Taxi Apps Pty Ltd v Uber Technologies Inc

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01585

TAXI APPS PTY LTD (ACN 149 538 616)	Plaintiff
v
UBER TECHNOLOGIES INC & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATES OF HEARING:	18 March 2024 – 21 May 2024
DATE OF JUDGMENT:	25 August 2025
CASE MAY BE CITED AS:	Taxi Apps Pty Ltd v Uber Technologies Inc & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 514

---

TORTS — Conspiracy — Combination — Combination within a corporate group — Combination not established — O’Brien v Dawson (1942) 66 CLR 18 — LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 — Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) — Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).

TORTS — Conspiracy — Intention — Subjective intention — Direction of intention toward all members of class — Rules of attribution of knowledge to a company — Subjective knowledge established in respect of one of three state-based conspiracies — Australian Competition and Consumer Commission v Colgate‑Palmolive Pty Ltd (No 4) (2017) 353 ALR 460 — Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 — Dresna Pty Ltd v Misu Nominees Pty Ltd (2003) ATPR — Lonrho Ltd v Shell Petroleum Co Ltd No 2 [1981] Com LR 6 — Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 — McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 — OBG v Allan [2008] 1 AC 1 — ED & F Man Capital Markets Limited v Come Harvest Holdings Ltd [2022] EWHC 229 — British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619 — Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 — Stanley v & Ors v Layne Christensen Co [2006] WASCA 56 — Hamilton & Whitehead (1988) 166 CLR 121 — Tesco Supermarkets Ltd v Nattrass [1972] AC 153 — Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 — McKernan v Fraser [1931] 46 CLR 343 — Williams v Hursey (1959) 103 CLR 30 — Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 — Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294.

TORTS — Conspiracy — Unlawful means — Nature of unlawful means — Whether remedy prescribed by statute is exclusive — Whether unlawful means must be independently actionable — Whether unlawful means must infringe a private legal right of the plaintiff — Whether acts caused loss or were merely the occasion of such loss — Williams v Hursey (1959) 103 CLR 30 — Revenue and Customs Commissioners v Total Network [2008] 1 AC 1174 — Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 — Fatimi v Bryant (2004) 59 NSWLR 678 — Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 — Council of the City of Gold Coast v Pioneer concrete (QLD) Pty Ltd (1994) 121 ALR 405 — McKernan v Fraser (1931) 46 CLR 343 — Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42‑013 — Coal Miners’ Industrial Union of Workers (WA) (Collie v True) (1959) 33 ALJR 224.

EQUITY — Breach of confidence — Whether defendants’ use of proxy to obtain plaintiff’s list of drivers constituted a breach of confidence — Whether information in driver list identifiable with specificity — Whether driver list had necessary quality of confidence — Whether data received by defendants through proxy was in circumstances importing an obligation of confidence — Whether there was a misuse of information without plaintiff’s consent — Breach of confidence established — Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 — Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326, referred to — Robb v Green [1895] 2 QB 1 — IF Asia Pacific Pty Ltd v Galbally and Others [2003] VSC 192 — Saltman Engineering Co Ltd and Others v Campbell Engineering Co Ltd [1963] 3 All ER 413 — Mars UK Ltd v Teknowledge Ltd (1999) 46 IPR 248 — Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC 728 (Ch) — Spycatcher (Attorney‑General v Guardian Newspapers (No 2) [1990] 1 AC 109 — Smith Kline & French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1990) 22 FCR 73, (1990) 95 ALR 87 — Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 — Coco v AN Clark (Engineers) Ltd [1968] RPC 41.

EQUITY — Breach of confidence — Whether declaratory relief should be granted pursuant to s 36 of the Supreme Court Act 1986 (Vic) — Whether the granting of declaratory relief would produce any foreseeable consequences for the parties — CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256, referred to — Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, referred to — Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, followed — Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, followed — No declaratory relief granted as it would not produce any foreseeable consequences for the parties.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Michael Hodge KC Kane Loxley Colette Mintz Kalia Laycock-Walsh	Corrs Chambers Westgarth
For the Defendants	John Sheahan KC David Sulan SC Madeleine Ellicott Amy Campbell	Herbert Smith Freehills

TABLE OF CONTENTS

Part A: Introduction........................................................................................................................... 1

Claims and Issues for Decision................................................................................................... 1
Further framing of the issues............................................................................................. 7

Summary of result....................................................................................................................... 10
Structure of Reasons................................................................................................................... 12

Part B: Agreed Facts......................................................................................................................... 13

The Uber Apps and Products.................................................................................................... 13
The Uber entities and their respective roles in the Uber business....................................... 15
The commission of unlawful acts............................................................................................. 22

Part C: Combination........................................................................................................................ 25

C.1 – Conspiracy within a corporate group - threshold question of law............................ 25
Introduction and parties’ submissions........................................................................... 25
Consideration – governing principles............................................................................ 29
The tort of conspiracy to injure by unlawful means.................................................... 30
Separate legal personality of the defendants................................................................. 32
Case law.............................................................................................................................. 36
Conclusions........................................................................................................................ 57

C.2 – Combination – parties’ cases and submissions............................................................. 61
Taxi Apps’ Case................................................................................................................. 61
Uber’s case.......................................................................................................................... 67

C.3 – Evidence and factual findings......................................................................................... 69
Launching UberX - Uber Inc’s Global Strategy............................................................. 69
Launching in Australia..................................................................................................... 72
Sydney.................................................................................................................... 75
Melbourne............................................................................................................. 92
Brisbane............................................................................................................... 104
Perth..................................................................................................................... 114

Uber’s response to enforcement action in Australia.................................................. 120

C.4 – Combination – Analysis................................................................................................. 127

Part D: Intention............................................................................................................................. 143

D.1 Parties’ cases and principles............................................................................................. 143
Taxi Apps’ Case and framing of the Issues................................................................. 143
Principles – Intention and the tort of unlawful means conspiracy.......................... 146

D.2 Further evidence and factual findings............................................................................ 158
Competition between UberX and Taxis – documentary evidence........................... 158
Evidence of Adam Blinick – Uber’s perceived market.............................................. 161
Michael Abbott’s evidence............................................................................................. 167

D.3 Taxi Apps’ primary intention claim................................................................................ 174
Taxi Apps’ submissions.................................................................................................. 174
Uber’s submissions.......................................................................................................... 181
Primary intention case - analysis................................................................................... 185
Conspiracy in Victoria – Intention................................................................... 198
Conspiracy in Queensland – Intention............................................................ 205
Conspiracy in Western Australia - Intention................................................. 207

D.4 Harm to a class of persons................................................................................................ 210
D.5 Harm as a necessary consequence................................................................................... 213

Part E – Unlawful Means – Question of Law............................................................................ 216

Parties’ Submissions................................................................................................................. 217
Taxi Apps’ Submissions................................................................................................. 217
Uber’s submissions.......................................................................................................... 219

Consideration............................................................................................................................ 222
Substance of reasoning and conclusions...................................................................... 222
Precedent – Governing principles................................................................................. 225
Authorities relevant to the question of Unlawful Means.......................................... 227

Part F: Breach of Confidence........................................................................................................ 278

Introduction and Summary..................................................................................................... 278
Facts............................................................................................................................................ 280
The Driver List................................................................................................................. 280
Commercial value of the Driver List............................................................................ 280
The GoCatch Platform.................................................................................................... 281
Protections applied to the information......................................................................... 282
Circumstances in which Uber obtained the Driver List............................................ 283
How the Driver List was used....................................................................................... 286

Breach of Confidence................................................................................................................ 287
Necessary Quality of Confidence.................................................................................. 288
Analysis.............................................................................................................. 296

Circumstances importing an obligation of confidence.............................................. 298
Principle.............................................................................................................. 298
Submissions......................................................................................................... 302
Analysis.............................................................................................................. 303

Relief........................................................................................................................................... 306
Analysis............................................................................................................................. 308

HER HONOUR:

Part A: Introduction
Claims and Issues for Decision

In 2011, the plaintiff Taxi Apps developed and launched ‘GoCatch’, a platform through which riders looking for a taxi ride could request a taxi through their smart phones, connecting to available taxi drivers. At launch the GoCatch app was unique in Australia. By mid-2014 over 265,000 passengers and over 29,000 drivers were registered on the GoCatch platform which had completed approximately 340,997 trips between June 2012 and May 2014, operating in Sydney, Melbourne, Brisbane and Perth. But by mid-2015 the Taxi Apps trip numbers had flat-lined, the decline continuing over the next several years until the business ultimately failed.

Taxi Apps attributed the failure of its business to illegal competition from Uber.
In April 2014, Uber[1] launched its UberX ridesharing app in Australia. Ridesharing[2] is ubiquitous in Australian cities today and regulated under state legislation. At the time of the events in issue ridesharing was not lawful. The operation of commercial passenger vehicles without a license and the driving of such vehicles without accreditation were offences under state laws. The relevant regulatory schemes did not provide for the accreditation and licensing of private vehicles as used in ridesharing services.
[1]For several purposes it is necessary to distinguish between the Uber entities who are the first to seventh defendants. For convenience only, the terms ‘Uber’ and ‘Uber entities’ are used. Differentiation between the entities will be addressed later in these Reasons.
[2]Ridesharing (also known was ‘peer-to-peer ridesharing or ‘P2P’) is a form of passenger transport in which the passenger determines the pickup and time and location and destination by requesting a trip which is accepted by a driver, via an app downloaded onto a smart phone and used by both passengers and drivers. Uber’s ridesharing service was facilitated by drivers and passengers contracting with one or other the Uber entities.
Uber Technologies Inc (Uber Inc, the first defendant) adopted a global strategy to launching ridesharing including in Australia. The strategy included launching if necessary regardless of its legality, seeking to quickly build scale, attracting riders and drivers to its platform while actively trying to avoid and stymie regulatory detection and enforcement. Uber’s founder, Travis Kalanick described that strategy as ‘regulatory arbitrage’.
Taxi Apps’ case was that Uber viewed Taxi Apps and its GoCatch product as a competitive threat. Its growing customer base was troubling for Uber because of the significance of ‘network effects’ in two-sided platforms and the competitive advantage to be gained by the operator who is first to market in securing them. ‘Network effects’ create a positive feedback effect: the more users there are on the one side of the ‘platform’ the more valuable the platform is to users on other side, and the competitive advantages become disproportionately bigger as the business grows.[3]
[3]These concepts are explained later in these Reasons.
GoCatch was a taxi-based platform, it was not ridesharing. Taxi Apps said, however, that Uber sought to ‘crush’ and destroy GoCatch before it established a market position in taxi bookings which could then be leveraged into a first mover advantage in ridesharing – attracting both riders and drivers who could then switch to ridesharing when and if Taxi Apps launched a ridesharing product. Uber sought to destroy GoCatch by deploying the illegal UberX product at the time it did (i.e. while it was unlawful) so as to obtain illegitimate market share.
Ridesharing was legalised in the four Australian states relevant to these proceedings between December 2015 and August 2017.
Taxi Apps launched its own ridesharing product, GoCar, in Sydney in February 2016, launching later in 2016 in Melbourne and Brisbane and in Perth in 2017. Taxi Apps’ case was that despite initial progress the GoCar product soon met with the consequences of Uber’s two-year head-start in the ridesharing market. By mid to late 2016, GoCar drivers were receiving insufficient jobs compared with the jobs they could get on the UberX platform. With its illegitimately gained first-mover advantage and aggressive price-discounting, Uber had amassed a large number of engaged passengers and drivers. Taxi Apps required aggressive marketing and the ability to engage in strategic price discounting in order to compete, for which it needed substantial capital. Uber’s dominant market position however, deterred investors. The business ultimately failed.
Taxi Apps’ case concerned both aspects of its business – the taxi-based ‘GoCatch’ and the ridesharing business, ‘GoCar’.[4] Although they are related, for the intention and causation elements of the claim in particular, it is necessary to consider the taxi and ridesharing-based businesses distinctly.
[4]Taxi Apps traded under the business name ‘GoCatch’. To avoid confusion, unless the context otherwise indicates the company and business is described here as ‘Taxi Apps’. Contemporaneous correspondence and parts of the evidence use the terms ‘GoCatch’ and ‘Taxi Apps’ interchangeably.
Taxi Apps alleged that the defendants engaged in four state-based conspiracies to injure Taxi Apps by unlawful means (in New South Wales, Victoria, Queensland and Western Australia). The tort of conspiracy by unlawful means requires an agreement or combination to perform unlawful acts with the intention, which need not be the sole or predominant purpose of the conspirators, to injure the plaintiff.[5] The plaintiff must prove that:
(a)there was a combination or agreement between two more persons engaged in conduct amounting to ‘unlawful means’;
(b)a purpose of that combination was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the commission of the agreed unlawful acts;
(d)those unlawful acts cased damage to the plaintiff; that it was the unlawful part of the conspiracy that caused loss to the plaintiff.^[6]
[5]Uber Australia Pty Ltd v Adrianakis [2020] VSCA 186, [31] (Andrianakis).
[6]Lee v Ebedian (2016) 1 Qd R 549, [70]-[71] (Ebidian); Maritime Union of Australia v Geraldton Port Authority [1999] FCR 34, [421] (MUA v Geraldton).

The defendants are members of a corporate group, of which Uber Inc is the ultimate holding company. Taxi Apps’ case was that Uber Inc devised, directed and controlled the implementation of a deliberate strategy to launch UberX in Australia before ridesharing was legalised. The defendants executed that strategy in combination with Uber Inc and with each other. The core functions contributing to the operation of the Uber business in Australia were disbursed among the entities so that by those entities combining together they were able to operate UberX in Australia. By way of example, it was alleged that:
(a)Uber Inc, ‘through Uber BV’ (the third defendant) took steps to commence operating the Uber business in Australia, in about September 2012, at which point Uber Australia (the fourth defendant) was incorporated;
(b)Uber Inc had control of the ‘Uber group’ and exercised oversight of its operations and business strategy at all relevant times, including in respect of Australia. Uber Inc provided financial support to Uber Australia;
(c)Uber Holding (the second defendant) was responsible for the management of the Uber group’s international operations. It guaranteed financial support for Uber Australia;
(d)Uber BV and Uber Australia were parties to an inter-company services agreement under which Uber Australia was to provide ‘support services’ including the promotion of Uber and its apps, for which services Uber BV paid Uber Australia;
(e)Uber BV contracted with riders for the use of the Uber App and Uber’s ridesharing services.
As set out below, the functional role played by each entity was ultimately largely agreed for the purposes of this proceeding.
Taxi Apps’ case was that the launch and operation of UberX in the four Australian states before ridesharing was legalised necessarily involved Uber drivers (Uber’s Driver Partners or drivers) committing offences against the passenger transport legislation. The unlawful conduct on behalf of the defendants was complicity in those offences. It was alleged in substance that separately in each of Victoria, New South Wales, Brisbane and Perth,
(a)At the time at which UberX was launched, ridesharing was illegal. Accordingly, offences were committed under the relevant legislation by drivers who provided UberX services. The offences typically occurred by the driving of a commercial passenger vehicle without driver accreditation;
(b)Each of the defendants knew of the essential matters comprising the commission of the offences;
(c)Each of the defendants aided, abetted, counselled or procured the commission of the offences[7] (by reference to the requirements of the applicable legislation);
(d)Uber Inc and one or more of the other defendants were complicit within the meaning of the common law or involved within the meaning of the relevant criminal statute in the commission of the offences;
(e)In combining to engage in the unlawful means each of the defendants had a relevant intention to injure the plaintiff or a class of persons to which the plaintiff belonged, alternatively that the harm caused was a necessary consequence of the UberX partners using UberX to compete with Lawful Suppliers[8] in Victoria.[9]
(f)The defendants, with the common intention to injure the plaintiff or a class of persons including the plaintiff, agreed or combined to establish, promote and operate UberX in the relevant State which would and did involve UberX Partners contravening the relevant statutory provisions and one or more of the defendants being complicit in those contraventions;
(g)The defendants gave effect to the conspiracies.
[7]Like allegations of intentionally assisting, encouraging or directing the commission of the offences with relevant states of mind are also made.
[8]‘Lawful Suppliers’ is defined as the defined and limited group of persons who met the legal compliance requirements for vehicles, drivers and operators. It is alleged that the effect of the requirements was that only a limited number of individuals could and would meet the driver or operator requirements and only a limited number of vehicles would meet the vehicle compliance requirements. Lawful suppliers thus had the advantage of being the exclusive providers of point to point passenger transport services in the relevant States.
[9]The nuances of intention case are explained later in these Reasons.
The defendants admitted (for the purpose of the proceeding) that when UberX drivers provided the UberX service during the relevant periods they typically did so without the required accreditation and licenses, that the Uber entities knew of the essential matters concerning the commission of the offence and that they were complicit in the commission of the offences, where the offences were committed.
The conspiracies were alleged to have occurred in each State over the period between the commencement of UberX and the date on which ridesharing was legalised in that State, namely:
(a)in Victoria from April 2015 to 23 August 2017;
(b)in New South Wales from 7 April 2014 to 18 December 2015;
(c)in Queensland from 17 April 2014 to 5 September 2016;
(d)Western Australia from 10 October 2014 to 4 July 2016.
There are four substantive issues in dispute:
(a)Whether there was a combination or agreement. Uber contended that there was no agreement or combination. It said that as a matter of law there cannot be a conspiracy within a corporate group for the purposes of the tort and that as a matter of fact there could be no combination where the decision to launch and operate UberX in Australia was made by Uber Inc, which exercised oversight of the operation and strategy adopted by the Uber entities in Australia.
(b)Whether the offences amounted to ‘unlawful means’ for the purposes of the tort. Uber said they do not;
(c)Whether the defendants had the relevant intention for the purposes of each alleged conspiracy. Uber said they did not;
(d)Whether the unlawful acts caused damage to the plaintiff. Uber said that the plaintiff has not made out its causation case.
On the question of loss, although the claim is factually and conceptually complex, Taxi Apps said that had Uber commenced operation UberX in the four states later than it in fact did (after, rather than before, ridesharing became lawful), Taxi Apps would have achieved a vastly greater number of GoCatch taxi trips, enabling it to achieve a vastly greater number of ridesharing trips through its GoCar product. With those increased trips it would have generated more profit. Uber said that the Taxi Apps business was flawed, dysfunctional and seriously under-funded and that the causes of its decline and failure cannot be properly attributed to the defendants. The quantum of the claim was in dispute. Taxi Apps claimed exemplary damages.
Taxi Apps also brought a claim for breach of confidence arising from the allegation that in about July 2013, the Uber Entities (or one or more of them) obtained a list of commercially valuable and confidential contact information for drivers who were, at that time, using the GoCatch App. It was alleged that Uber used the list to recruit drivers to work on its platform in an act of industrial espionage against GoCatch.
Further framing of the issues
Before considering the evidence it is helpful to state and contextualise the principal contentions on the central issues in dispute.
Although each element of the tort of conspiracy by unlawful means gives rise to particular factual and legal controversies it is important not to approach the elements of the tort in a siloed fashion without appreciating the relationships between them. The questions whether the Uber entities combined and whether each possessed the relevant intention to harm, are related in the ways that will be discussed.
Taxi Apps’ case was that although Uber Inc had supervision and control over the Uber global strategy and its implementation in Australia, it was not a fait accompli that occurred automatically once Uber Inc had adopted a global strategy. Uber Inc did not launch UberX by itself and the ‘decision to launch’ and to operate did not occur in a vacuum. What occurred was by a combination of Uber Inc and other entities. The corporate structure and contractual and other arrangements between the entities gave each a distinct role in respect of the UberX business in Australia and the entities each had their own, differently constituted boards and thus distinct decision-making bodies. By the entities performing their respective functions they were able to launch and operate UberX in Australia. The combination between the entities was to be inferred from the relationship between them and the implementation of the Uber strategy. Moreover, the separation of the necessary functions was a strategic corporate choice by Uber Inc.
Uber said that in these circumstances the parent company alone made the relevant decisions (to launch UberX, globally and in each of the four Australian states) and accordingly there was no independent volition at the level of the subsidiaries in relation to launching the UberX business in Australia and continuing it once launched. Thus there was no ‘combination of wills’ and no combination for the purposes of the tort.
On the question of intention Uber said that the only relevant decision maker was Uber Inc and for that purpose Travis Kalanick, Uber Inc’s CEO, was the person whose state of mind could be attributed to Uber Inc. Relatedly, there was no evidence that Kalanick intended to harm Taxi Apps by the ‘unlawful means’ of operating UberX illegally. Taxi Apps’ case (by the time of final submissions) concentrated on the combination between Uber Inc and Uber Australia.[10] It said that David Rohrsheim, a director of Uber Australia employed in its senior executive role, was a ‘guiding mind’ of Uber Australia who specifically intended to harm Taxi Apps. It said that Ryan Graves, a director of Uber Inc and Uber Australia, specifically intended to harm Taxi Apps. Both Kalanick and Graves were on notice of Rohrsheim’s intention to injure Taxi Apps. It should be inferred on that basis that Kalanick intended to injure Taxi Apps.
[10]Taxi Apps made no concession in respect of the other defendants. Its case about their respective intentions (and its alternative cases on intention) are described later in these Reasons.
Uber also submitted that in respect of each distinct state-based conspiracy one must ask whether the launching of UberX was in order that, and not merely with the result that, Taxi Apps be injured. Furthermore, intention must attach to unlawful conduct. The relevant intention is not ‘an intention to injure Taxi Apps’, but an intention to injure it by launching and operating UberX unlawfully. That is because Taxi Apps must prove that the wrongful act complained of was done with the design of injury.[11] I accept those submissions, which were not contested. Factually, one of the principal points of contention was whether certain statements by Uber personnel (Rohrsheim and Graves in particular) about beating, destroying or ‘crushing’ Taxi Apps were evidence of an intention to harm Taxi Apps by launching and operating UberX before it was lawful, as opposed, say, to competing with it by operating Uber’s (lawful) taxi app product. Uber submitted that Taxi Apps had paid insufficient attention to the attribution of intention of the requisite kind to the relevant entities. Intention for these purposes is subjective and factual. There were in evidence contemporaneous statements of certain intentions in respect of Taxi Apps. Whatever their character they must be considered in their surrounding factual context.
[11]Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169, [7]-[12] (Dresna FC) and the authorities there cited.
Uber also raised a temporal consideration. Taxi Apps’ case was concerned with the launch and subsequent operation of UberX during the period from its launch until ridesharing was legalised, in each state. As Uber put it, damage to Taxi Apps was said to flow from people taking trips in Uber as opposed to taxis that may be booked by Taxi Apps’ customers. On one view each time that happened there was an event that may cause loss, and the unlawful conduct in each case must be the subject of intention on the part of the relevant Uber entities concerning Taxi Apps. Uber expressly did not submit that the conduct inherent in ‘each ride’ had to be the subject of intention. It said though that the launch and the continued operation of Taxi Apps both had to be considered. Taxi Apps’ case claimed loss based on the operation of UberX over a period of time in each state. Uber accepted that it is not appropriate to approach the issue on the basis that there is a factual bright line or rigid conceptual distinction between the launch and the continued operation of UberX. The question is whether it has been proved that throughout each relevant period (or parts of each period, taking a practical view), Uber continued to aim the operation of UberX at the plaintiff (in the sense required by the authorities). I accept that it is necessary to address intention in that way.
Uber said that Taxi Apps’ evidence is largely concentrated on the time of launch and as time passes the conclusion that UberX’s continued operation was directed at Taxi Apps becomes factually implausible, even if its launch was so directed. The documentary evidence dissipates over the period in question and external circumstances change. By way of example, by the first anniversary of the launch of UberX the number of UberX trips was counted in substantial multiples of GoCatch trips. In those circumstances it is improbable that Uber was concerned with Taxi Apps’ presence in the relevant markets. Taxi Apps did not dispute the need to establish the existence of the requisite intention over each period but said (among other things) that it could establish continuing intention in reliance on the ‘presumption of continuation’ and that there is evidence of interest in and concern about Taxi Apps after the time of the launch, particularly within Uber Australia.[12]
[12]This issue is addressed later in these Reasons.
I accept that the allegations of intention to injure the plaintiff by unlawful means are grave within the meaning of s 140(1) of the Evidence Act 1995 (Vic). Clear and cogent proof is required.[13] The case must be proved on the balance of probabilities, but defendants charged with the serious misconduct involved in a conspiracy are entitled in insist upon firm scrutiny of the evidence in light of the gravity of the matters alleged.[14]
[13]Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171.
[14]McWilliams v Penthouse Publications Ltd [2001] NSWCA 237, [17] (McWilliams v Penthouse).
Summary of result
For the reasons that follow Taxi Apps has not established its claims in conspiracy. The Uber entities admitted to knowing unlawful conduct for the purposes of this case. From the facts admitted it may be accepted that they engaged in that conduct on a significant scale. However, the elements of the tort have not been made out:

(a) Taxi Apps alleged a combination between Uber Inc and its subsidiaries. As a matter of principle I have accepted that a combination between related entities may occur, but their unlawful conduct must be pursuant to an agreement between them. In this case there was in fact no scope for an agreement to effect an unlawful purpose because Uber Inc itself determined what would occur without needing the concurrence of its subsidiaries. The fact that they implemented its plan did not establish a combination for the purposes of the law. That conclusion is sufficient to determine the claim.

(b) I have found that in respect of the New South Wales based conspiracy that Uber Inc and Uber Australia held the relevant intention to harm Taxi Apps.

(c) On the question of unlawful means the conduct in this case was unlawful under statute, not at common law. Statutory wrongs may qualify as unlawful means. The question in issue was whether all or only some kinds of statutory illegality may suffice. I consider that Australian authority on this question is in an unsatisfactory state. I am bound by the reasoning of a majority of the High Court in Williams v Hursey on this issue. That reasoning is that where the unlawful means relied upon for the purpose of the tort of conspiracy is a statutory wrong, one must ask whether it can be properly understood that parliament intended to create or provide for remedies other than those provided for in the statutory terms. It was accepted that the passenger transport laws in this case do not disclose that intention.

I have determined that Uber Australia breached a duty of confidence when it surreptitiously obtained Uber Australia’s Driver List in 2013. Its conduct in doing so was wrong and unconscionable in the ways discussed below; it was neither honourable nor commercially acceptable. This Court’s judgment marks the Court’s disapproval and condemnation of that conduct by the standards of the law and by extension, the community. It is sufficient to do so without the remedy of a declaration. The particular incident, although wrong, was relatively confined in its scale and reach. It may be contrasted with the pervasive and systemic unlawful conduct of the Uber Entities more generally in launching UberX in the Australian states at a time when it was illegal to do so. That admitted conduct was not the subject of the claim for breach of confidence.

The parties led extensive evidence on the issues of causation and loss. I have considered that evidence but have not determined those issues, given the result in respect of liability. Doing so would require reasoning premised on hypotheses not established. Taxi Apps’ loss case was formulated without distinguishing between the businesses it conducted in each of the four states for which it alleged separate conspiracies; its evidence did not permit a determination of a state by state outcome.

Structure of Reasons

These Reasons are structured as follows:
(a)Part A: Introduction
(b)Part B: Agreed Facts
(c)Part C: Combination
(i)C.1 Conspiracy within a corporate group – threshold question of law
(ii)C.2 Combination – parties’ cases and submissions
(iii)C.3 Evidence and factual findings
(iv)C.4 Combination – analysis
(d)Part D: Intention
(v)D.1 Parties’ cases and principles
(vi)D.2 Further evidence and factual findings
(vii)D.3 Taxi Apps’ primary intention claim
(viii)D.4 Harm to a class of persons
(ix)D.5 Harm as a necessary consequence
(e)Part E: Unlawful Means – Question of Law
(f)Part F: Breach of Confidence
Part B: Agreed Facts

In large part the factual matrix was agreed. The significance of the facts was not. It is necessary to set out the relevant facts to help inform the analysis of the issues in contest.
The Uber Apps and Products
The first defendant Uber Technologies Incorporated (Uber Inc)[15] is the parent entity of a group of companies incorporated in various jurisdictions (the Uber Group), which comprised over 110 entities by December 2014. The Uber Group invents, develops, licenses and operates software applications. Its business includes two related software applications, the ‘Uber app’ (for riders) and the ‘Uber Partner app’ (for drivers). The applications work together to provide a digital system used by riders to request transportation services from drivers, used by drivers to accept ride requests and used by both to execute electronic payment for transportation services and to provide feedback at the conclusion of the trip. The applications are available for use on Google’s Android or Apple’s iOS operating systems. They may be downloaded over the internet anywhere in the world.
[15] Uber Inc is, and since 16 July 2010 has been, a body corporate registered in the State of Delaware, United States of America.

The applications support various ride requests, depending on the location of the user. During the relevant periods in Australia the service options available on the Uber applications were:
(a)UberBlack, which riders used to request a ride from licensed drivers driving luxury cars with government-issued licence plates.[16]
(b)UberTAXI, which riders used to request rides from licensed taxi drivers driving taxis with taxi licence plate.[17]
(c)UberX, which riders used to request rides from drivers for ‘peer-to-peer’ or ‘P2P’ ridesharing services. The drivers used their personal vehicles.
(d)UberX Share, which has been known as UberPool at times, and is similar to UberX, save that riders could share the trip with other riders heading along a similar route and in turn received a discounted price.
[16]Uber Black was launched in New South Wales on 19 October 2012, in Victoria on 3 January 2013 and in Western Australia on 21 May 2014.
[17]UberTAXI was launched in New South Wales in June 2013 and not in the other Australian states.
In order to use Uber Black, UberTAXI or UberX services, a rider downloads the Uber app and is required to sign up to terms and conditions, thereby entering a contract with Uber BV (the third defendant). Once registered as a user the rider may use the Uber app to request a ride. A rider’s view of the app shows a map that displays the vehicles of Driver Partners. To book a ride on the app, a rider enters their destination and confirms their pick-up address (by GPS or moving a pin). The available Uber services and estimated trip costs are displayed. If the rider wishes to book UberX, they accept the prompt and fee estimate, stating, ‘REQUEST UberX’.
The Uber Partner app is for drivers. When downloaded onto a smartphone it enables a person who has entered into an agreement permitting their use of the Uber Partner app to receive requests from riders, accept requests and provide rides. Once a rider has placed a request the Uber app sends it to the driver located closest to the rider, via the Uber Partner app. The driver can choose to accept or decline the request within a very short window. If the request is declined the app continues to send the ride request to nearby drivers until it is accepted. Once a ride request is accepted, the rider’s Uber app screen displays the driver’s photograph, registration plate, a description of the vehicle, the feedback ‘star rating’ of the driver, and options to cancel the ride request, call the driver or send the driver a text message.
Upon the rider entering the vehicle, the driver presses a button in the Uber Partner app to indicate that the ride has commenced. The rider can track their journey in the Uber app. On arrival the driver makes an electronic record of the destination location by pressing a button in the Uber Partner app. At the end of the ride, the rider’s credit card or PayPal account registered to their account is charged the fare fee. The trip fare is calculated using the rider’s pick-up and destination locations. Before 23 December 2015, the cost was calculated in accordance with the fee schedule which formed part of the Transportation Provider Services Agreement between the UberX Driver Partner and Rasier Operations (the fifth defendant), subject to any fee variation on account of promotional discounts or demand-based pricing. The rider receives a receipt by email. At the conclusion of the service, in their respective app interfaces, the rider and driver can leave anonymous ratings.
The Uber entities and their respective roles in the Uber business
The relationship between the entities, depicted visually,^[18] was as follows:
[18]Before the 2015 restructure which introduced the 6^th and 7^th defendants to the Uber group of companies.
Uber Inc was the holding company for each of the other defendants and was the parent of the Uber Group. Uber Inc at all times had oversight of the operations and strategy of the Uber Group’s operations and business in Australia.
Uber Inc owned the software in the Uber app and the Uber Partner app and licensed their use in countries outside of the United States of America, to Uber International CV (not a party to the proceeding). Uber International CV sub-licensed that software to Uber BV,[19] the third defendant. Together with Uber Inc, Uber BV operated the technical architecture that ran the Uber app and Uber Partner app. Uber BV provided access to the software required for the support and operation of the Uber app and the Uber Partner app in Australia. Among other things, Uber BV calculated the trip fare for Uber rides and issued electronic receipts for trip payments to riders. The trip data that resulted from the provision of the UberX service in the Australian states was held or controlled by Uber BV until about 23 December 2015, when it was controlled by Rasier Pacific but available to the Uber Entities.
[19]Uber BV is, and since 24 October 2012 has been, a private limited liability company chartered in the Netherlands.
Uber BV and Uber Australia Pty Ltd,[20] the fourth defendant entered into an ‘Intercompany Services Agreement’ on 1 November 2013. Under that agreement Uber Australia provided support services to Uber BV for the promotion of the Uber brand generally, the Uber Partner app and the Uber app. Uber Australia employed staff to run the Uber business in Australia, developed and implemented marketing campaigns for the Uber app and Uber Partner app and ‘on-boarded’ Uber Partners (i.e. drivers). It rented office premises in New South Wales, Victoria, Queensland and Western Australia from which its staff and employees of other Uber entities, worked.
[20]Uber Australia is, and since 11 September 2012 has been, a body corporate registered under the Corporations Act 2001 (Cth).
From at least November 2013 Uber BV made payments to Uber Australia, and from at least 2016 it guaranteed ongoing financial support to Uber Australia to ensure it could meet its debts.
The fifth defendant, Rasier Operations BV,[21] facilitated and processed the operation of the UberX app and service in Australia. From 3 February 2014, Uber BV licensed to Rasier Operations various intellectual property and software technology. From around May 2014, Rasier Operations entered into a standard form contract with each UberX Driver Partner in respect of their participation in ridesharing service. Uber BV remained the Uber entity who contracted directly with riders.
[21]Rasier Operations is, and since 3 February 2014 has been, a private company chartered in the Netherlands.
Uber International Holding BV (Uber Holding),[22] the second defendant, is the immediate parent company of Uber Australia and Rasier Operations. Uber Holding (together with Uber BV, Uber Australia and Rasier Operations) paid fines issued to UberX drivers (described below).
[22]Uber Holding is, and since 4 September 2012 has been, a private company chartered in the Netherlands.
Uber Holding explained the contractual arrangements and money flows from the operation of the Uber App and Uber Partner App to Uber’s Australian lawyers in this way:
In respect of the ride-sharing product, user contracting is in the name of Uber BV (a Dutch company); and driver contracting is in the name of Rasier Operations BV (a Dutch Company). NOTE: Uber BV also contracts with commercially licensed drivers in respect of our normal or non-ridesharing business.
Uber BV – acting as intermediary – collects the money for the ride-sharing service from the user (passenger). The user pays for the ride via a credit card transaction facilitated by the Uber BV platform—the actual transaction is processed by a third party payment processor. The cash sits in an Australian bank account which is in the name of Uber BV.
Contractually, Rasier Operations BV has the obligation to transfer the ride fare to the p2p driver less a fee for the p2p driver’s use of the Uber BV software application service. In reality, the cash is currently transferred from Uber BV into a bank account of Uber Australia Pty Ltd, which in turn distributes it to the p2p drivers (contracting with Rasier Operations BV).
Uber restructured its operations in Australia in December 2015. On 21 December 2015, the sixth defendant, Uber Pacific Holdings BV and the seventh defendant, Uber Pacific Holdings Pty Ltd entered a partnership registered in the Netherlands and known as Rasier Pacific.[23] On 23 December 2015, Rasier Pacific and Rasier Operations entered into an agreement concerning the Uber app in Australia which allowed Rasier Pacific to enter a standard form contract with each UberX Partner.
[23]Uber Pacific Holdings BV and Uber Pacific Holdings Pty Ltd are, and since 21 December 2015 have been, the partners in a partnership within the meaning of Art 7A: 1655 BW, registered in the Netherlands and known as Rasier Pacific.
Relationships between Uber entities and people
For the purpose of establishing the entities to whom conduct and intention (state of mind) could be attributed, Taxi Apps identified the people it said were the ‘guiding minds’ of each entity and those persons who, on behalf of one or other entity, had participated in decision making. The principal entities, people and relationships were as follows:
(a)Travis Kalanick was a director of Uber Inc[24] and was its CEO during the relevant period. He was a director of Uber BV (between 24 October and 3 December 2012), of Uber Australia (between 11 September 2012 and 7 April 2014), and of Rasier Operations (between 3 February 2014 and 31 March 2016).
[24]The directorships noted here were held throughout the relevant periods unless stated otherwise.
(b)Ryan Graves was employed by Uber Inc (between 5 March 2010 and 1 December 2017) and he reported to Kalanick (between 5 March 2010 and 4 September 2017). He was a director of Uber Inc and of Uber BV (between 10 April 2013 and 3 April 2014), he was a director of Uber Australia (between 18 June 2013 and 7 April 2014), and he was a director of Rasier Operations (between 3 February 2014 and 31 March 2016).
(c)Niall Wass was employed by Uber Switzerland GmbH (between 9 June 2014 and 31 December 2015) and he reported to Kalanick (between 9 June 2014 and 23 September 2015).
(d)Mike Brown was employed by Uber Singapore Technology Pte Ltd (between 7 October 2013 and 27 November 2017). He reported to Graves (between 7 October 2013 and 8 June 2014, and 24 September 2015 to 31 May 2016), and Wass (between 9 June 2014 and 23 September 2015).
(e)Austin Geidt was employed by Uber Inc (between 15 August 2010 and 30 June 2019), and employed by UATC LLC (between 1 July 2020 and 1 September 2020). He reported to Graves (between 15 August 2010 and 15 September 2016).
(f)Allen Penn was employed by Uber Inc as ‘Director, General Manager’ between 1 August 2011 and 31 October 2015, by Uber (Asia) Ltd (between 1 November 2015 and 30 November 2016) and by Uber Singapore Technology Pte Ltd (between 1 December 2016 and 2 November 2018). He reported to Graves (between 1 August 2011 and 8 June 2014, and 24 September 2015 and 31 May 2016), and Wass (between 9 June 2014 and 23 September 2015).
(g)Sam Gellman was employed by Uber Inc (between 26 March 2012 and 8 June 2014), and Uber (Asia) Ltd (between) 9 June 2014 to 24 April 2018. He reported to Geidt (between 26 March 2012 and 8 June 2014), Penn (between 9 June 2014 and 31 October 2015) and Brown (between 1 November 2015 and 30 August 2016).
(h)Salle Yoo was employed by Uber Inc (between 18 July 2012 and 1 December 2017). He reported to Kalanick (between 18 July 2012 and 4 September 2017).
(i)David Rohrsheim was a director of Uber Australia (between 11 September 2012 and 29 January 2014). Rohrsheim was employed by Uber Australia (between 7 August 2012 and 31 December 2019). He reported to Graves (between 7 August 2012 and 6 October 2013) and to Brown (between 7 October 2013 and 30 September 2017).
(j)Zachary de Kievit was a director of Uber Holding between 16 June 2014 and 1 December 2014 and of Uber BV (between 30 May 2014 and 1 December 2014). His employment status, if any, was not in evidence.
(k)Mike Abbott was employed by Uber Australia between 8 October 2012 and 31 December 2018. From October 2012, he was Operations and Logistics Manager, Sydney and from April 2014, he was Head of Operations for Australia and New Zealand. He reported to Rohrsheim (between 8 October 2012 and 5 May 2014, and between 11 August 2014 and 31 March 2018), and Brown (between 6 May 2014 and 10 August 2014).
(l)Amos Barretto was employed by Uber Inc as ‘Manager, Engineering’.
(m)Jordan Condo was employed by Uber Inc (from 16 September 2013 to 4 December 2015) as ‘Head of Asia Pacific Public Policy’.
(n)Matthew Trigg was employed by Uber Australia (between 23 June 2014 and 31 August 2015). He reported to Condo (between 23 June 2014 and 17 February 2015) and Kitschke (between 18 February 2015 and 31 August 2015).
(o)Oscar Peppitt was employed by Uber Australia as ‘Community Manager’ (between 12 October 2012 and 31 March 2014), by Uber New Zealand Technologies Ltd as ‘General Manager, New Zealand’ (between 1 April 2014 and 31 August 2016), Uber Inc (between 1 September 2016 and 4 December 2016), by Uber BV (between 5 December 2016 and 31 March 2018) and by Uber Portier BV (between 1 April 2018 and 2 August 2020). He reported to Rohrsheim (between 12 October 2012 and 31 March 2014 and between 11 August 2014 and 31 August 2016), Brown (between 1 April 2014 and 10 August 2014), and Penn (between 1 February 2018 and 11 March 2018).
(p)Simon Rossi was employed by Uber Australia as ‘General Manager, Victoria’ (between 5 December 2013 and 28 August 2016) and by Uber Singapore Technology Pte Ltd (between 29 August 2016 and 8 October 2018). He reported to Brown (between 5 December 2013 and 25 February 2015, and 29 August 2016 and 31 October 2016), Rohrsheim (between 26 February 2015 and 28 August 2016) and Penn (between 1 November 2016 and 8 October 2018).
(q)Brad Kitschke was employed by Uber Australia (between 12 November 2014 and 17 July 2017). He reported to Condo (between 12 November 2014 and 15 February 2015). He was Uber Australia’s public policy officer for Australia and New Zealand.
(r)Douglas Ma was employed by Uber (Asia) Ltd (between 19 August 2013 and 30 April 2016), by Uber Singapore Technology Pte Ltd (between 1 May 2016 and 30 September 2016), and Uber Inc (between 1 October 2016 to 20 August 2018). He reported to Gellman (between 19 August 2013 and 8 June 2014), Geidt (between 9 June 2014 and 15 June 2014; 1 February 2015 and 7 March 2015 and between 30 September 2016 and 20 August 2018), and Brown (between 8 March 2015 and 30 April 2016).
(s)Glenn O’Sullivan was employed by Uber Australia (between 31 March 2014 and 6 November 2016), and Uber Singapore Technology Pte Ltd (between 7 November 2016 and 14 September 2018). He reported to Rohrsheim (between 31 March 2014 and 17 December 2015), Abbott (between 18 December 2015 and 25 September 2016), and Brown (between 26 September 2016 and 30 September 2017).
(t)Chris Hourigan was employed by Uber Australia (between 6 October 2015 and 30 September 2017), Uber Inc between (1 October 2017 and 31 October 2019), and Uber Australia (between 1 November 2019 and 7 August 2020). He reported to O’Sullivan (between 1 March 2016 and 25 September 2016).
(u)Matthew Roberts was employed by Uber Australia (between 17 April 2014 and 13 September 2015), by Uber BV (between 14 September 2015 and 31 March 2018) and by Uber Portier BV (between 1 April 2018 and 17 May 2019). He reported to Rohrsheim (between 17 April 2014 and 3 May 2015) and O’Sullivan (between 4 May 2015 and 13 September 2015).
(v)Rose Zhong was employed by Uber Inc (between 9 December 2013 and 13 October 2017).
The commission of unlawful acts
The commission of illegal acts by UberX Driver Partners in the course of UberX services and the complicity of the defendant Uber entities in those offences was alleged and admitted. Because the implications of the alleged unlawful acts are in issue (on the question of whether the entities relevantly combined and had the necessary intention for the tort of conspiracy by unlawful means), it is necessary to understand the substance of the alleged and admitted wrongdoing. It suffices to set out the position in respect of New South Wales.
Section 37(1) of the Passenger Transport Act 1990 (NSW) provided that,
37   Private hire vehicle service requirements
(1) A person who carries on a private hire vehicle service, being a service operating wholly or partly within New South Wales, by means of a private hire vehicle is guilty of an offence if:
(a)  the person is not accredited for the purpose of carrying on the service under Division 3, or
(b)  the private hire vehicle is not licensed under Division 4.
…
Maximum penalty: 1,000 penalty units.

Section 40(2) of the Passenger Transport Act 1990 (NSW) provided that,
40 Authorities
…
(2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver.
Maximum penalty: 100 penalty units.
Section 351B of the Crimes Act 1900 (NSW) provided that,
351B    Aiders and abettors punishable as principals
(1)       Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender.
(2)       On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender.
(3)       This section applies to offences committed before or after the commencement of this section.
(4)       This section applies to an indictable offence that is being dealt with summarily.
The parties agreed that:
(a)Throughout the period from around 7 April 2014 to 18 December 2015 (NSW Period), s 37(1) of the NSW Transport Act provided that a person who carried on a private vehicle service, being a service operating wholly or partly within NSW, by means of a private hire vehicle, was guilty of an offence if:
(x)the person was not accredited for the purpose of carrying on the service under Division 3 of the NSW Transport Act; and/or
(xi)the private hire vehicle was not licensed under Division 4 of the NSW Transport Act.
(b)Throughout the NSW Period, s 40(2) of the NSW Transport Act provided that a person who drove a private hire vehicle was guilty of an offence unless the person was an authorised private hire vehicle driver.
(c)Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so without being accredited for the purpose of carrying on a private hire vehicle service under Division 3 and thereby committed offences against s 37(1)(a) of the NSW Transport Act.
(d)Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so using private hire vehicles that were not licensed under Division 4 and thereby committed offences against s 37(1)(b) of the NSW Transport Act.
(e)Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so without being authorised, or appropriately authorised, private hire vehicle drivers and thereby committed offences against s 40(2) of the NSW Transport Act.
(f)Throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) knew of the essential matters comprising the commission of the offences against s 37(1) of the NSW Transport Act by UberX Driver Partners as referred to above, and/or commission of the offences against s 40 of the NSW Transport Act by UberX Driver Partners as referred to above.
(g)From at least April 2014 and throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) aided, abetted, counselled or procured the commission of offences against ss 37(1) and 40 of the NSW Transport Act as referred to in the paragraphs above, but only where UberX Driver Partners committed offences.
(h)From at least April 2014 and throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) were complicit, within the meaning of the common law in the commission of offences against ss 37 and 40 of the NSW Transport Act by UberX Driver Partners referred to in paragraphs 92 to 94 above. Additionally or alternatively, from at least April 2014, one or more of the Uber Entities (except Rasier Pacific) were liable to punishment as principals within the meaning of s 351B of the Crimes Act 1900 (NSW) for the commission of offences against ss 37 and 40 of the NSW Transport Act by UberX Driver Partners referred to above, but only where UberX Driver Partners committed offences.

Like admissions were made in respect of the operation of UberX in Victoria, Queensland and Western Australia.
The admissions were crafted to have effect only for this proceeding. Strictly parsed, the language of the admissions was constrained, including because the admissions were on each occasion made in respect of ‘one or more’ of the Uber Entities. The defendants’ Senior Counsel conveyed, in response to the Court’s questions, that the defendants accepted that the commission of the offences were sufficiently proved by the admissions, accepting that not all members of a conspiracy must be shown to have committed offences; members of a conspiracy will be liable for the actions of a co-conspirator. On the question of knowledge it was admitted in respect of the offences committed in each relevant state, that the Uber entities ‘knew of the essential matters comprising the commission of the offences’. The language of the admissions was intended to reflect the legal tests for complicity in this context. The essential matters were the unaccredited driving of unlicensed vehicles in the provision of UberX services.
Part C: Combination
C.1 – Conspiracy within a corporate group - threshold question of law
Introduction and parties’ submissions
Taxi Apps contended that the second to sixth defendants executed a strategy devised, directed and controlled by Uber Inc (the first defendant) to launch UberX in Australia before ridesharing was legalised, in combination with Uber Inc and with each other. In substance it said that once the separate legal personality of members of a corporate group is accepted as it must be, there is no legal impediment to finding that related companies (including holding and subsidiary companies) can conspire with one another. Statute law at times requires that separate entities are to be regarded as one unit, but no relevant principle or authority establishes that for the purposes of conspiracy to injure there is an impediment to finding a combination between members of a corporate group. The High Court of England and Wales has held that companies within a corporate group, controlled by the same entity, can conspire with one another (Digicel (St Lucia) Ltd v Cable & Wireless Plc[25]). That authority is consistent with underlying principles discussed in Australian cases and should be followed. The analogies on which Uber relied (analogising the relationship between director and company on the one hand and holding company and subsidiary on other; analogising the tort of procuring breach of contract with the tort of conspiracy to injure) are flawed. The authorities to which Uber pointed do not establish the propositions for which they are relied upon.^[26]
[25]Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch) (Digicel).
[26]Taxi Apps’ submissions are taken up further in the analysis below.
Uber submitted that because the defendants are part of the same corporate group with the same ultimate holding company, operating ‘with a unity of purpose’ (ultimately that of Uber Inc), they cannot have engaged in a relevant conspiracy. Uber said that as a matter of law there cannot be a conspiracy within a corporate group for the purposes of the tort. That contention was put broadly. Uber also said that even if no such broad principle was established, in these circumstances, where the parent company made the relevant decisions, there was no independent volition at the level of the subsidiaries in relation to the launching of the UberX business in Australia and continuing it once launched. No entity other than Uber Inc participated in the decision. Accordingly, there was no ‘combination of wills’ and no combination for the purposes of the tort. That alternative case is addressed later in these Reasons. On its primary point of law Uber submitted:
(a)The significance of the requirements for a combination between two entities is reflected in the Australian cases on civil conspiracy, in which it is well established that there can be no conspiracy between a director who has sole responsibility for the management of a company and the company itself. As Starke J said in O’Brien v Dawson, ‘[I]t is neither “law nor sense”[27] to say that…[the director] in the exercise of his functions as a director of the company combined with it to do any unlawful act…’[28] As Jordan CJ said in the Supreme Court below, a company cannot act at all except through its directors or other authorised agents: ‘They are not in the position of outsiders who are influencing the independent volition of a [contracting] party who is capable of exercising volition for himself.’[29]
[27]Citing Lagunas Nitrate Co. v Lagunas Syndicate [1899] 2 Ch 392, 431.
[28]O’Brien v Dawson (1942) 66 CLR 18, 32 (per Starke J), Williams J agreeing at 41, Rich J agreeing at 26 (O’Brien v Dawson).
[29]O’Brien v Dawson (1941) 41 SR (NSW) 295, 308 (O’Brien v Dawson NSWSC).
(b)Directors cannot conspire with their companies because they are not ‘outsiders’ with the respect to the company. In the same way the conspiracy between entities with the same ultimate holding company ‘does not identify any outsiders’. Ultimately each entity within a corporate group is a manifestation of the holding company’s mind and direction. The circumstances are not identical but the organic theory of the company lends itself powerfully as an analogy to these circumstances.

(c)This is seen most clearly in the first instance decision in LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd,[30] in which it was recognised that as a matter of substance, a parent company and its subsidiaries have one ‘consciousness’. LMI Australasia concerned the tort of inducing breach of contract. The reasoning in that case (which draws on the reasoning in O’Brien v Dawson) demonstrates that where a tort requires the participation of two or more persons, the proposition that companies bear separate legal personalities is not invariably applied. The reasoning in O'Brienv Dawson and LMI Australasia dictates that a parent cannot procure breach of contract by its subsidiary’ and by analogy it follows that a parent and its subsidiary cannot combine in a conspiracy.
(d)Analogously in the antitrust context in the United States (for the purposes of s 1 of the Sherman Act). In Copperweld Corp v Independence Tube Corp,[31] the United States Supreme Court held that:
A parent corporation and its wholly owned subsidiary are incapable of conspiring with each other. … [A] parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate consciousnesses, but one. … [t]hey share a common purpose whether or not the parent keeps a tight reign over the subsidiary … [because] the parent may assert full control at any moment if the subsidiary fails to act in the parent’s best interests.[32]

(e)Federal Courts in the United States have consistently applied Copperweld to preclude a finding of antitrust conspiracy within a corporate family. The rationale for that outcome is clear enough. To find a conspiracy between a parent company and its subsidiaries would be ‘to ignore reality’. A parent entity may choose to adopt a structure of separate incorporation or unincorporated divisions. Accepting the separate legal personalities of a parent and its subsidiary is the beginning of the analysis, not the end. The reasoning in Copperweld establishes that the unity of purposes of a parent and subsidiary is not the product of an agreement; it is the product of corporate structure and the law of corporations and not the product of an ad hoc agreement to do or not do something.
(f)The availability of a cause of action should not depend on the ‘formality’ of whether an entity is an unincorporated division or a wholly owned subsidiary. Conspiracy to injure is an intentional tort and in such cases courts do look though the corporate veil. This is usually done to ‘sheet liability home’ but where the tort depends on combination and intent, the same logic suggests that the intermediation of the corporate form may be ignored so that the law deal with those issues as a matter of substance, and is not distracted by ‘legal fig leaves’.[33] The law has also looked through the corporate veil to confer benefits on companies.[34] Further, the question arises here in the context of what is acknowledged to be an anomalous tort. In such a context the position that obtains elsewhere may be inappropriate. The element of combination is a fundamental control mechanism on the scope of this tort. It should be given an operation that depends upon substance rather than formalities.
(g)Civil conspiracy is an anomalous and distinctly unsettled tort. Whilst commentators and judgments in this area of discourse recognise that multinational conglomerates can exercise greater economic power than groups of smaller traders, the fact of agreement or combination between multiple persons is at the heart of the tort and has been advanced as a justification for its existence. That rationale posits that two actors are a greater threat to the community than one.[35] That rationale disintegrates in the case of intra-group conspiracy, where subsidiaries are acting at the direction of their parent. The rationale still has a role to play in informing what courts should now do to give content to the scope of the tort; whether to give it a wider or narrower operation.
(h)Taxi Apps relied on the decision of a single judge of the High Court of England and Wales (Digicel). The present issue was not squarely in contest in that case and the relevant reasoning is obiter. Further, the court’s conclusion that a director can conspire with the company he directs is inconsistent with the reasoning in O’Brien v Dawson. The passage relied upon does not represent the law in Australia and should not be followed.
[30]LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 (LMI Australasia).
[31]Copperweld Corp v Independence Tube Corp 104 S.Ct. 2731 (1984) (Copperweld).
[32]Copperweld, 2731, 2741-2.
[33]Citing for example, Salomon v A Salomon & Co Ltd [1897] AC 22 (Salomon v Salomon) to the effect that the corporate veil will not protect a fraudulent person hiding behind a corporate structure.
[34]Citing DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852.
[35]See for example, Lonrho Ltd v ShellPetroleum Co Ltd (No 2) [1982] AC 173, 189 (Lonrho).

Consideration – governing principles

Taxi Apps’ case was that the entities controlled by Uber Inc could, as a matter of law, and did, as a matter of fact, combine with it in the sense required for the tort of conspiracy to injure by unlawful means. Uber’s defence was that as a matter of law the defendants cannot have engaged in a conspiracy and as a matter of fact they did not. No Australian authority directly addresses or resolves the question of law in issue. It is necessary to proceed from first principles, addressing the nature and elements of the tort, foundational principles concerning corporate personality and what can be drawn from the authorities that address the subject or questions adjacent to it. The implications from those sources are drawn together under the heading ‘conclusions’, below.
The tort of conspiracy to injure by unlawful means
The elements of the tort of a civil conspiracy by unlawful means were stated by the High Court in Talacko v Talacko,[36] as follows:
In Williams v Hursey, Menzies J said that “[i]f two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy”. The agreement or common design between the parties is necessary for them to be jointly liable for unlawful means. However, if the conspiracy is merely aimed “at the public, the damage sustained by a member of the public is too remote to give a right of action”. The agreement which is carried out must be “aimed or directed” at the plaintiff.[37]
[36]Talacko v Talacko (2021) 272 CLR 678 (Talacko).
[37]Talacko, 690 citations omitted.
It bears emphasis at the outset that a conspiracy ‘consists not merely of the intention of two or more but in the agreement of two or more’ to do an unlawful act or a lawful act by unlawful means.[38] As Menzies J said in Williams v Hursey:[39]
If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy.
[38]Mulcahy v The Queen (1868) LR 3 HL 306, 317; see also as applied in the civil case of Beach Petroleum NL v Johnson (1993) 43 FCR 1, 19 (Beach Petroleum, a civil case of conspiracy by unlawful means).
[39]Williams v Hursey (1959) 103 CLR 30, 122 (emphasis added) (Williams v Hursey).
As the High Court said in Ahern v the Queen in the context of a criminal conspiracy ‘it is the fact of the agreement or combination to engage in a common enterprise which is the nub of the offence.’[40] This is true also of civil conspiracy,[41] although the tort is constituted only if the agreement is carried into effect with the requisite intention and if damage to the plaintiff results from the unlawful combination. It is only acts done in execution of the agreement that are capable of producing damage.[42] The tort then, requires both the existence of an agreement and concerted action taken pursuant to agreement. In this context, an agreement does not mean an agreement in a contractual sense but a ‘mutual consent to carry out a common purpose’,[43] more particularly a combination to perform unlawful acts with the intention to injure the plaintiff, which need not be the sole or predominant purpose of the conspirators.[44] The intention requirements of the tort are discussed elsewhere.
[40]Ahern v The Queen (1988) 165 CLR 87, 93 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) (Ahern).
[41]See, e.g., Revenue & Customs Commissioner v Total Network SL [2008] 1 AC 1174, 1234 (Lord Hope) (Total Network).
[42]Lonrho, 188 (per Lord Diplock).
[43]Ahern, 94, citing Rv Associated Northern Collieries (1911) 14 CLR 387, 400 (Northern Collieries)
[44]Beach Petroleum, 19 (and the authorities there cited); Andrianakis, [31] citing Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537, 24 [99] (Dresna).
Courts may infer the existence of an agreement, paying regard to the overt acts alleged ‘to infer from those acts that there was an agreement to further the common object of the combination’.[45] As the High Court said in Ahern, the fact of an agreement ‘can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.’[46] On the question of proof of an agreement, the Court adopted the reasoning of Isaacs J in R v Associated Northern Collieries[47] to the effect that both the fact of the combination and the participation of the participants may be proved by the same evidence, citing this passage from Northern Collieries:
Though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.^[48]
[45]See, e.g. Dresna, 25 [103].
[46]Ahern, 93.
[47]Northern Collieries, 400.
[48]Ahern, 94, citing Northern Collieries, 400.
Whilst the fact of the combination and participation by the alleged conspirators might be proved in from the same evidence, both elements must be established.
For the purposes of the tort co-conspirators are joint-tortfeasors. Generally speaking, joint responsibility in tort for wrongful acts leading to single damage may be founded on concerted action, among other bases.[49] Whilst it is by no means determinative of the issue in this case it is nevertheless instructive that in other contexts it is well accepted that common design can be found between a parent company and its subsidiary. For example, in Caterpillar Inc v John Deere Ltd,[50] the Full Court of the Federal Court concluded that in order to join the parent company of the Australian entity the applicant had to establish a prima facie case that there was a ‘meeting of minds’ between the parent and subsidiary with a view to furthering the conduct occurring in Australia.[51] In Apotex v Les Laboratoires Servier,[52] Bennett J said that a close relationship between a parent and subsidiary in which they regarded themselves as a single economic unit was by itself insufficient to establish the basis of liability against the parent entity and there must be some evidence of actual involvement in the furthering of a common design. Whilst those examples (both patent infringement cases) were not cases in which it was contended that as a matter of principle a parent and subsidiary cannot pursue a common design, it is noteworthy that the reasoning in those and like cases proceeds on two premises: first, that there may be a meeting of minds in pursuance of a common design or concerted action between a parent and subsidiary even where they have organised themselves as a single economic unit; second, the pursuit of a common purpose by each entity must be proved and is not assumed to have occurred merely because of the structural and economic relationship between the entities.
[49]See Baxter v Obacelo Pty Ltd (2001) 205 CLR 365, [18]-[19].
[50]Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1.
[51]Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1, [22]-[25], citing Unilever plc v Gillete (UK) Ltd [1989] 48 APR 1, 608-9.
[52]Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272; referred to with approval in Australian Mud Co Pty Ltd v Globaltech Corp Pty ltd (No 3) (2022) 169 IPR 1, [206]-[207].
Separate legal personality of the defendants
Taxi Apps emphasised the separate legal personality of the defendants. The nub of its case was that once separate personality is duly recognised, there being no discernible positive rule against a combination between related entities, it must follow that a conspiracy between them may occur.
It may be accepted that the recognition of the separate legal personality of a corporation, as distinct from that of its members and as distinct from companies to whom it is related, is a basic principle of Anglo-Australian law company law.[53] Once a company is legally incorporated it must be treated like any other independent person, whatever the scheme of those who brought it into existence. The fact that a company may be understood to carry on business for its shareholders ‘certainly does not in point of law constitute the relation between principal and agent’.[54] A company’s membership of a corporate ‘group’ in which companies have common or inter-locking shareholdings, does not change that position.[55]
[53]Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444, [142], citing Walker v Wimborne (1976) 137 CLR 1, 6; Industrial Equity v Blackburn (1977) 137 CLR 567.
[54]Salomon v Salomon, 43
[55]Walker v Wimborne (1976) 137 CLR 1, 6; Industrial Equity v Blackburn (1977) 137 CLR 567.

Between about January 2012 and April 2017, the compiled information was stored on internal GoCatch Databases that were protected by access and identity management protocols. There were weaknesses in those protections. Because GoCatch transmitted the disaggregated information to the GoCatch App in circumstances where there was no requirement for users to log in, the App was vulnerable to being used as the door through which to extract information in compiled form from the Databases.

The compiled List was obtained by Uber using a MITMproxy to replicate calls from a device to the GoCatch server for driver locations and information for all possible geographical points. As discussed, Uber’s use of a proxy was simple enough for a person without IT qualifications to implement. It did require skill and application though. The process was one of intercepting and modifying the communication between the GoCatch App and the GoCatch server, listening for and recording decrypted traffic data, understanding and analysing the flow of data.

The law does not requires for information to be ‘jealously guarded’ that it must be protected by impenetrable security measures.[415]Bell’s evidence is that the MITMproxy is not designed to be used or commonly used as it was by Uber. A MITMproxy could be expected to be used in connection with authorised or legitimate activities. As such, I place emphasis on the evidence that a proxy is a tool commonly used for debugging, testing, privacy measures and penetration. I conclude that Taxi Apps’ protections were imperfect but they were not unreasonably so. The protections applied by Taxi Apps to the Driver List lead to the conclusion that the List was treated as confidential by GoCatch.
[415]See, for example Franklin v Giddins [1978] QD R 72, 80 (Dunn J).

The information contained in the Driver List was not information that at some point in time had been in Uber’s possession.[416] Uber’s reliance on case law[417] arising from an employment context whereby the defendant reconstructed information or used information obtained through an employment context[418] did not assist in circumstances where Uber first came into possession of the Driver List through surveillance and use of a proxy beyond its intended purpose. For Uber to have compiled the Driver List without the use of a proxy, the task would have expended resources and effort.
[416]Cf IF Asia Pacific.
[417]IF Asia Pacific.
[418]Cf Cray Valley.

There is a distinction between information obtained directly from confidential documents or data and information legitimately derived from reverse engineering an item made public.[419] Reverse engineering is the process of taking things apart to understand how they work.[420] The rationale for permitting reverse engineering (with the conclusion that it does not entail a breach of confidence) is that it requires skill, effort and expertise.[421] It is not reverse engineering to shortcut the effort involved in producing an article or illegitimately take information about the article to use it as a springboard to commercial advantage.[422] Uber’s use of the poxy to derive the Driver List did not require particular skill, effort or expertise. Uber did not legitimately purchase or obtain an article or service from GoCatch and then compile the Driver List through the application of labour. Uber exploited weaknesses in GoCatch’s security to access the Driver List. I do not accept that Uber’s conduct can be characterised as permissible reverse engineering in the relevant sense.
[419]Saltman, 415. See also: Mars UK.
[420]Saltman, 415.
[421]Saltman, 415.
[422]Mars UK, 256.

Circumstances importing an obligation of confidence
Principle

Regardless of whether the information is secret or confidential, ‘there can be no binding obligation of confidence if that information is ‘blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential.’[423] In Coco, Megarry J applied a ‘reasonable man’ test[424] which was subsequently applied by Jacob J in Mars UK.[425] Megarry J states the test in this way:

It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then that should suffice to impose upon him the equitable obligation of confidence.[426]

[423]Coco, 47-48.

[424]Coco, 48.

[425]Mars UK (1999), 257.

[426] Coco, 48.

In Del Casale v Artedomus, it was said that that test involves determining whether the relevant information was imparted in circumstances where ‘a reasonable person must have realised, on reasonable grounds, that he or she was not free to deal with the information as his or her own, or must have realised that he or she could only deal with the information only within certain limitations’.[427] A duty of confidence may arise where there is not a pre-existing relationship of trust and confidence such as in an employment relationship.[428] One example is when an obviously confidential document, such as a private diary, is left in a public place and then picked up by a passer-by.[429] Or, as was put in this case, where a person innocently comes into possession of a confidential file left inadvertently on a bus.
[427]Del Casale, 353-354.
[428]Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, 224 [34]-[35] (Gleeson CJ).
[429]Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 281.

Equity will restrain publication of confidential information improperly or surreptitiously obtained.[430] Gummow J observed in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health:

In Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50, Mason J adopted the statement of principle by Swinfen Eady LJ in Lord Ashburton v Pape [1913] 2 Ch 469 at 475, that a court of equity will ‘restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged’. It will be observed that in that formulation, confidential information improperly or surreptitiously obtained, on the one hand, and information imparted in confidence, on the other, are treated as two species of the same genus. This accommodates, within the general rubric of the equitable jurisdiction, cases of eavesdropping or theft, for example, Franklin v Giddins…[431]

[430]XA v XB [2016] NSWSC 944, [22] citing Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50 (Mason J). See also: Franklin v Giddins [1978] QD R 72; Heydon, Leeming and Turner, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (5th edition 2014 Lexis Nexis) 1166 [42-080]; Dal Pont, Law of Confidentiality (LexisNexis Butterworth, 2015) [8.22]-[8.26].

[431] Smith Kline & French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1990) 22 FCR 73, (1990) 95 ALR 87, 101.

Australian courts continue to cite High Court authority Franklin v Gidins[432] on the relevance of information being unconscionably obtained.[433] In Franklin, the plaintiffs had an orchard where they grew unique nectarines. The defendant stole cuttings from the plaintiff’s orchard as well as trespassed upon it. The defendant argued that the cuttings were not ‘information confidentially imparted’ and therefore no obligation of confidence deserving protection arose.[434] Dunn J said:

I find myself quite unable to accept that a thief who steals a trade secret, knowing it to be a trade secret, with the intention of using it in commercial competition with its owner, to the detriment of the latter, and so uses it, is less unconscionable than a traitorous servant. The thief is unconscionable because he plans to use and does use his own wrong conduct to better his position in competition with the owner, and also to place himself in a better position than that of a person who deals consensually with the owner.[435]

[432]Franklin v Gidins [1978] Qd R 72 (Franklin).

[433] See, eg Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [301] (Callinan J).

[434] Franklin, 79.

[435] Franklin, 80.

As to the relevance of protections applied to the nectarine orchard, Dunn J continued:

It is true that the plaintiff’s orchard was not surrounded by an electric fence nor patrolled by guard-dogs, but I consider that the plaintiffs were entitled to rely on the fact that other people could normally be expected to respect their rights of property.[436]

[436]Franklin, 80.

In Mars UK, Jacob J considered what he referred to as the ‘second requirement’, that of communication in circumstances importing an obligation.[437] Should the examiner encounter encrypted information, the question is whether the encrypted information ought to be understood as confidential. Jacob J observed:

As pure matter of common sense I cannot see why the mere fact of encryption makes that which is encrypted confidential or why anyone who de-encrypts something in code, should necessarily be taken to be receiving information in confidence. He will appreciate that the source of the information did not want him to have access, but that is all. He has no other relationship with that source. Nor do the circumstances have an analogy with eavesdropping or secret long-lens photography (see Laws J in Hellewell v Chief Constable of Derbyshire [ 1995] I WLR 804 at 807) or telephone tapping. In that sort of case the snooper not only knows he is prying into other people's business but he has used some surreptitious means to do so. There is nothing surreptitious in taking a thing apart to find out how it is made.[438]

[437]Mars UK, 256.

[438]Mars UK, 256 [33].

I pause here to note that Jacob J’s observations were made in the context of an article that was publicly available for purchase, where ‘the recipient (the customer) is the intended recipient of the article containing the information’.[439] The observations were made in regard to de-encryption as a form of reverse engineering, as opposed to decoding (transforming encoded data into its original form).
[439]Mars UK, 257 [35].

To summarise, the relevant question is whether the circumstances of the communication would lead a reasonable person standing in the shoes of the recipient to realise that upon reasonable grounds, that information was imparted in confidence. It may be that the character of the information is sufficient to answer this question, or it may be that the circumstances of the communication to the recipient indicate to a reasonable person that the information is confidential. One relevant consideration is that it would not be reasonable or logical for a recipient of information to deliberately close their eyes to an obligation of confidence on the grounds that the information was easy to obtain. Just as it would not be reasonable for a person to conclude that an unlocked private property is theirs to access,[440] it is unlikely to be reasonable for a person to conclude that information obtained through eavesdropping on a private conversation or surreptitiously logging into a competitor’s online system may be freely accessed and used. Another is that on its own, the fact of encryption does not imply an obligation of confidence. This obligation should be understood in the context of the relationship between the parties, the nature of the information which may override the relevance of encryption in balancing and understanding the circumstances of the communication.

Submissions

[440]See Franklin.

Taxi Apps submitted that the circumstances in which the Driver List was obtained would have made clear to a reasonable person in Uber’s position that it was not free to deal with the information as its own:

(a) Uber knew its commercial value, as its emails revealed. It understood that what it was doing was akin to stealing – taking information that was not intended by Taxi Apps to be in the public domain by deliberately using tools not ordinarily used for that purpose, to gain a commercial advantage.

(b) The absence of relevant protections on the information comprising the Driver List has limited relevance when the information was obtained surreptitiously.

(c) Uber’s submission, to the effect that a reasonable person would have thought they were free to deal with information intercepted between the GoCatch Application and API as if it was their own information, should be viewed as evidence of Uber straying far from the norms of acceptable commercial behaviour.

Uber submitted that the driver information was not obtained in circumstances importing an obligation of confidence for these reasons:

(a) There was no express obligation of confidence. The terms and conditions applying to the use of the GoCatch Application are in evidence and did not include any notice that the information being sent or received was confidential. The relevant test is therefore whether the position of a reasonable person in the position of Uber would have understood the information was obtained in circumstances importing an obligation of confidence.

(b) The evidence as to data transfer between the GoCatch Databases and GoCatch Application does not establish that Rohrsheim and others at Uber, or a reasonable person in the same position, ought to have inferred that the driver information being sent to and from the GoCatch Application was confidential. There is no evidence of any security being applied to the transmission of the information. To apply a physical analogy, Uber’s conduct is more akin to eavesdropping on a public conversation than a private one. Relevantly, the information could be readily reverse engineered, such that it destroyed any character of confidentiality. It followed that ‘there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential’.[441]

(c) In both an objective test and a subjective test, applied to Rohrsheim, it should be found that, in all the circumstances, no obligation of confidentiality arose. The contemporaneous documentation demonstrates that the Uber Entities did not understand the information to be confidential or that they were unable to use it. Uber submitted that Rohrsheim understood that GoCatch was ‘disclosing’ the driver information and that its use was ‘kosher’. The second element of Mars UK[442] says that it is not enough to put someone on notice, by encrypting data, that a company was not intending for people outside the company to access the information. Mere notice of confidentiality is not sufficient to import an obligation because it does not give one notice of the kind of protections the plaintiff is otherwise applying to the information or the plaintiff’s attitude to the information. Rohrsheim’s perception that no obligation of confidentiality arose would have been shared by a reasonable person in the same position.

Analysis

[441]Coco, 48.

[442]Mars UK, 256.

I consider that the Driver List was obtained in circumstances importing an obligation of confidentiality. A reasonable person in the position of Uber Australia, through its employees, would have realised on reasonable grounds that it was not free to deal with the information as its own. I draw that conclusion from the character of the information and from how it was obtained.

As to the character of the information, objectively, for the reasons given earlier, it was of substantial commercial value to companies in the position of Taxi Apps and Uber. It was the fact that Uber Australia (whose state of mind can be taken to be that of its director and senior executive David Rohrsheim) regarded the information in that way. Contemporaneous communications reveal that Rohrsheim considered the Driver List to be very valuable. Rohrsheim asked for the information comprising the Driver List because he believed it would ‘help [him] acquire drivers’ for Uber. When Rohrsheim received the information he messaged colleague Barreto ‘The gocatch API is a goldmine’. Later in an email sent from Rohrsheim to colleagues regarding Uber’s ‘Sydney strategy’, Rohrsheim noted that in respect of the taxi supply issue faced by Uber, he had obtained a list of all GoCatch driver phone numbers and Uber was now ‘aggressively cold calling [drivers] and had won 56 drivers’. The commercial value associated with the Driver List was clearly the motivation for obtaining it.

The resource represented by the Driver List had a quality of scarcity in the sense that drivers were a critical resource and their contact information identified them as persons who were available for and interested in driving for a ridesharing operation. On the evidence considered elsewhere in the Reasons, ‘supply’ – of which available drivers were the critical element – was a resource in demand and the subject of intense competition. A reasonable company in the position of Uber Australia would conclude that it was not free to deal with the information as its own and that Taxi Apps would not consider it to be public information. The fact that Taxi Apps published driver contact details to its passengers in disaggregated form would not disabuse a reasonable person of that conclusion.

As to the means by which the information was obtained, Uber used a proxy to access the GoCatch Database. Taxi Apps characterised Uber’s conduct as ‘tricking’ the GoCatch server to provide one device all driver information comprising the Driver List. Uber characterises its conduct as constructing the Driver List from publicly available information using ingenuity and a freely available online tool, a proxy. A proxy is a tool that can be freely accessed online and a user can teach themselves how to deploy it without specialised skills. However, in a usual commercial setting a proxy is deployed for debugging and testing. I consider that a reasonable person using a proxy would understand that using the tool to intercept an external network hosting a competitor’s data is not its standard use; it is conduct outside of normal commercial behaviour. It would be reasonable for a company to expect that a competitor would not use a proxy to obtain commercially valuable information from its databases. A company’s use of a proxy, outside of its intended purpose, to obtain commercial information with the intention of putting itself in a better position than that of a person who deals consensually with its owner has a character of unconscionability.[443]
[443]See Franklin, 80.

Upon obtaining the Driver List, Rohrsheim emailed his Uber colleagues:

This is very clever stuff, but something we must never talk about to anybody outside Uber. It’s kosher, but it wouldn’t look good in public. Remember we do lots of cool stuff at Uber that we can’t boast about.

Rohrsheim’s email reveals that he considered Uber’s conduct to be outside of the bounds of normal commercial behaviour. Uber asked the Court to draw from Rohrsheim’s email, and other contemporaneous evidence, that Uber considered the conduct to be ‘kosher’ - not honourable, but falling short of contumelious disregard for someone’s rights. The submission was, as I understand it, directed primarily to the claim by Taxi Apps for exemplary damages. In my view the content of that email evidences Uber Australia’s awareness of, and its judgment that, obtaining the Driver List was not consistent with acceptable industry behaviour. The descriptor ‘kosher’ was self-justifying. The email evidences that Rohrsheim knew that it ‘wouldn’t look good in public’ if Uber were found to have secretly obtained a competitor’s data. This begs the question, why would the conduct not look good? It may be implied from the content and tone of the email that it was understood that the conduct would be regarded by reasonable people as falling short of acceptable commercial behaviour, and as morally suspect. That is all consistent with the conclusion that a reasonable person in the circumstances would understand that they were not free to deal with the information as their own.

Relief

Taxi Apps initially brought a claim for compensation. It now seeks only a declaration that the Uber Entities (‘or one or more of them’) breached a duty of confidence owed to Taxi Apps.

This Court has power to grant declaratory relief – both inherently[444] and under s 36 of the Supreme Court Act 1986 (Vic). The grant of declaratory relief is discretionary.[445]
[444]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-2 per Mason C.J., Dawson, Toohey and Gaudron JJ (Ainsworth).
[445]Ainsworth 564 , 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ); Cruse v Multiplex Ltd & Ors (2008) 172 FCR 279, 299 [55] (Goldberg and Jessup JJ); McLeish v Faure (1979) 25 ALR 403, 414-415 (Sweeny, Evatt and Northrop JJ).

It is accepted that the discretion should be exercised sparingly and that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. [446] A bare declaration of past wrong, with no present or foreseeable consequences, and of doubtful utility to the party seeking the declaration, is only made in rare circumstances.[447] Courts tend to distinguish between proceedings that are instituted to vindicate statutory rights or norms of general application from other proceedings.[448] In cases of the former, the Court has been thought to be more amenable to declaratory relief because it services to record the Court’s disapproval of conduct that contravenes a public right or because it might have some wider educative effect.[449] There may be circumstances in which it is appropriate to mark the Court’s disapproval of conduct or to achieve a broader educative or deterrent effect, but it will be doubtful that a declaratory order is appropriate where the order amounts to little more than a record of the conclusion obtained by the Court’s judgment, understood by its reasons for judgment.[450]
[446]See the authorities summarised in Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 (CFMEU v Milin) at [77].
[447]Thorpe v Head, Transport for Victoria (2021) 66 VR 56, [116] discussing Minister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1, 33 [118] (Kiefel J, Jenkinson J agreeing at 30) (Ozmanian).
[448]CFMEU v Milin [2019] FCA 1070, [91] and the authorities cited there.
[449] See the authorities summarised in CFMEU v Milin [2019] FCA 1070, [91]-[98].
[450]Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).

Taxi Apps submitted as follows:

(a) It is appropriate for the Court to mark its disapproval with a declaration. While GoCatch is no longer trading, there is utility in the Court recording its disapproval of egregious conduct by Uber given it is a large business that continues operate in Australia and globally.[451]

(b) In his personal performance review, Rohrsheim boasted that he had ‘infiltrated limo and taxi databases to recruit hundreds of drivers’ and that ‘detest’ for competitors motivated him to ‘build relationships with investors, politicians and potential employees to hurt [competitors’] development’. The performance review indicated ‘fierceness’ and the type of conduct undertaken by Rohrsheim is indicative of strong professional performance in line with Uber’s business strategy. In other words, conduct of that kind was woven into the corporate culture.

(c) The is no evidence that Uber stopped using the Driver List. It is not open to infer that Uber went to the effort of obtaining the Driver List, in circumstances where Uber acknowledge the information was important and commercially valuable, then stopped using it three weeks after it was obtained. That is, the evidence does not support Uber’s de minimis use of the information.

[451]Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212, [150] (Lander J); Australian Securities and Investments Commission v McDougall (2006) 229 ALR 158, [55] (Young J); Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Milin Builders Pty Ltd, [2019] FCA 1070, [98] (Snaden J).

Uber submitted that no relief in relation to the alleged breach of confidence should follow because ‘bare declarations’ should not be made. Its submissions were as follows:

(a) There would be no utility in the Court making a declaration in circumstances where the events occurred more than 10 years ago and the plaintiff is no longer trading, so a declaration would not produce foreseeable consequences for the parties.

(b) The fact Uber is still trading does not inform the question of utility as there is no evidentiary foundation for the proposition that the use may have continued some time into the future or that conduct of this kind is ongoing, and Rohrsheim is no longer employed by Uber entities. There are only two documents that the plaintiff relied upon regarding use of the Driver List. The first is the email from Rohrsheim stating he has won 56 drivers, and the second is a performance review from 2013 where Rohrsheim’s review may be read as a self-aggrandising statement. Taken at its highest, the Stone evidence on the Driver List shows some drivers worked across both Uber and GoCatch platforms. Drivers were able to operate across multiple platforms so any driver crossover cannot be attributed to Uber’s cold calling efforts.

(c) There is no evidence that Uber’s conduct led to Taxi App losing drivers to Uber. Rather, the highest the evidences rises is Uber gained 56 drivers from using the Driver List.

Analysis

I do not consider that there is a proper basis upon which to exercise my discretion to make the declaration that Taxi Apps seeks.

Generally speaking, caution should be exercised if the grant of a declaration will not produce any foreseeable consequences for the parties beyond that which will flow from the pronouncement of judgment by the Court.

The fact is that Taxi Apps no longer operates its business. The ability of GoCatch passengers to book a trip on the GoCatch App was disabled in around February 2021 and Taxi Apps effectively ceased to operate. The relevant Uber entities are still in operation. They are a commercial presence in Australia and internationally. However, this particular incident was, although wrong and deserving of opprobrium, relatively confined in its scale and reach. It may be contrasted in its scale and reach with the pervasive and systemic unlawful conduct of the Uber Entities more generally in launching UberX in the Australian states when it was illegal to do so. That conduct was not the subject of the claim for breach of confidence.

The findings of fact sought by Taxi Apps are recorded in these Reasons, as is the conclusion that Uber Australia engaged in a breach of confidence. That finding should serve an educative and deterrent purpose. The conduct of Uber Australia was wrong and unconscionable in the ways discussed; it was neither honourable nor commercially acceptable. This judgment by a superior Court marks the Court’s disapproval and condemnation of that conduct by the standards of the law and by extension, the community.

---

SCHEDULE OF PARTIES

TAXI APPS PTY LTD (ACN 149 538 616)

Plaintiff

and

UBER TECHNOLOGIES INCORPORATED (4849283)

First defendant

and

UBER INTERNATIONAL HOLDING B.V. (RSIN 851 929 357)

Second defendant

and

UBER B.V. (RSIN 852 071 589)

Third defendant

and

UBER AUSTRALIA PTY LTD (ACN 160 299 865)

Fourth defendant

and

RASIER OPERATIONS B.V. (RSIN 853 682 318)

Fifth defendant

and

UBER PACIFIC HOLDINGS B.V. (RSIN 855 779 330)

Sixth defendant

and

UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463)

Seventh defendant

[2025] VSC 514

25 August 2025