De Niese v Rasier Pacific Pty Ltd [2025] VCAT 1112 | Case summary

s 185De Niese v Rasier Pacific Pty Ltd [2025] VCAT 1112 | Case summary | Zoe

[46]

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.
Threatening and rude behaviour
Aggressive, confrontational or harassing behaviour is not allowed. Don't use language, make gestures or take actions that could be disrespectful, threatening or inappropriate. ... It is also a good idea to stay away from personal topics that can potentially be divisive, like religion and political beliefs.
How Uber enforces our guidelines
... If you violate any applicable terms of your contractual agreement with Uber, or any other applicable policies, any one of these Community Guidelines or any additional policies and standards that are communicated by Uber to you from time to time, you can lose access to all or part of the Uber Marketplace Platform.
Uber receives feedback through a variety of channels, reviews reports submitted to our Support team that may violate our Community Guidelines, and may investigate through a specialised team. If we are made aware of potentially problematic behaviour, we may contact you so we can look into it. We may, at our sole discretion, put a hold on your account or turn your account inactive until our review is complete.
Not following any one of our guidelines may result in the loss of access to all or part of the Uber Marketplace Platform. This can include reported violations of our Community Guidelines ... if we determine that those actions threaten the safety of the Uber community, our employees and contractors or cause harm to Uber's brand, reputation or business. And if the issues raised are serious or a repeat report, or you refuse to cooperate, you may lose access to the Uber Marketplace Platform. Any behaviour involving violence, sexual misconduct, harassment, fraud or discrimination, or deceptive, illegal or unsafe activity, while using the Uber Marketplace Platform can result in the immediate loss of access to the Uber Marketplace Platform.

[47]

Neither party disputed VCAT's jurisdiction to hear the matter, however I must nevertheless be satisfied that VCAT has jurisdiction over the dispute.
The applicant's claim is best categorised as a contractual claim. Although VCAT does not have a general jurisdiction to hear contractual claims, VCAT is empowered under s 184 of the ACLFTA to hear and determine 'consumer and trader disputes', which may include contractual claims.
ACLFTA s 182 defines a 'consumer and trader dispute' as a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.
For the avoidance of doubt, although he ACLFTA uses the term 'consumer' as part of the defined phrase 'consumer and trader dispute', the only relevantly defined term is the combined phrase 'consumer and trader dispute' itself. The use of the term 'purchaser' in defining that phrase rather than 'consumer', ensures that the meaning of the phrase does not capture the limitations on the definition of 'consumer dispute' or 'trader-trader dispute' in s 184(4), nor those in the definition of 'consumer' in the Australian Consumer Law (Victoria).[6]
Although 'services' are not defined in the ACLFTA, ACLFTA s 3(2) provides that words and expressions used in the ACLFTA have the same meaning as they have in the Australian Consumer Law (Victoria). Under s 2 of the Australian Consumer Law (Victoria), 'services' includes rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction.
The respondent, by the DP Agreement, provided benefits, privileges or facilities to the applicant by enabling the applicant to use the Uber app as a driver and by facilitating its use. The respondent, after receiving payments made by users of the Uber app, would remit those payments to the applicant less any service fees and other relevant fees. These service fees and other fees are a form of remuneration payable to the respondent.
Relying on this interpretation of the arrangement between the parties, I am satisfied that the dispute is in relation to a supply of services. By paying the relevant service fee and other fees to the respondent for use of the Uber app, I am likewise satisfied that the applicant is a 'purchaser' of the services supplied by the respondent. I am therefore content that VCAT has jurisdiction under ACLFTA s 184 to determine this dispute.
VCAT, in relation to a consumer and trader dispute, has power to order the payment of a sum of money by way of damages, and to make an order in the nature of an order for specific performance of a contract.

[49]

Each of the seven complaints made against the applicant were first set out in brief detail in the respondent's Points of Defence dated 31 January 2024. The applicant provided responses by email on 17 February 2024 based on his recollection of the events that led to those complaints. The respondent then provided further evidence relating to each of these complaints in an affidavit made by Uber's Industrial Relations Manager, Laura Tierney dated 29 January 2025 ('Tierney affidavit'). This affidavit was later supplemented by evidence where gaps were identified.
I have assessed each of the individual complaints below, relying on the written material filed by the parties before the hearing and the oral submissions and evidence adduced at the hearing on 22 May 2025. Both the applicant and Ms Tierney appeared as witnesses and were subjected to examination and cross-examination. As discussed further below, none of the complainants that lodged the complaints with Uber were called as witnesses.
Ultimately, it is for the applicant to prove that the complaints were unfounded or otherwise did not justify his deactivation without notice, and thus Uber's termination of the DP Agreement was in breach of that agreement. However, there are several issues about the evidence concerning each complaint that need to be factored into whether the applicant has discharged that burden.
Section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that the Tribunal is not bound by the rules of evidence. But that does not mean that any weakness in probative value of relevant evidence is 'cured' by s 98(1)(b). Rather, it means that the Tribunal is not bound to reject evidence because it fails to meet the standards set by those rules.
The rules of evidence continue to provide an important yardstick for assessing the quality of evidence, including in assessing which evidence should be preferred where two or more versions of events are in conflict. In particular, the Tribunal will generally place more weight on first-hand evidence that is subject to cross-examination over hearsay evidence.
In relation to the applicant's evidence, the details of the complaints were not made available to him until the respondent submitted evidence in this proceeding. The applicant's initial response to the seven complaints set out in his 17 February 2024 reply to the applicant's points of defence ('February 2024 response') were somewhat speculative and occasionally referred to an unrelated set of events. It is clear that his later recollections were assisted by the evidence submitted by the respondent.
Ultimately, the applicant's evidence at the hearing was given on affirmation, in person and was based on his first-hand recollection of relevant events. He was subjected to cross-examination by the respondent and his evidence was tested during that cross-examination.
In contrast, the complainants initially provided an account of events in the form of answers to a pro-forma complaint template in the Uber app, with occasional brief additional comments. These were exhibited to the Tierney affidavit. In some cases they were supplemented by emails exchanged between Uber and the complainant and the transcript of telephones conversation with an Uber representative (such as occurred in relation to complaint 7).
None of the complainant's accounts is verified by affidavit and the complainants were not made available for cross-examination at the hearing. The Tierney affidavit deposes to the accuracy of the documents comprising the complainant's accounts, but cannot depose to the truth of the account itself. Thus, while the complainant's accounts were contemporaneous, they are entirely untested either for accuracy and internal consistency or against the driver's version of events.
In that context, it is also important to note that Uber users may have an incentive to embellish or even invent complaints - it seems fairly well known that a successful complaint will usually result in a refund of the fare. The references in the materials to Uber 'checking a rider's account for an indication of fraudulent behaviour' is, in substance, a check for the frequency of complaints by that user.
In general, the applicant presented as an honest witness, and I am not persuaded that he fabricated any aspect of his recollection of the seven complaints, or otherwise. Indeed, he volunteered details of the circumstances of complaint 7 that had not been referred to by the complainant, and were against his interest.

[50]

The first complaint was received by Uber on 31 August 2019, where a user of the Uber app reported that the applicant had made threatening remarks.
In written material provided to the Tribunal on 17 February 2024, the applicant says that he recalled this trip 'vividly'.[7] He says that it was an Uber Pool trip (where the driver picks up multiple unrelated riders on a single journey), where he picked up the complainant first and a second rider within around two minutes.
The applicant's evidence was that the complainant told him she was an unemployed artist, and he asked whether she had made any money from her art. She said she had not. The applicant recalls that he said, 'you should do a Picasso and cut your ear off', and then later during the ride, 'don't worry, your paintings will probably be worth millions when you are dead. You will have the satisfaction of making someone very rich'.
At the hearing, the applicant confirmed that this was an accurate representation of his recollection of events,[8] and described the conversation between the three of them in the car as 'fairly jocular'. He also recalled a telephone conversation with a representative from Uber following the complaint for Uber to get his side of the story, though he was unable to provide them with information because he did not know which trip they were referring to at the time.
He says that he was contacted again by an Uber representative, who said that the complainant had just wanted to bring it to his attention and that the complaint had been withdrawn. The applicant acknowledged at the hearing that, apart from the applicant's assertions, there is no evidence of these telephone conversations between the Uber and the applicant.
The respondent provided evidence of correspondence between the complainant and a member of Uber's Community Operations team in the Tierney affidavit. The correspondence from the complainant on 31 August 2019 stated: 'My driver made violent "jokes" to me. "Joked" about killing me. I felt extremely unsafe'.
Uber responded on 1 September 2019 saying that it would look into the trip and take appropriate steps to ensure their experience does not occur again, and that it was recorded on the driver's profile. No further correspondence was exchanged between Uber and the complainant.
The respondent also provided evidence of correspondence between the applicant and a member of Uber's Community Operations team from 1 September 2019 following the correspondence between Uber and the complainant.[9]
The message from Uber to the applicant informed him that a rider had reported that he may have made some threatening remarks towards them, and that reports of this behaviour are extremely concerning and in direct violation of the Community Guidelines (in this instance, the Community Guidelines 2018). The message further said that if feedback suggests that there has been a violation of the Community Guidelines, this may lead to deactivation of the applicant's account. Uber did not specify which aspect of the Community Guidelines the applicant may have violated.
The applicant's reply indicated that he could not provide any clarity about what had transpired without more specific details about which ride generated the complaint. Uber later responded with a seemingly generic response to say that they regularly review feedback and that they take that feedback seriously, and that they made sure to reach out as there are 'two sides to every story'.
At the hearing, the applicant accepted that he was put on notice of the Community Guidelines by those messages.
In the Tierney affidavit, Ms Tierney swore to the fact that there was no information or indication of fraudulent behaviour on behalf of the complainant upon her review of the complainant's Uber app account information and data.

[51]

I accept that because of the very general description of the complaint when it was first notified by Uber to the applicant, he could not recall the circumstances of the particular trip. His more detailed recollection only occurred after material had been filed by the respondent in this proceeding. This might lead to a suggestion that the applicant's account was coloured by the effluxion of time and reconstruction. However, in my view, this has not occurred.
At the time the applicant provided his first detailed recollection on 17 February 2024, the only information the applicant was aware of was that a complaint had been made against him on 31 August 2019, and that he had allegedly made violent jokes about killing the complainant. Given that this was the extent of the information available about the complaint known to the applicant, there was very little information from which he could accurately determine the exchange that led to the complaint.
This lack of information about the trip itself raises a separate question of whether the applicant was indeed recalling the correct trip. However, comparing the applicant's recollection of his statements against the wording of the complaint, it seems likely that his references to cutting an ear off and saying that the complainant's paintings would probably be worth millions when they are dead, were the basis for the complainant's allegations of violent jokes.
Further, on 21 May 2025 in the lead up to the hearing, the respondent first provided evidence of the trip data in respect of complaint 1, showing that it was indeed an Uber Pool trip as the applicant had earlier recalled.
In the case of this complaint, I am satisfied that the applicant's recollections relate to the trip that generated the complaint, and that those recollections are an accurate reflection of what occurred. That is, the effect of his remarks was that the complainant would have more success with her art if she cut her ear off like van Gogh, and that her art would be more valuable after her death.
On that basis, I am not satisfied that the applicant made 'threatening remarks' to the complainant of the kind the complaint appeared to convey. They were injudicious and open to being misunderstood, but I do not accept that they were the applicant himself threatening violence against the complainant, or of being reasonably understood as such. I am therefore not satisfied that the applicant was in breach of the Community Guidelines 2018 (and therefore the DP Agreement) in relation to this complaint.

[52]

The second complaint against the applicant was received by Uber on 9 March 2020, where a user of the Uber app complained about the applicant's conduct and behaviour, selecting the following options as 'true': 'speeding', 'swerving, jerking or harsh braking', and 'illegal traffic maneuvers'.[10]
The user also reported the following in relation to the complaint:
- My Uber trip on Saturday night caused me severe anxiety as the driver drove extremely fast and sped excessively in result trying to go past a red light. I have been involved in a car accident before and that has caused me severe trauma so I was very nervous in the Uber
In his February 2024 response, the applicant said he could not recall being contacted by Uber with specific details of this complaint. He further said that if Uber provides details of the trip data, the claim of going through a red light may be easily proved or disproved.[11]
The respondent, in its written evidence, set out its correspondence between the user and a representative of Uber from 9 and 10 March 2020. In response to the user's complaint, the representative noted, among other matters, that the applicant would be the subject of an account review and may have their access to Uber re-evaluated. The message from the representative also stated that the Community Guidelines require drivers to act responsibly and always put safety first. No further correspondence was exchanged with the user.
The respondent also included correspondence between the applicant and an Uber representative from 10 March 2020.[12] The Uber representative informed the applicant that someone had felt uncomfortable with his driving speed on a recent trip, and that as per the Community Guidelines, 'serious or repeated claims of poor, unsafe, or distracted driving can result in permanent deactivation of a partner's account'.
The applicant and the representative exchanged a further few messages, where the applicant took issue with the fact that he could not know which trip the Uber representative was referring to without being provided with any details about it.
In its evidence, the respondent also included the trip data it has saved for the complainant's trip.[13] This includes details of when the trip was accepted by the applicant, when the applicant arrived at the pickup point, and when the trip began and ended. The data also includes a map with a line representing the route taken by the applicant, varying in colour from red to green. The respondent submitted that green lines indicate that the applicant has increased the vehicle's speed and accelerated. It appears that a red line means the vehicle is stopped or slow, with orange, yellow, light green and dark green colours showing progressively quicker speeds.
The respondent also included a screenshot from Google Maps,[14] showing a trip taking the same route departing at the same time of day and date as the trip that generated the complaint, with a ranged estimate of how long the trip would take.
The Google Maps extract shows a ranged estimate of 'typically 20-35 minutes'. The trip data displays that the trip that generated the complaint took 22 minutes and 21 seconds, which the respondent pointed out during cross-examination of the applicant that it was at the lower end of the range generated by Google Maps. The applicant submitted at the hearing that based on the material provided by the respondent there is nothing to demonstrate that the applicant drove with excessive speed.
In her affidavit, Ms Tierney swore to the fact that there was no information or indication of fraudulent behaviour on behalf of the complainant upon her review of the complainant's Uber app account information and data.

[53]

The respondent's evidence to corroborate the complaint that the applicant sped relies on the applicant's journey falling within the lower end of the range provided by Google Maps. During cross-examination, Ms Tierney confirmed that she did not have insight into how Google Maps derives the estimated times for a trip. The reliability of this evidence to justify a complaint of speeding is therefore uncertain.
While not knowing how Google Maps derives the estimated times for a trip myself either, I am hesitant to accept that Google Maps would show an estimate that factors in the possibility of a driver engaging in speeding or dangerous driving. To me, the broad range of 'typically 20-35 minutes' appears to factor in the varied traffic conditions that could occur for a journey taken at that specific time.
Twenty-two minutes and 21 seconds is certainly at the lower end of the 20 to 35 minute range, however to me this could merely show that the applicant encountered a more favourable set of traffic conditions during the trip. Speeding could hypothetically allow a driver to complete a trip faster and result in a trip time at the lower end of the Google Maps estimated range, but it does not follow that a trip time at the lower end of the range is evidence of speeding.
During examination, Ms Tierney drew attention to the fact that the majority of the route was a deep green colour on the trip data extract, noting that this indicated a faster speed. But close inspection of the trip data extract reveals that the majority of the trip occurred on a freeway. It is therefore unsurprising that the trip data shows that the applicant was travelling at a faster speed for this period of the trip.
In the absence of expert evidence concerning what (if anything) can be discerned from Google Maps trip data about speeding, I am not prepared to draw any conclusions from that data on that subject. Even more so when the trip time was within the estimated range, albeit at the lower end of that range.
To the extent that the complainant refers to 'swerving, jerking or harsh braking', 'illegal traffic maneuvers', and going past a red light, I am likewise not satisfied that the data extracts can be relied on to support those assertions. The extracts essentially only show the route taken, the time to complete a trip and the relative speeds of different portions of that trip. At best, the trip data extract could perhaps indicate 'harsh braking' if the colour of the line went from green to red in a short distance, but I note this does not appear to occur in the extract provided.
The applicant also questioned the reliability and credibility of the complainant in relation to this complaint (and others), suggesting that users make illegitimate complaints for the purpose of obtaining refunds. Although Ms Tierney's evidence was that there was 'no indication of fraudulent behaviour', I am not persuaded of the usefulness of this assessment when it comes to establishing the truth of an individual complaint.
Regardless, even if the user's experience was a truthful account of their perceptions of events, the user's evidence was untested at the hearing and attracts no support from the respondent's evidence, and therefore lacks reliability. Based on the evidence provided, I cannot be satisfied that the applicant was in breach of the Community Guidelines in respect of the matters alleged in this complaint.

[56]

The applicant says that the specific nature of his complaint was not brought to his attention.[16] He says that he often has something to eat in the early hours of the morning, noting that he will accept jobs if he, for example is about to finish a McDonalds meal and only has chips left, and will generally ask the passenger if they mind him finishing his food while he drives.
The respondent set out evidence of correspondence between the complainant and a representative of Uber.[17] In response to the complaint, a representative from Uber sent two replies on 5 April 2021 and 8 April 2021 respectively. The first reply, among other matters, said that they had adjusted the full fare for the trip and that they would deliver the feedback to the driver. The second reply, among other matters, said that further feedback in the nature of the complaint in relation to the driver may lead to a review of their access to the Uber app.
The respondent also provided evidence of correspondence between the applicant and a representative of Uber from 5 April 2021.[18] During cross-examination, the applicant acknowledged the evidence that he had received correspondence from Uber but did not have a specific recollection of receiving those messages.
In the correspondence, the representative said that they had received a report that he may not have been wearing a face mask during a trip, and that drivers are required to wear a face mask in line with local laws for the safety of its users. The representative reminded the applicant that the Community Guidelines require that 'users' comply with local laws while using the app, and that the applicant's account may be permanently restricted if Uber receives further reports that he has not been wearing a mask.
I note that, in the context of the Uber app, 'users' typically refers to people who use the app to receive rides, rather than the drivers themselves. It is not clear whether the Uber representative's reference to the Community Guidelines requiring that 'users' comply with local laws was a deliberate reference to riders, a generic reference to users of Uber apps (whether riders, drivers or otherwise), or simply unintentional when they intended to refer to drivers too. It is unclear whether the applicant was properly put on notice of the Community Guidelines in respect of this complaint.
The applicant's reply on 5 April 2021 acknowledged that he may have been in breach of the relevant face mask regulations while drinking his coffee but did not otherwise admit to or recall a particular situation where he had not worn a mask. The applicant also referred to having a lack of power and desire to enforce laws on riders. He also said that there was no COVID in Victoria (at least at the time of that message).
The Uber representative replied to the applicant on the same day. The representative said that the previous message was not an accusation and that they are aware that there are users who make false allegations. The representative also said that no further action would be taken with regard to the applicant's account status or ability to use the Uber app.
At the hearing, the applicant addressed this complaint and the fourth complaint together, as they both relate to compliance with face mask requirements. In particular, he drew attention to a statement by Uber made by a representative to him in correspondence relating to the fourth complaint on 24 May 2021 as justification that masks were not mandatory at the time. The message in effect stated that masks were not mandatory on the Uber platform, however that users are expected to comply with local laws when using the Uber app in line with their Community Guidelines.
During cross-examination, the applicant said that there was no COVID in Victoria in April 2021 and that had he known the consequences of COVID he would have worn a mask, but he, like everyone else at the time, did not take it seriously. The applicant's recollection was that Uber's policy was that masks were not mandatory at the time. He said his familiarity with the public health order in effect at the time was based on what he had seen on the news.
The applicant confirmed that he had no recollection of whether or not he wore a mask on that occasion but ultimately accepted the complaint and again stated that he may have been drinking a coffee at the time.
In respect of this complaint, the respondent also adduced trip data and Google Maps extracts in relation to this complaint in the same format as Complaint 2 described above.[19] The respondent identified that the trip took four minutes and 18 seconds, whereas the Google Maps estimate showed 'typically' five minutes.[20] At the hearing, Ms Tierney said this was included in relation to the user's complaint about feeling unsafe and in danger.
Like with the previous complaints, Ms Tierney said in her affidavit that there was no information or indication of fraudulent behaviour on behalf of the complainant upon her review of the complainant's Uber app account information and data.

[57]

Starting with the trip data and Google maps extracts, to my mind this adds nothing to any assessment of the complaint. While the complaint did refer to aspects of the applicant's driving, this did not include any concerns about speed or anything else that might show up on trip data or be assisted by a comparison to the Google Maps estimate.
I note that in evidence Ms Tierney said that Uber takes the trip data into account despite the complainant themselves not alleging speeding. I discuss the quality of Uber's review process below. In the absence of corroborating material, I am not prepared to accept the user's allegations of unsafe driving.
In respect of the part of the complaint relating to face mask requirements, the applicant relies, in part, on correspondence from Uber suggesting that masks may not have been mandatory. This correspondence was received on 24 May 2021 in relation to Complaint 4, so could not justify the applicant's failure to wear a mask a month earlier.
I am also unpersuaded the applicant's recollection of the Victorian COVID situation and associated face mask regulations in Victoria at the time of this complaint. On 5 April 2021, the Stay Safe Directions (Victoria) (No. 18), issued pursuant to s 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic), were in effect.[21] These directions provided that a person must wear a face covering in a commercial passenger vehicle, which includes Uber vehicles.
The Community Guidelines in effect at the time of the complaint (that is, Community Guidelines 2019) says: 'we expect everyone who uses our apps to do their part and adhere to applicable laws and regulations'. I therefore accept that any failure by the applicant to wear a mask while driving on the Uber app, would amount to a breach of the relevant Community Guidelines.
However, there was no suggestion by the respondent that a failure to strictly comply with mask wearing requirements would be treated as a breach of the DP Agreement justifying deactivation. Indeed, it seems from the evidence about complaint 4 below, that Uber itself did not regard mask wearing as mandatory on the Uber platform.
In those circumstances, while it seems the mask complaint had some substance, I am not satisfied that it was a matter that would have led to consequences beyond a reminder and encouragement to wear a mask (as occurred in relation to complaint 4). The evidence suggests that it was something that Uber regarded as falling a long way short of conduct justifying deactivation.

[68]

In his written evidence, the applicant said that he recalled this trip.[27] The applicant recalled that the passenger was sat in the middle of the rear seat propping his head up with his hands and 'exhibited signs of not being in control of his mental or physical faculties'. He says that whenever he went over a speed hump, the passenger would loudly exclaim that he had a flat tyre.
However, at the hearing, the applicant said that his recollection related to a different trip that was not the subject of the complaint, as he had initially speculated on which trip it was.
As with each other complaint, the respondent provided evidence of its correspondence with the complainant following the complaint being made, dated 15 and 16 August 2021.[28] In this instance, the respondent sent a brief generic response to the complainant saying, among other matters, that they had noted the feedback on the applicant's account and that they appreciated the complainant for bringing it to their attention.
The respondent also set out its more extensive correspondence with the applicant on 16 August 2021, with various back-and-forth messages between the parties.[29] The respondent's representative explained that they had received a report from one of the applicant's riders that his vehicle had a flat tyre on the trip, and that they had temporarily removed the applicant's vehicle's access to the Uber app as a standard safety measure. The representative said that the applicant needed to provide evidence that his vehicle was compliant with rideshare regulations.
The applicant replied denying that he had had a flat tyre, to which the Uber representative requested that he provide timestamped photos of his tyres with the number plate visible in the photos. After further messages were exchanged, the applicant sent photos of the tyres, albeit without timestamps.
The parties then exchanged further messages where the Uber representative reiterated the request for timestamped photos, with the applicant apparently becoming increasingly frustrated. In his replies, the applicant described the requests as harassment and questioned the lack of evidence provided by Uber itself. Uber later concluded the correspondence by saying that it had 'reviewed the report further' and confirmed that it had reactivated his vehicle on the Uber app.
The applicant recalled being temporarily deactivated from the Uber app for a period of multiple days and that he was not told he was reactivated. During cross-examination of the applicant, the respondent drew attention to the fact that there was only a short period of time between the applicant's initial reply to the complaint at 3:28am on 16 August 2021 and Uber saying it had reactivated his account at 1:05pm on 16 August 2021. The applicant said that he did not recall this.
The respondent also provided a screenshot of the trip data for the ride that generated the complaint, which shows the route taken on a map. Unlike the trip data extracts provided in relation to Complaints 2, 3 and 7, this screenshot does not capture the trip start and end times.
For the purposes of this complaint, it is relevant to note that the extract includes an 'Overview' section that sets out information captured by Uber in relation to the trip. Most relevantly, under 'Status', it states 'COMPLETED'. The location of the pickup and drop-off requested by the rider are redacted.
It is also relevant to note that the extract includes a 'State Changes' section, which appears to record key moments of the trip, including when the 'offer' is made (I understand this refers to the rider making a request through the app which is offered to the driver), when the trip was assigned to the driver, when the driver was waiting for the user, when the trip began, when the 'waypoint' is completed, and when the trip ended.[30]
These key moments are each marked on the map with a pin displaying an identifying acronym, with each pin placed where that moment occurred on the journey. In the screenshot, it appears that certain pins overlap one another if they occurred at the same point on the trip, which means that certain pins cannot be seen properly in the screenshot. Importantly, for this journey, there is a pin indicating where the trip began and a pin indicating that the waypoint was completed.
This trip data extract was not included as part of Ms Tierney's affidavit, which was based on her review of Uber's internal records relating to the matter, but was filed at a later date in the proceedings. It is therefore seems likely that this trip data did not form part of Ms Tierney's overall review of the complaints made against the applicant.
Ms Tierney, in her affidavit, said that there was no information or indication of fraudulent behaviour on behalf of the complainant upon her review of the complainant's Uber app account information and data.

[74]

The respondent has not provided any record of this phone call, but I have no reason to doubt the truth of the applicant's account. Having said this, at most the conversation points to some unreliability in the process of information gathering by the Uber call centre. It is clear that the relevant complaint only refers to a flat tyre, not to other vehicle damage.
The applicant said that he had took photos of the four sides of his car and forwarded them to Uber, and he was informed that further investigation would be required. The applicant said he did not discover until the following Wednesday that he had been reactivated on the Uber app.
The respondent provided evidence of its correspondence with the complainant from 20 November 2021, where an Uber representative thanked the complainant for letting them know about the incident and reassured that they were treating the situation with the utmost seriousness. The representative said that the complainant could reply with any additional information that could be helpful, but no response was received. The representative then sent another response noting that the fare had been refunded and that the feedback had been noted on the applicant's account.
The respondent also provided evidence of its correspondence with the applicant beginning at 5:11pm on 20 November 2021,[33] where an Uber representative said that they had received a report of a flat tyre, and that they had temporarily removed his vehicle's access to the Uber app. The representative informed the applicant that he had to have his vehicle repaired or provide evidence demonstrating that his car is compliant with rideshare regulations.
The applicant replied saying that he had not had any flat tyres and that it was a 'repeat of a false complaint from a few months back'. The representative, while acknowledging his frustration, requested four time-stamped images of the tyres and license plate in reply. The applicant said that the complaints could be resolved by looking at the time the trip commenced and the time the trip concluded, and asking whether the driver could have possibly changed a tyre in that period. He said that any claims that the vehicle had been damaged could be verified by examining the time of the next trip.
Several other messages were shared between the parties without resolution to the issue, with the applicant saying that he had lodged a complaint at the 'Victorian Small Business Claims Tribunal' (likely the Victorian Small Business Commission). The Uber representative said they had escalated the matter to the Community Operations team, and a representative from the Community Operations team said in a message from 9:58am on 21 November 2021 that they had reactivated his account. The applicant nevertheless said that he would not withdraw his complaint to the Victorian Small Business Commission.
While not included in Ms Tierney's affidavit, Uber later filed evidence of the trip data for the trip that generated this complaint. At the hearing, the applicant referred to this trip data extract, drawing attention to the fact that in the 'Overview' section under 'Status', it says 'Driver Canceled: Expired'.
Ms Tierney said in her affidavit that there was no information or indication of fraudulent behaviour on the part of the complainant.[34]

[75]

There are aspects of evidence in relation to this complaint that are in conflict or are otherwise incongruous, such as the applicant's evidence concerning his initial call to the call centre. However, as with complaint 5, the trip data belatedly released by the respondent, provides a sufficient basis for accepting the applicant's assertion that there was no flat tyre and the complaint was (like complaint 5) false.
As identified by the applicant, it is notable that in the 'Overview' section of the trip data under 'Status', it says 'Driver Canceled: Expired'. This likely indicates that the applicant cancelled the trip, however it does not establish when the trip was cancelled. It therefore does not conclusively establish that a trip with the complainant, and any alleged flat tyre incident, did not take place. It is both possible that the trip was cancelled part of the way through the journey (whether after experiencing an alleged flat tyre or not), or that the trip was cancelled before the rider was picked up.
At the hearing, relying on a related 'trip log' that was provided with the trip data extract, the respondent noted that the latitude and longitude at the beginning of the trip and drop off locations are different, and suggested that the trip commenced but was ended upon the applicant's cancellation. However, as explained below, the differences between the latitudes and longitudes are marginal at best and, in my view, do not support the respondent's position.
In particular, I am not satisfied that the trip log latitudes and longitudes in fact reflect the locations of the start and end of the alleged trip. The rider's requested pickup location is redacted on the trip data screenshot, therefore the screenshot does not establish that the latitude and longitude of the beginning of the 'trip' (as shown in the trip log) and the latitude and longitude of the pickup location, are the same.
From my assessment of this trip data extract and other trip data extracts adduced in relation to other complaints, it appears that the data is collected (including location data) before the rider is picked up and the trip officially begins, because the driver must first drive to the pick up location.
Further, on assessment of the 'pins' marked on the map in the trip data extract, showing different key moments, there is a pin with a grey circle symbol. This same grey circle symbol appears next to the 'Rider Requested Pickup' and redacted location details, which suggests that the grey circle pin on the map represents the rider requested pickup location.
However, the location of this grey circle pin does not correspond to the latitude and longitude of the beginning of the trip set out in the trip log. The latitude and longitude in the trip log instead appear to coincide with the pin on the map marked 'AS' for 'Assigned'.
The screenshot provided by Uber does not include all the key moments of the trip as set out under the 'State Changes' section, with all other 'states' after 'Assigned' being cut off. It is therefore not possible to determine when or where the rider's trip began or ended, if at all. There are no visible 'BT' ('Begin Trip'), 'WC' ('Waypoint Completed') or 'TE' ('Trip Ended') pins in the screenshot of the trip data provided.
Like the grey circle symbol used for 'Rider Requested Pickup', 'Rider Requested Dropoff' is represented by a grey square symbol. There is a grey square symbol pin visible on the map, and based on the line drawn on the map (showing the route taken) it is clear that the applicant did not drive to the requested drop off location.
The drop off latitude and longitude in the trip log appear to coincide almost exactly with the pin marked 'DC'. Although it is not entirely clear without the rest of the 'State Changes' section set out in the screenshot, it is likely that 'DC' refers to 'Driver Canceled'. I note also that the 'DC' pin appears beside the Rider Requested Pickup grey circle pin on the map.
On my assessment, therefore, the most likely explanation that can be drawn from the trip data, is that the trip was cancelled either at or before the pick up of the complainant, and is not consistent with the applicant experiencing a flat tyre some time after commencing the trip. Again, the applicant's evidence must therefore be preferred.
I repeat my concerns in relation to complaint 5 about the fact that the trip data was apparently not considered as part of Ms Tierney's overall review of the 7 complaints against the applicant, nor referenced in her affidavit.

[76]

The seventh complaint was received by Uber on 5 May 2022, where a user complained about the applicant's conduct and behaviour, selecting the option: 'My driver made me feel unsafe or was inappropriate' in relation to the complaint.[35] For this complaint, the user had ordered a ride for his partner, who I will describe as separately as the complainant.
The applicant in his February 2024 response, said that the complaint was presented to him as an allegation of a 'threat to commit violence against a rider or perpetrating violence against a rider', and could not provide any details of the incident in response to Uber as he did not know which trip they were referring to.[36] He said that the trip that generated the complaint was so 'unremarkable and uneventful' he could not recall. In this response, the applicant speculated that his alleged statement that the user's partner 'go overseas and get shot and die' would have been made in the context of conversation about trips he had made overseas to Sri Lanka.
After obtaining further context to the complaint from the material submitted by the respondent, at the hearing the applicant was able to recall further details about the trip that generated the complaint. The applicant said that the complainant claimed she was a reporter and wanted to go to Ukraine and make a name for herself. At the hearing, the applicant expressed reservations about her credentials as a reporter, based on her 'very un-reporter-like' speech pattern, and the fact that she raised the fact that there was a war going on in Ukraine, as if it were breaking news and an exposé. He recalls responding to this comment with 'really?' in a sarcastic tone.
The applicant recalled saying to the complainant that she wouldn't make a name for herself in Ukraine as there have been three journalists killed in the last few months, and if she went there and got shot and killed, she would just be another reporter killed in Ukraine.
The applicant's evidence was that he then said to the complainant that she should instead go to Sri Lanka and cover the news there because the government is making lots of reporters disappear. He said that the headlines in Australia if she were to disappear - 'white woman reporter kidnapped in Sri Lanka' - would be a sure way to make herself famous. He also recalls saying words to the effect that people in Sri Lanka are so poor that someone might kill you for a couple bucks, and you don't want that to happen; you need to be kidnapped.
Finally, he recalled saying to her not to forget to pack a pair of gumboots. Upon her asking why and saying that the weather is good, he said 'maybe so, but when the bullshit runs down your legs, it'll collect in the gumboots and the enemy won't be able to track you'. At the hearing, the applicant said that he may have gone 'too far' in respect of this parting comment.
The respondent's evidence of its correspondence between the user and a representative of Uber,[37] was that when Uber first contacted the user and asked for additional information, the user responded:

[80]

The respondent also provided evidence of communications between the applicant and a representative from Uber's Community Operations team from 5 May 2022,[38] which began with the representative saying to the applicant that they had 'received some concerning feedback from one of [the applicant's] trips regarding a threat of violence'. The representative said that the applicant's access to the Uber app had been temporarily blocked while they review the matter, and that the applicant could respond with any additional information or questions regarding the reported incident.
The applicant sent several messages in reply, saying that he has been deprived of an opportunity to earn a living and requesting that the matter be referred to Victoria Police for investigation, as they should be the appropriate investigators for such an allegation. A later message from the Uber representative on 8 May 2022 acknowledged a phone call between them and the applicant, and said that his access to the app would remain restricted while they review the information gathered.
The respondent also provided a transcript of the phone call between the applicant and an Uber representative on 8 May 2022. At the beginning of the call, the Uber representative indicated that they had received a report that the applicant 'might have been verbally or physically aggressive' in one of his trips, and asked whether the applicant recalled the incident that may have led to that report. The applicant said that without details he could not even speculate. The remainder of the conversation related to the applicant's inability to recall and Uber's inability to share further details.
During cross-examination, Uber put to the applicant that he had breached the Community Guidelines where it says that 'Aggressive, confrontational or harassing behaviour is not allowed. Don't use language, make gestures or take actions that could be disrespectful threatening or inappropriate' and 'It is also a good idea to stay away from personal topics that can potentially be divisive like religion or political beliefs'. The applicant rejected this suggestion.
The applicant further rejected during cross-examination that his 'gumboots' comment would have been in breach of the Community Guidelines in the context of the conversation they were having. Upon being asked, the applicant also said that he provided transportation services with due care and skill and courtesy, based on Clause 6 of the DP Agreement.
During cross-examination of Ms Tierney, the applicant asked why, given the apparent serious nature of his behaviour, the matter had not been referred to Victoria Police for investigation, particularly when he had asked the person investigating the complaint on Uber's behalf to do so.
I note also that the respondent included a trip data extract and a screenshot of Google Maps as comparison.[39] In her affidavit, Ms Tierney says that her review of the trip data indicated that the trip lasted for 6 minutes and 48 seconds. The trip data in fact shows that the applicant spent 6 minutes and 48 seconds 'waiting' before beginning the trip itself, while the trip itself took 12 minutes and 24 seconds. This may have been a mistake. Regardless, this data is not relevant to any assessment of the complaint.
Ms Tierney said in her affidavit that there was no information or indication of fraudulent behaviour on the part of the user for this complaint.[40]

[81]

The complainant's evidence was in substance that the applicant said to her she should go to Ukraine and be a writer there so she could get shot and die, and that he could arrange for people to shoot and kill her in Sri Lanka. On the applicant's version of events, it was the complainant who first mentioned going to Ukraine to cover the war there, with the applicant then suggesting that she should go instead to Sri Lanka, because getting killed there would attract more media attention. He then later made the 'gumboots' remark.
The complainant's version is both completely untested and internally inconsistent, as relayed in the transcript of the telephone conversation. This is not a criticism of the complainant. It simple reaffirms the difficulty created by the failure of the respondent to call the complainants to give evidence that may have clarified these inconsistencies. In the circumstances, the applicant's version must be preferred.
Having said that, the applicant's remarks even on his own account were ill-judged, as he seems to acknowledge. While I accept they were an attempt at dark humour and were not directly threatening of the complainant, there was a risk of them being misheard or misunderstood in a relatively brief exchange between complete strangers. However, in my judgment, they were neither aggressive nor threatening in the way characterised by the respondent.
In submissions, Uber latched on to the applicants 'gumboots' remarks, arguing in effect that these were highly offensive and were alone sufficient to justify the deactivation of the complainant. The difficulty with this submission is that these particular comments formed no part of the complaint, which means the complainant either did not hear them or, if she did, was not sufficiently troubled by them to mention them in her complaint.
Having not been raised by either the applicant or complainant before the applicant's deactivation, that comment could not and did not form part of the material before the respondent for its assessment of whether the applicant breached the Community Guidelines nor for its decision to deactivate the applicant from the Uber app. It likewise cannot be relied upon retrospectively to justify those decisions, particularly in circumstances where it is not clear if they were even audible to the complainant.
Thus, while the applicant's statements appear to have made the complainant uncomfortable, this discomfort may have arisen from a misinterpretation by the complainant of the meaning or intent of the comments. In the absence of the complainant being asked about this, it is impossible to know. I am satisfied that the remarks were not threatening or otherwise in breach of the Community Guidelines or the DP Agreement.

[83]

The NCAT decision last year in Singh v Rasier Pacific Pty Ltd ('Singh')[41] had a number of parallels to the present case and was relied on by the respondent in this proceeding. It is a thorough and helpful statement of relevant principles, although on two matters I have reached a somewhat different conclusion to that of the learned Senior Member. One of these relates to his findings concerning the Uber's review of complaints leading up to a deactivation decision.
The Senior Member referred to provisions in the Community Guidelines providing for Uber's review of complaints and discussed whether it was appropriate to imply a term into the DP Agreement concerning that review process. After referring to the principle for implication,[42] the Senior Member found that 'it is necessary for there to be an implied term that any internal review of the decision to deactivate is conducted with genuine consideration of the merits. Otherwise, the review process is meaningless'.
I do not disagree that a term to this effect might be implied - indeed my tentative view is that that the Senior Member's finding on this is sound. My difficulty is that the finding does not go anywhere. In my view, a finding that any review was not genuine and thus breached the DP Agreement, does not manifest in any relevant finding or relief in this proceeding.
As the Senior Member observed, this is not an administrative law style review of the deactivation decision. Rather, it is a question of breach of contract. Relevantly for present purposes, if the applicant's conduct giving rise to any of the complaints was not a 'material breach' of the DP Agreement, then Uber's immediate termination of the agreement was wrongful regardless of the genuineness of any review. Conversely, a cursory or token review does not preclude a finding that the applicant did engage in a material breach justifying immediate deactivation.
The circumstances of the purported reviews therefore do not advance the question whether the applicant's deactivation was relevantly in breach of the DP Agreement. However, they do provide some useful context for the communications between the parties and the deactivation decision, and may be indirect evidence of the reliability of the complaints. For the reasons below, I am satisfied that any reviews by Uber do nothing to gainsay the conclusions I have reached above about each of the complaints.
The evidence establishes that there were a number of points where the respondent's Community Operations Team undertook some form of assessment or review of the applicant's conduct and behaviour. They may be loosely categorised as follows:

[85]

Ms Tierney's evidence was that the material was also reviewed upon the respondent being served with the relevant documents in the proceeding, before her review.
It is not clear what process of review Uber undertakes upon receipt of each individual complaint, both in terms of a factual assessment of what occurred and an assessment of whether what occurred was in breach of the Community Guidelines or DP Agreement (or both).
As far as I can tell from the evidence, Uber receives the complaint from the user, then notifies the driver via an in-app Uber message that a complaint was received about them with a high-level and unspecific description of what occurred, without any reference to the time of the relevant trip. The driver has an opportunity to respond, which the applicant did in each case. But apart from Complaint 7, the applicant was never directly invited to provide his version of events.
I accept that there are legitimate privacy concerns related to revealing the specific trips that generate each complaint. However, the consequence of this is that the driver is often unable to provide a useful response to the allegations, particularly where the complaint is fabricated. In this case, the applicant was usually left to speculate about which trip generated the complaint and, on occasion, speculated incorrectly.
Uber also has access to the trip data as part of its reviews, however it is not clear how they use this information to assess complaints. Based on Ms Tierney's evidence, it seems the trip data was not reviewed following each individual complaint, but rather only just before the decision to deactivate the applicant's Uber account. If that is correct, it follows that complaints are taken at face value and there is little if any objective testing of the genuineness of the complaint against any available data, at least until the point at which Uber is contemplating a driver's permanent deactivation.
As discussed above, the Tierney affidavit included trip data and comparative Google Maps extracts for Complaints 2, 3 and 7. I accept that the trip data is relevant to Complaint 2, but not to Complaints 3 or 7. In contrast, the trip data was highly relevant to Complaints 5 and 6, but appears not to have been examined by Uber at any point in the complaints process or later reviews.
Further, at the hearing Ms Tierney confirmed that at the time of preparing her affidavit, she did not ask for the trip data to be produced in relation to Complaints 5 and 6. She also acknowledged that the trip data would have been conclusive as to whether those complaints were true or not. To my mind, this fact alone casts considerable doubt over at least the thoroughness, if not the genuineness, of the respondent's review processes.
As noted above in relation to each complaint, Ms Tierney deposes that her review of users' Uber app account information and data did not reveal any indication of fraudulent behaviour on part of the user at the time of the complaints.[43] At the hearing, Ms Tierney explained that this review involved looking at the user's accounts and identifying whether that account had certain attributes attached to it with respect to high appeasement rates or high refund rates.
As I understand it, users who regularly seek refunds may have their accounts flagged in some way, and that an indication of 'fraudulent' behaviour requires some sort of pattern or general tendency to seek refunds. It is not clear what frequency or content of complaints would attract the label of 'fraudulent'. It is also not clear whether this check for 'fraudulent' behaviour is undertaken when the complaints are first received.
Regardless, evidence of a pattern of frequent complaints by a user (or lack of it) is only marginally relevant at best. In the absence of other objective evidence, a high frequency of previous complaints could raise legitimate concerns about the veracity of a further complaint, but the reverse does not apply. Simply because a user has not previously complained about an Uber ride, or has not done so frequently, is no basis for accepting a complaint as fair or accurate.
According the Tierney affidavit,[44] after Complaint 7 was received by the respondent, the applicant's misconduct was assessed by Uber's Community Operations Team, where it was determined on 11 May 2022 that his access to the Uber app would be deactivated for 'repeated behaviour including the Applicant's allegedly threatening violence with Users, unsafe driving, non-compliance with mask regulations and flat tyres while providing Transportation Services'.
The respondent's deactivation message to the applicant dated 11 May 2022 stated:[45]

[103]

At the hearing, Ms Tierney explained that within Uber's internal systems there is a safety record which lists relevant incidents relied upon for deactivation. Ms Tierney confirmed that it was a combination of all instances of complaints, which were assumed to be accurate at the time, that led to the applicant's deactivation, though she said it was difficult to say what the effect would have been if some of those complaints were unsubstantiated or proved to be unsupported. She also said that given the serious nature of Complaint 7, she believed that the business decision to deactivate would not have changed.
Given Ms Tierney's lack of involvement in the actual deactivation, I am sceptical of her comments about the decision to deactivate remaining unchanged if other complaints besides Complaint 7 had been unfounded. They are speculative and contradict her own sworn evidence in which she states that the applicant was deactivated from the Uber app for 'repeated behaviour'. She may also have been relying at least in part on the applicant's evidence about the 'gumboots' remarks in commenting on the seriousness of that complaint. As I have noted above, these did not form any part of the complaint.
I am satisfied that Uber's decision to deactivate the applicant from the Uber app was based on the combination of the seven complaints made against him. Yet, I have found that at least two of these were false, and the others were either minor (the face-mask complaints) or not in breach of the DP Agreement (incorporating the Community Guidelines).
It follows that Uber's purported reliance on the combination of the seven complaints to found the decision to remove the applicant from the app without giving 30 days' prior notice was a breach of the DP Agreement.
In case there is any doubt, I would add that in my judgment, none of the complaints either alone or in combination, was a 'material breach' of the DP Agreement by the applicant. They were matters that (in some cases) may have amounted to a technical breach or justified some counselling of the applicant to avoid controversial conversations, but none went to the root of the applicant's suitability as an Uber driver partner.
Where a party purports to terminate a contract when there is no legal right to do so, that party's conduct may be treated as a repudiation of the agreement.[57] Given that the respondent terminated the DP Agreement without giving the applicant the requisite 30 days' prior written notice, I find that the respondent's termination of the agreement amounts to a repudiation of the DP Agreement.

[105]

Section 184(2) of the ACLFTA sets out the powers that VCAT has in relation to the settlement of a consumer and trader dispute. Most relevant to this dispute is subsection (b)(ii), which provides that VCAT may order the payment of a sum of money by way of damages. However, the approach to the calculation of damages is not prescribed by the ACLFTA. Rather, this is determined by reference to common law principles applicable to determining contract damages.
Where a party suffers loss by reason of a breach of contract, that party is, so far as money can do it, to be placed in the same situation as if the contract had been performed. In this proceeding, damages may be awarded to place the applicant in a position he would have been in had he not been deactivated from the Uber app on 11 May 2022. This would ordinarily involve awarding damages to make up for any decline in income the applicant has received since his deactivation.
In the applicant's initial points of claim dated 27 November 2023, he sought $47,000.00 for loss of income, to be reassessed on an ongoing basis. The applicant updated this figure to $70,000.00 by email to the Tribunal on 13 February 2025.
On 12 March 2025, the applicant filed material with a more in-depth assessment of his claim for loss and income. In this material, he amended the figure to $57,760.00, representing his losses between 15 May 2022 and 12 March 2025. The applicant calculated this figure by taking the average of his income less expenses from Uber across the 2022/20 and 2021/22 financial years, which the applicant says was $20,971.00.
By email to the Tribunal on 9 April 2025, the applicant said that he was withdrawing his claim for loss of income and instead pursuing a claim for aggravated damages and reinstatement to the Uber app. This may have been because the applicant faced difficulties in establishing that his income from working exclusively for Didi after the Uber deactivation, was materially less than when he was driving mainly for Uber and occasionally for Didi. However, despite this apparent withdrawal, the applicant nevertheless referred to his reduced income after May 2022 during the hearing.

[113]

In this case, Uber's approach to the user complaints shows that Uber is content to continue to allow a driver to remain on the platform generating earnings for both the driver and Uber, until it assesses that the driver's conduct has reached an unstated threshold leading to immediate and permanent deactivation. There is nothing in Uber's approach to complaints 1 to 6 that supports an assumption that it might opt for termination on 30 days' notice and thus forgo its share of driver earnings, at any time before that perceived threshold is reached.
Indeed, the evidence concerning each of the complaints up to complaint 7 is to the contrary. It shows that Uber takes a binary approach to complaints - as each complaint is received it either permits the driver to continue driving (perhaps with a brief suspension to confirm vehicle safety), or it determines to deactivate for material breach. This is no doubt because Uber generates income from services fees and other fees from the applicant's use of the Uber app platform, so terminating without cause would be counterproductive.
I note that at the directions hearing on 12 March 2025, I alerted the respondent to the decision of the High Court in Berry and, by my orders the following day, invited it to provide evidence of any practice relating to the giving of 30 days' notice of termination. It did not do so, and there is nothing in the evidence to suggest that Uber even sees termination on 30 days' notice as an option.
I am therefore satisfied that all the facts and circumstances in this case point to the conclusion that, had Uber not wrongly determined that the applicant had breached the DP Agreement and deactivated his account, the applicant would have continued indefinitely as an Uber driver partner. It might be argued that some discount[66] should be applied to recognise the risk that a later breach by the applicant would have led to a permanent deactivation for material breach, but such a discount is entirely speculative and impossible to quantify. In particular, there is nothing in the evidence concerning the seven complaints that were made, to suggest that it was likely or even possible that the applicant would engage in conduct amounting to a material breach at some future time.

[115]

At the hearing, in addition to pursuing loss of income following his final deactivation in May 2022, the applicant claimed loss of income in respect of a period of temporary deactivation following Complaint 6. The applicant says that he was deactivated on a Saturday night and did not discover until Wednesday that he had been reactivated,[67] resulting in lost income for this period. In particular, he noted that he had qualified on Friday for two promotions that Uber was offering for Friday, Saturday and Sunday, and therefore missed out on additional commission and trip bonuses due to his deactivation. The applicant estimated that he would have earned close to $2,000.00 for this period.
The correspondence between the applicant and Uber following Complaint 6 began at 5:11pm on 20 November 2021, with the Uber representative indicating that the applicant's access to the app had been temporarily removed. Following further correspondence, the applicant was told by an in-app message at 9:58am on 21 November 2021[68] that his vehicle had been reactivated.
Based on a review of the applicant's weekly statements from Uber, it appears that his last trip before this temporary deactivation was at 6:27am on 20 November 2021, and that he only recommenced driving on 24 March 2022. The applicant's recollection was that he was overseas from 24 December 2021 until either 4 or 24 March 2022. The applicant also produced monthly tax summaries for his earnings with Didi up to December 2021 (including November 2021) and recommencing from March 2022, which aligns with his recollection that he was not driving for a period of some months around this time.
Although the applicant says he was unaware that he had been reactivated until Wednesday (that is, 24 November 2021), I have no reason to doubt the authenticity of the communications between the applicant and Uber, including the timestamp of each message. I am therefore satisfied that the applicant was notified at 9:58am on 21 November 2021 that he had been reactivated on the app. I accept that the applicant may not have been aware of his reactivation until 24 November 2021, but those few additional days of delay cannot be attributed to Uber.
Also, the applicant was still able to earn income by driving using the Didi app. There must therefore be doubt about whether his estimate of lost income is accurate. This is a factor that creates a challenge for the applicant's loss of income claims generally.
The applicant's evidence was that he was required to work longer hours on the Didi app to earn the same amount he would have earned on the Uber app. He said that he would work 72 to 84 hours in a week on Didi to earn the same as working 40 to 50 hours a week on Uber. However, the applicant was unable to adduce any supporting evidence of the hours he worked for Didi, as that information was apparently unavailable on the Didi app and could not otherwise be obtained from Didi itself. It also seems that the applicant had not kept his own records.
The respondent submitted that the applicant had not suffered any loss as a result of the termination of the DP Agreement because he drove for Didi at the same time as he was driving for Uber, and continued driving for Didi after his deactivation from the Uber app. Further, the applicant was unable to show from his tax records or other sources a material reduction in his total income pre and post-deactivation.
At first blush, if the applicant was able to able use the time he had been driving for Uber pre-deactivation to increase his driving for Didi post-deactivation, and thereby generate the same net income, he will have suffered no compensable loss. However, this assumes that there were no other factors in play, and the applicant's evidence was that he was only able to achieve this by working much longer hours. If the applicant could establish this to the necessary standard, then he might succeed in establishing a claim for loss of income.
Evidence adduced by the applicant to date that might be relevant to the applicant's loss of income claim is as follows:

[116]

(a) At the hearing, the applicant provided handed up a document with a calculation of his average daily earnings from Uber for the period 24 March 2022 to 4 May 2022 showing a gross daily average of $282.79, reduced to $244.00 after deducting his car expenses for that same period, which was derived from his vehicle expense deduction from his 2021/22 tax return.

(b) The applicant relied on his post-24 March 2022 earnings because this was when he returned from a trip to Sri Lanka, when he married his partner. He said that from this time onwards, he was treating his work with a different attitude and treating it as a full-time job.

(c) It is not in dispute that the applicant continues to use his car to earn income on the Didi app, so his fixed cost expenses (car repayments, registration, insurance, CPV registration and accreditation, for instance) probably do not need to be factored into the calculation of the difference between his earnings pre and post-deactivation by Uber.

(d) However, if the applicant is driving his car for longer hours, then his variable expenses such as fuel and servicing will presumably be proportionately higher. The applicant has said that he pays for 8 litres of fuel per 100 km, and pays $440 for servicing every 10,000 km. However, he has not adduced evidence of the cost of fuel nor kilometres driven.

(e) If the applicant can adduce evidence of the comparative kilometres driven pre and post-deactivation by Uber, and this showed that the applicant has driven significantly further on average since deactivation, this might support his assertion of working longer hours since deactivation.

(f) This might also enable a calculation of his average earnings per kilometre with Uber and Didi, compared with an average earnings per kilometre with Didi alone, which would in turn enable a calculation of how much more he might have earned if he had driven the same kilometres for Uber and Didi, rather than just Didi.

(g) The applicant provided evidence of his Didi earnings for periods between August 2021 and July 2023. Relying on this evidence, it seems the applicant earned a daily average income of $106.31 from Didi after his deactivation from the Uber app.

(h) For the period before his deactivation, not including times when the applicant was overseas, the material provided by the applicant suggests that his average earnings were $139.83 per day.

[133]

Clause 27 of the DP Agreement provides that Uber is not liable for 'any incidental, punitive, special, exemplary, consequential, or other indirect damages', though it specifies that the clause only applies to the maximum extent permitted by law and does not override any rights the applicant has pursuant to those laws. Aggravated damages are not expressly referenced in this clause and, in my view, nor are they in the nature of 'indirect damages'. In any event, I am satisfied that the DP Agreement does not operate to displace the applicant's rights to obtain any form of damages available under the ACLFTA.
The respondent submits that there are limited exceptions where damages may be awarded for humiliation, distress or insult as a result of a breach of contract, and the bar for the award of those damages is high. It relies on Baltic Shipping Co v Dillon,[75] submitting that damages for distress or disappointment are recoverable in an action for breach of contract only if it arises from a breach of an express or implied term that the promisor will provide the promise with pleasure, enjoyment or personal protection or if the distress or disappointment is consequent upon the suffering of physical injury or physical inconvenience.
The respondent says that the applicant does not meet this test. It relies in part on the fact that the applicant had not raised any concern with or sought any medical assistance from a GP, psychologist or psychiatrist in relation to his distress and concern, nor filed any medical evidence to support his claim. The respondent also submits that there is no express or implied term in the DP Agreement requiring the respondent to provide the applicant pleasure, enjoyment or personal protection.
While I accept the respondent's submission as a correct statement of the law with respect to damages for distress and disappointment for breach of contract, this form of damages for non-economic loss differs from aggravated damages. Aggravated damages go beyond compensating for the loss suffered from distress or disappointment and compensate for harm that is aggravated by the other party's conduct. However, it is understandable that the respondent advanced this submission, as aggravated damages are rarely, if ever, discussed in the context of breach of contract claims.
As a general rule, aggravated damages are not available in actions for breach of contract.[76] It has been said that aggravated damages are only available for a cause of action that 'protects the dignatory interest',[77] such as torts for defamation, false imprisonment and trespass to the person or land. A breach of contract claim, on the other hand, is not pursued (at least in a direct sense) to uphold one's reputation or privacy.
Further, for the causes of action that 'protect the dignatory interest', damages are 'at large',[78] meaning they are incapable of being given an exact monetary figure. In contrast, where there has been a breach of contract, there is generally a more structured process for calculating the amount of the damages that can be derived from that breach, such as the loss of income amount claimed in this proceeding. On this approach, aggravated damages are not available in this proceeding.
However, aggravated damages have also been granted for causes of action other than those that protect the 'dignatory interest', including for breaches of statutory regimes. In addition to the FTA and ACLFTA (see Scully above), aggravated damages have been awarded under the Trade Practices Act 1974 (Cth) ('TPA'),[79] and Australian Human Rights Commission Act 1986 (Cth).[80] Broadly speaking, the justification for the award of aggravated damages under these provisions is that aggravated damages are a compensatory form of damages, and the provisions in these Acts refer to a court compensating for loss and damage suffered by a party.[81]
Although the wording in ACLFTA s 184 does not specifically refer to damages to compensate for loss and damage, at face value it nevertheless allows me to grant a wide variety of damages - both compensatory and punitive (in the form of exemplary damages). If the applicant has suffered loss that has been aggravated by the defendant's conduct, arguably there is no legislative impediment to me compensating for this loss under the power granted in s 184, regardless of the underlying cause of action.
But, as noted above, this dispute does not involve the direct breach of a statutory regime; it involves a breach of contract. It might be argued that VCAT's power to award damages is a statutory power and therefore should not be subjected to the same restrictions as the common law imposes on an award of aggravated damages. For example, the High Court has said that courts are not constrained to principles of common law relevant to assessing damages in contract or tort when assessing damages under statute, at least in the context of TPA s 82.[82] This approach has also been adopted in relation to assessing damages under ACL s 236.[83]
However, damages under the TPA and ACL are awarded in relation to causes of actions found within those very Acts. These legislative causes of actions may have analogous causes of action under the common law, but the common law causes of actions are merely guiding and do not constrain the interpretation or operation of the legislative causes of action.
In this case, the award of damages is in relation to breach of contract, which is not a cause of action found in the ACLFTA itself. The breach of contract cause of action relied on in this case and enabled by the ACLFTA is derived from the common law. The applicant is not relying on some analogous legislated version of breach of contract found in the ACLFTA. Put another way, VCAT's power to hear the matter as a consumer and trader dispute and award damages in relation to that dispute is found in statute, but the underlying claim itself is a breach of contract claim.
Accordingly, in my view, the substantive claim in this case and any consequential award of damages must be determined by reference to common law contract principles.
Further, VCAT's power to award damages under s 184, although broad, does not prescribe how that power should be exercised. It simply says that VCAT may 'order the payment of a sum of money ... by way of damages'. In contrast, ACLFTA s 216, for example, refers to paying an amount for 'loss or damage suffered by the injured person'. Awarding damages under s 216 thus requires consideration of what loss or damage has been suffered by the injured person, which opens up the possibility of awarding damages in the nature of aggravated damages for 'insult, humiliation and the like'. The wording of s 184 gives no such indication.
Ultimately, VCAT may only make an order under s 184 where there is some legal basis for doing so.[84] Parliament has given VCAT a broad jurisdiction to deal with disputes that fall under the umbrella of a 'consumer and trader dispute', extending to common law breach of contract claims, and the exercise of this jurisdiction must be exercised in accordance with the same legal principles applied by the courts.[85]
I accept the applicant's evidence that he has experienced significant personal distress as a result of his deactivation and the subsequent deficient review process. However, I am not prepared to put aside the widely accepted common law position that aggravated damages are not available for breach of contract. The applicants claim for aggravated damages must fail.

[137]

NCAT further stated that reinstatement 'would provide no appreciable relief to the Driver in view of the clause of the Agreement which entitles Uber to terminate, without cause, by giving 30 days' notice'.[89]
While I acknowledge that, even if I were to make orders requiring reinstatement, the terms of the DP Agreement permit Uber to terminate the agreement without cause upon 30 days' written notice, there is no certainty that Uber will exercise this right. It may accept that the applicant should not have been deactivated and be content to continue to derive income from the applicant's obvious commitment to continue to work diligently as a ride-share driver. The applicant should not be restricted from the prospect of returning to the Uber app as a driver on an ongoing basis based on a hypothetical.
In any event, damages alone would likely not satisfy the demands of justice in this matter. In particular, considering the applicant's evidence that he has had difficulty finding other work due to ongoing health issues, and that his income on the Didi ridesharing platform is comparatively less than his previous income from Uber, I am satisfied that any damages for loss of income cannot compensate him on an ongoing basis for the remainder of his working career as a rideshare or taxi driver. Reinstatement will allow him the opportunity to earn income without having to work substantially more hours for Didi.
On the question of the reluctance of courts and tribunals to order specific performance for contracts involving the provision of personal services, in my view this is not an issue with the present contract. The nature of the relationship between an Uber driver and Uber itself is far from a personal relationship, as it is facilitated almost entirely through the Uber app, with the only limited personal interactions being those with support staff or call centres. Renewing the contractual relationship between the parties is not comparable to 'involuntary servitude' nor does it compel any incompatible personal relationship between the applicant and Uber personnel.
I am therefore satisfied that it is appropriate to order that the respondent reinstate the applicant on the Uber app, and I will so order.

De Niese v Rasier Pacific Pty Ltd

At a glance

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Decision date

Before

Source

Judgment (185 paragraphs)

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Legislation Cited (6)

Cases Cited (20)

De Niese v Rasier Pacific Pty Ltd (Civil Claims) [2025] VCAT 1112 (18 December 2025)