of all users is one of our top priorities, and we will always address any feedback that indicates unsafe behaviour. Thanks for your understanding.”

27 October 2022

63. The passenger stated:

“

…

There was sexually inappropriate activity: true

What happened?: Asking me what my ethnicity was, if I’m free on weekends, looking up and down on me while driving I felt very uncomfortable and disturbed by this driver.”

64. Uber then set the following to the applicant:

Hi Ranjit,

This is (redacted) form the Community Operations team. We’ve received a report form a rider from one of your recent trips that you may have made flirty comments that made them feel uncomfortable. We ask all our driver-partners to commit to our Community Guidelines when the sign up to partner with Uber and behaviour like this violate those guidelines. We conduct regular reviews of users on the app to ensure that both the rider and driver-partners are adhering to these guidelines-those who fail to do so may be permanently removed from the app. And as reminder, Uber has a no-sex rule. That’s no sexual conduct between driver-partners and riders. Ensuring the safety and wellbeing of users is very important to us here at Uber, so we hope you can understand why it is necessary to reach out to you. Thank you for your understanding.

65. The applicant did not respond to this correspondence.

15 March 2023

66. There are three entries for 15 March 2023. As the respondent has redacted the name of, it is unclear whether three different passengers complained on 15 March 2023, or one passenger complained three times.

67. The complaints are set out as follows:

“Do not pair me with this driver again: true

What did the driver partners say or do? Intrude my privacy and I don’t feel comfortable

Did the driver partner make physical contact with you? No, but I don’t want this driver to pick me up again”

…

“Sexually inappropriate behaviour: true

What did the driver say or do?: Some interest in passengers privacy. Just make people feel uncomfortable.

Did the driver make physical contact with you? No

Were you injured? Did you visit a doctor, nurse or hospital?: No but I don’t want him to pick up my Uber request again.”

…

“My driver made me feel unsafe or was inappropriate: true

What did the driver partners say or do?: Intrusive inappropriate private questions

Did the driver partner make physical contact with you? No”

68. Uber responded to the passenger as follows:

“Hi (name redacted)

Thanks for raising this concern.

Given the seriousness of your feedback, can you please tell us what he exactly ask or say to you? Getting as many details as possible would help us take the appropriate next steps.

Following a review of your feedback I can let you know that our team has taken steps to ensure your account will not be paired with this driver – partners account in the future.

Use a safety is important to us here at Uber so we will treat this incident very seriously.

We look forward to hearing from you.”

69. The respondents’ documents do not indicate that it took any action to seek comments or a response from the applicant, nor did it take any further contemporaneous action in respect of the complaint of 15 March 2023.

9 August 2023

70. There are two entries on the Uber app for complaints on 9 August 2023. Again, it is unclear whether to passengers complained, or one passenger made to separate entries.

71. The first entry relevantly states as follows:

“...

My driver was unprofessional or rude: true

…

Do not pair me with this driver again: false”

72. Uber responded to this by stating that it had “made a note of your feedback on the driver – partners account” and that Uber would “not match you with this driver – partner again.” The response also stated that the passenger would be given a 50% discount off the passenger’s next two trips.

73. On 9 August 2023, there was a second entry on the Uber app. The entry was as follows:

“My driver’s language was inappropriate/threatening: true

What did the driver partner say or do?: Driver was asking me if I have children and if I am single or married. He proceeded to tell me I look like a Bollywood actress which he has met and showed me a photo of them together. He continued to tell me I am very beautiful. I felt highly uncomfortable.”

74. Uber replied to the passenger as follows:

“Hi, (name redacted)

Thanks for letting us know about this incident.

We’re sorry to hear that the driver/delivery person may have sexually inappropriate behaviour. This is not the experience we want you to have. User safety is important to us here at Uber and this behaviour will not be tolerated, so we are happy you reached out to us.

We will be looking into this incident and take the appropriate steps to ensure that this experience doesn’t happen again. Our technology is a two-way street for both riders and driver – partners, and driver – partners that behave inappropriately may have their access removed.

Because of this, we’ve gone ahead and refunded the full amount of this Rider payment. This amount should reflect within five – 10 business days. Additionally, we made sure that you will not be paired with this driver – partner again.

Again, we really appreciate having this kind of feedback as we aim to make sure only excellent riders and driver – partners are using the system.

You can always get in touch through the “help” section of the app. We are here to help.”

75. The respondents’ documents contain the exchange between Uber and the applicant between 10 August 2023 and 22 August 2023. Relevantly, that includes Uber informing the applicant of the complaint, the applicant’s response, and Uber’s decision both to deactivate access to the applicant, and to reaffirm that decision after review.

76. The exchange is as follows:

10 August 2023

77. Uber:

“Hi Ranjit, this is (name redacted) from the community operations team at Uber. We have received a concerning report from your rider from a recent trip that you may have made comments about a riders appearance. Due to the nature of this feedback, we have temporarily removed your access to the uber app while we investigate further. If you have any information as to why this feedback may have been received, you can let us know by replying to this message and will take this on board. We look forward to hearing from you.”

11 August 2023

78. Applicant:

“I have not made any comments about riders appearance I respect my customers. If you mentioned which report you got I can explain.”

79. Applicant:

“it could be a mistake.”

12 August 2023

80. Applicant:

“I have not done anything about some appearance. I had one customer make me rushing and told me speed up and take some illegal turns. I just told that I can do my best to take your destination as quick as possible and safe. I can’t break traffic rules it’s not safe for us and other people. Customer was very rude. But I did not say anything. I just focus on my drive. I have been working as uber driver last three years. And respect our customers. I don’t know why one made wrong feedback about my service. You can try to understand. I have not made any comments about someone appearance. Hope that you understand and put me back to work. Thanks.”

12 August 2023

81. Applicant:

“Hi Mary. This Ranjit Singh. I have not made any comments on customer appearance I had one customer was pushing for speed up and rushing make me illegal turns I just explained to customer I can drive you fast as fast as I can but I can’t debeak rules it’s not safe for us and other people. She was very rude and behaviour very bad towards me. I did not say anything and just focus on my drive. And dropped on destination safely. Been driving uber last three years I always respect all customers and do my job with care and responsibilities and I’d never made any silly comments to anyone. You can check my records with Uber. I always stay in good rating. I hope you understand. Because I drive uber as full-time worker. Please try to fix it put me back to work. I will be thankful. Thanks.”

13 August 2023

82. Uber:

“Hi Ranjit, as previously mentioned, we have received a report from a rider from one of your recent trips that you may have sexually inappropriate behaviour. Reports of this behaviour are extremely concerning and are in direct violation of our community guidelines. As such, in the interests of maintaining the safety of all users of the uber app, we’ve decided to permanently deactivate your account as a result of this feedback. User safety is something we take very seriously here at uber, so we hope you understand our position. This was not an easy decision as we value everyone partners with us. If you believe that our decision to deactivate your account should be reviewed, you are able to request an appeal by following this link. You may provide additional information or documents, however, please ensure that they are relevant, or have not been previously shared with us. Please also ensure that you have a valid legal basis to provide us with this information. Once your request has been submitted, a member of our team will begin the review process. Please note, this can take up to 7 – 10 business days, but it may take longer. Rest assured, will send you out a message letting you know the outcome of your request. By providing this information to Uber, you hereby confirm that you have the appropriate legal basis to do so, including with respect to any personal data belonging to 3^rd parties. Please note that any information provided will be subject to our Privacy Notice.”

83. Applicant:

“I had not done anything..it was wrong feedback from customer…only because customer was upset because there was traffic and I could not make speed up because it was dangerous pls try to understand…I did not do anything…”

14 August 2023

84. Applicant:

“You should check my records with Uber I never made anything like that…it was only someone made it because he wants me put in trouble..please I beg you to verify it again proper so I can go back to work...”

16 August 2023

85. Applicant:

“I had not breach any Cummings (sic) guidelines.. it’s a wrong feedback from customer…it could be understanding...I been working with u guys last three years and I always work with respect and cares..someone made fake reports and u just terminate from uber partnership…it’s a shame there is no respect for driver..”

17 August 2023

86. Uber:

“Hi Ranjit. The decision to deactivate your account was not taken lightly and the chance of reversing this decision is unlikely. While we understand this news may be upsetting, our decision is final. We appreciate your understanding.”

87. Applicant:

“Re: The deactivation/wrongful termination of my account…The allegations are completely false and very inaccurate and I can say with certainty that no circumstances as such have occurred during my time driving for Uber. As I work late nights especially on Friday and Saturday passengers that are very intoxicated tend to request trips with large surge prices and then ask for a refund as they weren’t in a state of awareness when they requested the Uber…I have lost my career by doing nothing but following the exact Community Guidelines…I have been a very proficient and professional driver partner who values his work and provides only the best quality of service to my riders…I am giving you 10 days to reactivate my account or else I will be proceeding with my Statement of Claim in the Small Court Tribunal…Please treat this notice with the utmost urgency and I am expecting a swift decision in the reactivation of my account…”

22 August 2023

88. Uber:

“Hi Ranjit. Thank you for reaching out. We have taken a further look into your account and determined that our original decision will stand. Uber takes the safety of all our users very seriously, so we hope you understand our initial decision. This decision is final, please do not attempt to contact Uber again regarding this matter. In the event that circumstances change or additional information is brought to our attention, we will let you know.”

89. No direct evidence is contained in the affidavit of Ms McCormick as to who considered the complaints and made the decision to suspend, then terminate. No direct evidence is provided as to what matters were taken into account, or how they were weighted.

90. Rather, in addition to the Services Agreement; the Community Guidelines and the contemporaneous exchanges through the app, the affidavit contains reference to general policies of Uber. Ms McCormick describes those policies as follows:

1. The parties are bound by the Services Agreement, and a term of the Services Agreement is that the driver will comply with the Community Guidelines.

2. Prior to using the Uber App, the driver must complete a background check and verify their identity by uploading documentary evidence of their identity to the Uber app (e.g. birth certificate, passport or driver’s license).

3. Within the Uber app, after the provision of transportation services, users are given the opportunity to “rate” the driver; provide feedback about the driver; or make complaints about the driver.

4. The applicant “used his Uber app account to provide transportation services to users” in the period between 15 October 2020 and 10 August 2023.

5. In that period of time, Uber received “numerous” complaints. However, the only complaints identified were the complaints on 24 March 2021; 27 October 2022; 15 March 2023 and 9 August 2023.

6. Uber deactivated the applicant’s Uber account on 13 August 2023 due to the complaints.

7. Uber “reviewed” the decision to deactivate upon request by the applicant.

8. After “review” the applicant was notified on 22 August 2023 that the decision to deactivate his account was affirmed.

Oral Evidence at the Hearing

91. At the hearing, the applicant gave oral sworn evidence.

92. He gave his version of events to each of the compliant incidents.

93. The applicant denied that he had made personal comments or comments of a sexual nature that would made the passenger feel uncomfortable and breach the Community Guidelines.

94. In respect of the complaint in March 2021, the applicant stated that he recalled dropping a passenger off at a warehouse. He and the passenger were wearing masks as it was then a requirement to do so. He recalled giving the passenger a low rating, and believed this motivated her to make a complaint.

95. In respect of the complaint in October 2022, the applicant stated that he was never informed by Uber about the complaint, and that was the reason he did not respond. He stated that passengers often make complaints about drivers when they are intoxicated.

96. In respect of the complaint in March 2023, the applicant stated that the correspondence from Uber to him indicated that no response was required, so he did not respond. He recalled an unhappy passenger. The passenger directed the applicant to park in a no-stopping zone because the passenger had luggage. The applicant refused. The applicant gave the passenger a low rating. The applicant believed that this passenger may have complained to Uber as a response to the applicant giving the passenger a low rating.

97. In respect of the complaint in August 2023, the applicant recalled a passenger who demanded he speed up when travelling to Sydney Airport, and he refused. The passenger was unhappy about this. He gave the passenger a 1 or 2 star rating. He believed this customer may have concocted a false complaint.

98. At the end of his evidence, the applicant reiterated that he had not made any of the personal or sexual comments alleged in the complaints, and he had complied with the Community Guidelines.

99. At the conclusion of the applicant’s oral evidence the respondent was given the opportunity to cross examine the applicant. The respondent stated that it did not seek to cross examine the applicant. Accordingly, the applicant’s oral evidence was unchallenged.

CONSIDERATION

Jurisdiction of the Tribunal

100. The jurisdiction of the Tribunal emanates from Part 6A of the Fair Trading Act 1987 (NSW) (FTA). Section 79J of the FTA states that the Tribunal has “jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division”.

101. The provisions of Part 6A of the FTA do not identify what causes of action the Tribunal can consider.

102. However, they confer jurisdiction on the Tribunal. The provisions also include some of the types of remedial orders that the Tribunal may make if a cause of action is established. Certain causes of action (e.g. under the ACL (NSW)) have their own remedial provisions within the applicable legislation (for a discussion of the interaction between the ACL (NSW) and Part 6A of the FTA see Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 (Lam) and Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 (Saad)).

103. The Tribunal has jurisdiction under Part 6A of the FTA to hear and determine common law causes of action, such as breach of contract (Lam at [131]). It also has jurisdiction to hear and determine causes of action (and remedies) under the ACL (NSW). By reason of ss 28 of the ACL (NSW), the ACL is a law of NSW.

104. In summary, the Tribunal has jurisdiction under Part 6A of the FTA if:

1. The applicant is a “consumer.”

2. The claim is a “consumer claim.”

3. The proceedings have a sufficient nexus with NSW.

4. The claim is within the jurisdictional limit.

5. The proceedings have been commenced within the applicable limitation period.

6. The proceedings do not involve diversity jurisdiction issues or matters of federal jurisdiction that can only be determined by a court (Attorney General NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 245; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16).

Is the Applicant a “consumer.”

105. Section 79D of the FTA relevantly defines “consumer” for the purpose of Part 6A as:

“any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under contract) or with whom or with which a supplier has entered a contract that is collateral to a contract for the supply of goods or services:

(a) a natural person,

…

106. The applicant is a natural person.

107. The Tribunal is satisfied that the respondent is a supplier of services to the applicant.

108. In its written submissions, the respondents’ Solicitor describes the respondent as “an independent provider of Transportation Services to Users who use the Uber App for Transportation Services.”

109. “Services” are defined in s 79F of the FTA relevantly as follows:

(1) For the purposes of this Part, a reference to services is a reference to any of the following:

…

(i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.

110. The respondents provided a benefit, privilege or facility to the applicant in trade or commerce. There was a commercial agreement between the parties where the applicant used the Uber app to generate income to the applicant in trade or commerce, with bookings made through the app and payments made through the app. Payments are made by passengers to Uber through the app, and Uber then paid an agreed portion to the applicant.

Is the Claim a Consumer Claim?

111. Section 79E of the FTA states as follows:

79E Meaning of “consumer claim”

(cf CC Act 1998, s 3A)

(1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services—

(a) the payment of a specified sum of money,

(b) the supply of specified services,

(c) relief from payment of a specified sum of money,

(d) the delivery, return or replacement of specified goods or goods of a specified description.

(2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

112. The applicant is claiming a specified sum of money in these proceedings, being damages of $10,000.

113. “Supply” is defined in s 79G of the FTA as follows:

79G Meaning of “supply”

(cf CC Act 1998, s 3 (1) (definition of “supply”) and s 3 (2))

…

(2) For the purposes of this Part, a reference to the supply of services includes a reference to any of the following—

(a) providing, granting or rendering services for valuable consideration,

(b) agreeing to supply services,

(c) supplying services together with goods.

114. The respondents are providing, granting or rendering a service for valuable consideration. The “service” is the use by the applicant of the Uber app to pick up passengers who will pay a fee to be transported. The respondents provide that app and facilitate its use. The respondents receive valuable consideration from the applicant because the passenger picked up by the applicant pays monies to Uber for the provision of the trip, and then Uber pays an agreed portion of the monies received to the applicant for the service of driving the vehicle from the pickup location to the destination.

115. Further, s 79H of the FTA states:

79H Persons presumed to be consumers

(cf CC Act 1998, s 4)

For the purposes of this Part—

(a) a person or body claiming to be a consumer is to be presumed to be a consumer until the contrary is proved, and

(b) in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person or body claiming to be a consumer is not a consumer is on the party who seeks to establish that fact.

116. In respect of “supplier,” the definition in s 79D of the FTA is “a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services”.

117. The respondents are a “supplier” within the meaning of that definition. It supplies to the applicant the facility of being able to use the app to obtain passengers and derive income.

118. The Tribunal is satisfied that the claim is a “consumer claim” brought by a “consumer” under Part 6A of the FTA.

Is the Claim within the Jurisdictional Limit?

119. Pursuant to s 79S of the FTA, the applicable jurisdictional limit of the Tribunal is $100,000. The amount claimed by the applicant for damages is substantially less than the jurisdictional limit of the Tribunal.

Is There a Sufficient Nexus with New South Wales?

120. The contract between the parties was formed in New South Wales, and the services provided in New South Wales. There is a sufficient nexus pursuant to s 79K of the FTA.

Have The Proceedings Been Brought Within the Applicable Time Limit?

121. The primary cause of action relied upon by the applicant is breach of contract.

122. Pursuant to s 79L(1)(a) of the FTA, the Tribunal has jurisdiction to hear and determine a consumer claim if the proceedings have been brought within three years from the date on which the cause of action first accrued.

123. As the applicant was deactivated from using the Uber app in August 2023, the contract between the parties was terminated on the date of deactivation. Accordingly, the proceedings have been brought within the relevant limitation period.

Is There a Federal Diversity Jurisdiction Issue?

124. In outline of submissions dated 6 December 2023, the respondents refer to the Tribunal not having jurisdiction because Uber BV is the licensor of the Uber app and is based in the Netherlands. The respondents’ outline of submissions briefly refers to the decision in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (Burns v Corbett). There is no elaboration as to how the mere fact that the licensor of the app being a company registered in the Netherlands attracts the operation of the principles in Burns v Corbett. No diversity jurisdiction issue arises to deprive the Tribunal of jurisdiction.

125. The respondent has also failed to raise any defence under Commonwealth legislation that would deprive the Tribunal from having jurisdiction under the principles set out in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16.

Conclusion-Jurisdiction of the Tribunal

126. The Tribunal has jurisdiction to hear and determine this dispute under Part 6A of the FTA. As discussed previously, the first cause of action to consider is breach of contract.

Breach of Contract

127. If the respondents unlawfully terminated the Services Agreement between the parties, then their actions constitute a repudiation. The well-established principles regarding repudiation were summarised in DB Homes Australia Pty Ltd v Kes [2019] NSWCATAP 221 as follows at [45]-[46]:

Repudiation of a contract occurs when a party breaches a fundamental or essential term of the contract; or there was a sufficiently serious breach of a non-essential term of the contract; or a party demonstrates an unwillingness or inability to render substantial performance of the contract and the innocent party elects to accept the repudiation and treat the contract as having ended: Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

As a general rule, wrongful termination of the performance of a contract, where a party has no legal right to do so, will constitute a repudiation of obligation because such an act indicates an absence of readiness or willingness on the part of the party who has wrongfully terminated to perform its obligations under the contract: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 at 453; Curnow Consulting Pty Ltd v JPD Media and Design Pty Ltd t/as Durie Design [2017] NSWSC 1171 at [344].

128. To determine whether a contract has been breached, the starting point is the terms of the contract itself. This involves consideration of well-established contract law principles.

129. The terms of the Services Agreement incorporate adherence to the Community Guidelines (cl 4 of the Services Agreement). The terms of the agreement are in writing. They must be assessed objectively, and not from perspective of the subjective beliefs or views of the parties (Cherry v Steele-Park [2017] NSWCA 295 at [57]-[84]). Words in a contract are given their plain and natural meaning, and the terms of the contract need to be read as a whole.

130. As the respondent is the author of the written contract, to the extent of any ambiguity the interpretation of the contract is in favour of the applicant, rather than the respondent (the ‘contra proferentem rule’).

131. Under cl 6 of the Services Agreement, the respondent may “deactivate” or “otherwise restrict” its drivers from accessing the app at its “sole discretion”.

132. However, under cl 16 of the Services Agreement, termination may occur either (a) without cause on 30 days’ notice; or (b) immediately, without notice, for “material breach of this agreement”.

133. In Forklift Engineering Australia Pty Ltd v Powerlift (Nissan) Pty Ltd [2000] VSC 443 “material breach” was described as follows (at [68]-[70]):

“A “material breach” of a contract does not appear to be a concept known to the law of contract. It is then a question of determining the parties’ intention of the use of the expression “material breach” in the agreement. In so doing I identify the ordinary sense of the word or words used unless such application leads to absurdity or inconsistency is a breach of a fundamental term of the contract.

The dictionary meaning of "material" is "essential" or "important": see Oxford English Dictionary. At common law the word "material" has been attributed a meaning of "significance" in the context of a material risk: see Rogers v Whitaker (1992) 175 CLR 749, 490. In the context of statutory construction the word "material" has been attributed a meaning of "significance". Also, see: Duke of Westminster v Birrane (1995) 3 All ER 416, 422-3, CA. Applying these meanings to the expression "material breach" in the termination clause I consider the expression can be equated with the expression known to the law of contract of "fundamental breach".

A "fundamental breach" has been held to mean a breach of a contract that goes to the very root of the contract: see Suisse Atlantique Societe d'Arment Maritime SA v NV Rotterdamsche: Kolen Centrale (1967) 1 AC 361, 397, 421-2. Whether a breach of contract constitutes a fundamental breach will depend upon the contract and all the facts and circumstances of the particular case: see Suisse Atlantique at 422. It is relevant, also, to consider the consequences of the act constituting the breach: Harbutt's "Plasticine" Limited v Wayne Tank and Pump Co Limited (1970) 1 QB 447. A "fundamental breach" has been described as any breach which provides the promisee with a right to terminate performance of the contract: Suisse Atlantique, supra, at 397. It can consist of total non-performance of the contract: Suisse Atlantique at 431. It can be a breach that deprives a party of substantially the whole benefit of the contract: see Hong Kong Fir Shipping Co Limited v Kawasaki Kisen Kaisha Limited [1961] EWCA Civ 7; (1962) 2 QB 26, 71; Suisse Atlantique at 397, 410.”

134. In Tramways Advertising Pty Ltd v Luna Park (NSW) Pty Ltd (1938) 38 SR (NSW) 632 (Tramways), “fundamental term” was defined as:

“A term of the contract which went so directly to the substance of the contract or was so essential to its very nature that its non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all.”

135. In Koompahatoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 (2007) 233 CLR 115 (Sanpine) , Gleeson CJ. Gummow, Heydon and Crennan JJ referred and adopted the test of “essentiality” from Tramways as follows (at [47]):

“The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise.”

136. Even if there has not been breach of an essential term, a contract can be terminated if there is a sufficiently serious breach (or breaches) of a non-essential term (or terms) (Sanpine at [49]).

137. The actions of the respondent to permanently deactivate the ability of the applicant to access the Uber app on the basis of complaints is clearly a purported termination of the agreement for material breach under clause 16.

138. To invoke cl 16(b) of the Service Agreement to terminate, there must be a “material breach” of the agreement (or the Community Guidelines incorporated into the terms of the contract) sufficient to justify the exercise of its discretion to terminate the contract. The Tribunal accepts that the Community Guideline provisions pertaining to sexual conduct are an essential term of the contract.

139. Uber passengers, particularly if they are women, are in a position of vulnerability when in the vehicle and a safe environment free from unnecessary physical contact and comments of a sexual nature are clearly fundamental to the contractual arrangement between Uber and the driver.

140. The Community Guidelines not only referred to the standards upon which drivers are expected to comply, but the manner in which Uber considers complaints, reviews them, and may terminate the agreement between the parties.

141. The Community Guidelines relevantly state as follows:

How Uber Enforces Our Guidelines

Losing access to the Uber apps may be disruptive to your life or your business. That’s why we believe it is important to have clear standards that explain the circumstances in which you may lose access to the Uber apps. If you violate any applicable terms of use, terms of the contractual agreement you agree to when signing up for an account with Uber or any of these Community Guidelines, you can lose access to the Uber apps. And if you have more than one Uber account, such as a rider account and a driver-partner account, violating the Community Guidelines could also lead you to lose access to all Uber accounts.

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 potentially problematic behaviour we may contact you so that we can look into it. We may, at our sole discretion, also put a hold on your account return or turn your account in active until our review is complete.

Not following any one of our guidelines may result in the loss of access to your Uber accounts. This may include certain actions you may take outside of the app stop 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 apps. Any behaviour involving violence, sexual misconduct, harassment, discrimination or illegal activity while using the Uber apps can result in the immediate loss of access to the Uber apps. Additionally, when law enforcement is involved, we will cooperate with their investigation in accordance with our Law Enforcement Guidelines.

Lastly, all driver-partners and delivery partners wanting to use the Uber apps undergo a screening process, including motor vehicle record and background checks. A driver or delivery partner will lose access to the Uber accounts(s) if a routine motor vehicle record check, background check or other check and covers a violation of the Uber’s Community Guidelines or other criteria required by local regulators.

…

142. The written terms do not contain any definition of what is a “material breach,” nor of what constitutes a review of a decision to suspend or terminate by way of permanent deactivation from access to the Uber app.

143. Those contractual terms need to be given meaning. The respondents has a separate contractual right to terminate on “no grounds” on 30 days’ notice. However, in this matter, the relevant issue is whether the respondents had a proper legal basis for terminating the contract due to “material breach.;” and whether it conducted a genuine review. If the applicant was not in material breach, Uber was not justified in terminating the Services Agreement and it has repudiated the contract. If the termination is legally justified, the applicant is not entitled to damages for breach of contract.

144. If a term of a written contract is undefined or cannot be construed from the words of the contract, a term can be implied if it is necessary to give business efficacy to the contract. That principle was set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 as follows:

“For a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that it ‘goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”

145. In this matter, the Tribunal is satisfied that the phrase “material breach” does not mean any breach, but a sufficiently serious breach (either by way of number of breaches or the seriousness of a single breach such as, for example, if a driver was alleged to have committed a serious criminal offence). Further, it is necessary for there to be an implied term that any internal review of the decision to deactivate is conducted with genuine consideration of the merits. Otherwise, the review process is meaningless. It is Uber who has identified in its contractual provisions that a driver may seek review of the decision to deactivate (permanently or temporarily). The term review has no meaning if it is construed in a way that means that Uber is not required to have any genuine consideration of the drivers response to the alleged breaches by the driver of the terms of the agreement (including the Community Guidelines).

146. It was open to Uber to rely upon the ‘no grounds’ termination provision under cl. 16(a) of the Services Agreement giving the driver 30 days’ notice. However, it has chosen to rely on the “material breach’ immediate deactivation under cl. 16(b), with the driver having the contractual right to seek an internal review.

147. When assessed objectively, the terms of the contractual agreement require that the following occur before a termination is legally justified under cl. 16(b) of the Services Agreement:

1. There is a material breach of the terms of the agreement, which includes the Community Guidelines.

2. The breach is sufficient, by reason of either the number of breaches for the seriousness of the particular breach to justify termination.

3. If a review is conducted because the driver has requested a review or reconsideration, that review must be conducted in a way that genuinely considers the reasons and explanation put forward by the driver as to whether or not there is a material breach or breaches sufficient to justify termination of the agreement. Accordingly, whether or not a “material breach” has occurred, and an internal review of the decision to deactivate access to the app must involve consideration of the following matters:

1. The nature of the alleged breach.

2. The number of alleged breaches.

3. The number of the alleged breaches in comparison to the number of trips performed by the driver and the drivers overall rating by passengers.

4. The drivers explanation in response to the alleged breaches.

148. In construing the terms of the contract, including implying into the contract requirements for a genuine review of the decision to do to deactivate on the merits, the Tribunal is not suggesting that the terms of the contract, or business efficacy, require an extensive or elaborate review process of a type equivalent to a review of an administrative decision by a government department. However, there must be some minimum or threshold standard for the efficacy of a review, otherwise the contractual term is devoid of any meaning.

149. The contract between the parties is a commercial agreement. It is arguable that the bargaining power of the parties is unequal. However any legal provisions dealing with legislation that provides a remedy to unconscionable conduct, or unfair contract terms, are separate issues to interpretation of terms of the contract and whether or not the contract has been breached.

150. Further, just as the safety and comfort of passengers is important, so is the decision by the respondents whether or not to terminate the Services Agreement based on “material breach” by the driver. In this matter, the applicant had been working for over 3 years full time driving for Uber, and the decision to terminate caused his income to immediately cease.

151. In Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 (Rehman), Ellis SC SM did not set out in detail contractual principles in respect of interpreting the terms of the contract. However, the Senior Member made the following comments at [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 provide support the 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.”

152. Although broad comments regarding “reasonable grounds” may be apt to conflate administrative law principles with contractual principles, the approach taken by the Tribunal in this matter to construing the terms of the contract is not obviously inconsistent with the approach taken by Ellis SC SM in Rehman. If there are no reasons provided as to why the review sought by the driver was rejected, it is difficult to conclude that a genuine review occurred.

Did the Applicant Materially Breach the Terms of the Services Agreement and the Community Guidelines Sufficiently to Terminate the Agreement?

153. The applicant is suing the respondents for breach of contract. It is the applicant who bears the onus of establishing, on the balance of probabilities, that there was not a breach of an essential term of the Services Agreement (or multiple breaches of non-essential terms) sufficient to justify the termination.

154. As set out previously in this decision, there were four complaints against the applicant over a period of approximately 2.5 years. There was one complaint in March 2021; one complaint in October 2022; one complaint in March 2023; and one complaint in August 2023.

155. Of those complaints, the details provided to expand upon the assertion that the applicant had made comments of a sexual nature and or harassing nature were in respect of the complaints on 24 March 2021 and 27 October 2022. The alleged comments in March 2021 were of a personal and sexual nature. The alleged comments in October 2022 were of a personal nature that verged on sexual because the applicant allegedly asked whether the passenger was “free on weekends”.

156. The complaint on about 15 March 2023 is in broad and vague terms, with a general description that the applicant made “intrusive and personal comments”. That allegation is so broad and non-specific that the Tribunal gives it no weight.

157. The complaint in August 2023 that the applicant made comments that the about whether the passenger was single; that the passenger looked like a “Bollywood actress” and was “very beautiful” are personal in nature and, if established, harassing, but not as clearly sexual in nature as the alleged comments in March 2021 and October 2022.

158. The Tribunal accepts that any complaint by a female passenger that they feel uncomfortable or the driver has made comments that cause the passenger to feel harassed need to be raised with the driver by Uber, and may be sufficient to deactivate access to the Uber app and terminate the Services Agreement.

159. However, militating against the driver being in material breach of the Service Agreement and the Community Guidelines are the following matters:

1. The applicant has given sworn evidence denying the alleged conduct, and was not cross examined at the hearing.

2. There is no evidence from any of the complainants, or even a detailed allegation set out on the Uber app. The respondent did not seek a further detailed explanation from each of the passengers who complained.

3. At no stage was the applicant warned by Uber that any further complaints may cause termination. When Uber contacted the applicant through the app to invite comment, and then received comment, the information conveyed by Uber was that passenger complaints were taken very seriously, and referring the applicant to the Community Guidelines.

4. The number of complaints is very small in comparison to the amount of trips the applicant performed and his overall passenger rating. The applicant performed almost 20,000 trips in the previous 3 years. He had a very high rating. The 4 complaints also occur over a 2.5 year period.

5. There is no evidence of what review process took place when the applicant’s account was deactivated in August 2023. There is no evidence from the “specialised team” referred to by the respondent in its documentation who conducts reviews. There is no evidence of what matters Uber took into account when deciding that the applicant’s review should be rejected and the decision to deactivate/terminate in August 2023 should be affirmed.

160. The Tribunal is satisfied that the applicant has proved, on the balance of probabilities that he was not in breach of an essential term of the contract or had committed sufficient breaches of non-essential terms as of August 2023. The respondents were not justified in terminating the Service Agreement. Accordingly, the respondents have repudiated the agreement, and the applicant is entitled to damages if loss caused by the breach is proved.

Quantification of Damages

161. Damages for breach of contract are assessed on the basis of a monetary amount that puts the innocent party back in the position they should have been had the contract been performed.

162. The Tribunal accepts that, because the respondents had a contractual right to terminate without any breach on 30 days’ notice, the amount of damages for loss of income are circumscribed to 30 days.

163. When assessing loss of business income, it is profit (i.e. gross business income less business expenses) that is the touchstone (Beechwood Homes (NSW) Pty Ltd v Hassos [2023] NSWCATAP 184 at [146]-[148]).

164. The applicable legal principles as to whether there is sufficient evidence to assess loss were concisely summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42]:

“The damages to which RBD is entitled…is the monetary sum which, so far as money can, represents “fair and adequate compensation for the loss or injury” which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that:

“Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages….Such damages should not be nominal only, notwithstanding that the award may be difficult to assess…” (Citations omitted)

On the other hand, the case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one”. That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, “[j]ustice does not dictate that … a figure should be plucked out of the air”. That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a “guess”, should not be made where precise evidence of the damages suffered could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.

165. In this matter, the applicant has provided evidence that in the financial year 2022-2023 he earnt a gross amount of $206,850.99 from Uber in respect of trips, plus $4,774.64 for additional income (including tips).

166. Even though the applicant did not provide clear documentary evidence to verify his business expenses, the Tribunal is satisfied that the applicant’s net income exceeded $10,000 for the 30 day period immediately after his termination, due to his substantial gross earnings.

167. Accordingly, there is sufficient evidence for the Tribunal to assess loss, without engaging in the process of a purely speculative “guess” unsupported by documentary evidence.

Conclusion-Breach and Loss

168. The applicant has established that the respondent breached the Services Agreement by repudiating that agreement; and the Tribunal is satisfied that he has proved loss in the amount of $10,000 caused by the respondents breach.

The Australian Consumer Law 2010 (NSW)

169. As the applicant has succeeded on establishing breach of contract, it unnecessary to consider and determine whether there is any unconscionable conduct of the respondent (ss 21-22 of the ACL(NSW)-see Productivity Partners Pty Ltd (trading as Captain Cook College) v ACCC [2023] FCAFC 54 at [160]-[167] for a discussion of appliable principles); or whether any term of the Services Agreement is void on the basis of being an unfair small business contract term under ss 23-28 of the ACL).

Final Comment-Other Tribunal Authorities

170. In its written outline of submission, the respondent referred to two unreported decisions of the Tribunal (Ali v Raisier Pacific VOF, [2023] NSWCATCD unreported, dated 3 August 2023 (Ali); and Ahmad v Portier Pacific Pty Ltd [2023] NSWCATCD, unreported, 21 September 2023 (Ahmad). Both proceedings were dismissed.

171. The facts in Ali are radically different to the facts in this matter. In Ali, an Uber driver had been deactivated in 2015. He was subsequently reengaged in 2021 using different identification. When Uber discovered this, he was deactivated. The Tribunal found that the termination by Uber was legally justified.

170. In Ahmed, an Uber food delivery rider was deactivated due to failing to provide identification verification. The Tribunal found that it had jurisdiction under Part 6A of the FTA, but the applicant had failed to prove any cause of action against Uber; nor had the applicant proved loss. Despite appearing to find that the Tribunal had jurisdiction to hear the proceedings (at paras [59]-[66]), the Tribunal Member referred obliquely at [90] to “jurisdictional issues” as to whether the proceedings were a “consumer claim” within the meaning of Part 6A of the FTA.

171. The Tribunal has previously referred the decision of Ellis SC SM in Rehman. In that matter, there were 18 passenger complaints between January 2017 to August 2023 and an additional allegation by Uber that the driver operated a “duplicate account”. The Tribunal found that it had jurisdiction to hear and determine the dispute under Part 6A of the FTA; but was satisfied that Uber had a lawful basis for terminating the contract (para [147]). The Tribunal additionally commented that even if the applicant had proved breach of contract, insufficient evidence of loss had been provided; and, further, the Tribunal would not order the reinstatement of the applicant to the Uber app.

172. In this matter, the facts and the evidence are different to the decisions referred to where the Tribunal dismissed the proceedings. The Tribunal has set out in detail why it is satisfied that it has jurisdiction and why the applicant is the successful party.

ORDERS

1. The respondents, Rasier Pacific Pty Ltd and Uber BV are to pay the applicant Ranjit Singh the total amount of $10,000 by 28 days from the date of this decision.

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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: 13 June 2024