Taxi Apps Pty Ltd v Uber Technologies Inc & Ors - [2024] VSC 63

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 INCORPORATED & ORS (according to the attached Schedule)	Defendant

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2024
DATE OF RULING:	23 February 2024
CASE MAY BE CITED AS:	Taxi Apps Pty Ltd v Uber Technologies Inc & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 63

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PRACTICE AND PROCEDURE — Expert evidence — Application to admit late expert evidence — Whether expert evidence properly characterised as evidence in reply — Whether expert evidence permitted to amend case in chief — Whether late service of expert evidence causes prejudice — Whether in interest of justice to admit late expert evidence — Northern Health v Robert Kuipers [2015] VSCA 172, referred to — Thomas v Powercor Australia (Ruling No 3) [2011] VSC 391, referred to — Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyds, London [2011] VSC 370, referred to — Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Hodge KC with	Corrs Chambers Westgarth
Mr K Loxley &
Ms C Mintz
For the Defendant	Mr D Sulan SC with	Herbert Smith Freehills
Ms M Ellicott

HER HONOUR:

Introduction

The issue for decision is whether the Plaintiff (Taxi Apps) should be permitted to rely on the expert report of Jessica Olivier filed on 16 January 2024 (Olivier Report).

Taxi Apps’ case (relevantly) is that but for Uber’s alleged wrongful conduct,[1] Taxi Apps’ GoCar product would have had a greater share of the ‘rideshare’ market than the share it in fact held in circumstances in which Uber entered the market unlawfully (before ridesharing services were legally permitted in the Australian states), gaining the competitive advantages of early entry. The posited market share in the counter‑factual world is described under three scenarios. The disputed evidence concerns the Australian government research and development (R&D) tax incentive scheme. Ms Olivier has been asked to estimate the tax offset entitlement that Taxi Apps would have been entitled to claim in the prevailing counter‑factual scenarios. On Taxi‑Apps’ case, the availability of tax offset entitlement would constitute a source of capital (among other sources) to fund the scaling up of its business which would have required more capital under the counter‑factual scenarios that it did in the factual world.
[1]It is unnecessary to describe the liability case for the purposes of this ruling.

The Defendants (Uber) object to that permission. Uber says that the Olivier Report is necessarily part of Taxi Apps’ case in chief and accordingly it should have been filed some months ago. Uber says that if the evidence is allowed, it must fairly be permitted the opportunity to prepare, file and rely on responding evidence. Requiring it to do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 63
Decision Date: 23 February 2024

CaseChat Overview and Summary

In the Federal Court of Australia, Taxi Apps Pty Ltd brought an action against Uber Technologies Inc and others, challenging the validity of certain agreements and seeking various remedies including damages and injunctions. The defendants sought to exclude the plaintiff’s expert evidence on the basis that it was filed late. The central issue before the court was whether the late expert evidence could be admitted, particularly in the context of whether it could be characterised as evidence in reply, whether it was permissible to amend the case in chief, and whether the late service of the evidence would prejudice the defendants or whether it would be in the interests of justice to admit it.

The court considered the legal framework governing the admission of late expert evidence, referencing several precedents. It examined whether the expert evidence was properly categorised as evidence in reply, and whether the principles established in cases such as Northern Health v Robert Kuipers and Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyds, London applied. The court also assessed whether the late service of the evidence caused prejudice to the defendants and whether the admission of such evidence would be in the interests of justice, drawing on the reasoning in Aon Risk Services Australia Ltd v Australian National University. Ultimately, the court found that the expert evidence could be admitted, as it was not prejudicial to the defendants and its admission was in the interests of achieving a just outcome.

The court's reasoning was that the late expert evidence, while not ideal, did not unfairly prejudice the defendants and was necessary to properly address the issues at hand. The court balanced the principles of fairness and justice, concluding that the late evidence could be admitted without causing substantial injustice. The court also noted that the defendants had not demonstrated significant prejudice due to the delay, and that the expert evidence was critical to the plaintiff's case.

The court ordered that the defendants' application to exclude the expert evidence be dismissed, allowing the evidence to be admitted and considered in the proceedings. This decision ensured that the case could proceed with all relevant evidence being available to the court for its determination.

Orders