Abdalla v Rasier Pacific Pty Ltd

NCAT Consumer and Commercial|2024-01-18

Introduction

The respondents in these proceedings are companies registered in Australia and the Netherlands respectively. The respondents are part of the group of companies which operates the Uber "ride sharing app" in Australia and elsewhere.
The applicant entered into an agreement (the Services Agreement) with the respondents on 3 March 2020. Pursuant to the Services Agreement the first respondent, referred to in the agreement as Rasier Pacific, agreed to: "procure and facilitate the provision of lead generation services, being on-demand intermediary and related services rendered via a digital technology application that enable[s] transportation providers to seek, receive and fulfil on-demand requests for transportation services ("Uber services") to [the applicant], an independent provider of peer-to-peer passenger transportation services".
The second respondent, referred to in the Services Agreement as Uber, agreed to license to the applicant: "the Uber Driver App ("Driver App"), a mobile application provided by [the second respondent] that enables you to access and receive the Uber Services".
The respondents maintained, and the applicant did not dispute, that the applicant had accepted the terms of the Services Agreement by clicking on a box within the website maintained by the respondents (or a related entity) which contained the words "yes I accept".
The applicant provided rideshare services to customers through the Driver App until 20 February 2022 when the respondents "deactivated" his account, that is it denied him further access to the Driver App and ceased to provide "lead generation services", that is contact with customers seeking rides.
The applicant alleges that the respondents were not entitled to deactivate his account and seeks orders from the Tribunal reinstating his access to the Driver App and also compensation in the sum of $10,000.

Evidence

The applicant's evidence consisted of a bundle of documents which was tendered and marked Exhibit A. That bundle included a document headed "Small Claims Court Submissions". That document was taken to be the applicant's statement of evidence and was admitted as such.
The applicant made an affirmation and verified the statements in the "Small Claims Court Submissions". The applicant also answered some questions from the Tribunal. The applicant was assisted at the hearing by an interpreter. It was apparent that he had some command of English but not a sufficient command to follow and participate in the proceedings without assistance.
The respondent relied upon two affidavits sworn by Ms Harriet McCormick on 15 December 2023 and 16 January 2024. The affidavit of 15 December 2023 annexed 51 pages of documents. Those affidavits and the annexures were admitted into evidence.
Ms McCormick took an oath and answered questions from the applicant and the Tribunal. She did so remotely, as she was not in New South Wales at the time of the hearing. Ms McCormick is a solicitor with Denton's, the solicitors for the respondents. She gave evidence based upon a "review of [the respondents'] internal records related to this matter" and enquiries "I have personally made of Uber in relation to the factual matters made in this current proceedings".
Ms McCormick's affidavit did not identify any person employed by either of the respondents as a person of whom she had made enquiries. When asked by the Tribunal whether she could identify the persons from whom she had made enquiries, Ms McCormick indicated that she had retained notes which identified those persons but that she was not able to access them immediately. The result is that the Tribunal has no information concerning whether the persons from whom Ms McCormick made enquiries had any personal knowledge of the matters about which they were asked.
Although the rules of evidence do not apply in the Tribunal, so that Ms McCormick's evidence, which was largely, if not entirely, hearsay, was not inadmissible on that basis, the absence of detail and specificity concerning the source of the information related by Ms McCormick rendered her evidence on critical issues of negligible or no weight.
In this regard I refer particularly to paragraphs 14 and 15 of McCormick's December affidavit to which I will refer further below.

Background and undisputed facts

Ms McCormick's first affidavit commenced: "1. I am a solicitor engaged by Uber Australia Pty Ltd and I am authorised to make this affidavit on behalf of the Respondent, being an entity within the Uber group of companies in Australia. 2. The day-to-day requirements of my role include duties which are relevant to the subject matter of the claim, and include managing claims made against the Respondent and other entities within the Uber group of companies in various courts and tribunals around Australia and New Zealand, and instructing external counsel in relation to responding to those claims. 3. For the purposes of responding to the matters raised in these proceedings, I have not sought to define the roles of the different Uber entities in the particular conduct referred to and references made generally to the Uber group of companies (including the Respondent) as 'Uber' throughout this affidavit. Uber operates a business known as 'Uber' via a proprietary technological platform (Uber App)."
As Senior Member Titterton noted in Najafi v Rasier Pacific Pty Ltd [2023] NSWCATCD 153 at [27], in a case where Ms McCormick appears to have sworn a very similar affidavit, Ms McCormick's approach to the identification of the "roles of the different Uber entities" is quite unhelpful. Nevertheless, I take the fact that Ms McCormick has annexed documents to her affidavit to be an acknowledgement that the documents form part of the business records of the respondents, even if they may formally belong to a different entity.
Although the Services Agreement indicates that the respondents have different roles, in the absence of any indication which of the respondents was responsible for any particular communication, I will proceed on the basis that both respondents sent and both respondents received all communications to which "Uber" was party.
The documents annexed to Ms McCormick's first affidavit, which I accept were genuine documents, or accurate reproductions of the contents of communications (in-app messages) carried out through the "Uber App" (which term refers to both the app used by passengers and the Driver App), disclose the following chronology.
On 10 August 2020 the respondents received a communication from a passenger ("rider") in the following terms: "I don't want to be matched with this driver again.: true Please tell us about the rude or unprofessional behaviour you experienced from the driver.: He was adamant about being friends with me and insisted i give him my number. It was a very uncomfortable situation for me and i was very scared because of his behaviour"
The respondents' response to the passenger was: "Thanks for letting us know about this incident. We're sorry to hear that the driver may have made comments or gestures that made you feel uncomfortable. This is not the experience we want you to have. Rider safety is important to us here at Uber and this behaviour will not be tolerated, so we're happy you reached out to us. We will be looking into this incident and take the appropriate steps to ensure that this experience doesn't happen again. Our technology is a two-way street for both riders and driver-partners, and driver-partners that behave inappropriately may have their access removed. Because of this, we've gone ahead and refunded the full amount of this fare. This amount should reflect within 5-10 business days. Additionally, we've made sure that you will not be paired with this driver-partner again. Again, we really appreciate having this kind of feedback as we aim to make sure only excellent riders and driver-partners are using the system. You can always get in touch through the "Help" section of the app. We are here to help."
On the same day the respondents sent a message to the applicant through the Driver App: "Hi Salahaldeen, This is [redacted] from the Community Operations team. We've received a report from a rider from one of your recent trips that you may have made some comments or gestures that made the rider feel uncomfortable. We ask all our driver-partners to commit to our Community Guidelines when they sign up to partner with Uber and behaviour like this violates those guidelines. We conduct regular reviews of users on the app to ensure that both the rider and driver-partners are adhering to these guidelines - those who fail to do so may be permanently removed from the app. And as a reminder, Uber has a no sex rule. That's no sexual conduct between driver-partners and riders. Ensuring the safety and wellbeing of both riders and driver-partners is very important to us here at Uber, so we hope you can understand why it was necessary to reach out to you. Thank you for understanding."
The evidence does not suggest there was any further communication concerning that complaint either between the respondents and the complainant or between the respondents and the applicant at that time.
On 20 February 2022 the respondents received a communication from a passenger in the following terms: "My driver or his vehicle didn't match the profile in my app: false My driver made me feel unsafe or was inappropriate: true My driver refused my destination: false My driver was unprofessional or rude: false I had an issue with my driver's vehicle (e.g. temperature, cleanliness, odor): false I was incorrectly charged a cancellation fee: false Do not pair me with this driver again: true What did the driver partner say or do?: Asking: where is your boyfriend? I can give you good friendship Did the driver partner make physical contact with you?: No"
The respondents' response to the passenger was as follows: "Thanks for letting us know about this incident. We're sorry to hear that the driver may have asked questions that made you feel uncomfortable. This is not the experience we want you to have. Rider safety is important to us here at Uber and this behaviour will not be tolerated, so we're happy you reached out to us. We will be looking into this incident and take the appropriate steps to ensure that this experience doesn't happen again. Our technology is a two-way street for both riders and driver-partners, and driver-partners that behave inappropriately may have their access removed. Because of this, we've gone ahead and refunded the full amount of this fare. This amount should reflect within 5-10 business days. Additionally, we've made sure that you will not be paired with this driver-partner again. Again, we really appreciate having this kind of feedback as we aim to make sure only excellent riders and driver-partners are using the system. You can always get in touch through the "Help" section of the app. We are here to help."
It will be noted that this response is almost identical to that forwarded to the passenger who complained on 10 August 2020.
The document annexed to Ms McCormick's affidavit which reproduced these messages did not identify at what time of day the communication from the passenger was received.
On the same day at 9:52 am the respondents sent a message to the applicant through the Driver App: "Hi Salahaldeen, This is [redacted] from the Community Operations team. We've received a report from a rider from one of your recent trips that you may have asked questions that made them feel uncomfortable. We ask all our driver-partners to commit to our Community Guidelines when they sign up to user Uber and behaviour like this violates these guidelines. We conduct regular reviews of users on the app to ensure that both the rider and driver-partners are adhering to these guidelines - those who fail to do so may be permanently removed from the app. And as a reminder, Uber has a no sex rule. That's no sexual conduct between driver-partners and riders. Ensuring the safety and wellbeing of both riders and drivers is very important to us here at Uber, so we hope you can understand why it was necessary to reach out to you. Thank you for understanding."
It is apparent that at some time in the following hour the applicant's access to the Driver App (for the purpose of connecting with passengers but not for communicating with the respondents) was suspended. At 10:44 am the applicant forwarded a message to the respondents indicating that he was not able to log in.
In oral evidence Ms McCormick acknowledged that the applicant would have been suspended from the Driver App from the time when the relevant customer made her complaint.
In Ms McCormick's second affidavit she gave evidence that she had undertaken a "review of Uber's internal records related to this matter" and personally made enquiries of "Uber in relation to the factual matters made in the current proceedings". Ms McCormick's affidavit purported to include data extracted from the respondents' business records. That data indicated that the trip undertaken by the customer who lodged the complaint against the applicant on 20 February 22, 2022 commenced at 12:14 am.
However, it was only at 10:51 pm on 20 February 2022 that the respondents sent a message to the applicant: "Hi Salahaldeen , This is [redacted] from the Community Operations team. After a review of your account, we discovered there are reports from riders about behaviour that is in direct violation of our Community Guidelines. This includes multiple reports of sexually suggestive remarks. Therefore, we are deactivating your account effective immediately. It was not an easy decision as we value each and every driver who chooses to partner with Uber. If you believe that our decision to deactivate your account should be reviewed, you are able to request for an appeal by following this link. You may provide additional information or documents, however please ensure that they are relevant, or have not been previously shared with us. Please also ensure that you have a valid legal basis to provide us with this information. Once your request has been submitted, a member of our team will begin the review process. Please note, this can take up to 7-10 business days, but it may take longer. Rest assured, we'll send you a message letting you know the outcome of your request. By providing this information to Uber, you hereby confirm that you have the appropriate legal basis to do so, including with respect to any personal data belonging to third parties. Please note that any information provided will be subject to our Privacy Notice. We appreciate your time using Uber, and wish you the best in your future endeavours."
It is notable that the respondents' messages did not indicate to the applicant either the specific content of the allegation made against him or the time at which the conduct complained of was supposed to have occurred.
The applicant included in his evidence screenshots of an in-app message forwarded to the respondents at 2:42 am on 20 February 2022 seeking payment of a cleaning fee in respect of the soiling of his vehicle by a customer during a trip commencing at 12:39 am that morning. The message included photographs of what appears to be vomit.
In his evidence, that is the "Small Claims Court Submissions", the applicant stated the following: "The passenger was drunk and vomiting inside my car and made the car very ugly, I could not drive again because of the bad rest. It was around 1 am. I took some pictures from inside the car. In send to Uber like normal report to Uber and Uber blocked my account, was locked without any reasons from Uber. I just reported it. As a result of this Uber have stopped me from being able to make a living and broken their contract with me. I have lost thousands of dollars in lost income as a result of this. I tried to appeal the situation numerous times by communicating to Uber customer support and a letter was even mailed to the Uber Legal Department at PKF Sydney asking for evidence and for my account to be reinstated. I have attempted these forms of contact to Uber multiple times and I have been rejected and not given a sufficient explanation into my deactivation reason. I have evidence of all these forms of appeal through the Uber App and also emails provided by Uber Support to me, as well emails from Uberls Legal Office PKF Sydney."
The applicant also stated: "These claims are false and there is no evidence that was applied by Uber to prove the allegations. Therefore, I did not breach any of the community guideline that was provided by Uber. Therefore, there has been absolutely no violation of the Community Guidelines. … As explained above I am asking for the orders as I have been deactivated unfairly on the platform as Uber stated that I had breached the Community Guidelines. I have NOT done this and therefore I did NOT breach the contract terms and Uber has not done a proper investigation or given me a chance to appeal the deactivation. This has caused me financial damages and hardship and I have lost my full-time career due to the unfair deactivation. The outcome I would like to achieve is to claim the damages owed to me and have my Uber Driver Account reinstated."
Ms McCormick's second affidavit included data said to have been extracted from the business records of the respondents which shows that the applicant had undertaken a further ride after dropping off the passenger collected at 12:14 am. The records disclose that the applicant collected a male passenger at 12:39 am on 20 February 2022 for a trip of 17.85 km.
On 21 February 2022 the applicant forwarded a message to the respondents: Name : Salahaldeen abdalla What mobile number is associated with your account? : [not repeated for privacy reasons] My account was deactivated for a reported safety incident : true What was the reason given for deactivating your account? : This rate my lest one and he vomit inside my car and he drink B inside my car when I arrive all my car mess ever way in my car\n I'm already send all pictures for Uber Saturday night 1:00am If additional information provided: I confirm that I have appropriate legal basis to provide the additional information : true
On 22 February 2022 the respondents replied: "Hi Salahaldeen, Thank you for letting us know you want to have your deactivation reviewed. We will look into your account, and any further information you have provided to us. This process usually takes 7-10 business days, but it may sometimes take longer. We'll send you a message letting you know the outcome of your request. In the meantime, if you have any further information that you think is relevant to our review, please reply to this message as soon as possible. By providing this information to Uber, you hereby confirm that you have the appropriate legal basis to do so, including with respect to any personal data belonging to third parties. Please note that any information provided will be subject to our Privacy Notice."
On 8 March 2022 the respondents messaged the applicant: "Hi Salahaldeen, Thank you for your patience while we reviewed the deactivation of your Uber account. We have reviewed the information available, and have unfortunately decided to uphold the deactivation decision. Based on our review, we have found that your account is in violation of the standards Uber has set for all users, particularly sexual misconduct. We appreciate your time using Uber, and wish you the best in your future endeavours."
The applicant responded: "Good morning Uber \n I'm driving Uber for long time but I'm never say anything for my Customer\n So why you guys not believing me only she chat with me about my work and she ask me if I'm married or single I'm say single that all\n Please Uber team try to help me to open my account next time I'm not chat with any customers \n If that no accept in Uber don't have any more jobs only driving Uber please open my account \n Thanks"
That communication is significant in that it indicates that, notwithstanding that the respondents' records do not disclose any communication from the respondents to the applicant of any details of the complaint made on 20 February 2022, the applicant appears to have some knowledge of the details of the complaint. This issue was not explored in the evidence.
The communication does, however, constitute a denial by the applicant that he had engaged in sexually suggestive conduct.

Relevant provisions of the Services Agreement

Clause 4 of the Services Agreement was as follows: "4. Your Relationship with Uber Group. You acknowledge and agree that Rasier Pacific's provision of the Uber Services creates a legal and direct business relationship between Rasier Pacific and you. You also acknowledge and agree that Uber's licence to you of the Driver App creates a legal and direct business relationship between Uber and you. Neither Rasier Pacific nor Uber shall be deemed to direct or control you generally or in your performance under this Agreement, including in connection with your provision of Transportation Services, your acts or omissions, or your operation and maintenance of your vehicle. Except as expressly set out herein, you retain the sole right to determine when and for how long you will utilise the Driver App or the Uber Services. You alone decide when, where and for how long you want to use the Driver App, and when to try to accept, decline or ignore a User request. A User request can be cancelled, subject to Uber's then-current policies (including the Community Guidelines located at www.uber.com/legal/community-guidelines/rides/anz-en/). You acknowledge and agree that you will not: (a) display Rasier Pacific's, Uber's or any of their affiliates' names, logos or colors on any vehicle(s); or (b) wear a uniform or any other clothing displaying Rasier Pacific's, Uber's or any of their affiliates' names, logos or colors, unless you and Rasier Pacific or Uber (as applicable) have agreed otherwise or if so required by law, You retain the complete right to engage in other business or income generating activities, and to use other ridesharing networks and apps in addition to the Uber Services and the Driver App. Rasier Pacific retains the right to, at any time at its sole discretion, restrict you from using the Uber Services in the event of a violation of this Agreement or any relevant Uber policy, your disparagement of Rasier Pacific, Uber or any of their affiliates, or your act or omission that causes harm to Rasier Pacific's, Uber's or their affiliates' brand, reputation or business as determined by Rasier Pacific in its sole discretion. Rasier Pacific also retains the right to restrict you from using the Uber Services for any other reason at the sole and reasonable discretion of Rasier Pacific. Uber retains the right to, at any tirne at its sole discretion, deactivate or otherwise restrict you from accessing the identification and password key assigned to you by Uber ("Driver ID) and/or the Driver App, in the event of a violation of this Agreement, any relevant Uber policy, including the Community Guidelines or the Uber Privacy Policy (located at privacy.uber.com/policy/), your disparagement of Rasier Pacific, Uber or any of their affiliates, your act or omission that causes harm to Rasier Pacific's, Uber's or their affiliates' brand, reputation or business as determined by Uber in its sole discretion. Uber also retains the right to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, for any other reason at the sole and reasonable discretion of Uber."
Clause 6 relevantly provided: "6. Requirements … You acknowledge and agree that your vehicle must meet the then-current Rasier Pacific requirements for a vehicle to provide the Transportation Services and must be authorised by Rasier Pacific for this use, be properly registered, licensed and generally suitable to operate as a passenger transportation vehicle in your Territory, either owned or leased by you or otherwise in your lawful possession, kept in a clean and sanitary condition, and maintained in good operating condition consistent with industry safety and maintenance standards for a vehicle of its kind and any additional standards or requirements in the applicable Territory. You acknowledge and agree that Rasier Pacific reserves the right, at any time in its sole discretion to restrict you from using the Uber Services, if you fail to meet the requirements in this Agreement. You also acknowledge and agree that Uber reserves the right, at any time in its sole discretion to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, if you fail to meet the requirements in this Agreement."
Clause 16 relevantly provided: "16. Term & Termination. This Agreement shall commence on the date that the Agreement is executed by you (electronically or otherwise) and will continue until terminated by you, Rasier Pacific or Uber, which any party can do (a) without cause at any time on 30 days' prior written notice to the other parties; (b) immediately, without notice, for any other party's material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of any other party, or upon such other party's filing or submission of request for suspension of payment (or similar action or event) against the terminating party. …"
Clause 27 of the Services Agreement was as follows: "27. Limitation of Liability. This clause 27 applies only to the maximum extent permitted by applicable law, and does not (and is not intended to) override any rights that you have pursuant to applicable law, including the Australian Consumer Law. Rasier Pacific, Uber and each of their affiliates shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or otherwise, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) your or any third party's property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for Rasier Pacific's (or an affiliate of Rasier Pacific's) obligation to remit amounts owed to you pursuant to clause 8 above, but subject to any applicable limitations or other provisions contained in these Agreement, in no event shall the liability of Rasier Pacific, Uber and/or any of their affiliates under this Agreement exceed the amount of Service Fees actually paid to or due to Rasier Pacific in the 6 months immediately prior the event giving rise to such claim. You acknowledge and agree that any and all claims you have or purport to have against Rasier Pacific, Uber and/or their affiliates should be notified to Rasier Pacific, Uber and/or their affiliates within one (1) year after the event(s) that gave rise to such claim and that you forfeit all rights in respect of that claim if you fail to do so. This limitation of liability only applies to the extent the law allows."

Community Guidelines

Ms McCormick annexed to her first affidavit a copy of the Community Guidelines as in force from 17 January 2022. She did not attach a copy of the Community Guidelines in force prior to that date, or the guidelines in force at the time the respondents received the first complaint in August 2020.
The guidelines as in force from 17 January 2022 relevantly provided: "Our guidelines were developed to help make every experience feel safe, respectful and positive. They apply to everyone who uses Uber's platform ("Uber Marketplace Platform"), including but not limited to drivers, riders, delivery people, Uber Eats users, merchants and businesses. … … There will always be unforeseen events that may ultimately lead to your losing access to using the Uber Marketplace Platform and services, but the following guidelines - which we'll update regularly - provide the basis for behaviour we expect from all in the Uber community. Not following any one of our guidelines can constitute a material breach or violation of the terms of your agreement with Uber and may result in the loss of access to part or all of the Uber Marketplace Platform. Everyone who signs up for an Uber account is required to follow Uber's Community Guidelines. They reflect the following 3 pillars and the standards in each of these sections. … Treat everyone with respect Treat everyone in the Uber community as you would like to be treated yourself: with respect. The actions you take while using the Uber Marketplace Platform can have a big impact on the safety and comfort of others. Courtesy matters. That's why you are expected to exercise good judgment and behave decently toward other people when using the Uber Marketplace Platform and interacting with others in the Uber community - just as you would in any public place. … We believe that everyone should feel supported and welcomed when interacting with others in the Uber community That's why we've created standards and policies on physical contact, inappropriate conduct and sexual assault and misconduct, threatening and rude behaviour, post-trip contact, discrimination and property damage. … Inappropriate conduct and sexual assault and misconduct We all value our personal space and privacy. It's OK to chat with other people. But please don't comment on someone's appearance or ask whether they are single or about their personal circumstances. Be mindful that people may not appreciate being asked about their personal life, including about children, work, where they live or their relationship status. Sexual assault and sexual misconduct of any kind is prohibited. Sexual assault and misconduct refers to sexual contact or behaviour without explicit consent of the other person. Personal space and privacy should be respected at all times. The following list provides examples of inappropriate conduct but is not exhaustive: • Do not engage in behaviours or make comments that could make people feel uncomfortable. • Do not ask personal questions (for example, about relationship status or sexual orientation). Certain conversations that could be perceived as harmless can be offensive. Avoid discussions about your own or someone else's sex life, using explicit language, or making jokes about sex. • Do not comment on appearance (for example, derogatory or "complimentary" comments), perceived gender identity or sexual orientation. … Any sexual conduct. Uber has a no-sex rule regardless of whether you know the person or they give you their consent. This includes activities such as sexual intercourse, masturbation or touching or exposure of sexual body parts. … Fraud Fraudulent activity may also include, but not be limited to: … creating dummy accounts for fraudulent purposes; … creating improper duplicate accounts; or falsifying documents, records or other data for fraudulent purposes."
The applicant maintained that the Services Agreement and his access to the Driver App had been terminated because he had complained about the rider vomiting in his car. Ms McCormick's evidence satisfies me that the basis of the termination was the complaint apparently lodged by the previous rider.
Nevertheless, it is apparent from the "in-app" communications between the applicant and the respondents over the period following his deactivation that the applicant was initially under the impression that the complaint about vomit was the reason his account been deactivated. That impression affected the way the applicant responded to the respondent's invitation to provide further information for the purpose of a review of his deactivation.

Jurisdiction

It is clear that the applicant is a consumer, as that term is defined in s 79D of the Fair Trading Act 1987 (NSW), that the applicant's claim is a consumer claim, as that term is defined in s 79E, and that the claim is a claim relating to a supply of services made in New South Wales. The services may be described as the provision of connections to persons seeking rides (that is taxi style passenger conveyance services) and the collection and distribution of payments for those rides. Accordingly, the Tribunal has jurisdiction to determine the applicant's claim pursuant to s 79J of the Fair Trading Act. See also Singh v Rasier Pacific Pty Ltd [2024] NSWCATCD 4 at [100] - [118].

Issues for determination

The issues which I must determine are: 1. Whether the respondents breached the Services Agreement by deactivating the applicant's access to the Driver App on 20 February 2022? 2. If so, to what remedy is the applicant entitled?

Was the deactivation of the applicant's access a breach of the Services Agreement?

Ms McCormick's evidence of the circumstances in which the respondents deactivated the applicant's access to the Uber app was as follows: "11. Between 3 March 2020 and 20 February 2022, the Applicant used his Uber App account to provide Transportation Services to Users. During that time, the Respondent received numerous complaints about the Applicant's behaviour. 12. Annexed to this affidavit at paqes 31 to 48 is an extract of the messages extracted from the in-app messages contained within the Uber App that were exchanged between Uber and the Applicant within the Uber App, which have been set out in tabular format indicating (by reference to each column) the internal system reference for each message within the Uber App, the sender of the message, the text of the message and the date of each message. Annexed to this affidavit at pages 29 to 30 is an extract of the messages extracted from the in-app messages contained within the Uber App that were exchanged between Uber and individual Users who made complaints (with names of Users redacted for privacy reasons). 13. The following is a summary of the complaints made by Users about the Applicant: a. On 10 August 2020, Uber received a complaint from a User about the Applicant when he was providing Transportation Services to a User on the Uber App. It was reported that the Applicant "was adamant about being friends with me and insisted I give him my number" of the User. The User described their experience as "uncomfortable" and they were "very scared because of his behaviour". Annexed to this affidavit at page 29 is the text of the in-app message from the User to Uber. Annexed to this affidavit at page 31 is the text of the in-app message from Uber to the Applicant about this complaint dated 10 August 2020. b. On 20 February 2022, Uber received a complaint from a User about the Applicant's behaviour when he was providing Transportation Services to a User on the Uber App. It was reported that the Applicant allegedly made the User feel unsafe and was inappropriate by allegedly asking the User "where is your boyfriend? I can give you good friendship". Annexed to this affidavit at paqe 30 is the text of the in-app messages between the User and Uber. Annexed to this affidavit at paqe 32 is the text of the in-app message from Uber to the Applicant about this complaint dated 20 February 2022. 14. Due to the nature and similarity in nature of the complaints received from Users made against the Applicant as outlined in paragraph 13 above, Uber temporarily deactivated the Applicant's Uber App account on 20 February 2022 because the Respondent was considering whether or not the Applicant's activity and conduct was a material breach of the DP Agreement. The Applicant failed to provide additional evidence to substantiate the alleged false User complaint and as a result the Respondent determined that the Applicant's activity was a material breach of the DP Agreement (clauses 4, 6 and 16 of the DP Agreement) and Community Guidelines permitting the Respondent to later permanently deactivate the Applicant's access to his Uber App account on 20 February 2022. 15. Between 21 February 2022 and 29 September 2022, the Applicant and Uber exchanged messages within the Uber App, as a result of the Applicant requesting a review of Uber's decision to deactivate his Uber App account. As a result of that request, Uber conducted the review and the Applicant was notified that Uber's initial decision would be upheld due to the repeated complaints about the Applicant's conduct and behaviour. Annexed to this affidavit at paqes 33 to 47 is the text of the in-app messages between Uber and the Applicant exchanged between 21 February 2022 and 29 September 2022."
When asked in the course of the hearing how many complaints constituted the "numerous complaints" referred to in paragraph 11, Ms McCormick indicated that there were only the two complaints received on 10 August 2020 and 20 February 2022 which have been reproduced above.
I accept that, if the applicant did say the things alleged in the second complaint (of 20 February 2022), that would constitute a breach of the Community Guidelines, specifically, asking personal questions and making comments that could make people feel uncomfortable, and, by virtue of clause 4, in particular, but also clauses 6 and 16 of the Services Agreement, the respondents would have been entitled to deactivate or otherwise restrict the applicant from accessing the Driver App. In the absence of evidence of the content of the Community Guidelines in force in August 2020, I cannot find that the conduct alleged in the complaint of 10 August 2020 did breach the Community Guidelines current at that time.
I note that in Singh v Rasier Pacific Pty Ltd, at [139] and [158], Senior Member Sarginson stated: "139 Uber passengers, particularly if they are women, are in a position of vulnerability when in the vehicle and a safe environment free from unnecessary physical contact and comments of a sexual nature are clearly fundamental to the contractual arrangement between Uber and the driver." "158 The Tribunal accepts that any complaint by a female passenger that they feel uncomfortable or the driver has made comments that cause the passenger to feel harassed need to be raised with the driver by Uber, and may be sufficient to deactivate access to the Uber app and terminate the Services Agreement."
Those comments are apt and relevant in these proceedings, although I note that I would not limit the proposition stated at [158] to female passengers.
However, the mere fact that a complaint was made would not have been sufficient to warrant deactivation or termination. The terms of the Services Agreement, other than the last sentence of clause 4 which I put to one side for the moment, require an actual breach of the agreement or the Community Guidelines before the respondents are entitled to deactivate or restrict access to the Uber app or terminate the Services Agreement.
The applicant bears the onus of proof of establishing that the contract had been breached.
Nevertheless, in circumstances where the respondents rely upon an allegation that the applicant breached the Community Guidelines to justify their conduct which the applicant alleges was a breach of contract, there is what is sometimes referred to as an evidentiary onus upon the respondents to provide evidence sufficient to establish the conduct alleged to have constituted a breach of the Community Guidelines and consequentially the Services Agreement.
The evidence adduced by the respondents is slender. There is no direct evidence from the riders who complained on either occasion. In the absence of any indication of who made any relevant decision or what any "consideration" or "review" involved, Ms McCormick's evidence of the respondents' actions to verify the complaints carries no weight whatsoever. In particular, there is no suggestion that the respondents followed up with the riders who lodged the complaints to obtain further details.
It is notable that the February 2022 complaint was collected as the rider's responses to a number of prompts. That circumstance appears to have led Ms McCormick, and the respondents in their written submissions to the Tribunal, to assert that the appellant's conduct on that occasion had made the user feel "unsafe" or "unsafe and uncomfortable".
The relevant statement by the user was the answer "true" to the prompt "My driver made me feel unsafe or was inappropriate" (my emphasis). That does not amount to an assertion that the applicant had made the user feel unsafe. The distinction between "unsafe" and "inappropriate" is not insignificant. The fact that Ms McCormick failed accurately to convey the content of the complaint affects adversely the extent to which her evidence may be considered reliable.
I note, further, that the suggestion that "the applicant failed to provide additional evidence to substantiate the alleged false user complaint" is nonsensical in circumstances where, at the relevant time, the applicant had been given no details of the complaint beyond the generic suggestion that "a rider from one of your recent trips" had reported that "you may have asked questions that made them feel uncomfortable."
No details of the relevant trip, even the time at which it had occurred or the questions the applicant was alleged to have asked, had been provided to the applicant. This is indicated by the applicant's response to the notice of deactivation which suggests that the applicant apparently understood that it was the fact that he had complained about a customer who had vomited in his car and sought a cleaning fee that was the reason for his deactivation. There is no indication in the communications produced by the respondents that, before deactivating the applicant's account, the respondents had notified the applicant that he had incorrectly identified the relevant rider.
Nevertheless, the complaints themselves are some evidence of the truth of their contents. The Tribunal is not bound by the rules of evidence: Civil and Administrative Tribunal Act 2013 (NSW) s 38.
For the reasons outlined above, including the exaggeration involved in Ms McCormick's statement that there were "numerous complaints" and the misleading suggestion that a rider had complained on 20 February 2022 that the applicant had made her feel "unsafe and was inappropriate", I do not give Ms McCormick's evidence of the respondents' investigation of the complaints any weight.
The respondents submitted that the applicant had not responded to the communication of the complaints by denying them. However, that submission fails to acknowledge that the respondent did not provide any details of the complaints beyond: "we've received a report from a rider from one of your recent trips that you may have made some comments or gestures that made the rider feel uncomfortable"; and "we've received a report from a rider from one of your recent trips that you may have asked questions that made them feel uncomfortable."
I do not accept that the failure of the applicant to respond to such a vague allegation can be taken as acceptance of it. Moreover, although the respondents' subsequent messages suggested a number of times that they had reviewed the decision, beyond those bare assertions by unidentified persons there is nothing in the messages between the applicant and the respondents, or any other documentary evidence, to suggest that such a review ever took place or that any review which might have taken place involved more than lip service.
Although the applicant did not in his written evidence explicitly deny making the comments alleged by the two riders, I note that that evidence was filed before the respondents produced the copies of the complaints annexed to Ms McCormick's affidavit of 15 December 2023.
The applicant's response sent to the respondents on 14 March at 9:17 am suggests that the applicant had been given more information than that appearing in the in-app messages. Nevertheless, in that communication the applicant maintained that the conversation alleged by the rider did not take place in the terms alleged (whatever the applicant understood them to be).
The applicant also stated in his "Small Claims Court Submissions" that he did not breach the Community Guidelines. The applicant affirmed the truth of that statement at the hearing. The respondents did not seek to cross examine the applicant to suggest that it was false.
As Handley JA held in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418, an inference might arise where a witness does not give evidence in chief concerning a particular matter, that they have not done so because they fear to do so: "[W]hen a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party'".
However, such an inference cannot arise in circumstances where the evidence in chief was given before disclosure of the matter, discussion of which is said to have been avoided.
The directions made by the Tribunal for the preparation of evidence did not provide for the filing of evidence in reply. Whilst it might have been expected of a party with legal representation that they would seek to file evidence in reply, the applicant was not legally represented, and I do not consider that any inference should be drawn against him because he did not provide evidence responding directly to matters first disclosed to him in the respondents' written evidence.
In Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 Senior Member Ellis regarded an accumulation of complaints of a similar nature as corroboration of the complaints, and Senior Member Titterton adopted a similar approach in Najafi v Rasier Pacific Pty Ltd. I do not consider that the complaint made in August 2020 is corroborative of the complaint made in February 2022. While there may be some similarity between the statements alleged to have been made by the applicant in the two cases, there is nothing distinctive about them which would make it unlikely that two false complaints in those terms would have been made about the applicant. It should not be overlooked that the complaints were 18 months apart.
I am satisfied on the balance of probabilities that the applicant did not make the comments alleged in the complaint of 20 February 2022 and therefore had not breached the Community Guidelines and was not at that time in breach of the Services Agreement.
The respondents maintained that they (or more precisely the second respondent) were nevertheless entitled to deactivate or restrict the applicant's access to the Driver App without notice and without cause by virtue of the last sentence of clause 4 of the Services Agreement, that is: "Uber also retains the right to deactivate or otherwise restrict you from accessing the Driver ID and/or Driver App, for any other reason at the sole and reasonable discretion of Uber."
I note that in Singh v Rasier Pacific Pty Ltd, which involved a services agreement in relevantly similar terms, the respondents did not apparently contend that the effect of the last sentence of clause 4 was that the respondents were entitled to suspend or deactivate a driver's access to the app arbitrarily or without notice, in the absence of a breach of the Services Agreement.
The reasons for decision in Rehman v Rasier Pacific Pty Ltd do not indicate whether the contract in that case included a provision in the terms of the last sentence of clause 4 however the Tribunal noted, at [143]: "Uber did not contend that the words "in its sole discretion" in the Agreement meant that any decision as to deactivation was a matter for Uber, did not have to be reasonable, and could not be reviewed."
In these proceedings, the respondents did not concede that their entitlement to deactivate the applicant's account was limited in that way.
I note that the power to deactivate or otherwise restrict that applicant's access to the Driver App was required to be exercised in the "reasonable discretion" of the second respondent. In the absence of any evidence of the content of any review by the respondents of the substance and reliability of the complaint made on 20 February 2022, or any evidence that the respondents had provided the applicant with a reasonable opportunity to respond to the allegation, including by providing sufficient details to enable the applicant to identify the relevant ride and the specific allegation, I am not persuaded that the discretion to deactivate the applicant's access to the app was reasonably exercised.
If, contrary to my interpretation of the last sentence of clause 4, that clause does purport to empower the second respondent to terminate the applicant's access to the Driver App on the basis of one, or even two, complaints, without undertaking a genuine review of the substance and reliability of the complaints, the question arises whether that provision is void as an unfair contract term pursuant to s 23 of the Australian Consumer Law (NSW) (the ACL).
When I raised with Ms Murray-Baptista, the solicitor who appeared for the respondents at the hearing, the question whether s 23 was applicable in this case, she submitted that the applicant had not previously raised this argument and should not be permitted to raise it at the hearing.
Although the Tribunal is not a court of strict pleading, procedural fairness does require that a party be given fair warning of the case they are required to meet: see Maygood Australia Pty Ltd v The Owners - Strata Plan No 85338 [2020] NSWCATAP 237 at [67] - [68].
However, the applicant was not legally represented and, in the absence of written pleadings or points of claim, it cannot be said that the applicant was at fault in failing to identify the issue in advance of the hearing.
To ensure the respondents were not prejudiced by the raising of this issue (and the same issue in relation to clause 27 of the Services Agreement) at the hearing, I made orders: "2 The respondents may, by 19 February 2024, file with the Tribunal and serve upon the applicant further written submissions addressing the question whether the terms of clauses 4 and/or 27 of the agreement between the parties (being pages 6-13 of the annexures to the affidavit of Harriet McCormick dated 15 December 2023) are void in whole or in part as unfair terms pursuant to ss 23-25 of the Australian Consumer Law (ACL). If the respondents submit that they will be prejudiced, if the applicant is permitted to rely upon a submission that those terms are void in whole or in part pursuant to ss 23-25 of the ACL, because they would, if they had been aware that the applicant would rely upon such a submission, have filed additional evidence to meet that submission, the respondents should clearly identify the nature and content of that evidence. 3 The applicant may, by 12 March 2024, file with the Tribunal and give to the respondents submissions in response to any submissions filed by the respondents pursuant to the preceding order."
The respondents filed submissions on 20 February 2024 purportedly pursuant to those orders. They also filed an affidavit of Natalie Livet, an employee of Uber Australia Pty Ltd. The affidavit merely seeks to supplement the evidence of Ms McCormick regarding the complaints received on 10 August 2020 and 20 February 2022. The facts attested to by Ms Livet have no bearing on the question whether clauses 4 and/or 27 are unfair contract terms.
The respondents' submissions filed on 20 February 2024 referred to two paragraphs of the affidavit (16 and 23) in support of the proposition that: "If the respondents were unable to rely on clause 4 of the [Services Agreement] to measure safety of the conduct of complaints made by users [sic], the respondents would be exposed to and bear the risk of misconduct … and potential liability issues, which is limited by clause 27 of the [Services Agreement]".
However, the paragraphs referred to in the submissions merely restate the content of the first complaint (paragraph 16) and the communication from the respondents to the applicant sent at 9:52 am on 20 February 2022 concerning the second complaint (paragraph 23). My order made at the conclusion of the hearing did not grant the respondents leave to file further evidence but rather to identify the nature and content of evidence they allege they would have led, to meet a case alleging that the terms of clauses 4 and 27 were void as unfair contract terms, in the event they had been notified of such a case in advance of the hearing. Ms Livet's affidavit does not meet that description and I have had no regard to it in reaching my decision.
The applicant did not file any document in response to the respondents' further material.
In February 2022, ss 23, 24 and 25 of the ACL relevantly provided: 23 Unfair terms of consumer contracts and small business contracts (1) A term of a consumer contract or small business contract is void if: (a) the term is unfair; and (b) the contract is a standard form contract. (2) The contract continues to bind the parties if it is capable of operating without the unfair term. … (4) A contract is a small business contract if: (a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and (b) at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and (c) either of the following applies: (i) the upfront price payable under the contract does not exceed $300,000; (ii) the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000. (5) In counting the persons employed by a business for the purposes of paragraph (4)(b), a casual employee is not to be counted unless he or she is employed by the business on a regular and systematic basis. 24 Meaning of unfair (1) A term of a consumer contract or small business contract is unfair if: (a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. (2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole. (3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term. (4) For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. 25 Examples of unfair terms Without limiting section 24, the following are examples of the kinds of terms of a consumer contract or small business contract that may be unfair: (a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; (b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract; (c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract; (d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; (e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract; (f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract; (g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract; (h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning; (i) a term that limits, or has the effect of limiting, one party's vicarious liability for its agents; (j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party's consent; (k) a term that limits, or has the effect of limiting, one party's right to sue another party; (l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract; (m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract; (n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.
In my view it is clear in this case that the Services Agreement is a small business contract as defined in s 23(4) of the ACL.
The contract is for the supply of services, being the provision of connections to persons seeking rides and the collection and distribution of payments for those rides.
The applicant entered into the contract in the course of carrying on a business employing less than 20 persons. Ms Murray-Baptista submitted in the course of the hearing that the contract was not a small business contract as the applicant had no employees. That submission was not maintained in the written submissions filed by the respondents. It is clearly incorrect. No employees is indisputably less than 20 employees.
There was no upfront price (as that term is defined in s 26(2) of the ACL) payable under the Services Agreement.
I note that the definition of small business contract has been expanded since 2022 but it is clear that the Services Agreement is a small business contract under the current definition also.
It is also clear that the contract is a standard form contract. In this regard it is not necessary to have regard to the presumption provided by s 27(1) of the ACL. I did not understand the respondents to submit that the contract was not a standard form contract.
Accordingly, if I were to find that the last sentence of clause 4 or clause 27 of the Services Agreement were unfair contract terms, those terms will be void pursuant to s 23 of the ACL. The balance of the contract would not be affected (see s 23(2)).
The respondents' written submissions cited the judgment of Edelman J in Australian Competition and Consumer Commission v Chrisco Hampers Australia Ltd (2015) 239 FCR 33; [2015] FCA 1204 at [43], where a number of propositions were set out: "(1) for a term to be unfair it must satisfy the requirements of all of s 24(1)(a) to (c); (2) the onus is upon the applicant to prove the matters in ss 24(1)(a) and 24(1)(c) but it is upon the respondent in relation to s 24(1)(b); (3) Section 24(2)(a) only requires the Court to consider transparency in relation to the particular term that is said to be unfair and only in relation to the matters concerning that term in s 24(1)(a) to (c); (4) similarly, the assessment of the contract as a whole in s 24(1)(c) only requires the Court to consider the contract as a whole in relation to the particular term that is said to be unfair and only in relation to the matters concerning that term in s 24(1)(a) to (c); (5) as the Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) provided at [5.39], "if a term is not transparent it does not mean that it is unfair and if a term is transparent it does not mean that it is not unfair"; and (6) guidance can be had to s 25 which provides examples of unfair terms."
The respondents submitted: "13. It is submitted that, in all of the circumstances, clauses 4 and 27 of the DP Agreement are not relevantly unfair for at least the following reasons: (a) For section 24(1)(a) to be engaged, it is not enough for the term to cause merely an imbalance between the parties, but the term must cause a significant imbalance of rights and obligations between the parties. In that regard, it is submitted that: (i) Clause 4 of the DP Agreement does not create a significant imbalance of those rights. Rather, clause 4 gives the Applicant the right to use the Uber App to provide transportation services to users for a period determined by him and also the right to engage in other forms of business which generates revenue. Only when there is a breach of any relevant Uber policy or violation of the DP Agreement can the Respondent exercise a right to terminate the DP Agreement. (ii) Similarly, clause 27 of the DP Agreement also does not create a significant imbalance of those rights. Rather it reiterates that the DP Agreement does not override any of the Applicant's rights pursuant to the ACL. (b) For section 24(1)(b) to be enlivened, a term must be found to be not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term. The assessment by the Tribunal needs to be an evaluative exercise having regard to all of the evidence. In that regard, it is submitted that: (i) Clauses 4 and 27 are reasonably necessary to protect the Respondents' legitimate interests in its service offerings. (ii) Not only is the term necessary for the Respondents to provide low-cost services to its users (and thereby compete with other rideshare providers), it relevantly facilitates low-cost services where: A Rasier Pacific Pty Ltd will procure and facilitate the provision of lead generation services of the Uber App (clause 1 of the Services Agreement); B Uber B.V. licenced the Uber App to the Applicant, that allowed the Applicant to access and receive Uber services (clause 1 of the Services Agreement); C Rasier Pacific Pty Ltd provided the provision of Uber services which created a legal and direct business relationship between the Applicant and Respondent (clause 4 of the Services Agreement); D Rasier Pacific Pty Ltd acted as a limited payment agent solely for the purposes of collecting payment from Users on the Applicant's behalf (clause 28 of the Services Agreement); and E The Applicant: (i) used the Uber App to seek, receive and fulfil on-demand requests for Transportation Services to Users (clause 1 of the Services Agreement); (ii) licenced the Uber App from Uber B.V. (clause 4 of the Services Agreement); and (iii) in consideration of the Respondent's provision of Uber services, paid the Respondent a service fee on a per Transportation Services transaction basis (clause 10 of the Services Agreement). (iii) If the Respondents were unable to rely on clause 4 of the DP Agreement to measure safety of the conduct of the complaints made by Users, the Respondents would be exposed to and bear the risk of misconduct (refer to paragraphs 16 and 23 of the Livet Affidavit) and potential liability issues, which is limited by clause 27 of the DP Agreement. (c) For section 24(1)(c) to be enlivened, the term must cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. In that regard, it is submitted that: (i) There is no detriment to the Applicant with the Respondents relying on clauses 4 and 27 of the DP Agreement. The evidence establishes that the Applicant was paid for all transportation services completed between the period of 20 December 2021 to 20 June 2022 whilst he had access to his Uber App account (remitted to him in accordance with clause 8 of the DP Agreement) (refer to the Applicant's Documents - Westpac Bank Statement Period 20 December 2021 to 20 June 2022 "Uber" pages 1, 2, 3, 4, 5 and 6). (ii) Further, the Applicant was not restricted to only use the Uber App as a rideshare platform and the evidence demonstrates that he also generated revenue from other rideshare platforms in addition to Uber (refer to the Applicant's Documents - Westpac Bank Statement Period 20 December 2021 to 20 June 2022 "DiDi" pages 5, 8 and 10) (clause 4 of the DP Agreement). 14. Further and pursuant to section 24(3) of the ACL, the relevant terms of the DP Agreement were disclosed to the Applicant by providing a copy of the DP Agreement to the Applicant upon accepting its terms, where it is in plain language, legible, presented clearly and there was no allegation that the Applicant did not understand the relevant clauses of the DP Agreement. 15. Further, the Applicant's evidence does not disclose any matter said to be relevantly unfair about clauses 4 and 27 in the circumstances. The Applicant has made no attempt to identify any clause in the DP Agreement which he says is unfair and has adduced no evidence addressing any of the elements of unfairness contained in section 24(1)(a)-(c) of the ACL. In the absence of any such evidence, it is submitted that there is no basis upon which this Tribunal can make a finding in that regard."
Those submissions fail to address the elements of the last sentence of clause 4 (and of clause 27 which I will deal with below) which render them potentially unfair.
The last sentence of clause 4 purports to permit the second respondent to suspend or terminate access to the Driver App at any time and without cause subject only to the exercise of "reasonable discretion". The respondents submit that that permits the suspension or termination of a driver's access to the app on the basis of a complaint the details of which have not been disclosed to the driver and the veracity of which has not been tested. As noted above, I do not accept that the clause should be so construed, but for the purposes of the present discussion that interpretation may be taken to be correct.
The respondent's submissions were entirely directed to the proposition that the respondents need to be able to terminate the Services Agreement or suspend access to the app in the event of a breach by a driver. Were the last sentence of clause 4 to read as limited to termination in the event of breach of the Services Agreement (including the Community Guidelines) it could not be said that that provision was unfair. However, a provision which permits the respondents to terminate the agreement or suspend access to the app without notice or cause would on any view cause a significant imbalance in the party's rights and obligations arising under the contract. Moreover, such a provision would clearly cause detriment to the applicant in that, regardless that, as I have found, the applicant did not breach the Services Agreement or the Community Guidelines, the applicant would lose his access to the app.
The respondents' submissions did not attempt to identify any way in which the ability to suspend access to the app without notice or cause was reasonably necessary in order to protect the legitimate interests of the respondents.
Section 24(2) of the ACL requires the Tribunal, in determining whether a term of the contract is unfair, to take into account the extent to which the term is transparent, and the contract as a whole.
Section 24(3) identifies when a term is transparent for these purposes. I accept that the last sentence of clause 4 is expressed in reasonably plain language and legible. I also accept that the terms of the Services Agreement were readily available to the applicant.
However, I do not consider that the last sentence of clause 4 is presented clearly. It constitutes the last two lines of a clause of 25 lines headed "Your relationship with Uber Group", most of which is directed to describing the nature of the legal relationship between the applicant and the respondents, and which also specifically confers rights upon each of the respondents to terminate the agreement in "in the event of a violation of this agreement or any relevant Uber policy". To the extent that the last sentence of clause 4 purports to permit the second respondent to suspend access to the app without notice or cause, it is not presented clearly.
There is nothing about the contract as a whole which would justify the inclusion of a right of arbitrary suspension, deactivation or termination in clause 4.
Such a term may be fairly described as a term falling within subparagraphs (a) or (b) of s 25, that is: "(a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; (b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract."
Accordingly, I find that, to the extent that the last sentence of clause 4 of the Services Agreement permits the respondents to deactivate or restrict access to the Driver App without notice or cause, or on the basis of a complaint the details of which have not been disclosed to the driver and the veracity of which has not been tested, that provision is void as an unfair contract term.
It follows that the respondents did breach the Services Agreement by suspending and then permanently cancelling the applicant's access to the Driver App on 20 February 2022.
I note that the respondents also relied upon what was alleged to have been a separate and independent breach of the Services Agreement by the applicant in August 2023 when the applicant attempted to create a duplicate Uber app account. The respondents submitted that they had relied upon the creation of duplicate accounts "in making the decision to deactivate the Uber App account of the applicant".
That assertion is clearly incorrect. The applicant did not seek to create a duplicate account until August 2023, his access was deactivated in February 2022. The creation of the duplicate account was a consequence of the respondents' wrongful deactivation of the applicant's account rather than a cause.

To what remedies is the applicant entitled?

As noted above, the applicant sought both damages for the respondents' breach of contract and an order requiring the respondents to reinstate his access to the Driver App.

Damages

I will deal firstly with the question of damages.
The measure of compensation for breach of contract is the amount necessary to put the innocent party in the position it would have been if the contract had been performed: Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365; Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 at [6], [48], [60], [190].
That amount will be the net profit the applicant would have earned from providing rideshare services through the Driver App if his access had not been suspended on 20 February 2022.
As the applicants point out, clause 16 of the Services Agreement permits the respondents to terminate the agreement without cause on 30 days written notice. The applicant did not suggest, and I do not find, that the provision for termination on 30 days notice is an unfair contract term.
Damages for breach of contract must be assessed on the basis that the party in breach would have acted in the way most advantageous to them, in this case by giving the applicant 30 days notice of termination on 20 February 2022. "A defendant is not liable in damages for not doing that which he or she has not promised to do. Accordingly, where the defendant was entitled to perform the contract in one or more alternative ways, damages are assessed, at least in the case of non-performance, by reference to the performance which is less or least onerous to the defendant. … However, no account can be taken of a cancellation right where it is clear that the right would not have been exercised." Halsbury's Laws of Australia [110 - 11365].
Thus the measure of damages to which the applicant is entitled is the net revenue, after expenses, which the applicant would have earned from utilising the Driver App during the 30 days from 20 February to 22 March 2022.
The applicant did not lead direct or specific evidence of the net revenue which he had been earning from his Uber driving. The only documentary evidence produced by the applicant was bank statements for a "Westpac Choice" account in the applicant's name covering the period 20 December 2021 to 20 June 2022.
The applicant stated in his "Small Claims Court Submissions" document that he had been "making $800+ a week on average". The bank statements do not bear out that assertion. The bank statements disclose payments from Uber between 29 December 2021 and 22 February 2022 totalling $3,112.06.
That suggests the applicant's gross revenue (before expenses other than fees paid to Uber which were deducted before payment to the applicant) did not exceed $1600 per month. From that gross revenue the applicant was required to pay his expenses.
Although, when assessing compensation reflecting the truncation of a business opportunity by one month, expenses such as registration, insurance, servicing, and even depreciation may reasonably be considered to be fixed costs which are incurred regardless of the truncation of the business opportunity, the applicant nevertheless clearly would have incurred variable costs such as fuel costs and cleaning costs.
The applicant did not provide any direct evidence of those costs but it is possible to identify from the bank statements expenses incurred at petrol stations and a car wash during the period between 21 December 2021 and 20 February 2022. Those expenses amounted to approximately $1000, that is about $500 per month.
In Bell Solar Pty Limited T/as Sunboost v Anderson [2021] NSWCATAP 278, the Appeal Panel held, at [59] - [63]: "59 In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31], Mason CJ and Dawson J noted the following: 'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation." Where precise evidence is not available the court must do the best it can...' 60 The Appeal Panel has accepted that this 'settled rule' applies in the Tribunal: Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42, at [17]; Tuck v White [2016] NSWCATAP 132, at [44]. 61 In Fink v Fink [1946] HCA 54; (1946) 74 CLR 127, at 143, their Honours, Dixon and McTiernan JJ (with whom Latham CJ and Williams J agreed) said: 'Where there has been an actual loss of some sort, the Common Law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.' 62 However, in JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] VicRp 16; [1994] 1 VR 237, at 241, Brooking J said (omitting citations): 'A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: .... If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages ...: he must put the tribunal in the position of being able to quantify in money the damage he has suffered: ... It is often said that the amount of the damage must be proved with certainty, but this only means as much "certainty" as is reasonable in the circumstances: .... Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can. (italics added)' 63 As was stated in Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117, at [51]: 'The settled rule is subject to the proviso that the difficulty must not arise from the fact that the plaintiff has produced no evidence of loss or damage, or because the court has rejected the evidence which was put forward on loss caused by the breach. In either case the plaintiff will be restricted to a nominal sum (Carter on Contract [41-180]). The settled rule only applies where the facts and circumstances which the court is considering make it difficult for the court to estimate the damages suffered by a particular litigant. It does not apply where the party who has the onus of proof does not call evidence which is readily available to be placed before the Court, but the party does not do so…'"
In that case the Appeal Panel, despite criticism of the evidence put forward to establish the cost of rectification of building work, nevertheless upheld the award of compensation. The Appeal Panel held at [64]: "64 The Homeowners did not fail to provide evidence of their damages. Whilst the quality of the evidence was not what it could have been, it was, in our view, sufficient for the Tribunal to do the best it could to assess damages on the material before it."
Likewise, I am satisfied that the evidence of the applicant's bank statements is sufficient to permit me to assess the damages to which the applicant is entitled, doing the best I can on the material before me.
The respondents submitted that even if the deactivation of the applicant's access to the app was a breach of the Services Agreement, the applicant's damages were limited pursuant to clause 27 of the Services Agreement to the amount of service fees paid to or due to the applicant in the six months immediately prior to the deactivation. Ms McCormick's first affidavit annexed a schedule said to be an extract from the business records of Uber relating to the service fees paid by the applicant. The amount of service fees recorded in that document is $1,147.65. Were I to conclude that the applicant had established damages flowing from the deactivation of his access to the app in excess of $1,147.65, the question would arise whether clause 27 is void as an unfair contract term pursuant to s 23 of the ACL.
The respondents also submitted that the applicant had failed to mitigate his loss. The onus of establishing a failure to mitigate lies upon the respondents. The respondents did not lead evidence to establish any failure to mitigate. They merely submitted that the applicant could have earned income elsewhere and that the applicant's bank statements did not show that the applicant had endeavoured to earn income elsewhere. The applicant's evidence was that Uber was his sole source of income. That is not strictly correct, as his bank statements disclose that he received some money from Didi, another enterprise similar to Uber.
However, I am not persuaded the respondents have satisfied their onus of establishing that the applicant failed to mitigate his loss. The respondents did not identify any step which the applicant might have taken and did not take to reduce his loss of income during the 30 day period after the deactivation of his access to the Driver App.
Doing the best I can on the material before me, I assess the applicant's loss of net revenue, that is gross revenue less variable costs, during the 30 days after the deactivation of his account, at $1000, and I will order the respondents to pay that sum to the applicant as damages for breach of contract.
As the amount I have determined to award is less than the limit purportedly imposed pursuant to clause 27 of the Services Agreement, it is not strictly necessary to determine whether clause 27 is void as an unfair contract term.
However, were it necessary to resolve that issue, I would conclude that clause 27 is an unfair contract term.
I consider that the operation of clause 27, which purports to limit the compensation to which the applicant might be entitled for a breach of the Services Agreement, would cause a significant imbalance in the parties' rights and obligations arising under the contract and would potentially cause detriment to the applicant in the event that the losses flowing from any breach of contract by the respondents exceeded the service fees paid by the applicant to the respondents during the six-month period up to 20 February 2022.
The respondents submitted that clause 27 did not create an imbalance of rights and obligations because the clause did not purport to override the provisions of the ACL. However, the applicant's rights also arise in contract and his rights in respect of a breach of contract by the respondents would potentially be substantially reduced if clause 27 were given its literal meaning.
To the extent that the respondents' submissions suggest that the provision is reasonably necessary to protect the respondents' legitimate interests, the submission goes no further than the proposition that the clause is necessary in order that the respondents can provide low-cost services and compete with other providers of such services.
I do not regard the need to compete with other rideshare providers as providing a legitimate business justification for limiting the respondents' liability for breach of its contracts with its drivers. The respondents' competitors are also subject to the requirements of s 23 of the ACL. In any event, the respondents did not identify any evidence which they would have sought to lead, if the application of s 23 had been raised as an issue in advance of the hearing, to establish that limiting their liability to their drivers for breach of their services agreement was reasonably necessary to ensure the respondents could compete with other rideshare providers.
I do not consider that clause 27 can be described as transparent within the meaning of s 24 of the ACL. It is neither expressed in reasonably plain language nor presented clearly.
There was nothing in the contract as a whole which limits the unfair effect of clause 27 or warrants reconsideration of that characterisation.

Reinstatement

I do not consider it appropriate to order the respondents to reinstate the applicant's access to the app. That issue was addressed by Senior Member Ellis in Rehman v Rasier Pacific Pty Ltd at [151] - [155]. I respectfully adopt the Senior Member's reasoning.
As required by s 79U of the Fair Trading Act, I am satisfied that the orders I propose to make will be fair and equitable to all the parties to the applicant's claim.

orders

The orders I make are: 1. The respondents Rasier Pacific Pty Ltd and Uber BV are to pay the applicant, Salahadeen Suliman Hussaen Abdalla, damages for breach of contract in the sum of $1000, immediately. 2. The application is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024

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Judgment (13 paragraphs)

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Cases Cited (15)