Stewart v Uber Technologies Incorporated

Case [2020] NSWCA 208

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Stewart v Uber Technologies Incorporated [2020] NSWCA 208
Hearing dates: 15 July 2020
Date of orders: 03 September 2020
Decision date: 03 September 2020
Before: Bell P at [1]; Meagher JA at [39]; Garling J at [40]
Decision:

On the Defendants, by their solicitor, giving the undertaking reproduced in paragraph [36] of the reasons for judgment:

1. Order that, pursuant to subsection 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) this proceeding (2020/00111269) be transferred to the Supreme Court of Victoria.

2.        No order as to costs.

Catchwords:

CROSS VESTING – group proceedings – where similar class action proceedings pending in Supreme Court of Victoria against same defendants/respondents – where concern about operation and continuing efficacy of tolling provision in s 182 of Civil Procedure Act 2005 (NSW) in the event that proceedings cross vested to Supreme Court of Victoria – where risk of prejudice to group members – where undertakings given to negative prejudice.

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 182

Corporations Act 2001 (Cth) s 1337H

Federal Court of Australia Act 1976 (Cth) s 33ZE

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) ss 4(3), 5(2), 5(7)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ss 9, 11

Limitation of Actions Act 1958 (Vic)

Supreme Court Act 1986 (Vic) s 33ZE, Pt IVA

Cases Cited:

Andrianakis v Uber Technologies (Ruling No 1) [2019] VSC 850

John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36

Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1; [2002] HCA 27

Peterson v Merck Sharpe and Dohme (Australia) Pty Ltd (No 3) [2009] FCA 5

Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186

Wigmans v AMP Ltd (2019) 373 ALR 323; [2019] NSWCA 243

Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1; [2018] FCAFC 143

Texts Cited:

M Davies, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2019, LexisNexis Butterworths)

Category:Principal judgment
Parties: Peter Stewart (Applicant)
Uber Technologies Incorporated (First Respondent)
Uber International Holding BV (Second Respondent)
Uber BV (Third Respondent)
Uber Australia Pty Ltd (Fourth Respondent)
Rasier Operations BV (Fifth Respondent)
Uber Pacific Holdings BV (Sixth Respondent)
Uber Pacific Holdings Pty Ltd (Seventh Respondent)
Representation:

Counsel:

W A D Edwards, D J Fahey (Applicant)
D R Sulan (Fourth and Seventh Respondents)

Solicitors:

Maurice Blackburn (Applicant)
Herbert Smith Freehills (Respondents)
File Number(s): 2020/00174803
Publication restriction: N/A
 Matter removed 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Common Law
Date of Decision:
12 June 2020
Before:
Garling J
File Number(s):
2020/00111269

HEADNOTE

[This headnote is not to be read as part of the judgment]

Two sets of representative proceedings were commenced in the Supreme Court of Victoria against seven entities in the Uber group of companies; one by Mr Nicos Andrianakis on 3 May 2019 (the Original Proceedings), and…

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AGLC
Stewart v Uber Technologies Incorporated [2020] NSWCA 208
Case
[2020] NSWCA 208
Decision Date

CaseChat Overview and Summary

The proceeding involved a dispute between Stewart, representing a group of individuals, and Uber Technologies Incorporated and related entities. The core of the matter concerned the potential transfer of a class action proceeding from the Supreme Court of New South Wales to the Supreme Court of Victoria, where similar proceedings were already pending. Concerns were raised regarding the operation and effectiveness of the tolling provision in section 182 of the *Civil Procedure Act 2005* (NSW) if the proceedings were cross-vested, and the potential prejudice to group members.

The primary legal issue before the court was whether the proceeding should be transferred to the Supreme Court of Victoria, and in doing so, how to address the potential prejudice to group members arising from the cross-vesting, particularly in relation to the operation of the NSW tolling provision. The court was required to consider the implications of transferring the matter and the adequacy of any proposed undertakings to mitigate risks.

The court's decision to order the transfer was contingent upon the defendants providing specific undertakings. These undertakings were designed to negate any prejudice to group members that might arise from the transfer, particularly concerning the application of the *Civil Procedure Act 2005* (NSW) and the tolling provision. By accepting these undertakings, the court was satisfied that the risks associated with cross-vesting could be adequately managed.

Consequently, the court ordered that the proceeding be transferred to the Supreme Court of Victoria pursuant to subsection 5(2) of the *Jurisdiction of Courts (Cross-Vesting) Act 1987* (NSW). No order was made as to costs.

Orders

Orders of the court

On the Defendants, by their solicitor, giving the undertaking reproduced in paragraph [36] of the reasons for judgment:

1. Order that, pursuant to subsection 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) this proceeding (2020/00111269) be transferred to the Supreme Court of Victoria.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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