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[2025] VSC 514
General information, not legal advice.
Supreme Court of Victoria
2025-08-25
Nichols J
Original judgment source is linked above.
(a) Taxi Apps alleged a combination between Uber Inc and its subsidiaries. As a matter of principle I have accepted that a combination between related entities may occur, but their unlawful conduct must be pursuant to an agreement between them. In this case there was in fact no scope for an agreement to effect an unlawful purpose because Uber Inc itself determined what would occur without needing the concurrence of its subsidiaries. The fact that they implemented its plan did not establish a combination for the purposes of the law. That conclusion is sufficient to determine the claim.
(b) I have found that in respect of the New South Wales based conspiracy that Uber Inc and Uber Australia held the relevant intention to harm Taxi Apps.
(c) On the question of unlawful means the conduct in this case was unlawful under statute, not at common law. Statutory wrongs may qualify as unlawful means. The question in issue was whether all or only some kinds of statutory illegality may suffice. I consider that Australian authority on this question is in an unsatisfactory state. I am bound by the reasoning of a majority of the High Court in on this issue. That reasoning is that where the unlawful means relied upon for the purpose of the tort of conspiracy is a statutory wrong, one must ask whether it can be properly understood that parliament intended to create or provide for remedies other than those provided for in the statutory terms. It was accepted that the passenger transport laws in this case do not disclose that intention.
29 I have determined that Uber Australia breached a duty of confidence when it surreptitiously obtained Uber Australia's Driver List in 2013. Its conduct in doing so was wrong and unconscionable in the ways discussed below; it was neither honourable nor commercially acceptable. This Court's judgment marks the Court's disapproval and condemnation of that conduct by the standards of the law and by extension, the community. It is sufficient to do so without the remedy of a declaration. The particular incident, although wrong, was relatively confined in its scale and reach. It may be contrasted with the pervasive and systemic unlawful conduct of the Uber Entities more generally in launching UberX in the Australian states at a time when it was illegal to do so. That admitted conduct was not the subject of the claim for breach of confidence.
30 The parties led extensive evidence on the issues of causation and loss. I have considered that evidence but have not determined those issues, given the result in respect of liability. Doing so would require reasoning premised on hypotheses not established. Taxi Apps' loss case was formulated without distinguishing between the businesses it conducted in each of the four states for which it alleged separate conspiracies; its evidence did not permit a determination of a state by state outcome.
(a) Part A: Introduction
(b) Part B: Agreed Facts
(c) Part C: Combination
(i) C.1 Conspiracy within a corporate group - threshold question of law
(ii) C.2 Combination - parties' cases and submissions
(iii) C.3 Evidence and factual findings
(iv) C.4 Combination - analysis
(d) Part D: Intention
(v) D.1 Parties' cases and principles
(vi) D.2 Further evidence and factual findings
(vii) D.3 Taxi Apps' primary intention claim
(viii) D.4 Harm to a class of persons
(ix) D.5 Harm as a necessary consequence
(e) Part E: Unlawful Means - Question of Law
(f) Part F: Breach of Confidence
(a) UberBlack, which riders used to request a ride from licensed drivers driving luxury cars with government-issued licence plates.[16]
(b) UberTAXI, which riders used to request rides from licensed taxi drivers driving taxis with taxi licence plate.[17]
(c) UberX, which riders used to request rides from drivers for 'peer-to-peer' or 'P2P' ridesharing services. The drivers used their personal vehicles.
(d) UberX Share, which has been known as UberPool at times, and is similar to UberX, save that riders could share the trip with other riders heading along a similar route and in turn received a discounted price.
The Uber entities and their respective roles in the Uber business
The relationship between the entities, depicted visually,[18] was as follows:
Uber Inc was the holding company for each of the other defendants and was the parent of the Uber Group. Uber Inc at all times had oversight of the operations and strategy of the Uber Group's operations and business in Australia.
Uber Inc owned the software in the Uber app and the Uber Partner app and licensed their use in countries outside of the United States of America, to Uber International CV (not a party to the proceeding). Uber International CV sub-licensed that software to Uber BV,[19] the third defendant. Together with Uber Inc, Uber BV operated the technical architecture that ran the Uber app and Uber Partner app. Uber BV provided access to the software required for the support and operation of the Uber app and the Uber Partner app in Australia. Among other things, Uber BV calculated the trip fare for Uber rides and issued electronic receipts for trip payments to riders. The trip data that resulted from the provision of the UberX service in the Australian states was held or controlled by Uber BV until about 23 December 2015, when it was controlled by Rasier Pacific but available to the Uber Entities.
Uber BV and Uber Australia Pty Ltd,[20] the fourth defendant entered into an 'Intercompany Services Agreement' on 1 November 2013. Under that agreement Uber Australia provided support services to Uber BV for the promotion of the Uber brand generally, the Uber Partner app and the Uber app. Uber Australia employed staff to run the Uber business in Australia, developed and implemented marketing campaigns for the Uber app and Uber Partner app and 'on-boarded' Uber Partners (i.e. drivers). It rented office premises in New South Wales, Victoria, Queensland and Western Australia from which its staff and employees of other Uber entities, worked.
From at least November 2013 Uber BV made payments to Uber Australia, and from at least 2016 it guaranteed ongoing financial support to Uber Australia to ensure it could meet its debts.
The fifth defendant, Rasier Operations BV,[21] facilitated and processed the operation of the UberX app and service in Australia. From 3 February 2014, Uber BV licensed to Rasier Operations various intellectual property and software technology. From around May 2014, Rasier Operations entered into a standard form contract with each UberX Driver Partner in respect of their participation in ridesharing service. Uber BV remained the Uber entity who contracted directly with riders.
Uber International Holding BV (Uber Holding),[22] the second defendant, is the immediate parent company of Uber Australia and Rasier Operations. Uber Holding (together with Uber BV, Uber Australia and Rasier Operations) paid fines issued to UberX drivers (described below).
Uber Holding explained the contractual arrangements and money flows from the operation of the Uber App and Uber Partner App to Uber's Australian lawyers in this way:
In respect of the ride-sharing product, user contracting is in the name of Uber BV (a Dutch company); and driver contracting is in the name of Rasier Operations BV (a Dutch Company). NOTE: Uber BV also contracts with commercially licensed drivers in respect of our normal or non-ridesharing business.
Uber BV - acting as intermediary - collects the money for the ride-sharing service from the user (passenger). The user pays for the ride via a credit card transaction facilitated by the Uber BV platform - the actual transaction is processed by a third party payment processor. The cash sits in an Australian bank account which is in the name of Uber BV.
Contractually, Rasier Operations BV has the obligation to transfer the ride fare to the p2p driver less a fee for the p2p driver's use of the Uber BV software application service. In reality, the cash is currently transferred from Uber BV into a bank account of Uber Australia Pty Ltd, which in turn distributes it to the p2p drivers (contracting with Rasier Operations BV).
Relationships between Uber entities and people
(a) Travis Kalanick was a director of Uber Inc[24] and was its CEO during the relevant period. He was a director of Uber BV (between 24 October and 3 December 2012), of Uber Australia (between 11 September 2012 and 7 April 2014), and of Rasier Operations (between 3 February 2014 and 31 March 2016).
(b) Ryan Graves was employed by Uber Inc (between 5 March 2010 and 1 December 2017) and he reported to Kalanick (between 5 March 2010 and 4 September 2017). He was a director of Uber Inc and of Uber BV (between 10 April 2013 and 3 April 2014), he was a director of Uber Australia (between 18 June 2013 and 7 April 2014), and he was a director of Rasier Operations (between 3 February 2014 and 31 March 2016).
(c) Niall Wass was employed by Uber Switzerland GmbH (between 9 June 2014 and 31 December 2015) and he reported to Kalanick (between 9 June 2014 and 23 September 2015).
(d) Mike Brown was employed by Uber Singapore Technology Pte Ltd (between 7 October 2013 and 27 November 2017). He reported to Graves (between 7 October 2013 and 8 June 2014, and 24 September 2015 to 31 May 2016), and Wass (between 9 June 2014 and 23 September 2015).
(e) Austin Geidt was employed by Uber Inc (between 15 August 2010 and 30 June 2019), and employed by UATC LLC (between 1 July 2020 and 1 September 2020). He reported to Graves (between 15 August 2010 and 15 September 2016).
(f) Allen Penn was employed by Uber Inc as 'Director, General Manager' between 1 August 2011 and 31 October 2015, by Uber (Asia) Ltd (between 1 November 2015 and 30 November 2016) and by Uber Singapore Technology Pte Ltd (between 1 December 2016 and 2 November 2018). He reported to Graves (between 1 August 2011 and 8 June 2014, and 24 September 2015 and 31 May 2016), and Wass (between 9 June 2014 and 23 September 2015).
(g) Sam Gellman was employed by Uber Inc (between 26 March 2012 and 8 June 2014), and Uber (Asia) Ltd (between) 9 June 2014 to 24 April 2018. He reported to Geidt (between 26 March 2012 and 8 June 2014), Penn (between 9 June 2014 and 31 October 2015) and Brown (between 1 November 2015 and 30 August 2016).
(h) Salle Yoo was employed by Uber Inc (between 18 July 2012 and 1 December 2017). He reported to Kalanick (between 18 July 2012 and 4 September 2017).
(i) David Rohrsheim was a director of Uber Australia (between 11 September 2012 and 29 January 2014). Rohrsheim was employed by Uber Australia (between 7 August 2012 and 31 December 2019). He reported to Graves (between 7 August 2012 and 6 October 2013) and to Brown (between 7 October 2013 and 30 September 2017).
(j) Zachary de Kievit was a director of Uber Holding between 16 June 2014 and 1 December 2014 and of Uber BV (between 30 May 2014 and 1 December 2014). His employment status, if any, was not in evidence.
(k) Mike Abbott was employed by Uber Australia between 8 October 2012 and 31 December 2018. From October 2012, he was Operations and Logistics Manager, Sydney and from April 2014, he was Head of Operations for Australia and New Zealand. He reported to Rohrsheim (between 8 October 2012 and 5 May 2014, and between 11 August 2014 and 31 March 2018), and Brown (between 6 May 2014 and 10 August 2014).
(l) Amos Barretto was employed by Uber Inc as 'Manager, Engineering'.
(m) Jordan Condo was employed by Uber Inc (from 16 September 2013 to 4 December 2015) as 'Head of Asia Pacific Public Policy'.
(n) Matthew Trigg was employed by Uber Australia (between 23 June 2014 and 31 August 2015). He reported to Condo (between 23 June 2014 and 17 February 2015) and Kitschke (between 18 February 2015 and 31 August 2015).
(o) Oscar Peppitt was employed by Uber Australia as 'Community Manager' (between 12 October 2012 and 31 March 2014), by Uber New Zealand Technologies Ltd as 'General Manager, New Zealand' (between 1 April 2014 and 31 August 2016), Uber Inc (between 1 September 2016 and 4 December 2016), by Uber BV (between 5 December 2016 and 31 March 2018) and by Uber Portier BV (between 1 April 2018 and 2 August 2020). He reported to Rohrsheim (between 12 October 2012 and 31 March 2014 and between 11 August 2014 and 31 August 2016), Brown (between 1 April 2014 and 10 August 2014), and Penn (between 1 February 2018 and 11 March 2018).
(p) Simon Rossi was employed by Uber Australia as 'General Manager, Victoria' (between 5 December 2013 and 28 August 2016) and by Uber Singapore Technology Pte Ltd (between 29 August 2016 and 8 October 2018). He reported to Brown (between 5 December 2013 and 25 February 2015, and 29 August 2016 and 31 October 2016), Rohrsheim (between 26 February 2015 and 28 August 2016) and Penn (between 1 November 2016 and 8 October 2018).
(q) Brad Kitschke was employed by Uber Australia (between 12 November 2014 and 17 July 2017). He reported to Condo (between 12 November 2014 and 15 February 2015). He was Uber Australia's public policy officer for Australia and New Zealand.
(r) Douglas Ma was employed by Uber (Asia) Ltd (between 19 August 2013 and 30 April 2016), by Uber Singapore Technology Pte Ltd (between 1 May 2016 and 30 September 2016), and Uber Inc (between 1 October 2016 to 20 August 2018). He reported to Gellman (between 19 August 2013 and 8 June 2014), Geidt (between 9 June 2014 and 15 June 2014; 1 February 2015 and 7 March 2015 and between 30 September 2016 and 20 August 2018), and Brown (between 8 March 2015 and 30 April 2016).
(s) Glenn O'Sullivan was employed by Uber Australia (between 31 March 2014 and 6 November 2016), and Uber Singapore Technology Pte Ltd (between 7 November 2016 and 14 September 2018). He reported to Rohrsheim (between 31 March 2014 and 17 December 2015), Abbott (between 18 December 2015 and 25 September 2016), and Brown (between 26 September 2016 and 30 September 2017).
(t) Chris Hourigan was employed by Uber Australia (between 6 October 2015 and 30 September 2017), Uber Inc between (1 October 2017 and 31 October 2019), and Uber Australia (between 1 November 2019 and 7 August 2020). He reported to O'Sullivan (between 1 March 2016 and 25 September 2016).
(u) Matthew Roberts was employed by Uber Australia (between 17 April 2014 and 13 September 2015), by Uber BV (between 14 September 2015 and 31 March 2018) and by Uber Portier BV (between 1 April 2018 and 17 May 2019). He reported to Rohrsheim (between 17 April 2014 and 3 May 2015) and O'Sullivan (between 4 May 2015 and 13 September 2015).
(v) Rose Zhong was employed by Uber Inc (between 9 December 2013 and 13 October 2017).
(1) A person who carries on a private hire vehicle service, being a service operating wholly or partly within New South Wales, by means of a private hire vehicle is guilty of an offence if:
(a) the person is not accredited for the purpose of carrying on the service under Division 3, or
(b) the private hire vehicle is not licensed under Division 4.
(2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver.
351B Aiders and abettors punishable as principals
(1) Every person who aids, abets, counsels or procures the commission of any offence punishable on summary conviction may be proceeded against and convicted together with or before or after the conviction of the principal offender.
(2) On conviction any such person is liable to the penalty and punishment to which the person would have been liable had the person been the principal offender.
(3) This section applies to offences committed before or after the commencement of this section.
(4) This section applies to an indictable offence that is being dealt with summarily.
(a) Throughout the period from around 7 April 2014 to 18 December 2015 (NSW Period), s 37(1) of the NSW Transport Act provided that a person who carried on a private vehicle service, being a service operating wholly or partly within NSW, by means of a private hire vehicle, was guilty of an offence if:
(i) the person was not accredited for the purpose of carrying on the service under Division 3 of the NSW Transport Act; and/or
(ii) the private hire vehicle was not licensed under Division 4 of the NSW Transport Act.
(b) Throughout the NSW Period, s 40(2) of the NSW Transport Act provided that a person who drove a private hire vehicle was guilty of an offence unless the person was an authorised private hire vehicle driver.
(c) Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so without being accredited for the purpose of carrying on a private hire vehicle service under Division 3 and thereby committed offences against s 37(1)(a) of the NSW Transport Act.
(d) Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so using private hire vehicles that were not licensed under Division 4 and thereby committed offences against s 37(1)(b) of the NSW Transport Act.
(e) Throughout the NSW Period, UberX Driver Partners who provided UberX in NSW typically did so without being authorised, or appropriately authorised, private hire vehicle drivers and thereby committed offences against s 40(2) of the NSW Transport Act.
(f) Throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) knew of the essential matters comprising the commission of the offences against s 37(1) of the NSW Transport Act by UberX Driver Partners as referred to above, and/or commission of the offences against s 40 of the NSW Transport Act by UberX Driver Partners as referred to above.
(g) From at least April 2014 and throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) aided, abetted, counselled or procured the commission of offences against ss 37(1) and 40 of the NSW Transport Act as referred to in the paragraphs above, but only where UberX Driver Partners committed offences.
(h) From at least April 2014 and throughout the NSW Period, one or more of the Uber Entities (except Rasier Pacific) were complicit, within the meaning of the common law in the commission of offences against ss 37 and 40 of the NSW Transport Act by UberX Driver Partners referred to in paragraphs 92 to 94 above. Additionally or alternatively, from at least April 2014, one or more of the Uber Entities (except Rasier Pacific) were liable to punishment as principals within the meaning of s 351B of the Crimes Act 1900 (NSW) for the commission of offences against ss 37 and 40 of the NSW Transport Act by UberX Driver Partners referred to above, but only where UberX Driver Partners committed offences.
C.1 - Conspiracy within a corporate group - threshold question of law
(a) The significance of the requirements for a combination between two entities is reflected in the Australian cases on civil conspiracy, in which it is well established that there can be no conspiracy between a director who has sole responsibility for the management of a company and the company itself. As Starke J said in O'Brien v Dawson, '[I]t is neither "law nor sense"[27] to say that...[the director] in the exercise of his functions as a director of the company combined with it to do any unlawful act...'[28] As Jordan CJ said in the Supreme Court below, a company cannot act at all except through its directors or other authorised agents: 'They are not in the position of outsiders who are influencing the independent volition of a [contracting] party who is capable of exercising volition for himself.'[29]
(b) Directors cannot conspire with their companies because they are not 'outsiders' with the respect to the company. In the same way the conspiracy between entities with the same ultimate holding company 'does not identify any outsiders'. Ultimately each entity within a corporate group is a manifestation of the holding company's mind and direction. The circumstances are not identical but the organic theory of the company lends itself powerfully as an analogy to these circumstances.
(c) This is seen most clearly in the first instance decision in LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd,[30] in which it was recognised that as a matter of substance, a parent company and its subsidiaries have one 'consciousness'. LMI Australasia concerned the tort of inducing breach of contract. The reasoning in that case (which draws on the reasoning in O'Brien v Dawson) demonstrates that where a tort requires the participation of two or more persons, the proposition that companies bear separate legal personalities is not invariably applied. The reasoning in O'Brien v Dawson and LMI Australasia dictates that a parent cannot procure breach of contract by its subsidiary' and by analogy it follows that a parent and its subsidiary cannot combine in a conspiracy.
(d) Analogously in the antitrust context in the United States (for the purposes of s 1 of the Sherman Act). In Copperweld Corp v Independence Tube Corp,[31] the United States Supreme Court held that:
A parent corporation and its wholly owned subsidiary are incapable of conspiring with each other. ... [A] parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate consciousnesses, but one. ... [t]hey share a common purpose whether or not the parent keeps a tight reign over the subsidiary ... [because] the parent may assert full control at any moment if the subsidiary fails to act in the parent's best interests.[32]
(e) Federal Courts in the United States have consistently applied Copperweld to preclude a finding of antitrust conspiracy within a corporate family. The rationale for that outcome is clear enough. To find a conspiracy between a parent company and its subsidiaries would be 'to ignore reality'. A parent entity may choose to adopt a structure of separate incorporation or unincorporated divisions. Accepting the separate legal personalities of a parent and its subsidiary is the beginning of the analysis, not the end. The reasoning in Copperweld establishes that the unity of purposes of a parent and subsidiary is not the product of an agreement; it is the product of corporate structure and the law of corporations and not the product of an ad hoc agreement to do or not do something.
(f) The availability of a cause of action should not depend on the 'formality' of whether an entity is an unincorporated division or a wholly owned subsidiary. Conspiracy to injure is an intentional tort and in such cases courts do look though the corporate veil. This is usually done to 'sheet liability home' but where the tort depends on combination and intent, the same logic suggests that the intermediation of the corporate form may be ignored so that the law deal with those issues as a matter of substance, and is not distracted by 'legal fig leaves'.[33] The law has also looked through the corporate veil to confer benefits on companies.[34] Further, the question arises here in the context of what is acknowledged to be an anomalous tort. In such a context the position that obtains elsewhere may be inappropriate. The element of combination is a fundamental control mechanism on the scope of this tort. It should be given an operation that depends upon substance rather than formalities.
(g) Civil conspiracy is an anomalous and distinctly unsettled tort. Whilst commentators and judgments in this area of discourse recognise that multinational conglomerates can exercise greater economic power than groups of smaller traders, the fact of agreement or combination between multiple persons is at the heart of the tort and has been advanced as a justification for its existence. That rationale posits that two actors are a greater threat to the community than one.[35] That rationale disintegrates in the case of intra-group conspiracy, where subsidiaries are acting at the direction of their parent. The rationale still has a role to play in informing what courts should now do to give content to the scope of the tort; whether to give it a wider or narrower operation.
(h) Taxi Apps relied on the decision of a single judge of the High Court of England and Wales (Digicel). The present issue was not squarely in contest in that case and the relevant reasoning is obiter. Further, the court's conclusion that a director can conspire with the company he directs is inconsistent with the reasoning in O'Brien v Dawson. The passage relied upon does not represent the law in Australia and should not be followed.
The tort of conspiracy to injure by unlawful means
In Williams v Hursey, Menzies J said that "[i]f two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy". The agreement or common design between the parties is necessary for them to be jointly liable for unlawful means. However, if the conspiracy is merely aimed "at the public, the damage sustained by a member of the public is too remote to give a right of action". The agreement which is carried out must be "aimed or directed" at the plaintiff.[37]
If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy.
Though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.[48]
While groups of companies are widespread, the underlying unity of economic purpose, common personnel, common membership and control have not been held to justify the lifting of the corporate veil. As recognised by Rogers J in Briggs v James Hardie and Co Pty Ltd, even the complete domination or control exercised by a parent over a subsidiary is not a sufficient basis for lifting the corporate veil. This is an area in which 'the law pays scant regard to commercial reality'.[59]
An incorporated company is a figment of the law. It is incapable of acting except through agents. Its directors are persons who have been authorised by the constituent members of the corporation to cause acts to be done on its behalf. They are its agents who have power to control its acts. It cannot act at all except through them or through some other authorised agents. They are not in the position of outsiders who are influencing the independent volition of a contracting party who is capable of exercising volition for himself. It is their volition and theirs only which determines the making, the performance or the breach of the company's contracts.
Directors of a company are, however, personally responsible for any torts committed by their company in the procuring of which they are personally implicated.
There was evidence that the company was guilty of an unlawful act in breaking its contracts [with the plaintiff]. But was there any evidence that the defendants were all engaged in common wrongful acts in concert or as joint tortfeasors? A company cannot act in its own person for it has no person. It must of necessity act by directors, managers or other agents. The company, if it were guilty of a breach of its contract in this case, acted through its director the respondent Doyle), but it is neither "law nor sense" to say that Doyle in the exercise of his functions as a director of the company combined with it to do any unlawful act or become a joint tortfeasor. Again, it is equally fallacious to assert that he knowingly procured the company to break its contract. The acts of Doyle were the acts of the company and not his personal acts which involved him in any liability to the plaintiff. But I would add that it does not follow that a director of a company would escape personal liability under the cover of the company's responsibility if he himself became an actor and invaded the plaintiff's rights, as by trespassing on his land or by seizing his goods and so forth.[71]
(a) In a wholly owned group of companies each company is a separate entity (Walker v Wimborne).
(b) An ultimate holding company, however, has power to control the conduct of each subsidiary, to the extent of altering the subsidiary's constitution to allocate to the members in general meeting key decision making powers commonly entrusted to directors, and to cause the composition of the board of directors of any wholly owned subsidiary to be changed. The holding company cannot require the directors of a wholly owned subsidiary to act in a particular way, but may authorise in advance or ratify retrospectively acts of those directors which would otherwise entail breach of duty by them, thus making the directors willing to act as the ultimate holding company wishes. The influence of a holding company may be exercised both formally and informally. Informal action by a sole shareholder can be of such significance within a wholly owned subsidiary as to be a determinant of that subsidiary's own conduct. The behaviour of a wholly owned subsidiary may 'be strongly influenced and even dictated' by its holding company acting not as 'a negotiating or persuading outsider' but as a participant in the subsidiary's own decision making. The realities are even more pronounced when a company is formed as a wholly-owned subsidiary in order to undertake a particular activity.[75]
(c) His Honour said that to his mind 'there is no difference between such action of a holding company, whether formal or informal, in relation to a wholly owned subsidiary and actions of directors of the subsidiary which likewise shape its conduct as a corporation. Just as directors commonly make for a company the decisions which, as a mere legal construct, it has no mind of its own to make, so too may a holding company which is the sole owner of shares in the subsidiary be, in a realistic sense the source of such decisions'.[76]
(d) Analysing the facts, Barrett J said that the actions of the contracting party were dictated by decisions made within the established management structure of the group of companies and that the contracting subsidiary acted in accordance with a plan developed and implemented by the holding company in conjunction with other wholly owned subsidiaries including the first and third defendants. The failure by the second defendant to perform its contract was produced 'in an immediate sense by the failure of its directors to cause it to do so' coupled by the failure of its holding company to exercise its power to avoid that occurring. In a practical sense the chief decision maker was a director of the first defendant; the relevant decisions were his. But the decision was 'made within a framework of authority which must have been created by or through the board of directors of the ultimate holding company. That framework of authority may be taken to have applied throughout the group of wholly owned subsidiaries'. In such circumstances there was 'a distinct air of unreality about the proposition that one wholly owned subsidiary within and subject to that framework of authority acts intentionally _to cause another wholly owned subsidiary within and subject to the same framework of authority to behave in a certain wa_y when both are actuated by and subject to the common authority'.[77]
(e) Barrett J then referred to the notion that directors of a company are not guilty of the tort of inducing breach of contract when, duly acting as directors, they commit their company to a course of action involving breach, which his Honour said was explained in O'Brien v Dawson, setting out the reasoning of Jordon CJ in the Supreme Court (as quoted above). His Honour then said that central to that notion was the recognition that directors of a corporate contracting party are not in the position of outsiders influencing the independent volition of a contracting party capable of exercising volition for himself; the director's volition determines the performance or breach of the company's contract because their volition is the company's volition.
(f) His Honour then compared the relationship between a company and its directors with the relationship between a wholly owned subsidiary and its holding company, saying:
Within the confines of a group of companies where a holding company ... it seems to be me to be the case that the holding company, like the subsidiary's directors, is not in the position of an outsider influencing the independent volition of the subsidiary. In such a situation, it is the holding company's volition which, sometimes formally by exercise of legal powers but often informally in the way mentioned in Pascoe Ltd v Lucas determines the making, the performance or the breach of the subsidiary's contract. The holding company does not engage in ... "actionable intervention". There is really no "intervention" at all. The subsidiary makes the relevant decision but that decision proceeds from an exercise of the holding company's will within and through the subsidiary, rather than upon it.[78]
In a group of companies, all of the individual companies have separate legal personality. If an enterprise organises itself so as to operate its business through a group of companies, taking the benefits of limited liability and perhaps the tax advantages involved, it cannot complain if a court holds it to an analysis based on the separate legal personality of the individual companies. Thus, in principle, a parent company can combine with a subsidiary and two subsidiaries can combine with each other. Further a director can combine with the company he directs and a shareholder (whether a corporate body or a natural person) can combine with the company in which the shares are held. Whether such a combination has taken place will depend upon the detailed facts. If an unlawful act is carried out by a subsidiary, it will be a question of fact whether that act was done pursuant to a combination between the subsidiary and its parent and, as stated above, it would normally not be sufficient proof of such a combination merely to show that the parent knew or suspected that an unlawful act was being committed and did nothing to stop it. Similarly, if it is suggested that one subsidiary did an unlawful act pursuant to a combination with another subsidiary (which did not have the ability to direct or prohibit the actions of the first subsidiary) it will not be enough to show that the second subsidiary knew or suspected that an unlawful act was being committed and did nothing to stop it.[88]
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony.
(a) The central criticism of the prevailing rule (recognising intra-enterprise conspiracy for the purposes of the Sherman Act) is that it gives undue significance to the fact that a subsidiary is separately incorporated and thereby treats as the concerted activity of two entities what is really unilateral behaviour flowing from the decisions of a single enterprise.
(b) The Sherman Act contains a basic distinction between concerted and independent action. Section 1 reaches unreasonable restraints of trade effected by a combination or conspiracy between separate entities. The conduct of a single firm is governed by s 2 alone and is unlawful only when it threatens actual monopolisation. Regulating unilateral conduct in this way reduces the risk that antitrust laws will dampen the competitive zeal of a single aggressive entrepreneur. Congress treated concerted behaviour more strictly than unilateral behaviour because it is inherently fraught with anticompetitive risk. It deprives the marketplace of independent centres of decision making.
(c) Officers of a single firm are not separate economic actors pursuing separate economic interests, so agreements between them do not suddenly bring together economic power that was previously pursuing divergent goals. Co-ordination within a firm is as likely to result from an effort to compete as from an effort to stifle competition.
(d) For similar reasons, the coordinated activity of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purpose of s 1 of the Sherman Act. A parent and its wholly owned subsidiary have a complete unity of interest. Their objectives are common, not disparate; their general corporate actions are guided or determined not by two separate corporate consciousness, but one. They are not unlike a multiple team of horses drawing a vehicle under the control of a single driver. With or without a formal 'agreement', the subsidiary acts for the benefit of the parent, its sole shareholder. If a parent and a wholly owned subsidiary do 'agree' to a course of action, there is no sudden joining of economic resources that had previously served different interests, and there is no justification for s 1 scrutiny. In reality a parent and a wholly owned subsidiary always have unity of purpose or a common design.
(e) The existing rule looks to the form of an enterprise's structure and ignores the reality. Antitrust liability should not depend on whether a corporate subunit is organised as an unincorporated division or a wholly owned subsidiary. The considerations relevant to the choice of structure are not relevant to whether the enterprise's conduct seriously threatens competition. There is nothing inherently anti-competitive about a corporation's decision to create a subsidiary.
(f) The inquiry in this case is not whether the coordinated conduct of a parent and its wholly owned subsidiary may ever have anti-competitive effects, nor is it whether the term 'conspiracy' will bear a literal meaning as to include a parent and subsidiary. Rather, the key is to explain the logic of the Congress' decision to exempt unilateral conduct from s 1 scrutiny, and to assess whether that logic similarly excludes the conduct of a parent and its wholly owned subsidiary.[96]
(a) A single firm, no matter what its structure, is not expected to compete with itself. Restraints which enable effective integration between a corporate parent and its subsidiary are not prohibited by s 1. But the type of restraint in issue in this case has little to do with effective integration. The purpose of the challenged conduct was to exclude a potential competitor of the subsidiary from the market. It in fact imposes a restraint on third parties of sufficient magnitude to restrain market-wide competition. As a matter of economic substance and form, the conduct is a combination or conspiracy in restraint of trade. The fact that the companies were affiliated induced joint action and agreement. Common control was one of the instruments in bringing about unity of purpose and unity of action, making the conspiracy effective.
(b) The statute was written against the common law which accepts that a corporation is a separate legal entity and the separate corporate form cannot be disregarded. Thus it has long been the law of criminal conspiracy that the officers of a corporation can conspire with each other or the corporation, and that a labour union can combine with its business agent.
(c) The corporate subsidiary, when used as a device to eliminate competition, was one of the chief evils to which the Sherman Act was addressed.
(d) The requirement for a plurality of actors in s 1 is a consequence of plain statutory language, not a matter of economic principle. As an economic matter what is critical is the presence of market power, rather than a plurality of actors. Unilateral conduct by a firm with market power has no less anti-competitive potential than conduct by a plurality of actors which generates or exploits the same power. For example, a corporate affiliate can operate to restrain competition. A wholly owned subsidiary might market a 'fighting brand' or engage in other predatory behaviour that would be more effective if its ownership were concealed than if it were known that only one firm was involved. A predator might be willing to risk bankrupting a subsidiary when it could not afford to let a division incur similar risks. A threat to refuse to deal with a competitor might be more potent coming from both corporations than only from one.
(e) The Court has announced a new per se rule. It would be better advised to continue to rely on the 'rule of reason' that gives courts latitude to examine the substance of an arrangement when answering the question whether collective action has restrained competition within the meaning of s 1.
In the case of natural persons, so long as each was acting with some degree of independence, and one was not merely obeying orders which might not be disregarded, the element of agreement is present. (emphasis added).[105]
C.2 - Combination - parties' cases and submissions
The Uber Entities, with the common intention to injure the plaintiff, or alternatively a class of persons including the plaintiff, agreed or combined to establish, promote and operate UberX in [the relevant State] which would or did involve Uber X Partners contravention of [the relevant legislation] and one of more Uber Entities being complicit in those contraventions.[108]
The agreement or combination is to be inferred from:
(a) 'the facts and matters alleged in Parts C, D and E [of the pleading]; and
(b) the Uber Inc Prospectus including at pp 54-55 and 62.
(a) Uber Inc was the parent or ultimate holding company of a group of more than 110 entities including the second to seventh defendants (i.e. the Uber Group).
(b) Uber Inc published and made available in the USA, the Uber App and Uber Partner App. Uber Inc licenced the software in the apps to Uber International CV which in turn sub-licenced it to Uber BV to operate and make available to rider and Uber Partners outside the USA. Uber Inc and/or Uber BV operated the technical architecture which supported the apps. Uber BV operated the apps outside the USA.[110]
(c) Uber Inc took steps to commence operating the Uber business in Australia in 2012. It did so through Uber BV, which was controlled by Uber Inc and which was the sole member of Uber Australia upon its incorporation.
(d) At all material times Uber Inc had control, directly or indirectly, of the Uber Group and had and exercised oversight of the operations and business strategy of the Uber Group and received reports about the Uber business in Australia.
(e) Uber Inc provided financial support to Uber Australia in about 2012-2103.
(f) At all material times, directly or indirectly, Uber Holding was responsible for the management of the Uber Group's international operations including business strategy and development, set up the local business objectives for the Australian market which were then supported by Uber Australia, made payments to Uber Australia for the performance of services it performed and guaranteed ongoing financial support to Uber Australia to ensure it could pay its debts as and when they became due.[111]
(g) Uber BV made payments to Uber Australia from November 2013 and entered into an 'intercompany services agreement' with Uber Australia under which Uber Australia would provide 'support services' (as provided by that agreement) including the promotion of 'Uber', the Uber app and Uber partner app to Uber BV, for its benefit and at its request, for which Uber BV would pay Uber Australia and which Uber BV did in fact pay Uber Australia (from at least November 2013). Uber BV 'had decision making functions with respect to the Uber business in Australia' from at least 2015[112] and from at least 2016 guaranteed ongoing financial support to Uber Australia to ensure it could pay its debts as and when they fell due.
(h) At all material times Uber BV registered riders and entered into contracts with them for the use of the Uber App which included (among other terms) provision for Uber BV to charge the rider on behalf of the Uber Partner.[113]
(i) At all material times from about October 2012, Uber Australia employed certain persons to perform work and performed work connected to the operation of the Uber business in Australia including to develop and implement campaigns of marketing the Uber App and the Uber Partner App, to undertake tasks connected to the recruitment of Uber Partners[114] and 'otherwise support the operation of the Uber Business in Australia'.[115] From time to time Uber Australia rented a premises in Victoria, NSW, Queensland and Western Australia for the purposes of providing office accommodation for employees of Uber Australia and other entities in the Uber Group and providing services associated with the recruitment[116] of Uber partners, including inductions and conducting or arranging vehicle roadworthiness inspections. From about October 2012, Uber Australia received payment from Uber BV for providing those services.
(j) In about April 2013, Uber Inc launched the ridesharing service known as UberX in the United States of America. Uber Inc adopted a policy that it would roll out UberX in any market where the regulator had tacitly approved doing so.
(k) From early 2014 'one or more of the Uber entities' received legal advice about offences that would be committed by the operation of ridesharing services in each relevant Australian state.
(l) Uber Inc 'and/or' Uber Australia engaged with regulatory authorities and government representative with the object of securing a favourable regulatory environment for the operation of UberX or regulatory change in the relevant states.
(m) One or more of Uber Inc, Uber Holding, Uber BV, Uber Australia and Rasier Operations/Rasier Pacific undertook marketing activities directed at promoting the Uber app and UberX in Australia, registering and procuring UberX rider and drivers and did various things to register (and 'onboard') Driver Partners.
(n) In February 2014 Uber BV sub-licenced the software in the Uber Partner app to Rasier Operations who in turn entered into contracts with UberX Partners to allow them to offer UberX services for payment at an agreed service fee (and the payment by the Driver Partner for a fee for each trip). Rasier Operations sub-licenced the software to Rasier Pacific in December 2015 and from that time Rasier Pacific entered into agreements with UberX Partners.
(o) UberX was available in Victoria, New South Wales and Queensland from April 2014 and in Western Australia from October 2014, through the Uber app and the Uber Partner app, under the contracts alleged. UberX was made available to riders by Uber BV through the Uber app and to UberX Partners by Uber BV, then Rasier Operations, then Rasier Pacific under the contracts alleged.
(p) The Uber Entities or one or more of them held the intention alleged, including to injure the plaintiff.
(q) It was the strategy of the Uber Entities for one or more of them to launch UberX in the Australian states before the process of legalisation had occurred, to attempt to build scale in the number of riders and drivers it attracted as quickly as possible, before UberX faced competition from similar ridesharing services.
(r) Regulators in each state took enforcement action against UberX Partners. One or more of the Uber Entities paid fines or otherwise assisted UberX Partners in relation to enforcement action. One or more Uber entities attempted to avoid or delay enforcement action in relation to UberX.
(a) On Taxi Apps' case as pleaded, the relevant control was at the level of Uber Inc. At all times from October 2012 Uber Inc exercised oversight and control over the operations and business strategy of the Uber Group as it existed from time to time in respect of its operations and business in Australia.
(b) The Uber Entities' business, strategy and policy was a global one. Uber Inc's global business strategy, settled by its then CEO, was to launch 'Uber everywhere'. That strategy was executed by its subsidiary companies.
(c) The evidence shows that it was the decision of Kalanick, Uber Inc's then CEO, to launch UberX in each of the relevant Australian states. The launch decision was not made by Rohrsheim or any other employee of any of the other Uber entities. The decision to launch and thus the operation of UberX in the Australian states (including the time at which the launches occurred) proceeded from 'the exercise of the holding company's will', as that notion is discussed in LMI Australia.
When we enter a new city or launch a new Ridesharing product in a city, we aim to reach efficient scale and liquidity rapidly to attract consumers to use our platform as an alternative to personal vehicle ownership and usage of public transportation and to achieve leadership in the ridesharing category...
Our Personal Mobility Offering competes with personal vehicle ownership and usages, which accounts for the majority of passenger miles in the markets that we serve, and traditional transportation services, including taxicab companies and taxi hailing services, livery services, and public transportation, which typically involves the lowest-cost transportation option in many cities.[118]
The very summarized outline of the green light process should be the following.
P2P will matter and will be a key pillar of our international expansion strategy
This strategy has been used in both Paris (product Launch), and Brussels (city launch), and has clearly succeeded in providing great media coverage.
What are we trying to achieve? We try to get as much scale as we can on the supply & on the demand side before any enforcement comes in. Bear in mind the enforcement team of the regulator is usually pretty small. For them, scale really matters (ie, you can be big enough to give them lots of trouble getting you down).
What can go wrong? You get a lot of media attention, crazy demand, but government clearly states in the press that they will put fines/ impoundings on anyone driving on the platform > can be a killer for the supply. Then the solution is: be generous. ...
What are we trying to achieve? We want to scale as much as we can under the radar screen, both on supply & demand. We want to avoid press, because we believe that if they hear about us, their first thing will be interviewing taxi drivers & then the authorities. Press loves controversies, and will want to create one
What can go wrong? We scale slowly (because under the radar) on the supply/ demand side, and authorities hear about us. They then enforce, under the radar, and we don't have enough size or visibility to prevent that from happening. The 2 solutions: be agile (below), and be clearly generous on the "donations" you give to driver ("donation" = driver incentive. Stick to that language) to compensate for the lower demand, but still have strong supply on the road
What do we need? Agility. We are trying, and this could go wrong (above). If it does, we need to be able to press the button and get press coverage instantaneously.
Uber [BV] is a technology company that uses a smartphone application services (App) that provide lead generation services on an intermediary, fee basis to companies providing on-demand transportation services (Partners) whereby Partners are able to receive and accept requests for transportation made by users of the App. Uber [BV] is part of the Uber group of companies collectively and wholly owned by Uber Technologies Inc (the Uber Group) and is the contracting party to the agreements relating to the provision of intermediary services and the use of the Uber App with the Partners and the users in [Australia].
The Parties have agreed that [Uber Australia] will provide Support Services (as defined hereafter) to, for the benefit of, and upon the request of Uber [BV]m which Support Services may vary from time to time as agreed between the Parties under the terms of [this agreement].
Crush taxi competitors - break their business model.
The inescapable conclusion is that GoCatch in particular is reaching critical mass and we now have a low cost competitor to deal with. Their app and business model is well thought out and superior to Uber's TAXI functionality. However, I don't have any interest whatsoever in losing overall market share of app bookings...
TAXI is not to be feared: Allen will tell you it is a the [sic] single best way to grow signups that we can later turn into profitable Uber Black or UBERx riders.
Freaking out a bit that uberTAXI isn't catching on too big. It's sorta nice that our Black passengers are staying loyal to the high end product but it's a little surprising. It's looking like GoCatch might be the go to app for taxis, and we the go to app for luxury plus a backup if you can't get a taxi. They signed up 6,000 customers in June vs our 4,000. I want to destroy them before they get too legit. Keen to explore 'next level' marketing and PR options. I've pinged RG and TK but I'm guessing they are tied up with fundraising.
There are 8,000 taxis in Sydney. My plan for December is 600 active taxis carrying 10 trips/week = 6,000 trips/week = Boston taxi today.
Good news: after 50 days our taxi product is coming along nicely with 230 drivers, 48% C:R, and 400 trips/week. Bad news: GoCatch is waay ahead with 1,000 total drivers and 3,000+ Sydney trips/week. Getting lots of healthy press coverage and signing up > 1,000 Sydney users per week.
- We know they are fundraising for $2.5m right now. I'd like to make a dent in their growth or else they will get confident and get funded, which would just be a pain.
- We're entering the busy half of the year when it becomes hard to catch a taxi. This battle will be 'won or lost' by Christmas.
- If we cede the taxi market to GoCatch then we risk losing the Black market too.
The long term plan is to switch Taxi vehicles over to an uberX fare regime.
Is there any argument to buy GoCatch? P2P will kill them, so I'd probably hold until we know that outcome, but if P2P gets shut down it may be worth a look. What's your nye supply goal?
Travis would have to really come around to the idea that Taxi is super important. My guess is that it would be cheaper if we just bit the bullet and decided to compete with them because there's not that much work we'd need to do to have a perfectly competitive product. Unless we think we can't catch them (no pun intended) I'd probably try first to out-compete them since they don't have any unique asset that we don't. From a corp dev perspective, I always think about a company owning one of the following: brand, technology/IP, distribution, network effect or data. A good company is strong at one of these. A GREAT company has two or three of these advantages, e.g, Google has Brand, Distribution and Data. I'm not sure GoCatch has any of these yet. If they lock up supply, that's a different story.
Competitive threat is great from GoCatch (Aus) and My Taxi (SE Asia) across the region. Must have competitive response fast - either launch X and take the regulatory risk or beef up Taxi offering now.
GoCatch: Currently 2x bigger than us. Hard work and spend on incentives has helped us compete but not to dominate in Sydney. Must change the game to win. Also Uber needs a presence in all capital cities to compete.
If we cut off GoCatch at their knees in Sydney and Melbourne they will stop worrying about any other markets. In Sydney we can outspend them on supply incentives. In Melbourne we'll change the game with P2P.
I guess Growth team wants us doing Uber Everywhere very soon. ... a pretty radical shift that TK is incredibly serious about.
Dynamic fares are an opportunity to make taxis more awesome: cheaper and more reliable. Dynamic fares position would be a competitive advantage over our taxi rival, GoCatch. GoCatch is already quite reliable so right now there is no compelling reason for clients to switch to Uber taxi. We cannot see any affordable tactics to directly 'harm' GoCatch's supply: they have more drivers than us (> 1,000 active vs. 800) and there is no reason for a taxi driver not to use both apps. Therefore, our strategy is (1) win the customer demand with discounted fares on the 70% of taxi trips that occur in non-peak hours. Drivers will follow the demand. (2) Ensure drivers are incentivised to complete Uber requests in peak times, so that Uber is the most reliable choice in peak times. This impresses users and, in the long run, eats into GoCatch peak supply.
My primary question would be which city is highest priority to greenlight. I'd like to see us expand in Australia because it's a big market and should be a good one for Uber. Australia is also under direct competitive threat from GoCatch. We're interested in doing a greenlight for Brisbane and Adelaide. Mike Abbott in Sydney may do the greenlight for Brisbane, but I'm thinking Allen and Mike Abbott together would be a good combo. ... I have nothing against expansion of course(!) but I want to make sure we're prioritising correctly for size of opportunity and response to competitive threat.
There was a lot of momentum at this point in time to roll UberX out right around the world, and Mike Brown would have been very keen for us to launch UberX most likely, and so he would have seen that and said, yep, that's another reason to have a crack at an UberX launch, hence the smiley face, would be my best guess of the intent of his email.
We rolled this out in Sydney to arrest the growth from GoCatch, an Australia taxi app that was gaining traction nationwide and regionally. In a space of 6 months we did catch them, partly by pioneering off peak pricing and also with targeted driver incentives to weaken their supply. Now that we're focused on UberX, all of these incentives are gone. We recently raised the taxi commission from 7% to 12% which is now the highest in our market but that barely covers direct phone/data/credit/support fees.
Our app competitors might make taxi work, so we need to compete on their territory - currently GoCatch has a clear run at the Melbourne taxi market (≈ 500 active) and this week Ingogo just raised another $1m earmarked for Melbourne. Both Ingogo and GoCatch are paying salesman to recruit taxi drivers on the street and phone. We're testing the same to ramp supply. I'm most fearful that GoCatch could build a large customer base on taxi and THEN successfully add limo booking functionality to their app. We know this is their strategy since limo registration is already in their driver app.
Why I still need taxi for a while: main motivation is to defend against GoCatch, which taxi depots report has spread 'incredibly fast' in the last few months and is now armed with $4m. What I have to deal with today is a Hailo, not yet a Lyft. I want to compete and I want to win. It's easier to win sign-ups through taxi first. Uber is still small and we coming into the busiest quarter of the year equals customer land grab. I'm terrified that GoCatch might capture all the low end demand and then expand into Black or X options (we know for a fact they are planning this). Taxi can be reliable: Melbourne supply is big (4,500) and poorly utilised. Taxi is already better than Chicago (> 20% unfulfilled).
We don't have a timeline for P2P in Aus, rather, the timeline once determined may dictate how we do it. If it would take a "long" time to rollout P2P then we may have to implement taxi in Melbourne as a stopgap. So let's aim to run fast see what roadblocks we uncover.
Two weeks riding UberX in SF and Seattle helped me see that P2P is not just cheaper, but better. I rode with drivers who took pride in their cars and had interesting lives to chat about.
Why constrain ourselves to partnership with just 1,000 limos or 5,000 taxis when there are greater than 2m private cars in Melbourne? We've got to be able to find a few private cars that are better than a taxi.
Competition amongst Aussie taxi apps is rapidly driving taxi app margins from a somewhat interesting 15% down to 0. 20% margin on UberX is where it's at ... the most depressing thing about working with taxi is that knowing that even if Uber did succeed in making Aussie taxis good, most of the rewards would probably accrue to the plate owners.
It's so much more energising to rebuild the system from scratch. I'm not afraid of challenging the taxi regulations, since they were written to solve problems that no longer exist. Now they just protect a few businesses that aren't in the public interest. Timing is good: Australia has wall to wall conservative governments who ought to be sympathetic to our cause. Big Taxi couldn't be less popular with the public, press or investors.
We are happy to hand the taxi market to GoCatch in the short term because we don't think taxis have a future.
I don't want to let GoCatch build too many customers though, so I'm working aggressively to get our Melbourne UberX P2P option on the road in November. We have a preliminary greenlight from Salle/Jen/Zac. I'm down in Melbourne right now to get the team #pumped too.
Where are we with Melbourne? I think it makes sense to just get this bad boy going if we're okay with the spot we're in with insurance. TK was asking about this and I feel like it keeps getting stuck. RG - are you okay with us just going ahead and starting the Melbourne P2P initiative contingent on insurance in a decent spot?
I guess Growth team wants us doing Uber Everywhere very soon. ... a pretty radical shift that TK is incredibly serious about.
I'm okay to push this everywhere. The risk of this not getting out and allowing another Lyft to crop up, far outweighs the potential reg/legal battle we'll have to fight in a few markets. Of course a city by city basis decision should be made but I want to be VERY aggressive here ... so, thanks for kicking this off Pants!
...we have a pricing model in place, and we have a pretty good handle on the regulation and potential penalties we could face. Management is going to have to make a call as to whether they want to take the risk and face the potential penalties or rolling out UberX. The team and I are hoping management will decide to go for it. Kudos to Simon for his thorough work, attention to detail and generally aggressive nature. He's doing a really nice job.
On the whole we're in good shape but we're not ready for the greenlight until:
1 - Confirm insurance - Jen is currently negotiating terms with provider.
2 - Confirm penalty we'll potentially be liable for and whether the regulator (who is opposed to P2P) does/doesn't have the power to update regulations without further oversight - Jordan expected to have the details late Jan after meeting with regulators.
We though it still worthwhile to share with you our pricing recommendation and expected penalty/fines if the regulator does come after us. We'd appreciate it if you could review this short deck (slides 2-8) and provide feedback and/or guidance on:
Competitive threat is great from GoCatch (Aus) and My Taxi (SE Asia) across the region. Must have competitive response fast - either launch X and take the regulatory risk or beef up Taxi offering now.
GoCatch growing userbase - UberX to challenge the whole market.
If we cut off GoCatch at their knees in Sydney and Melbourne they will stop worrying about any other markets. In Sydney we can outspend them on supply incentives. In Melbourne we'll change the game with P2P.
My primary question would be which city is highest priority to greenlight. I'd like to see us expand in Australia because it's a big market and should be a good one for Uber. Australia is also under direct competitive threat from GoCatch. We're interested in doing a greenlight for Brisbane and Adelaide. Mike Abbott in Sydney may do the greenlight for Brisbane, but I'm thinking Allen and Mike Abbott together would be a good combo. ... I have nothing against expansion of course(!) but I want to make sure we're prioritising correctly for size of opportunity and response to competitive threat.
The idea was to launch UberX disguised as carpooling for a month and then switch it to full on P2P. The hope was to delay regulatory scrutiny long enough to have a business that could withstand the pressure from taxi to shut us down. Enforcement is $2K - $45K fine on driver. Travis didn't like the idea and decides to take the regulator head on ... I talked to Mike afterwards and he came up with the solution below. To price P2P like carpooling and mitigate regulatory enforcement in the beginning.
One of the best ways to launch P2P in a new or existing Uber city is to do so by advertising and actively reaching out to potential new drivers through a fake company. This technique worked great across Europe during 2013 and 2014 and we used it to help launch UberX in Australia during March 2014. However, Down Under we took it one step further - rather than a simple google form with some plain text ads, we turned our stealth startup, Urban Carpooling (http://urbancarpooling.com) into a beast all on its own. We developed a logo and branding, unique ad copy, and full blown website with a driver signup page and even an onboarding scheduling tool, sending data automatically into a google spreadsheet and calendar. Fun fact: Uber Brisbane (Australia) launched during April 2014 entirely as P2P, getting drivers and onboarding them in under two weeks, using this Urban Carpooling brand and website.
We will lose millions of $ in revenue and we have no guarantees that they won't just fuck us over anyway. GoCatch have also launched in Melb and there is no guarantee that over Xmas they won't just launch at Melb Airport. If they are smart - they will be negotiating with Melb Airport now the same as they have with Sydney.
...go very aggressive. ... from now on ... rather than them proving a market is green. It's green until they prove it's red. Policy is responsible for the initial contact but then GM [regional general manager] or myself will be in charge of making sure we follow up and get on the phone with the folks to understand and tease out the enforcement questions. Insurance is the big clusterfuck right now seeing as so many international insurance brokers are saying they need proof that we're legal in each market doing P2P in order to provide it.
I guess Growth team wants us doing Uber Everywhere very soon. ... a pretty radical shift that TK is incredibly serious about.
My primary question would be which city is highest priority to greenlight. I'd like to see us expand in Australia because it's a big market and should be a good one for Uber. Australia is also under direct competitive threat from GoCatch. We're interested in doing a greenlight for Brisbane and Adelaide. Mike Abbott in Sydney may do the greenlight for Brisbane, but I'm thinking Allen and Mike Abbott together would be a good combo. ... I have nothing against expansion of course(!) but I want to make sure we're prioritising correctly for size of opportunity and response to competitive threat.
We'd like your approval to launch Black in Brisbane/Gold Coast, with a relatively quick move to UberX in the coming months. Here's why ...
We've been mulling your feedback since the Brisbane pricing call from last week. You raised a good point that ≈250 Black cars between Brisbane and Gold Coast may not leave us with a bunch of runway to grow Black, and we risk delivering a suboptimal Uber service down the road. We're going to take your advice and go directly for an UberX launch in Brisbane/Gold Coast instead. Next steps are as follows ... launch in next two to three weeks. We don't think another call with you is necessary but let us know if you want one - pricing will be very similar to what you've already approved for Melbourne. Once we've finalised pricing with Rose ... we'll send you the spreadsheet for review.
I guess Growth team wants us doing Uber Everywhere very soon. ... a pretty radical shift that TK is incredibly serious about.
My primary question would be which city is highest priority to greenlight. I'd like to see us expand in Australia because it's a big market and should be a good one for Uber. Australia is also under direct competitive threat from GoCatch. We're interested in doing a greenlight for Brisbane and Adelaide. Mike Abbott in Sydney may do the greenlight for Brisbane, but I'm thinking Allen and Mike Abbott together would be a good combo. ... I have nothing against expansion of course(!) but I want to make sure we're prioritising correctly for size of opportunity and response to competitive threat.
We are not interested in deregulating/reforming the taxi industry. We are displacing the taxi industry.
Uber's response to enforcement action in Australia
I checked in with Salle [Yoo] on how we can support drivers - given that the potential fines here are $110,000 per breach ... The language I am using publicly is 'we absolutely stand by the drivers'. In writing to partners 'We've retained legal counsel Herbert Smith Freehills to provide advice. We will provide legal support to partners who encounter problems as a result of using Uber's technology'".
8 drivers have now received tickets totalling approximately $20k
We've aggressively blocked suspicious rider / people associated with the TSC and we've not seen any rides last night or today result in infringement notices
Based on trip analysis there's a chance 30 driver [sic] could receive tickets of up to $3k for trips taken last week.
2 of the 8 drivers are back driving today, we'll reassure them we've got their back.
We're not actively alerting all drivers of the fines for the time being.
At a point in time the regulator may choose to stop providing infringement notices and press charges against drivers.
Cars can't be impounded or drivers licenses cancelled.
Provide legal support to partners to defend all infringement notices but it'll be challenging to defend.
Provide support to partners to claim the [sic] believed they were operating within the law based on information provided by Uber. Fines to be dropped and regulator takes action
Recommendation - Let's see how many fines have turned up by Monday to understand total exposure and then decide which option makes the most sense
Advice from our local Lawyer attached. In summary, he recommends just paying the fines and moving on. To add an extra layer of anonymity, Brand Partners can facilitate the payment on our behalf. We transfer them cash in advance, they'll take care of the administration and collection of receipts etc.
A driver has received 3 fines totally [sic] $2500. We view this as a cost of doing business, and will cover it. David [Rohrsheim] will send the fines over. These are 'penalty notices', which are essentially on-the-spot fines. At this stage the RMS does not seem to be initiating court proceeding, which is encouraging. How should we pay these - via the driver's lawyer? Obviously we want to keep distance.
Ask them to send the fines to Horton, their counsel - and verbally indicate that we will take care of it. Do not do this in writing.
Four [uber]X drivers received letters from Regulator requesting in-person interviews and threatening criminal action for continued violation of road traffic act. We're hiring counsel for them. Criminal conviction does not pose threat of jail time but could cause shockwaves in driver community and hurt our access to uberX supply.
As I've mentioned to Mike, I think Australia's biggest profit risk in 2015 is fines and legal fees from operating an unregulated P2P business, so regs remain a top priority for ANZ GM's.
What to Do if a Driver's Car is Impounded By Police
You try keep the news as quiet as possible (the more drivers know, the more impact it will have on your supply)
Call the driver immediately OVER THE PHONE (no email communication is advised at this time); let them know that you will take care of them.
You should invite driver immediately to the office and have him bring all the documents that show what has just happened... You should then get in touch with your local counsel and internal Legal team and decide if you are going to pay or appeal the fine.
Find a trusted litigator (different firm from your local counsel to avoid conflicts) and pay his/her fees (please see note below. Lawyer will not be paid directly from Uber). You should also spend time educating this lawyer on Uber before hand as in the end he is also protecting the app, not just the driver.
A11 payments are generally not from Uber - you pay the driver a Miscellaneous payment amount and they then will pay the lawyers and the fine. This is to avoid the relationship between Uber and the driver to be too close to an employer/employee relationship.
(a) Uber paid Horton Rhodes to handle payment of fines on behalf of UberX Partners in New South Wales and Queensland. Horton Rhodes paid fines of approximately $2.64 million to the State Debt Recovery Office (New South Wales) and the Department of Transport and Main Roads (Queensland) from June 2014 to October 2016. Trust account statements show that funds were deposited to the Horton Rhodes trust account by Uber BV, Uber Holding, Uber Australia and Rasier Operations. Those entities paid over $2.6 million of fines in Queensland. The same spreadsheet includes data that shows that since Uber's operation in Queensland up until December 2016, the total value of paid and pending infringement was approximately $3.46 million.
(b) Brand Partners paid fines on behalf of Uber for UberX Partners in Victoria. In the period ending 23 August 2016, the total amount paid by Uber to Brand Partners for fines was $1.46 million. A Brand Partners trust account statements dated 15 June 2017 records various payments for 'Melbourne infringements' and 'Melbourne Driver Parents' to the trust account from 'Uber', 'Rasier', 'Rasier In', 'Rasier Operations', 'Rasier Operations BV', 'UberRasier BV', 'Rasier BV', and 'Uber Australia'.
(c) A trust account statement dated 30 June 2017 shows that 'Rasier Operations' and 'Rasier Operations BV' also paid funds into the Brand Partners trust account for 'Western Australia - Driver Defence Work'.
(d) Uber entities engaged at least four solicitors, Horton Rhodes, Piper Alderman, Hanna Legal and David Bodeker Barrister & Solicitor, to act variously for drivers who were the subject of enforcement action.
Uber's use of regulatory evasion tools in Australia
If you enable this for your city, what happens is that any rider who has either not taken a trip or has no valid payment profile will be unable to see cars in the app ... Additionally, if you can find a regulator account, you can ban it and thereby render their payment profile invalid - they'll have non-trivial difficulty replacing both phone AND credit card to continue pursuing uberX drivers.
I'd search for patterns to help you to find and ban more riders to slow the efforts down. Matt [unclear which Matthew] has a query to show the eyeballs associated with dodgy accounts so you can identify where they hang out or create their accounts. Then you can find other accounts that have a lot of eyeballs or were created recently in the same places. ...
Your goal will be to not spook your supply (new or existing.) So long as our strategy is to eat the fines, you don't want this to reach the press.
My calculus at all times has been "How can we do the most number of trips before we are enforced?" That means launching with lots of cars on Day 1, minimising press, and also keeping regulators from taking rides. ...
Where are we with Melbourne? I think it makes sense to just get this bad boy going if we're okay with the spot we're in with insurance. TK was asking about this and I feel like it keeps getting stuck. RG - are you okay with us just going ahead and starting the Melbourne P2P initiative contingent on insurance in a decent spot?
I'm okay to push this everywhere. The risk of this not getting out and allowing another Lyft to crop up, far outweighs the potential reg/legal battle we'll have to fight in a few markets. Of course a city by city basis decision should be made but I want to be VERY aggressive here ... so, thanks for kicking this off Pants!
We have a pricing model in place, and we have a pretty good handle on the regulation and potential penalties we could face. Management is going to have to make a call as to whether they want to take the risk and face the potential penalties or rolling out UberX. The team and I are hoping management will decide to go for it.
(a) Uber Inc's global policy was as set out.
(b) Rohrsheim's attempts to press Kalanick and Grave on rolling out UberTAXI in Melbourne and their response to him, conveyed by Grave, revealed that it was Uber Inc, not Uber Australia, who held authority over which product would be launched where and when.
(c) By September 2013 Rohrsheim and Graves (meaning Uber Inc) had decided to 'aggressively' consider launching P2P in Melbourne. By January 2014 Uber Inc's Head of Global Expansion/Head of Launch was discussing launching UberX in Melbourne with other senior Uber Inc personnel (Graves and Penn), not as an abstract proposition but in the sense of doing it with immediacy. The global policy to 'go very aggressive' in launching UberX (generally in international markets) was discussed specifically in the context of Melbourne. Priorities for launching UberX in Australia were once more discussed by senior Uber Inc personnel in January 2014 with a view to 'greenlighting' everywhere. Uber Australia was not involved in that discussion.
(d) A 2014 plan for Southeast Asia and Australia was prepared by Brown in January 2024 setting out a specific plan for Melbourne. Rohrsheim was shown the plan for input. But it was prepared for presentation to Graves (i.e. Uber Inc). Uber Australia personnel were directed to prepare and did prepare P2P city plans and took steps readying for launch.
(e) Brown's 12 January 2024 email to Penn made clear that Kalanick and Graves comprised 'management' who would make the call as to whether they wanted to take the regulatory risk of rolling out UberX. Brown drew a distinction between himself and 'the Team' on the one hand, and 'Management' on the other. The Team was 'hoping' Management would 'decide to go for it.' The email and the evidence generally, establishes that Brown was not a decision maker for the purposes of the decision to launch UberX.
(f) In February 2024, Uber Australia's Rossi made a pricing recommendation and provided a report seeking a 'final greenlight' from Kalanick.
(g) An Australia/New Zealand roadmap was prepared for Uber Inc in April 2014 stating that P2P would launch in Melbourne by 10 April. UberX launched on 9 April 2014.
(h) Rohrsheim had written to Kalanick and Graves in October 2013 explaining his Damascus Road conversion to P2P adding that he didn't want GoCatch to build too many customers so he was working aggressively to 'get our UberX P2P option on the road in November'. That statement by Rohrsheim did not make him a decision maker or, read in the context of the entirety of the evidence, disclose that the launch of UberX when it did happen, occurred by agreement between Uber Inc and Uber Australia.
(a) Uber Inc's global policy was as set out. The global policy to 'go very aggressive' in launching UberX (generally in international markets) was discussed by senior Uber personnel in January 2014. Priorities for launching UberX in Australia were discussed by senior Uber Inc personnel in February 2014 with a view to 'greenlighting' everywhere. Uber Australia was not involved in those discussions.
(b) A 2014 plan for Southeast Asia and Australia was prepared by Brown in January 2024 setting out a specific plan for Sydney. Rohrsheim was shown the plan for input. But it was prepared for presentation to Graves (i.e. Uber Inc). Uber Australia personnel were directed to prepare and did prepare P2P city plans and took steps readying for launch.
(c) Rohrsheim told Condo in March 2014 that he didn't think the launch of UberX in Sydney should wait for a decision from the regulator and that it should occur at the same time Melbourne, a view which Condo agreed.
(d) The 'plan' for Sydney including as to pricing (which I infer was prepared at least with the involvement of Uber Australia personnel) was said to have been copied from the plan for Melbourne that Kalanick had approved. A last minute pricing change was proposed by Rohrsheim who informed Kalanick with the message that it would proceed unless Kalanick's wish was otherwise.
(e) Uber Inc's April Australia/New Zealand 2014 road map stated that P2P would launch in Sydney by 10 April, which in fact occurred.
(a) Uber Inc's global policy was as set out. The global policy to 'go very aggressive' in launching UberX (generally in international markets) was discussed by senior Uber personnel in January 2014. Priorities for launching UberX in Australia were discussed by senior Uber Inc personnel in February 2014 with a view to 'greenlighting' everywhere. Uber Australia was not involved in those discussions.
(b) Abbott (Uber Australia) prepared a launch plan for Brisbane and the Gold Coast, submitting it to Kalanick for his approval, proposing both UberBlack and UberX. Kalanick directed Abbott to go straight to UberX.
(c) Uber Inc's Australia/New Zealand roadmap prepared in April 2014 stated that P2P would be launched in Brisbane 'as soon as we can', with a projected launch date of April 2014.
(d) Rohrsheim's proposal to start with free rides for the first few weeks was said to have been based in the city launch playbook, and was to be 'run past' Kalanick for his approval.
(a) Uber Inc's global policy was as set out. The global policy to 'go very aggressive' in launching UberX (generally in international markets) was discussed by senior Uber personnel in January 2014.
(b) Launching in Perth was the subject of Uber Inc's January 2014 plan prepared by Brown, discussions between senior Uber Inc personnel in February 2014 with a view to 'greenlighting' everywhere and Uber Inc's Australia/New Zealand Road map prepared in April 2014. That plan stated that Perth should be the highest priority for Australia-New Zealand launches, with the idea of launching P2P immediately. Ma (then employed by Uber (Asia) Ltd) sought input from several people including from Uber Inc and Uber Australia on 'how we should launch Perth. Brown told Uber Inc Personnel in September 2014 that the UberX launch date was set for 1 October 2014, with or without government support'.
(c) Rossi (Uber Australia) prepared an UberX launch plan and marketing strategy, submitting it first to Wass (Uber Switzerland) who, once happy with it, said 'get it over to [Kalanick]'.
By July 2013 at the latest and from that time onwards the Uber Entities or one or more of them identified the plaintiff as a competitive threat to the operation of the Uber business in Australia and held an intention to injure the plaintiff;
(a) At all material times from at least April 2014 to 23 August 2016 the Uber Entities intended that the means by which UberX would be established and operate [in the relevant State] would be by UberX competing with Lawful Suppliers[122] in contravention of [the relevant legislative provisions]; and
(i) the UberX Partners impinging upon the lawful exclusivity to which the Lawful Suppliers were otherwise entitled;
(ii) Lawful Suppliers losing business to UberX Partners who did not satisfy the Compliance Requirements;
(iii) a decrease in the demand for the services of persons offering similar of equivalent services to UberX but in respect of point to point transport services supplied by Lawful Suppliers, resulting in a loss of revenue and profit to such persons; and (or alternatively);
(iv) there would be a decrease in the demand for the services of persons providing booking and facilitation services to Lawful Suppliers, including the Plaintiff;
Further and alternatively, such effects (as in the previous paragraph) were a necessary consequence of the UberX partners using UberX to compete with Lawful Suppliers in Victoria;
The defendants, with the common intention to injure the plaintiff or a class of persons including the plaintiff, agreed or combined to establish, promote and operate UberX in the relevant State which would and did involve UberX Partners contravening the relevant statutory provisions and one or more of the defendants being complicit in those contraventions;
(a) First, the Uber Entities each had a 'specific intention' to injure GoCatch. This was Taxi Apps' primary case;
(b) Second, the Uber entities had an intention to injure a class of persons including GoCatch, the class being those who provide booking and facilitation services to lawful suppliers;
(c) Third, the 'necessary consequence' of Uber's unlawful competition with lawful suppliers was a decrease in demand for the services of lawful suppliers and therefore persons providing booking and facilitation services.
Principles - Intention and the tort of unlawful means conspiracy
It is generally thought that the correct test of intention in this context is that stated by Lord Denning MR in the Court of Appeal decision in Lonrho Ltd v Shell Petroleum Co Ltd ... His Lordship said ...
I would suggest that a conspiracy to do an unlawful act - when there is no intent to injure the plaintiff and it is not aimed or directed at him - is not actionable ... But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives ... It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him.[128]
The test for an action based upon a conspiracy is what was the object in the mind of those combining when they acted as they did ... What is required is that they should have acted in order that, not with the result that, the plaintiff should suffer damage.[132]
In summary, to establish an unlawful means conspiracy, a plaintiff is required to establish that the purpose of the defendants in combining to engage in or to be complicit in the unlawful conduct included an intention to injure the plaintiff, and that the plaintiff in fact suffered injury by reason of the unlawful conduct. The defendants' intention to injure the plaintiff need not be the predominant motive for engaging in the unlawful conduct, but may be mixed with other purposes of motives - such as the pursuit of gain for the defendant or others - which may be the predominant motive.
Putting aside cases where a defendant's sole or predominant intention was to cause harm to the plaintiff, for example out of spite, hatred or revenge, the requisite mental element of intent has been described as 'elusive' where it forms one of several reasons or motives for engaging in the unlawful conduct. In this regard it is generally accepted that the requisite intent will be established if the plaintiff proves that the unlawful conduct was, at least in part, 'aimed or directed at the plaintiff'. While this manner of proving intent has been described as 'perhaps difficult to apply in some cases', it is accepted as a necessary control mechanism 'to keep liability within reasonable grounds', in the sense that it 'prevents clams by those who suffer incidental, though foreseeable, loss as a result of the commission of what is sometimes described as an 'undirected crime' or 'undirected [unlawful] conduct'. Further, it is accepted that intent to injure is sufficient if it is directed to all members of an identifiable class of persons, including the plaintiff.'[134]
These principles emphasise that a plaintiff in a case such as the present must establish intent to injure the plaintiff. It is not enough to establish that the acts of the conspirators necessarily involved injury to the plaintiff or that the plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage ...[139]
If someone knowingly causes a breach of contract, it does not normally matter that it is the means by which he intends to achieve some further or end or even that he would rather have been able to achieve that end without causing a breach. ...[P]eople seldom knowingly cause loss by unlawful means out of simple disinterested malice. It is usually to achieve the further end of securing an economic advantage to themselves. ... On the other hand, if the breach of contract is neither an end in itself nor a means to an end, but merely a foreseeable consequence, then in my opinion it cannot for this purpose be said to have been intended. That, I think, is what judges and writers mean when they say that the claimant must have been "targeted" or "aimed at".[145]
Intentional harm inflicted against a claimant in either of these circumstances satisfies the mental ingredient of this tort. That is so even if the defendant does not wish to harm the claimant, in the sense that he would prefer that the claimant were not standing in his way. Lesser states of mind do not suffice ... The defendant's conduct in relation to the loss must be deliberate. In particular, a defendant's foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention for this purpose. The defendant must intend to injure the claimant. This intent must be a cause of the defendant's conduct.[146]
I do not accept the submissions for the applicants that as a matter of law flowing form what was said by Fullagar J in Williams v Hursey at 78 it is sufficient for them to establish that the acts of the conspirators necessarily involved injury to the applicant and that the applicant was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage. In my view the statement of Fullagar J in Williams v Hursey is to be understood in the context in which it arose. That context was of a group deliberately forming an unlawful picket line so as to prevent the plaintiffs from getting to work and so earning their living. The acts were such that the intention to harm followed necessarily from them.[154]
That reasoning (with which I respectfully agree) is consistent with the essential proposition that a subjective intention to harm may be inferred from the evidence as a whole.
Lord Thurlow in 1778 succinctly expressed the point that a corporation has "no soul to damn, no body to kick". Strictly, corporations are mindless. Accordingly an individual state of mind needs to be attributed to the corporate entity, particularly where one is focused upon the motivation or purpose for an action. But whose?[172]
A corporation...must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. ... If it is a guilty mind then that guilt is the guilt of the company...[175]
That is to say, for the purposes of identifying the context-dependent rule of attribution in accordance with Meridian in the case of liability in equity for knowing assistance, what matters is the states of minds of the persons who directly controlled the conduct which is said to have involved the giving of assistance...'[185]
..That is to say, one asks who was responsible for engaging in the conduct which forms an element of the liability, and then attributes that person's knowledge to the company.'[186]
Competition between UberX and Taxis - documentary evidence
Taxis and hire cars can play a greater role as providers of point-to-point transport, including tapping into currently un-serviced or under-serviced markets and latent demand, expanding into new markets and providing services to complement the public transport system.
There appear to be opportunities available to grow the existing taxi market, even within the constraints of the current regulatory framework. Generally, the industry has failed to explore fully these opportunities.
Adopting measures to reduce waiting time is likely to have a positive impact on demand for taxi services.
Our Personal Mobility offering includes Ridesharing and New Mobility. Ridesharing refers to products that connect consumers with Drivers who provide rides in a variety of vehicles such as cars, auto rickshaws, motorbikes, minibuses or taxis. ...
We aim to provide everyone, everywhere on our platform with access to a safe, reliable, affordable and convenient trip within a few minutes of tapping a button. ... We are committing to providing consumers with access to the best personal mobility options to meet their needs. We are investing in new modes of transportation that enable us to address a wider range of consumer use cases and represent a significant opportunity to bring traditional trips onto our platform. ...
The rapid growth and scale of our Ridesharing products, which have to date accounted for virtually all of our Personal Mobility offering, demonstrates the size of our opportunity. ... We believe that Personal Mobility represents a vast, rapidly growing and underpenetrated market opportunity. ... We calculate our Personal Mobility market share in a given region by dividing our Personal Mobility miles travelled by our estimates of the addressable market in miles travelled in the region. We estimate the size of the addressable market by multiplying the number of passenger cars in each country by our country-level estimates of miles travelled per car. Our estimates also include an estimated 4.4 trillion public transportation miles, which we allocate to regions based on their share of the population in our addressable market. ...
Our strategy is to create the largest network in each market so that we can have the greatest liquidity network effect, which we believe leads to a margin advantage.
Risks related to our business: ... We face significant competition in each of the personal mobility, meal delivery and logistics industries globally from existing, well-established and low cost alternatives and in the future we expect to face competition from new market entrants given the low barriers to entry that characterise these industries. In addition, within each of these markets, the cost to switch between products is low. Consumers have a propensity to shift to the lowest-cost or highest quality provider; Drivers have a propensity to shift to the platform with the highest earnings potential. ...
Our Personal mobility offering competes with personal vehicle ownership and usage, which accounts for the majority of passenger miles in the markets that we serve, and traditional transportation services, including taxicab companies, and taxi-hailing services, livery services and public transportation, which typically provides the lowest-cost transportation option in many cities. ...
To remain competitive in certain markets, we have in the past lowered, and may continue to lower, fares or service fees, and we have in the past offered, and may continue to offer, significant Driver incentives and consumer discounts and promotions, which may adversely affect our financial performance. To remain competitive in certain markets and generate network scales and liquidity, we have in the past lowered, and expect in the future to continue to lower, fares of service fees, and we have offered and expect to continue to offer significant Driver incentives and consumer incentives and consumer discounts and promotions.
[R]idesharing is creating new demand, not capturing existing demand. Some 61 percent of ridesharing trips are net to the point to point market. Ridesharing is attracting new consumers who would not otherwise engage a costly taxi or limousine. It is restoring point to point transport as a credible, affordable and plausible transport option for everyday consumers.
Evidence of Adam Blinick - Uber's perceived market
(a) Its mission is to provide 'transportation as reliable as running water everywhere for everyone'.
(b) Uber intends to complement existing transport infrastructure by providing convenient transport to train stations and other transport hubs. Part of its vision is to create 'smarter transportation with fewer cars and greater access'. It considers that ridesharing can help encourage the use of public transport and reduce use of private cars. Uber intends to serve places where public transport and cabs are unavailable or not readily accessible. Uber intends to provide for transport where there is unmet demand by creating more transport options, for example suburbs where taxis are not readily available.
(c) As Blinick put it, Uber had a very expansive view of its target market. It was targeting the total ground transport market with a particular focus on all owners of private vehicles, including those in areas that were underserviced by existing public transportation options. For instance, the availability of safe, reliable, affordable ground transportation could enable a family to sell their second car and use services facilitated by Uber as a substitute. Any population centre of notable size was a potential target market for expansion of ridesharing services facilitated by Uber.
Competition between taxis and ridesharing - expert evidence
(a) His understanding was that only about 20 per cent of taxi trips were booked through a network and taxis tended to congregate at taxi ranks or in built up areas where they were likely to pick up a street hail. As a result, riders who were near a taxi rank or in a built up area would not need to use the Uber app to get a trip whilst riders who were not near a taxi rank or in built up areas would find it hard to get a taxi ride.
(b) UberTAXI's growth was constrained because of the relatively poor rate at which UberTAXI trip requests were accepted by taxi drivers. Abbott had the same opinion about the reliability of other taxi booking apps. He concluded that the unreliability of taxi products affected their popularity amongst riders.
(c) By mid-2013 UberX was experiencing significant growth in markets in the United States where it had launched. In cities in the United States where UberX had launched it had grown much more rapidly than UberTAXI. Abbott did not propose launching UberTAXI in Brisbane when he was general manager or in any other city while he was head of operations. UberX attracted more driver partners to the Uber platform with increasing reliability and decreased time to arrival after a ride was booked. Trips requested using the UberX product were cheaper than trips requested using Uber Black or UberTAXI. As the supply of driver partners increased the price of trips requested using UberX came down whilst maintaining the same level of earnings for driver partners. The evidence was given in general terms but I accept that it reflected Abbott's broad understanding of the performance of UberX and UberTAXI.
(d) Abbott's opinion was that Australian markets such as Sydney, Melbourne and Brisbane were similar to many of the markets in the United States in which UberX had launched successfully. As a result he believed there would be a huge demand for UberX in Australia. He also considered there was latent unmet demand for taxi travel including because the independent pricing and regulatory tribunal of New South Wales had reported as such in a paper published in late 2012, which Abbott read. He concluded based on his review of trip data that the highest demand for UberX trips was among young people in areas of Brisbane at times where there were limited public transport options such as Friday and Saturday nights in popular night spots.
(e) Uber made a public submission to the Queensland Government's Opportunities for Personalised Transport Review in June 2016, in which it submitted that ridesharing is not a taxi service or a limousine service and was 'growing the total size of the point-to-point transport market by creating new demand and new jobs rather than simply replacing existing services. More than 60 per cent of ridesharing trips are new to the market'. The submission also said that ridesharing was creating new demand not capturing existing demand. Abbott's understanding, based on Uber's public position was that UberX would be complementary to existing transport options including public transport, taxis and hire cars and that its growth would largely come from unmet demand for alternatives to people driving their own car.
(f) Abbott said that he did not understand Uber's 'core strategy' for UberX to be an alternative to people catching a taxi or taking a hire car. However, he said:
I was aware that, because the UberX product resulted in cheaper and more reliable trips compared to a taxi, there were likely to be some trips that would migrate from taxi to UberX. However I believe the majority of UberX trips would be meeting previously unmet demand rather than taking trips from taxis. I also believe that taxis would continue to exclusively supply rank and hail trips.
(g) On the subject of GoCatch, Abbott's evidence was that when he was considering the launch of Uber Black and UberX in Brisbane he identified that GoCatch had a 'light' presence in Brisbane, meaning that some drivers used GoCatch. That evidence was consistent with the objective fact that at the time GoCatch was undertaking relatively few trips, and reflected what he reported to Kalanick in his 'pricing recommendation'. He did not propose that UberTAXI be launched in Brisbane and did not conduct any analysis of GoCatch's business in Brisbane.
(h) Abbott said that he did not see GoCatch as a competitor of the UberX product in Brisbane and Sydney. Abbott's evidence about his perception of GoCatch as a competitor was qualified in cross-examination (as discussed below).
(i) He said that GoCatch was not a factor in his recommendation to Kalanick to launch UberX in Brisbane (as noted earlier in Part C.3).
(j) He said there was never any real consideration of GoCatch once UberX was launched in Sydney and Brisbane.
You couldn't pre-book an Uber - you can pre-book an UberX. You couldn't join a line, there was no way of getting an UberX from a rank. My understanding was that our success, our strategy did not rely on, did not rely on migrating riders from one, from taxi to UberX. Yes, I thought at the time some riders would migrate across, but I didn't expect it to be the majority of our rides.
Yes, but it wasn't a - I wouldn't say it was a primary, it wasn't a primary goal or purpose. But yes, we expected there to be some migration of riders from taxi to UberX ...
A: In the sense of offering a better product, a better service and out-compete them, yes.
Q: Meaning you wanted to damage the commercial outcome for GoCatch at the expense of Uber?
(a) Abbott believed that there was latent, unmet demand for personal point-to-point transport in Australia. That belief in relation to Brisbane was reported to Kalanick in the context of recommending launching UberBlack in Brisbane, with the specific observation that taxi supply in the city was OK but there were severe problems on weekend evenings and difficulty in the suburbs. That belief was consistent with public reports.
(b) Abbott nevertheless expected that there would be a migration of riders and drivers from taxi to UberX, once UberX was launched.
(c) Abbott regarded GoCatch as a competitor of UberTAXI in Sydney but also as a competitor that might harm UberX when UberX was launched. He perceived a risk to UberX by GoCatch amassing drivers and riders. He accepted that riders could switch between using different forms of point-to-point transport - taxi, UberBlack and UberX. He regarded GoCatch as a competitive threat to Uber.
(d) Abbott viewed GoCatch as a competitor to UberX in that sense (which he described as an 'indirect' competitor). He wanted to 'out-compete GoCatch' and in that sense 'crush' GoCatch. 'Outcompeting' may be read as gaining business at the expense of GoCatch. Doing so is a form of commercial harm.
(a) Rohrsheim was focused on concerns about Taxi Apps' success with GoCatch Taxi in Sydney and communicating those concerns to his superiors. Uber identified GoCatch as a competitor by early 2013. Uber obtained and analysed Taxi App's trip data in and after April 2013.
(b) Rohrsheim concluded by May 2013 that GoCatch was 'reaching critical mass', that its app had better functionality than Uber's TAXI app and that it was a competitive threat in the 'low cost' market. Rohrsheim considered an UberTAXI product to be a way in which Uber could leverage signups for other Uber products including UberX. Abbott agreed that having a taxi product was beneficial to later launching an UberX fleet and that a reason for launching UberX was creating supply.
(c) Rohrsheim told Kalanick and Graves in May 2013 (regarding Sydney) that they had to win the taxi market to arrest GoCatch's growth. Uber identified GoCatch as 'the' reason they launched UberTAXI in Sydney. Abbott wrote in July 2013 (after UberTAXI had launched in Sydney) that 'we're heading towards UberX but need to crush GoCatch first'. Rohrsheim repeated his desire to crush and hurt GoCatch in the taxi market. Uber recognised the inter-relationship between taxis and ridesharing; they did not consider them to be separate. It understood that building 'supply' and thus network effects was critical to success in the market.
(d) Uber's intention in mid-2013 was to destroy GoCatch and then focus on UberX. Graves wrote in August 2013 that GoCatch was a competitor who was 'killing us', saying, 'crush them'. Regarding Melbourne, Rohrsheim told Kalanick and Graves in September 2013 that GoCatch had a clear run and he was fearful that it would build a large customer base on TAXI and successfully add a limo booking functionality in its app.
(e) By mid-October 2013 at the latest, the means by which Uber sought to injure GoCatch shifted and expanded to include UberX. It is not to the point that (as Uber submits) references to 'destroying' and 'crushing' GoCatch were made in the context of Uber seeking to out-compete GoCatch with its UberTAXI product. Uber's intention, which existed from at least July 2013, was to injure Taxi Apps in circumstances where Uber identified it as a competitive threat. The means through which it sought to do that evolved over time but the intention remained the same.
(f) Rohrsheim told Kalanick and Graves in October 2013, 'I don't want to let GoCatch build too many customers so I'm working aggressively to get our Melbourne UberX P2P on the road in November.' Neither Graves nor Kalanick expressed disagreement with that view and neither was called. It should be inferred that their evidence would not have assisted Uber.
(g) Uber's January 2014 Southeast Asia plan (prepared by Brown for Graves) stated that the competitive threat from GoCatch was great in Australia, 'must have a competitive response fast - either launch UberX and take regulatory risk or beef up Taxi offering now.' In relation to Sydney, the plan stated that Uber must 'change the game to win' and in relation to Melbourne, that UberX would challenge the whole market. This document establishes that Uber intended to use the then-illegal UberX as a competitive response to arrest the competitive threat from GoCatch.
(h) In March 2014, in response to Abbott circulating a GoCatch survey and Rohrsheim saying that GoCatch was working on a Black product, Brow's response was 'time to launch P2P'. It should be inferred that Brown considered it necessary to launch UberX in response to GoCatch (as Abbott accepted when cross-examined).
(i) Uber's interest in GoCatch did not stop after the launch of UberX. It continued to monitor and discuss GoCatch until 2017. Abbott accepted that Rohrsheim and Abbott himself were interested in GoCatch until at least 2017.
(j) Uber's intention to injure GoCatch is exemplified by the covert surveillance it undertook. It was focussed on obtaining 'intel' from GoCatch and 'scraped' data about GoCatchs's trips and drivers. It had employees and agents sign up to GoCatch for the purposes of monitoring.
(a) Kalanick and Graves were directors of Uber Inc, Uber Australia, Uber BV and Rasier Operations. Graves specifically intended to injure Taxi Apps and Graves and Kalanick were 'on notice' of Rohrsheim's intention to injure Taxi Apps. Their intention to injure Taxi Apps should be attributed to the entities of which they were directors in the relevant periods.[189]
(b) Rohrsheim specifically intended to injure Taxi Apps. He was a guiding mind of Uber Australia and his intention is to be attributed to it. If the guiding minds were Graves 'and or' Kalanick, the same position applies as for the other entities.
(c) Separately, 'if the Court considers that Kalanick and/or Graves were the guiding minds of the entire Uber group of companies their states of mind should be attributed to the remaining entities'.
(a) From June 2013 Uber entities were competing with Taxi Apps, by the UberTAXI product which was a direct competitor to GoCatch as a taxi booking app. References to crushing, destroying and the like (meaning out-competing) occur almost exclusively in 2012-2013 in the context of UberTAXI and before the launch of UberX. Uber had a legitimate commercial interest in seeking to outcompete GoCatch in relation to UberTAXI.
(b) The premise in documents that refer to GoCatch as a competitive threat is that UberX is going to be launched in Australia. UberX is not coming because of GoCatch, it is coming irrespective of GoCatch.
(c) In other documents referring to a desire to 'crush' GoCatch, outcompeting GoCatch is put as a precondition to the launch of UberX. If 'crushing GoCatch' is set as a hurdle to be overcome before UberX is launched, the launch of UberX is logically not directed at GoCatch but happens despite the fact of GoCatch. Furthermore, even if 'crushing GoCatch' was the goal, in order to benefit the anticipated introduction of UberX to the market, that matters not at all where the means of crushing GoCatch is UberTAXI. That is because the intention must attach to the unlawful means.
(d) Rohrsheim's statement in October 2013 that 'I don't want to let GoCatch build too many customers so I'm working aggressively to get our Melbourne UberX P2P on the road in November' at best concerns UberX as aimed at GoCatch in relation to when, not whether, Uber would launch UberX. The launch of UberX was coming, that is taken for granted in the email. The best the plaintiff can establish is that an animus about GoCatch affected the timing of Uber's entry, not whether it would enter. However, there is no evidence of accelerated timing. UberX in fact launched in April 2014 not November 2013. Further, once the 'acceleration' aspect had gone, so has any attached intention.
(e) The January 2014 Southeast Asia plan (referring to the competitive threat from GoCatch) suggests that at that time it had already been decided to launch UberX. Insofar as the documents advert to hurrying or accelerating the timing of launch they are not to the point, because the issues with which they are concerned is not 'waiting until legislation or launching now', but launching in November as opposed to 'early next year'. On that analysis, once it is established that UberX would have been launched in any case, the intention aspect of the case disappears.
No doubt, overt acts or words indicating such personal malice may be of such frequent occurrence in and about the execution of the common agreement, and so well known to and accepted by all participators in it, as to furnish some evidence of the malicious nature of the whole combination. But acts or words indicating malice in one or two are merely evidentiary, in order to prove the general motive or object. The evil motive proved to exist in one or two is not imputable to the other members of the combination.[195]
We still need to grow taxi supply waaaay faster to be relevant. Onboarding has slowed ... remember the goal here is to beat out GoCatch (who raised $4m) at their own "taxi game" and then move onto another product asap. GoCatch reports 40-50K global trips a month, so that's 5,000/week in Sydney. We are at 2,500/week. I am spending money to win drivers to make our taxi product more reliable than GoCatch.
In broad terms, the rule in Jones v Dunkel is that the unexplained failure by a party to call a witness that the party would reasonably be expected to call may, not must, lead to an inference that the evidence of the witness would not have assisted that party's case. A party might reasonably be expected to call a witness if the party is in a position to call the witness and may be taken to know the evidence that the witness would or might give. That is often referred to colloquially as the relevant witness being in the party's "camp."[200]
The mere fact that a potential witness has left the employ of the party may not, in and of itself, mean that the witness is no longer in the party's camp, or provide a reasonable explanation for the party not calling the witness. Where, however, the initial relationship between the party and the witness has been severed, and there is no apparent ongoing relationship, there may be no reason to conclude that the witness is in the party's "camp".
(a) GoCatch taxi had been operating in Brisbane since June 2011. Its trip numbers were growing but modest.
(b) As at February 2014 Uber Inc had not determined the 'greenness' of Brisbane but senior personnel were interested in 'doing a greenlight for Brisbane'.
(c) Abbott moved to Brisbane in April 2014 to launch Uber's operations there. He prepared a city plan for presentation to Kalanick, seeking his approval to launch both Uber Black and UberX, starting with Black. The city plan recorded Abbott's observations that there was unmet demand on weekend evenings and in the suburbs and that there was a 'light GoCatch presence.' Abbott reported that taxi networks were highly consolidated and that there was 'no significant taxi apps traction.' 7,000 potential riders had viewed the Uber app before any Uber service had commenced.
(d) Abbott discussed the launch of Uber in Brisbane directly with Kalanick. Abbott's evidence was that Kalanick told him to go straight to launching UberX because there was not enough supply (cars and drivers) for Uber Black. Abbott said he did not recall any discussion with Kalanick about GoCatch. That evidence was not directly challenged. Parts of Abbott's evidence were unreliable and lacking candour, specifically on the subject of his knowledge of the illegality of UberX (as recorded earlier in these Reasons). Each of Taxi Apps and Uber urged on me competing characterisations of Abbott's evidence. I do not consider overarching characterisations of the witness to be helpful. On this subject Abbott's evidence was consistent with the objective evidence. GoCatch did have a 'light' presence in Brisbane. Abbott's contemporaneous assessment, recorded in his report, was that Taxi Apps generally had little traction in Brisbane. There were promising indicators for UberX in Brisbane for a number of reasons including some unmet demand. Scope for Uber Black was limited by supply. I accept Abbott's evidence concerning his discussion with Kalanick.
(e) There was no substantive discussion of Brisbane in the contemporaneous documents that identified GoCatch as a reason to launch UberX.
(f) In short, there was positive evidence concerning the reasons for Uber Inc to launch UberX in Brisbane, none of which concerned GoCatch, beyond recording that it had light presence in Brisbane.
(a) In Brown's January 2014 plan for Southeast Asia and Australia, Perth was recorded as a 'new city' slated for launch in the first half of 2014, with the comment, 'Jordon [i.e. Condo of Uber Inc] is onto it. Regulator wants us'. There was no other reference to Perth in the plan and the plan did not record any competitive analysis in relation to Perth.
(b) Brown told Uber Inc's Head of Launch in February 2014 that they knew the 'relative greenness of Perth', in the context of a discussion about priorities for greenlighting Australian cities. The April 2014 Australia/New Zealand launch roadmap said in respect of Perth that it should be the highest priority for launch in the region, the plan being to launch P2P 'right off the bat.' In May 2014, Ma, Gellman, Condo and Rohrsheim discussed 'how we should launch Perth', by that time proposing that Uber Black should be launched first because of the presence of healthy supply as a basis on which to grow the business and the prospect of something less 'grey' in a regulatory sense. In discussing the 'pros and cons' of first launching Uber Black or UberX, a point in favour of UberX was that it could scale quickly, undercut the competition and create a national dialogue for P2P. Uber Black was in fact launched first, in May 2014.
(c) In February 2014 Rossi (Uber Australia) and Condo (Uber Inc) had met with the Minister for Transport to seek a greenlight for a pilot program. By September 2014, Brown reported to Condo and others that that they were going to work with government in September to see if they could come to a workable regulatory framework for UberX, but that the UberX launch date was set for 1 October 2014 'with or without Gov't support'. Brown reported shortly afterwards that the Minister 'recognises X launch is inevitable'. By 1 October 2014 a launch date of 9 October 2014 was set. Regulatory approval was not obtained.
(d) Rossi's 'city plan' was presented on 2 October. Rossi described the 'transportation landscape' in Perth as having limited options, noting that taxis were extremely limited and very expensive. Under the heading, 'Why are we launching this city/product?' Rossi stated 'Market potential, competitive pressure, UberX expansion across more cities in Australia is good for Uber AUS,' and that there was a strong commercial case for launch with a 'more positive' regulatory environment and low regulatory risk. On competition Rossi recorded that an Uber clone (Rocket Internet) had recently launched 'ridesurfing' with limited market presence or penetration noting that Uber could win on pricing, get driver earnings and scalable supply. Competitors were listed as GoCatch Taxi ('$3 million in funding, 17 staff, 90% of their business is in Sydney') and Ridesurfing ('just launched, 5 cars').
(e) GoCatch Taxi had made 105 trips in Perth in 2012 and 696 trips in 2013. Its trip numbers were growing (reaching 4,225 trips in total in 2014) but were extremely modest. By way of comparison UberBlack (launched in May 2014) made 28,672 trips in Perth in 2014. UberX (launched in October 2014) made 36,773 in its first months of operation and 2,090,990 trips in 2015. In Sydney GoCatch Taxi made 105,340 trips in 2013 and 286,777 trips in 2014.
(a) There is considerable evidence that Uber intended to 'destroy' the taxi industry in general, which would necessarily include booking and facilitation service providers. Taxi Apps cited these examples:
(i) In a 13 October 2014 email from Condo to Rohrsheim and others in the context of discussions with the regulator in Perth, Condo described Uber's 'non-public' position as, 'we are not interested in deregulating/reforming the taxi industry. We are displacing the taxi industry. See San Francisco';
(ii) in an Uber slide deck titled 'Launch 2014 Goals' a dot point states '[g]et ahead and destroy competition's international relevance';
(iii) another Uber slide deck dated around May 2013 expressed a goal to '[c]rush taxi competitors - break their business model', '[g]row Uber signups and Black bookings', and '[p]athway to disruptive Uber Uberx fleet'.
(b) Uber positioned UberX as comparable to and in competition with, but cheaper than, taxis. Uber was working to poach taxi drivers and drivers from other platforms to join UberX. It in fact poached GoCatch drivers, signing them up to UberTAXI by procuring the driver list stolen from Taxi Apps.
(c) Uber's expert Smith conceded in cross-examination that in the third and fourth year post-UberX entry, unbooked and booked taxi trips were both substantially lower according to existing data. Smith did not admit that the reduction was attributable to UberX, but did not provide evidence for any other explanation for the significant, long-term decline in taxi trip numbers since the launch of UberX.
(d) Uber covertly surveilled its competition, including GoCatch. Among other evidence, an Uber slide deck described Surfcam being used in 22 cities (including Perth and Sydney) against six competitors. An internal Uber email dated 28 December 2015 with the subject line 'Update on Surfcam' also described Surfcam being used in Southeast Asia, Russia, France, and 'to some degree' UAE, Australia and New Zealand. Other Uber internal meeting documents and slide decks also suggest that Surfcam was used against, at least, OlaCabs, My Taxi and Gett Taxi in various jurisdictions.
(a) At all material times from at least April 2014 to 23 August 2016 the Uber Entities intended that the means by which UberX would be established and operate [in the relevant State] would be by UberX competing with Lawful Suppliers in contravention of [the relevant legislative provisions]; and
(i) the UberX Partners impinging upon the lawful exclusivity to which the Lawful Suppliers were otherwise entitled;
(ii) Lawful Suppliers losing business to UberX Partners who did not satisfy the Compliance Requirements;
(iii) a decrease in the demand for the services of persons offering similar of equivalent services to UberX but in respect of point to point transport services supplied by Lawful Suppliers, resulting in a loss of revenue and profit to such persons; and (or alternatively);
(iv) there would be a decrease in the demand for the services of persons providing booking and facilitation services to Lawful Suppliers, including the Plaintiff.
(a) UberX drivers would impinge on the lawful exclusivity enjoyed by, and take business from, lawful taxi and hire car services with a decrease in the demand for those services; and
(b) as a result, there would be a corresponding decrease in demand for (and the revenue and profit of) the services of booking and facilitation service providers.
(a) in a submission to the Harper Review in November 2014, Uber observed that 'ridesharing competes with the taxi industry';
(b) in March 2016, Rohrsheim wrote in an email to Uber staff 'Good news - ACCC declared taxi apps to be competitors with ridesharing apps';
(c) Uber's expert economist Smith conceded in cross examination that there was a 'degree of substitutability between ridesharing and either the primary means of getting a cab, whether booked or rank and hail', and that unbooked and booked taxi trips fell some years after the entry of UberX.
(a) The proposition that where the statute makes conduct unlawful that was hitherto lawful and provides a specific remedy only the statutory remedy is available (which Uber took from Deputy Federal Commissioner of Taxation v Brown[210]) is established and discussed in cases that have 'nothing to do with the tort of conspiracy'.
(b) Uber relied on Council of the City of Gold Coast v Pioneer Concrete[211] and related authorities as applying the principle from Brown. In those cases the relevant statute covered the field in respect of the remedy that the claimant sought to enforce, each statute prohibiting conduct founded on an agreement. The principle is a narrower one, namely that if the statutory offence is concerned with a combination of the same kind as that which the conspiracy is concerned with, the statute ought be construed as covering the field of available remedies on the basis that what is prohibited by statute is factually identical to the conduct that would give rise to conspiracy. That is not this case.
(c) In Total Network the House of Lords held that not all statutory illegality will suffice as unlawful means for the tort, however the constraint on the broad conclusion in that case was only concerned with the need for the unlawful acts to be the means by which the injury is caused. Statutory illegality (like any other unlawful act) will only suffice as unlawful means if it is in fact the 'means' by which the injury is inflicted.[212]
(a) 'Courts at lower levels of the judicial hierarchy are generally bound by the rationes decidendi ('reasons for deciding') of a court at a higher level in the judicial hierarchy.'[218] As Brennan J said in O'Toole v Charles David Pty Ltd:
The ratio, which is expressed in or necessarily implied by reasons for judgment to which a majority of the participating judges assent, is the law. It is not merely a judicial opinion as to what the law is; it is a source of law: see Salmond on Jurisprudence, 12th ed. (1966), p. 141.[219]
(b) Statements which do not form part of the ratio of a decision are dicta, and they are generally non-binding: 'Cases are only authority for what they decide. When a court makes a statement that goes beyond the issue it had to decide, the extended statement is dictum and binding on no-one.'[220] However, it is understood that precedent includes the necessary reasoning that is sufficient for the results of decided cases and includes seriously considered obiter dicta.[221] This is particularly so in the case of seriously considered dicta of the High Court, which is the apogee of the appellate hierarchy.[222]
(c) If the decision was made by multiple judges in an appellate court, the ratio is comprised of the reasons which are common to all of the judges in the majority or a sufficient number of them to constitute a majority,[223] and it is impermissible to form a ratio by amalgamating various elements of separate reasons.[224]
(d) There is limited authority on what constitutes 'seriously considered dicta'. In Ying v Song,[225] Ward J determined that one factor in determining whether it was seriously considered, was whether the point had been argued before the Court. Plainly, a mere passing remark or statement or assumption on a matter not argued is to be distinguished from a considered judgment on a point in issue.[226]
(e) An intermediate appellate court should not depart from seriously considered dicta of a majority of the High Court. Neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the decision is plainly wrong (differently put, unless there is a compelling reason to do so). Intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.[227]
(f) Courts cannot depart from binding decisions simply because they view them as outdated.[228]
Authorities relevant to the question of Unlawful Means
The means they used were a threat of a strike, a threat they knew would be carried into effect, if it did not prove a sufficient intimidation in itself. As a strike is unlawful by the law of the State of Western Australia it was a threat of an unlawful act. A combination to threaten and if necessary carry out an unlawful act as a means of securing an end is actionable as a civil conspiracy. So much at least seems now to be conceded in all the welter of authority. It was not denied in this case. Apparently is was on this footing that damages were awarded against the four defendants [at first instance].[241]
44. (1.) A person shall not, by violence to the person or property of a person, by threat, intimidation or incitement of any kind to any person, or, without reasonable cause or excuse, by boycott or threat of boycott of a person or property or discriminatory action, prevent, hinder or dissuade--
(a) a person from applying to be registered as a waterside worker by virtue of sub-section (5.) of section thirty-one of this Act;
(b) a registered waterside worker from offering for, obtaining or accepting employment, or working, as a waterside worker in stevedoring operations;
(c) a person from employing or offering to employ a registered waterside worker as a waterside worker in stevedoring operations;
(d) a registered waterside worker from continuing to be so registered;
(e) a person from applying to have his name included in a record maintained by the Authority under sub-section (5.) of section forty of this Act;
(f) a person from offering for, obtaining or accepting employment, or working, as a waterside worker by virtue of section forty of this Act;
(g) a person from employing or offering to employ a person as a waterside worker by virtue of section forty of this Act; or
(h) a person whose name appears in a record maintained by the Authority under sub-section (5.) of section forty of this Act from continuing to have his name so recorded.
(2.) A registered waterside worker shall not, without reasonable cause or excuse, refuse to accept employment or perform work in stevedoring operations with another person who is a registered water side worker or is employed as a waterside worker by virtue of section forty of this Act.
(3.) In proceedings for an offence arising under either of the last two preceding sub-sections, proof of reasonable cause or excuse lies upon the person charged.
Penalty: Where the offence is committed by a body corporate, Five hundred pounds; in any other case, Fifty pounds.
It is enough, so far as a cause of action is concerned, to say that there was a combination amounting to an actionable conspiracy of the kind best recognized in law, viz., a combination to do unlawful acts necessarily involving injury. That the acts in question were wrongful at common law I feel no doubt. These acts (apart from elements of aggravation) constituted an interference with the plaintiffs' personal liberty and freedom of movement, and an obstruction of their path to work.'[266]
An infringement of s 44(1)(b) is an offence against the Act. But it does not follow that an action will lie at the suit of an individual waterside worker who has suffered loss by the commission of the offence. I do not think that such an action will lie. It is only in a limited class of case that a statutory prohibition accompanied by an express criminal sanction can be held to create a duty enforceable by civil proceedings, and no sufficient reason appears for saying that the purpose of s 44(1)(b), which must be read in its context, goes beyond the securing of the efficient performance of stevedoring operations in Australian ports, or that it is intended to create a civil duty enforceable by one waterside worker against another or by a waterwise worker against any person whomsoever. This view is, of course, of small practical importance in the present case, since I have held that there was a clear infringement of a common law right.[271]
If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy.[279]
It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement ... Up to this point the term "unlawful" in relation to conspiracies means something that is itself and independently of any element of combination, a criminal or civil wrong.[280]
In Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, at 78-80 Fullagar J (with whom Dixon CJ and Kitto J agreed) gave reasons for holding that there was, in that case, a conspiracy involving unlawful means. At 78-79, his Honour held that there were sufficient "unlawful means" involved in the maintenance of a picket line. That picket line involved the commission of two torts - an action on the case consisting of obstructing the plaintiff from traversing a path he was entitled to traverse to get to work, and the tort of assault arising from the threat of violence implicit in the picket line. His Honour went on to hold that there were also two infringements of statutes involved in the unionists' conduct, and that each statute should not be construed as intended to create a civil duty enforceable by one waterside worker against another, or by a waterside worker against any person whomsoever. His Honour went on to say, at 79, "This view is, of course, of small practical importance in the present case, since I have held that there was a clear infringement of a common law right." (emphasis original) He did not, however say that the fact that an individual would have had no action for breach of statutory duty against a waterside worker who breached those statutory provisions was a reason why the tort of conspiracy was not available if several defendants conspired to breach such a statute.' (emphasis added).
Breaches of statute can range from the extremely serious to the comparatively trivial, and it is hard to see why all breaches of statute should be on the same footing so far as civil liability for conspiracy is concerned. Statutes can create not only legislative norms which, if breached are punishable by criminal sanctions, but also norms which, if breached, are punishable by civil penalties, or by private actions for damages. Each of these types of statute create conduct which can, in one sense of the expression, be called "unlawful means", yet it is not obvious that breach of any of these kinds of statutory norm should count as "unlawful means" for the purpose of the law of conspiracy. However, if one bears firmly in mind that, even in conspiracy to injure by unlawful means, it is still necessary to prove that one of the things the defendant were trying to achieve was damage to the plaintiff, the tort is kept within acceptable bounds.
If a breach of statute was capable of founding the "unlawful means" used by conspirators it would not seem to matter that the statute did not also give a private right to the person injured, in our respectful view. The question whether a contravention of statute can amount to the relevant "unlawful means" is a distinct question. That is not to say that there may not, in the present case, be problems with causation as between the means said to be employed and the suffering of damage, and it may be that his Honour had this in mind. But that issue is not raised by the respondents on the appeal. (emphasis added).[302]
For the purpose of civil conspiracy by unlawful means, the "unlawfulness" may be a tort or an activity constituting a breach of statute: Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 76-79 per Fullagar J and 104-108 per Taylor J; Coal Miners' Industrial Union of Workers (WA), Collie v True (1959) 33 ALJR 224.[308]
There are three classes of case in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of case is, whether statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz. where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within the latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The company are bound to follow the form of remedy provided by the statute which gives them the right to sue.[313]
(a) shall not, so long as a totalisator is being lawfully operated on the track, exclude any person from the track by reason only that he proposes to carry on bookmaking on the track; and
(b) shall take such steps as are necessary to secure that, so long as a totalisator is being lawfully operated on the track, there is available for bookmakers space on the track where they can conveniently carry on bookmaking in connexion with dog races run on the track on that day; and
Every person who contravenes or failed to comply with, any of the provisions of this sub-section shall be guilty of an offence.'
Where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it ... the remedy provided by a statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.[318]
The Assessment Act is an Act which provides a complete and exhaustive code of the rights and obligations of the Commissioner and other officers of his department to members of the general public who are subject to its provision ... in my opinion the whole scheme of the Act to be gathered from its general structure and specific provisions is to confine the liability to pay income tax to persons who can be assessed under the Act and upon whom is conferred the right of appeal against the assessment either way by reference to a board of review or by appeal to the court at their option.[320]
[I]t is well settled by authority of this House in Cutler v Wandsworth Stadium that the question whether legislation which makes the doing or omitting to do a particular act a criminal offence renders the person guilty of such offence liable also in a civil action for damages at the suit of any person who thereby suffers loss or damage, is a question of construction of the legislation.[321]
So one starts with the presumption laid down originally by Lord Tenterden C.J. in Doe d. Murray v Bridges [1831] EngR 57; (1831) 1 B. & Ad. 847, 859, where he spoke of the "general rule" that "where an Act creates an obligation, and enforces the performance in a specified manner...that performance cannot be enforced in any other manner"...Where the only manner of enforcing performance for which the Act provides is prosecution for the criminal offence of failure to perform the statutory obligation or for contravening the statutory prohibition which the Act creates, there are two classes of exception to this general rule. The first is where upon the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Acts and similar legislation...The second is where the statute creates a public right...and a particular member of the public suffers..."particular direct and substantial" damage "other and different from that which was common to all the rest of the public".[322]
If any dealer agrees to give, or gives or offers any gift or consideration to any other person as an inducement or reward for abstaining, or for having abstained, from bidding at a sale by auction either generally or for any particular lot, or if any person agrees to accept, or accepts, or attempts to obtain from any dealer any such gift or consideration as aforesaid, he shall be guilty of an offence under this Act...a prosecution for an offence under this section shall not be instituted without the consent of the General or Solicitor-General...[332]
(a) The forming of a ring in order to bid at auction was not unlawful prior to the enactment of the Bidding Agreements Act.
(b) The well-known principle stated in Easter Archipelago Co. v Reg[333] provided that:
... where a statute makes unlawful that which was lawful before and appoints a specific remedy, that remedy must be pursued and no other, yet, where an offence was antecedental punishable by a common-law proceeding as by indictment, and a statute prescribes a particular remedy in case of disobedience, that such particular remedy is cumulative, and proceedings may be had either at common law or under statute...[334]
Sellars J said that the principle had never been dissented from.
(c) The question arose as to whether the count of indictment alleged the very offence created by the Act (making its triable only as a summary offence, not on indictment). The Crown contended that that the indictment alleged a conspiracy which was 'something different from the offences the Act creates'. It may be possible to frame a charge alleging conspiracy to contravene the Act in a given set of circumstances, but the Court has to ascertain what is in fact alleged. The pleading in fact described the offences in the same or substantially the same terms as the offences created by the Act. In those circumstances the well-known principle applied and the indictment did not lie.
(a) The subject matter of the conspiracy was alleged as 'to commit the said offences of buying, receiving, selling and delivering' against s 21(c);
(b) A criminal offence can of course be the subject matter of a combination which is itself a separate and distinct crime and a conspiracy to commit it can be laid as such. The conspiracy charge will lie even after the statute creating the offence has been repealed. 'But if the substantive offence is a new offence created by statute (so that conduct previously lawful then becomes unlawful) the facts which establish that offence, and no more, cannot be used also to found the conspiracy to commit the offence, because that offence attracts only the special remedy provided by the statute...'[335]
(c) The particulars of the alleged conspiracy would be in terms or in substance the very offence created by the statute.[336] The offences were only punishable summarily, not in indictment.
Conspiracy requires an agreement between A and B which is anterior in time to the doing of the unlawful act which is the object of the conspiracy, and that the unlawful act stands independently of the agreement to do it. In the present case the forbidden act sought to be proved was in fact the agreement to sell or supply heroin .. But this is the substantive offence created by the definition of "supply" in the Poisons Act, and the agreement to sell or supply, being the substantive offence cannot also be the agreement which brings into existence the conspiracy ... In our view, parliament having defined "supply" to include agreement to sell and agreement to supply, it was not open to the Crown to allege an agreement to sell or an agreement to supply as a conspiracy ...[342]
(a) The respondents said that the pleading was bad because it added nothing to the allegations of contravention of s 45, relying in Allied Mills. Allied Mills was distinguishable by its limited subject matter.
(b) There is a principle referred to by Beaumont J in Pancontinental that where a statute for the first time makes unlawful certain conduct hitherto lawful and provides a specific remedy, only the statutory remedy is available. This principle was applied by the Victorian Full Court in Korp. Drummond J referred to the reasoning in Korp (and in R v Barnett) to the effect that if the substantive offence is a new offence created by statute (so that conduct previously lawful then becomes unlawful) the facts which establish that offence and no more cannot be used also to found a conspiracy to commit the offence because that offence attracts only the special remedy provided by the statute.
(c) Drummond J then said that:
It is wrong in my opinion to think that these authorities govern when it is permissible to plead a civil conspiracy case. As Korp recognises as a general rule a conspiracy to commit an offence can be charged as a separate offence. But where a statute makes conduct not previously in breach of the criminal law an offence and the same conduct is without more capable of supporting a criminal conspiracy charge the statute creating the new offence will be read as making the prosecution provided for by it the sole remedy for the new offence. A prosecution for conspiracy to commit such an offence is not, I think, open because the antecedent lawfulness of the conduct provides a reason for reading the statute which now makes that same conduct unlawful, as providing the only action that can be taken in respect of that conduct. That approach to how the statute should be read would have to give way to contrary intent. But I think that the principle, as one of statutory construction, is not confined to criminal statutes. The principle is equally applicable to statutes which proscribes certain conduct not previously unlawful and provides specific civil remedies for harm caused by such a conduct.[345]
In searching for a general principle I start with a very simple, even naïve point. The man in the street, if asked what an unlawful act was, would properly answer 'a crime'. He might give as an example theft, obtaining money by false pretences, or assault occasioning actual bodily harm. He might or might not know that each of these was also a civil wrong (or tort) but it is but it is unlikely that civil liability would be in the forefront of his mind.
The reaction of a lawyer would be more informed but it would not, I suggest, be essentially different. In its ordinary legal meaning 'unlawful' certainly covers crimes and torts (especially intentional torts). Beyond that its scope may sometimes extend to breach of contract, breach of fiduciary duty, and perhaps even matters which merely make a contract unenforceable, but the word's appropriateness becomes increasingly debatable and dependent on the legal context...What was exceptional about it was its extension downwards in the scale of blameworthy conduct. The unlawfulness of criminal conduct was at the top end of the scale, and too obvious to call for mention.[349]
In my opinion your Lordships should clarify the law by holding that criminal conduct (at common or by statute) can constitute unlawful means, provided that it is indeed the means (What Lord Nicholls of Birkenhead in OBG Ltd v Allen [2007] UKHL 21; [2008] 1 AC 1, para 159 called "instrumentality") of intentionally inflicting harm. In Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 171 the sanctions order against Southern Rhodesia was part of the story, but it was not the instrument for the intentional infliction of harm. With great respect to Lord Hoffman (in OBG, at para 57) it is in my view that Shell and BP did not intend, rather than what Parliament did not intend, that is most relevant to that decision.[351]
Having said that I would accept that the sort of considerations relevant to determining whether a breach of statutory duty is actionable in civil suit (Cutler v Wandsworth Stadium [1949] AC 398) may well overlap, or even occasionally coincide with, the issue of unlawful means in the tort of conspiracy. But the range of possible breaches of statutory duty, and the range of possible conspiracies, are both so wide and varied that it would be unwise to attempt to lay down any general rule. What is important, to my mind, is that in the phrase "unlawful means" each word has an important part to play. It is not enough that there is an element of unlawfulness somewhere in the story. (emphasis added).[352]
Caution is nonetheless necessary about the scope of the tort of conspiracy by unlawful means. Not every criminal act committed in order to injure can or should give rise to tortious liability to the person injured, even where the element of conspiracy is present. The pizza delivery business which obtains more custom, to the detriment of its competitors, because it instructs its drivers to ignore speed limits and jump red lights (Lord Walker in OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1, para 266) should not be liable, even if the claim be put as a claim in conspiracy involving its drivers and directors. And - as in relation to the tort of causing loss by unlawful means inflicted on a third party - there is a legitimate objection to making liability 'depend upon whether the defendant has done something which is wrongful for reasons which have nothing to do with the damage inflicted on the claimant': per Lord Hoffman in OBG Ltd v Allan, at para 59.[360]
A person has a right to advance his own interests by lawful means even if the foreseeable consequence is to damage the interests of others. The existence of that right affords a just cause or excuse. Where, on the other hand, he seeks to advance his interests by unlawful means he has no such right. The position is the same where the means used are lawful but the predominant intention of the defendant was to injure the claimant rather than to further some legitimate interest of his own. That is because in that case it cannot be an answer to say that he was simply exercising a legal right. He had no interest recognised by the law in exercising his legal right for the predominant purpose not of advancing his own interests but of injuring the claimant. In either case, there is no just cause or excuse for the combination.[370]
That means in practice that the illegality will be under some statutory provision which does not create a cause of action against any of the conspirators or else by virtue of it being a common law crime. This is for two reasons likely to be a very unusual situation. The first is that if there is illegality under some statutory scheme which does not create a right of action against any conspirators, that is most likely to mean that parliament did not intend there to be such a right of action. In the Total Network case Lord Hope and Lord Neuberger thought that the statute provided a complete and exclusive scheme for creating liability to pay VAT and that one could not bring someone else within the net by invoking the law of conspiracy.[371]
737 Taxi Apps alleged that in about July 2013 the Uber Entities (or one or more of them) obtained a list of contact information for drivers who were using the GoCatch App at that time. The Driver List is said to have been the product of skill and effort by Taxi Apps, confidential and commercially valuable to it. It is alleged that Uber, who understood the value of the Driver List, obtained and used it for its own commercial purposes - to recruit drivers to work on its platform - in circumstances importing an obligation of confidence. Taxi Apps alleged that Uber breached these circumstances in an act of 'industrial espionage' against GoCatch.
738 Uber did not ultimately contest that it obtained the Driver List and that it used a software program known as a 'proxy' to do so, intercepting electronic communications that occurred between the GoCatch app and the GoCatch application programming interface (API) to manipulate the API and extract the Driver List. Uber argued that the Driver List did not have the necessary quality of confidence because the information contained in it (driver names, contact details and the fact that they were registered GoCatch drivers) was published, albeit in disaggregated form, to GoCatch passengers to facilitate bookings made via the GoCatch App. Riders who received that information were free to use it as they wished and the information was in the public domain. Furthermore, the information in compiled form could be obtained (and was obtained) by 'reverse engineering' using a commercially available product, with little effort. Uber argued it therefore did not receive the information in circumstances importing an obligation of confidence. Taxi Apps maintained that it had sought to guard the confidentiality of the information. It argued that Uber's surreptitious acquisition of the Driver List meant that Uber was not assisted by the principles concerning reverse engineering legitimately obtained, publicly available products.
739 The pleaded case was as summarised above. It is only necessary to add that Taxi Apps alleged that Uber deployed a proxy to intercept electronic communications between the GoCatch App and the GoCatch API. Using intercepted data, Uber ascertained the manner in which the GoCatch App retrieved data for the operation of the app from the GoCatch database, ascertained the information which was available to the app from the GoCatch API, and developed a software program or computer code which enabled the replication of communications made by the GoCatch app to the GoCatch API. Taxi Apps alleged that Uber did so to obtain information from the GoCatch database, including the driver identification number that GoCatch assigned to GoCatch drivers, mobile telephone numbers, ratings, taxi plate numbers and taxi networks with which the drivers were associated, the drivers' names, and to compile the Driver List.
740 Uber said that if contrary to its submissions the basis for the claim was established, the only entity against whom the claim could be made out was Uber Australia. Taxi Apps did not address the question of which entities were sufficiently involved in the alleged breach. For convenience I will for the most part refer to the defendants as 'Uber' in the reasons that follow, however I agree that on the evidence, the relevant entity is Uber Australia.
741 Taxi Apps had initially sought, but did not press, a claim for equitable compensation. In the end, it sought a declaration from the Court that the relevant Uber entities breached the alleged duty of confidence. Uber argued that in the circumstances, making a declaration would be inutile and contrary to authority.
742 For the reasons below, I have found that Uber Australia breached its obligation of confidence as alleged by Taxi Apps, but that there is no basis on which to grant declaratory relief.
743 During the early years of GoCatch's operation, the company focused on recruiting taxi drivers to its platform. Considerable work from GoCatch founders and staff was invested in collecting and compiling the information contained in the Driver List (driver names, contact details and the fact that they were registered GoCatch drivers). In the first two or so years of operating, the co-founders of GoCatch, Campbell and Moorfield, were largely responsible for the task of acquiring drivers. There were no publicly available databases of taxi drivers, so the primary way that GoCatch grew its list of drivers in the first two years was by face-to-face marketing to drivers at taxi ranks. Campbell and Moorfield spent hundreds of hours attending taxi ranks and airport holding bays in Sydney and Melbourne, promoting the GoCatch App to taxi drivers by individually approaching them and persuading them to register to use it. Campbell explained that from around mid-2013, airport operators took steps to prevent GoCatch personnel, among others, from accessing airport holding bays, making it difficult for GoCatch to continue its approach of direct marketing to taxi drivers. Campbell also sought to grow GoCatch's Driver List by contacting taxi networks in various Australian states, requesting access to driver databases. These attempts were largely unsuccessful, except in the case of GM Cabs. GoCatch entered into a Distribution Agreement with GM Cabs in 23 May 2013, pursuant to which GoCatch paid a significant amount to obtain access to GM Cabs' driver information, among other things. Once GoCatch entered into the Distribution Agreement, GM Cabs employees undertook direct marketing on GoCatch's behalf on a daily basis. GoCatch also continued its own direct marketing on a monthly basis, to grow its Driver List. As a result primarily of direct marketing to drivers, the agreement with GM Cabs and word of mouth promotion, by around July 2013, GoCatch had around 15,000 taxi drivers (names and contact details) in its Drivers List.
744 The commercial value of the Driver List arose from the ability to identify and market directly to drivers to recruit them to work for a transport booking platform. Drivers were a valuable resource to a transport booking platform because they enable the platform operator to generate revenue from each trip completed on the platform. Further, the number of drivers affects the value of the platform to passengers (through network effects).
745 Campbell's evidence (which I accept) was that he did not share, and would not have shared, the Driver List with Uber or any of GoCatch's competitors. The information contained within the Driver List which was published to passengers was limited to the particular driver the passenger had booked. Indeed, the information published to passengers was only ever in disaggregated form. Uber's Rohrsheim's internal communications described the information as 'a goldmine' and 'game changing'. Rohrsheim's prompt use of the Driver List to cold call drivers indicates its commercial value to Uber (see further below).
746 The GoCatch Platform included both client-facing and backend components. The backend system comprised of four components:
(a) GoCatch Databases which contained the data required for the GoCatch app to operate, including information about all drivers such as a driver's name, phone number and unique identification number assigned by GoCatch;
(b) a server hosted on Amazon Web Services which hosted the API. The API enabled the GoCatch App to transfer data with the GoCatch Databases;
(c) a backend management tool which enabled the GoCatch App to view data from the databases via the API; and
(d) a customer service platform which could access information from the GoCatch Databases.
747 By July 2013 the GoCatch app operated in the following way. A person could download and install the app on their mobile device and each mobile device was ascribed a unique GoCatch ID. The GoCatch app allowed passengers to open the app, select their destination and order a taxi. The GoCatch server stored the passenger and driver information. The GoCatch App would communicate with the GoCatch servers through a series of 'API requests'. An API request is a message sent to a server asking an API to provide information. This meant that when a passenger opened the GoCatch App, the App would operate by making requests for data from the API server, which would retrieve this information from the GoCatch Databases and provide it to the GoCatch App. The GoCatch server published a number of API endpoints, meaning specific locations within an API that accept requests and send back responses, including locations called 'Retrieve Available Drivers' and 'Retrieve Driver Details'. Accordingly, the information sent from the API to the GoCatch App included a list of drivers in the area of the mobile device, driver locations, contact numbers and vehicle registration.
748 The GoCatch App did not display all of the information to the App user. An App user would see a map of their location and icons representative of taxi drivers in their area. Only after the passenger requested a driver, and the driver accepted the request for point-to-point transport, was the passenger provided with the driver's contact number, name and vehicle registration.
749 From at least January 2012 to April 2017 the information contained in the GoCatch Databases was stored on platforms that could only be accessed by certain authorised people. The taxi driver information (the driver's contact number, name and vehicle registration) could be accessed via the backend manager tool or the GoCatch customer service platform, by GoCatch employees using a unique username and password, which was issued and managed by Jason MacLulich (GoCatch's Chief Technology Officer between July 2011 and December 2014). If users of the backend manager tool or the customer service platform attempted to download or extract driver information in bulk, MacLulich, Campbell and Moorfield would be notified. GoCatch employees were also bound by confidentiality requirements in their employment agreements. Additionally, driver first names and email addresses were stored in GoCatch's password-protected email marketing platform, accessible by a small number of GoCatch employees.
750 A person using the GoCatch App was not required to create or log in to an account to book a taxi through the GoCatch App. As described above, a passenger was provided the particular driver's contact number, name and vehicle registration after the driver had requested the job. That is, some of the information in the Driver List was provided to passengers in disaggregated form.
Circumstances in which Uber obtained the Driver List
751 Former GoCatch Lead Developer Thomas Horn gave evidence that if someone who was not authorised to access GoCatch's IT infrastructure and systems wanted to obtain phone numbers for GoCatch drivers who were using the GoCatch App at a given time, they could obtain that information from the GoCatch Databases by reverse engineering the GoCatch App. This could have been done in one of two ways. First, a person with sufficient IT skills could reverse engineer the code for the GoCatch App by taking the code of the GoCatch App binary on their mobile phone and decompiling that code on another device. If a person analysed the decompiled code, they could then build a new piece of software to imitate the behaviour of the GoCatch App and obtain information, including information contained in the Driver List, from the API server. Second, a person could deploy software, known as a proxy, to sit between the GoCatch App and the API server for the purpose of listening to and recording communications.
752 The evidence establishes (and it was ultimately not in contest) that the information was obtained using a proxy called 'MITMproxy'. MITMproxy allows a user to intercept specific web traffic, modify it before it reaches the intended destination and replay the traffic to a client or server later on. Taxi Apps' expert Shane Bell of NSB Cyber gave evidence about the way the MITMproxy tool could have been used to obtain the Driver List. First, a user with a computer and mobile device may have set up use of a proxy by installing MITMproxy software onto a computer and installing the GoCatch App onto a mobile device. Second, the user would need to use the MITMproxy to generate a 'TLS Certificate' and install it onto the mobile. The TLS Certificate would be required as part of the setup to enable MITMproxy to decrypt communications between the GoCatch App and the API server. A TLS Certificate is a digital document containing cryptographic keys and other information that establishes a secure communication channel between a web server and a party. This Certificate would allow the GoCatch App to 'trust' the MITMproxy software on the computer. Third, the user would need to run MITMproxy on the computer and configure the mobile phone's proxy settings to point towards MITMproxy running on the computer. Once the MITMproxy was set up as described, a user could then open the GoCatch App and browse to the primary screen ensuring that their location settings were turned on to allow the GoCatch App to retrieve nearby driver details. The combination of these actions would start generating communication traffic between the GoCatch App on the particular mobile phone and the GoCatch servers, with MITMproxy sitting in the middle inspecting the traffic data.
753 The MITMproxy could then be used to intercept and modify the communication between the GoCatch App and the GoCatch server to collect more information from the GoCatch Databases. First, the MITMproxy could be used to listen for and record decrypted traffic data between the GoCatch App on the particular mobile device and the GoCatch Databases. A user would then need to understand the flow of data and identify the relevant data parameters required for the mobile App to access the data comprising the Driver List. The required data parameters for the relevant communications from the GoCatch App to the API would return information regarding active taxis in the vicinity of the passenger as determined by their geolocation (taxis) and driver information of available taxis in the vicinity (driver information). By analysing the traffic in the required data parameters, it could be observed that the geolocation data sent from the mobile device to the server could be modified to 'trick' the GoCatch server into believing the GoCatch App being used via the MITMProxy was located elsewhere to the actual location. Next, a user could send a list of GPS coordinates to the API and receive in response taxi data. With that data, a user could develop a software program or computer code to ask the API to return associated driver information for those taxis, performing this collection of information in bulk.
754 Taxi Apps' expert Shane Bell described the MITMproxy as 'a Swiss-army knife' for debugging, testing, privacy measurements and penetration testing. Bell's evidence (which I accept) was that the MITMproxy was not designed to be used or commonly used in the manner outlined above, independently of an overarching objective of testing or debugging. His opinion was that while MITMproxy may be used as outlined above,[375] he would expect its use to be in connection with authorised or legitimate testing or debugging activities.
755 The evidence shows that on 16 February 2013, Rohrsheim emailed Amos Barreto of Uber, asking whether GoCatch's API exposed 'any identifying information' such as a taxi licence plate, phone number or email that 'would help acquire drivers' for Uber. On 5 July 2013, Rohrsheim received an email from one Harrison Conlin (whose status as an employee or otherwise did not appear to have been in evidence) with the subject 'Need more taxi sign ups?' and including a screenshot of the MITMproxy webpage displaying a view of the GoCatch API showing the names of datasets used for the backend of the GoCatch App. The dataset names appeared to reveal information about taxi drivers registered with GoCatch. Rohrsheim thanked Conlin, saying 'Great detective work!' and that he would 'take it from here with our Engineering team'. Roughly 10 minutes later, Rohrsheim messaged Barreto, 'The gocatch API is a goldmine'. Shortly after on 5 July 2013, Rohrsheim emailed Barretto:
Amos,
You could help us out in a big way.
From what I can see, GoCatch is disclosing the mobile phone numbers of all the on-duty drivers.
Could you please tabulate all the contact details for all their drivers [sic] you see in the next 7 days, in each of the cities?
We'll be discreet with how we use it. But we need it. GoCatch is crushing and likely to get funding very soon. We've only recruited 180 taxis so far and have to catch up to their 1000+.
756 On 6 July 2013, Rohrsheim emailed his Uber colleagues Oscar Peppitt and Eddie Dostine:
This is very clever stuff, but something we must never talk about to anybody outside Uber. It's kosher, but it wouldn't look good in public. Remember we do lots of cool stuff at Uber that we can't boast about.
757 On 7 July 2013, Rohrsheim emailed Barreto an email with the subject 'GoCatch PHONE numbers':
I've decided to teach myself a little mitmproxy and python and do this myself.
We now have all their phone numbers. Plan is to call them and say "You were referred to us as a great taxi driver. Would you like to join Uber?".
I matched against our db [database] to see that 6% of GoCatch drivers are on Uber so far.
#gameon
758 Also on 7 July 2013, Rohrsheim emailed Allen Penn of Uber:
....I just got my hands on something game changing - phone numbers of all GoCatch drivers. Haven't decided how to use that. Don't want them to know.
759 On 1 August 2013, Rohrsheim emailed Ryan Graves and Travis Kalanick regarding a 'Sydney strategy #update'. Rohrsheim said that for Uber to meet its Sydney targets, it 'doesn't look like the standard playbook will get us there.' Regarding Uber's need to recruit taxis, Rohrsheim wrote:
I got my hands on a list of all GoCatch driver phone numbers. We are aggressively cold calling (without disclosing how we got their number) and won 56 of their drivers.
760 The evidence is that as at July 2013, Uber used the Driver List to recruit 56 drivers to UberTAXI. It is not clear from the evidence who within Uber assisted Rohrsheim, although it appears that the Engineering team were involved.
761 The evidence of Taxi Apps' forensic expert Owain Stone was that 472 drivers who were registered on the GoCatch Taxi platform prior to 1 July 2013, being the date the Driver List was obtained, subsequently provided trips on the Uber platforms. Taxi Apps appeared to invite the Court to consider that up to 472 of those drivers were recruited by Uber using the access to the Driver List it obtained, which requires Uber to have continued using access to the Driver List beyond July 2013. Taxi ultimately conceded there is also no evidence to conclude that hundreds of drivers were recruited using the Driver List.
762 The equitable jurisdiction to grant relief against an actual or threatened misuse of confidential information has, as its rational basis, an obligation of conscience arising from the circumstances in, or through which, the information was communicated or obtained.[376] Deane J in Moorgate Tobacco Co Ltd v Phillip Morris (No 2) explained that:
Relief under the jurisdiction is not available, however, unless it appears that the information in question has the 'necessary quality of confidence about it' (per Lord Green M.R., Saltman (76)) and that it is significant, not necessarily in the sense of commercially valuable (see Argyll v Argyll (77)) but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff.[377]
763 Australian courts understand there to be four elements which need to be satisfied in order to establish a claim for breach of confidence: (a) the information in question must be identified with specificity; (b) it must have the necessary quality of confidence; (c) it must have been received by the defendant(s) in circumstances importing an obligation of confidence; (d) there must be an actual or threated misuse of the information without the plaintiff's consent.[378]
764 Two issues were in contest: whether the information had the necessary quality of confidence and whether it was received by Uber in circumstances importing an obligation of confidence (elements (b) and (c)). Although they are two separate considerations, quite often these two merge.[379] A defendant to a beach of confidence claim can only have received information in confidence if it was given in confidential circumstances and if the information was capable of being confidential.[380]
Information is 'of a confidential nature' if it is not 'public property and public knowledge' or if it is 'constructed solely from materials in the public domain', then it has been subject to 'the skill and ingenuity of the human brain'.[381] This has been described as a 'fairly undemanding test'.[382]
765 The quality of confidence must be considered against the particular facts of the case.[383] As to the first category (information which is not public) it may be sufficient that information is not freely available, particularly if it is not freely available to competitors of the employer or business.[384] Other considerations include the extent to which the secret is known within a business, how jealously it is guarded, the difficulty to obtain the information from the person or business and whether the information is generally treated as confidential in the relevant industry. As to the second category, the greater the degree of effort, skill, persistence, time or cost associated with obtaining the information, the more likely it is that the information should be regarded as confidential.[385] Both categories of confidential information involve an inquiry into the commercial value of the information.
766 Customer lists and other similar compilations of information put to commercial use have been readily understood to possess the necessary quality of confidence.[386] The value in a customer list is that it is a 'ready and finite compilation of the names and addresses of those who might bring business to the plaintiff[s]' and defendants.[387] Indeed, the Full Federal Court has described a customer list as 'the most obvious example of information of confidentiality of which the courts will secure'.[388] Whether a customer list, or similar list, is confidential or not will depend upon the particular facts of each case.[389] The list will be confidential if its compilation is the result of labour or experience and it is of practical utility.[390] If a list or data set is not 'jealously guarded' this weighs against any finding of the necessary quality of confidence.[391] If a list is readily made available to all employees or may be replicated with minimal effort or skill these factors point to a conclusion of no confidence.[392]
767 Information may lack the necessary quality of confidence where it is used and deployed in such a way that it can be obtained by third parties without extensive effort. This may include circumstances in which a party deals with its information in a manner enabling third parties to 'reverse engineer' the information. The case law understands reverse engineering information as distinct from obtaining information through surreptitious means involving deception. It is instructive to refer to three cases to illustrate these propositions.
768 In Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (Saltman)[393] the plaintiffs owned drawings of tools for the manufacture of leather punches, and the defendants were instructed to manufacture such tools as agents or sub-contractors.[394] The existence of a confidential obligation between the plaintiffs and defendants regarding the drawings was not disputed. It was held that the defendants retained the drawings and used them to create a second set of drawings and tools, and then used the second set of drawings and tools to manufacture and sell large numbers of punches manufactured on their own account. Lord Greene MR distinguished between information obtained directly from confidential drawings (which would be in breach of confidence) and that legitimately derived from reverse engineering information from items made public by the plaintiff (which would not be in breach of confidence). His Lordship held that the defendants' conduct was not characterised as reverse engineering:
The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker on materials which may be available to anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process.
What the defendants did in this case was to dispense in certain material respects with the necessity of going through the process which had been gone through in compiling these drawings, and thereby to save themselves a great deal of labour and calculation and careful draughtsmanship. No doubt, if they had taken a finished article, namely, the leather punch, which they might have bought in a shop, and given it to an expert draughtsman, that draughtsman could have produced the necessary drawings for the manufacture of machine tools required for making that particular finished article. In at any rate a very material respect they saved themselves that trouble by obtaining the necessary information either from the original drawings or from the tools made in accordance with them. That, in my opinion, was a breach of confidence.[395]
769 In Mars UK Ltd v Teknowledge Ltd,[396] Jacob J of the English High Court considered the reverse engineering of encrypted information contained on memory chips used in coin-changing machines (the 'cashflow machine'). Mars developed a data layout, serial communications protocol and encryption system for the Cashflow machine, none of which were published via the cashflow machine or otherwise. Mars intended that what they had done would be difficult but not impossible for a third party to 'crack', i.e. work out how the machine operated. The algorithms used by Mars were unpublished and held within the microprocessor of the machine. While Mars would have liked to make it impossible for third parties to use reverse engineering to crack their cashflow machine, Jacob J observed that it could not be done for a reasonable cost.[397] The plaintiff alleged breach of confidence by a third party who had accessed and reverse engineered the information contained on the memory chips inside the Cashflow machine. Jacob J observed that '[i]n the case of computer programs or chips with stored information the process [of reverse engineering] may not involve physical deconstruction: examination by electronic testing may do'.[398] Jacob J found that the information did not have the necessary quality of confidence because the information was contained in a Cashflow machine that could be purchased by anybody, and anybody with decryption skills could access the information on the purchased memory chip. Moreover, the owner of a Cashflow machine had the full right of ownership and was entitled to dismantle the machine to find out how it worked or arrange for someone with the relevant skills to do so. The 'mere fact of encryption' was not determinative of the information on the memory chip being received in confidence in the circumstances where the product was available on the market to buy by anyone.[399] Jacob J clarified that he was not to be understood as saying that were anyone to steal the information direct from Mars UK, thus saving themselves reverse engineering and de-encryption, they would not be liable for breach of confidence.[400] Indeed, Jacob J observed, '[t]he un-encrypted information remain[ed] confidential in the sense that in that form it has never been published.'[401] His Honour said that if the un-encrypted information were 'illegitimately taken', it could give rise to the 'springboard' type of action for breach of confidence,[402] where 'the law of confidence ... prevents a party from taking a leap forwards by by-passing "special labours in respect of the product in order to discover its secret".'[403]
770 In Cray Valley Ltd v Deltech Europe Ltd,[404] Cray Valley, the largest UK company in the resin business, made a claim for breach of confidence against Deltech Europe Ltd, a UK subsidiary of a resins manufacturer.[405] The case concerned Deltech's manufacture of resins at a factory that several businesses had used to manufacture resin over decades. In 1999, the Borden company purchased the previous business that had been operating at the site. Then in 2000, Cray Valley bought the Borden coating and structural resin business. Cray Valley did not buy the site or the resin-making equipment and the Borden employees were told they would be made redundant after a three-month transitional period. During the transitional period, copies of manufacturing formulations and ingredients and all the business documentation about ongoing contracts and customers were supplied to Cray Valley. The ex-Borden employees assisted Cray Valley in all ways they were asked. Left on the site (previously used by Borden) in two obvious places (the production manager's office and the manufacturing room) were copies of the batch records of past manufacture and manufacturing instructions, containing what Cray Valley alleged were trade secrets. The defendant, Deltech, took over the site a few weeks after the transitional period ended. The defendant engaged many ex-Borden employees,[406] none of which had any restrictive covenants in their contracts of employment precluding them from any activities post-employment, nor any express provisions relating to trade secrets of confidentiality. None of these people were ever told that any of the recipes being used by Borden, or its predecessor, were trade secrets of confidential. None of the recipes said to be confidential were marked as such and no attempts were made to limit access to them. Nor were any attempts made to conceal the ingredients, which were not special or unusual ingredients for the industry. The formulations sued upon were two standard alkyds used in the paint industry. The confidential information was said to be the ingredient and recipe information. The basic recipes for making all of the resins concerned were old and widely available. The effect of all the additive chemicals used in the coating resins in the case was 'well-known and predictable' and his Honour was satisfied that the technology in question formed 'part of the common general knowledge of an alkyd chemist'. His Honour noted that competition between manufacturers in the industry was essentially price and delivery, rather than difference between their resins.
771 Jacobs J was satisfied that the information in question, in the hands of an 'ex-Borden team' was not confidential because '[s]o much was published, so much was second nature to the team, so much of the recipes were not critical and were so easy to reverse engineer, that a man of conscience would not say "here is a specific trade secret which I may not use".'[407] Accordingly, the action for breach of confidence failed against all defendants.[408] In a 'marginal' case such as this, where the information in question was too much in the public domain or 'within the general knowledge of the skilled ex-Borden man', Jacob J held that it is critical that the recipient of the information be told it is confidential.[409] This is because 'unless the information is obviously confidential', whether thanks to its significant value or the circumstances in which it was imparted, the law will not protect it as a trade secret.[410] It should be observed that this judgment concerned circumstances determining an employer's attitude to information, what can be said of the conscience of employees who receive information in the course of employment and what courts have understood as 'the employee's ordinary stock of acquired knowledge skill and experience which he is free to use for his own purposes after the termination of his employment'.[411]
772 Taxi Apps submitted that the Driver List held the necessary quality of confidence for these reasons:
(a) The Driver List was like a customer list as discussed in the authorities, being a compilation of commercially useful information that was created by the application of consideration effort and skill by GoCatch personnel. It was commercially valuable to GoCatch or a competitor in the ability to identify and market directly to drivers, to grow or maintain the availability of drivers (liquidity) on the relevant platform. Rohrsheim regarded the list as game changing for Uber's operations in Australia, and Uber understood the importance of the supply of drivers (liquidity) and its interaction with network effects. Indeed, Uber using the Driver List to contact GoCatch drivers to recruit for the Uber platform was evidence of that.
(b) Taxi Apps applied protections around its information constituting the Driver List. Within the GoCatch business the information was protected by access and identity management protocols. Passengers did not receive the information until a driver accepted a request for a trip and the list was never published in aggregated form.
(c) Uber had to go to some effort to obtain and compile the list. Taxi Apps relied on the evidence as summarised above.
(d) Uber's obtaining of the Driver List is properly characterised as 'trickery', not reverse engineering. Uber's conduct was akin to theft, eavesdropping on a private conversation, or invading privacy by long-range lens photography. Horn's evidence was that a proxy could be used to 'trick' the GoCatch IT infrastructure. It was neither easy nor conventional to obtain information through the use of a proxy. The steps required to deploy the tool, as explained by Bell, clearly required a deliberate pursuit by Uber of GoCatch's confidential information. There was a difference between 'reverse engineering' in Mars UK, when the customer is the intended recipient of the article which is taken apart, and using a covert means to obtain the information. Accordingly, the reverse engineering authorities relied on by Uber do not assist where the product or thing containing the information has not been legitimately obtained in the first place.
(a) The information lacked the necessary quality of confidence because GoCatch did not relevantly guard its data but in fact published it in disaggregated form with no protections. Taxi Apps' manner of dealing with the Driver List was inconsistent with its claimed confidentiality. GoCatch was transmitting the information, via Information Packets, to the GoCatch App in circumstances where there was no requirement for users to log in. GoCatch did not 'jealously guard'[412] the data it sent to the GoCatch applications including driver details. As observed in Cray Valley, the law will not intervene where the alleged owner of the trade secret does not bother to protect it.[413]
(b) Taxi Apps published the Driver List in disaggregated form for the purpose of being provided to passengers. Riders were free to use the 'driver contact information' as they wished, so in effect that information entered the public domain. In the circumstances, the compilation aspect of the information was not material. The customer-list authorities cited by the plaintiff on the commercial value of compilations of commercial information had to be read in a specific context - that they did not involve circumstances where the fact that the customer was a customer of that company was already in the public domain. The compilation did not add anything material given that what was made public was the fact that a particular driver was a GoCatch driver, and that information was already published to riders. Further, GoCatch were making available the compilation in such a way that it could be reverse engineered.
(c) It was readily possible to reverse engineer the Driver List from the Information Packets sent to the GoCatch App. MITMproxy allows data of this kind to be disclosed. Uber's use of a proxy is to be understood as straightforward reverse engineering, by reference to Mars UK and to Cray Valley, which distinguishes between straightforward reverse engineering where confidentiality is lost and complex reverse engineering which may result in retaining the confidentiality of the information. Uber's evidence was that the information could be reverse engineered without significant IT skills or expertise. Indeed, Rohrsheim and others did this easily. Consistently with Cray Valley, the 'reverse engineering' of the Driver List was not complex, so the Driver List lacked the necessary quality of confidence and attendant binding of the recipient's conscience.[414]
(d) Customer lists are not always protected if deployed in circumstances enabling them to be obtained by third parties without extensive effort, preventing the information having the necessary quality of confidence. This is particularly so where a party deals with the information in a manner enabling third parties to readily reverse engineer it, either because the information is not 'jealously guarded' or may be replicated without significant skill, as happened in IF Asia Pacific.
774 I consider, for the following reasons, that the information had the necessary quality of confidence.
775 The Driver List was a compilation of information of significant commercial value to the rideshare and taxi industries because it could be used to recruit drivers, one of the two essential resources for two-sided transportation networks. The List was in fact put to that use.
776 The List was the product of labour and the expertise of Taxi Apps' founders in the then nascent industry. It was the product of an intense relationship-building exercise on the part of Taxi Apps.
777 Upon acceptance by a driver of a trip booked through the GoCatch App, the details of individual drivers were published to the particular passenger However, the subject information was the compiled list. Its value lay in the fact that it was a compilation. Taxi Apps did not ever published the Driver List in its compiled form.
778 Between about January 2012 and April 2017, the compiled information was stored on internal GoCatch Databases that were protected by access and identity management protocols. There were weaknesses in those protections. Because GoCatch transmitted the disaggregated information to the GoCatch App in circumstances where there was no requirement for users to log in, the App was vulnerable to being used as the door through which to extract information in compiled form from the Databases.
779 The compiled List was obtained by Uber using a MITMproxy to replicate calls from a device to the GoCatch server for driver locations and information for all possible geographical points. As discussed, Uber's use of a proxy was simple enough for a person without IT qualifications to implement. It did require skill and application though. The process was one of intercepting and modifying the communication between the GoCatch App and the GoCatch server, listening for and recording decrypted traffic data, understanding and analysing the flow of data.
780 The law does not requires for information to be 'jealously guarded' that it must be protected by impenetrable security measures.[415]Bell's evidence is that the MITMproxy is not designed to be used or commonly used as it was by Uber. A MITMproxy could be expected to be used in connection with authorised or legitimate activities. As such, I place emphasis on the evidence that a proxy is a tool commonly used for debugging, testing, privacy measures and penetration. I conclude that Taxi Apps' protections were imperfect but they were not unreasonably so. The protections applied by Taxi Apps to the Driver List lead to the conclusion that the List was treated as confidential by GoCatch.
781 The information contained in the Driver List was not information that at some point in time had been in Uber's possession.[416] Uber's reliance on case law[417] arising from an employment context whereby the defendant reconstructed information or used information obtained through an employment context[418] did not assist in circumstances where Uber first came into possession of the Driver List through surveillance and use of a proxy beyond its intended purpose. For Uber to have compiled the Driver List without the use of a proxy, the task would have expended resources and effort.
782 There is a distinction between information obtained directly from confidential documents or data and information legitimately derived from reverse engineering an item made public.[419] Reverse engineering is the process of taking things apart to understand how they work.[420] The rationale for permitting reverse engineering (with the conclusion that it does not entail a breach of confidence) is that it requires skill, effort and expertise.[421] It is not reverse engineering to shortcut the effort involved in producing an article or illegitimately take information about the article to use it as a springboard to commercial advantage.[422] Uber's use of the poxy to derive the Driver List did not require particular skill, effort or expertise. Uber did not legitimately purchase or obtain an article or service from GoCatch and then compile the Driver List through the application of labour. Uber exploited weaknesses in GoCatch's security to access the Driver List. I do not accept that Uber's conduct can be characterised as permissible reverse engineering in the relevant sense.
Circumstances importing an obligation of confidence
783 Regardless of whether the information is secret or confidential, 'there can be no binding obligation of confidence if that information is 'blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential.'[423] In Coco, Megarry J applied a 'reasonable man' test[424] which was subsequently applied by Jacob J in Mars UK.[425] Megarry J states the test in this way:
It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then that should suffice to impose upon him the equitable obligation of confidence.[426]
784 In Del Casale v Artedomus, it was said that that test involves determining whether the relevant information was imparted in circumstances where 'a reasonable person must have realised, on reasonable grounds, that he or she was not free to deal with the information as his or her own, or must have realised that he or she could only deal with the information only within certain limitations'.[427] A duty of confidence may arise where there is not a pre-existing relationship of trust and confidence such as in an employment relationship.[428] One example is when an obviously confidential document, such as a private diary, is left in a public place and then picked up by a passer-by.[429] Or, as was put in this case, where a person innocently comes into possession of a confidential file left inadvertently on a bus.
785 Equity will restrain publication of confidential information improperly or surreptitiously obtained.[430] Gummow J observed in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services & Health:
In Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50, Mason J adopted the statement of principle by Swinfen Eady LJ in Lord Ashburton v Pape [1913] UKLawRpCh 80; [1913] 2 Ch 469 at 475, that a court of equity will 'restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged'. It will be observed that in that formulation, confidential information improperly or surreptitiously obtained, on the one hand, and information imparted in confidence, on the other, are treated as two species of the same genus. This accommodates, within the general rubric of the equitable jurisdiction, cases of eavesdropping or theft, for example, Franklin v Giddins...[431]
786 Australian courts continue to cite High Court authority Franklin v Gidins[432] on the relevance of information being unconscionably obtained.[433] In Franklin, the plaintiffs had an orchard where they grew unique nectarines. The defendant stole cuttings from the plaintiff's orchard as well as trespassed upon it. The defendant argued that the cuttings were not 'information confidentially imparted' and therefore no obligation of confidence deserving protection arose.[434] Dunn J said:
I find myself quite unable to accept that a thief who steals a trade secret, knowing it to be a trade secret, with the intention of using it in commercial competition with its owner, to the detriment of the latter, and so uses it, is less unconscionable than a traitorous servant. The thief is unconscionable because he plans to use and does use his own wrong conduct to better his position in competition with the owner, and also to place himself in a better position than that of a person who deals consensually with the owner.[435]
787 As to the relevance of protections applied to the nectarine orchard, Dunn J continued:
It is true that the plaintiff's orchard was not surrounded by an electric fence nor patrolled by guard-dogs, but I consider that the plaintiffs were entitled to rely on the fact that other people could normally be expected to respect their rights of property.[436]
788 In Mars UK, Jacob J considered what he referred to as the 'second requirement', that of communication in circumstances importing an obligation.[437] Should the examiner encounter encrypted information, the question is whether the encrypted information ought to be understood as confidential. Jacob J observed:
As pure matter of common sense I cannot see why the mere fact of encryption makes that which is encrypted confidential or why anyone who de-encrypts something in code, should necessarily be taken to be receiving information in confidence. He will appreciate that the source of the information did not want him to have access, but that is all. He has no other relationship with that source. Nor do the circumstances have an analogy with eavesdropping or secret long-lens photography (see Laws J in Hellewell v Chief Constable of Derbyshire [ 1995] I WLR 804 at 807) or telephone tapping. In that sort of case the snooper not only knows he is prying into other people's business but he has used some surreptitious means to do so. There is nothing surreptitious in taking a thing apart to find out how it is made.[438]
789 I pause here to note that Jacob J's observations were made in the context of an article that was publicly available for purchase, where 'the recipient (the customer) is the intended recipient of the article containing the information'.[439] The observations were made in regard to de-encryption as a form of reverse engineering, as opposed to decoding (transforming encoded data into its original form).
790 To summarise, the relevant question is whether the circumstances of the communication would lead a reasonable person standing in the shoes of the recipient to realise that upon reasonable grounds, that information was imparted in confidence. It may be that the character of the information is sufficient to answer this question, or it may be that the circumstances of the communication to the recipient indicate to a reasonable person that the information is confidential. One relevant consideration is that it would not be reasonable or logical for a recipient of information to deliberately close their eyes to an obligation of confidence on the grounds that the information was easy to obtain. Just as it would not be reasonable for a person to conclude that an unlocked private property is theirs to access,[440] it is unlikely to be reasonable for a person to conclude that information obtained through eavesdropping on a private conversation or surreptitiously logging into a competitor's online system may be freely accessed and used. Another is that on its own, the fact of encryption does not imply an obligation of confidence. This obligation should be understood in the context of the relationship between the parties, the nature of the information which may override the relevance of encryption in balancing and understanding the circumstances of the communication.
791 Taxi Apps submitted that the circumstances in which the Driver List was obtained would have made clear to a reasonable person in Uber's position that it was not free to deal with the information as its own:
(a) Uber knew its commercial value, as its emails revealed. It understood that what it was doing was akin to stealing - taking information that was not intended by Taxi Apps to be in the public domain by deliberately using tools not ordinarily used for that purpose, to gain a commercial advantage.
(b) The absence of relevant protections on the information comprising the Driver List has limited relevance when the information was obtained surreptitiously.
(c) Uber's submission, to the effect that a reasonable person would have thought they were free to deal with information intercepted between the GoCatch Application and API as if it was their own information, should be viewed as evidence of Uber straying far from the norms of acceptable commercial behaviour.
792 Uber submitted that the driver information was not obtained in circumstances importing an obligation of confidence for these reasons:
(a) There was no express obligation of confidence. The terms and conditions applying to the use of the GoCatch Application are in evidence and did not include any notice that the information being sent or received was confidential. The relevant test is therefore whether the position of a reasonable person in the position of Uber would have understood the information was obtained in circumstances importing an obligation of confidence.
(b) The evidence as to data transfer between the GoCatch Databases and GoCatch Application does not establish that Rohrsheim and others at Uber, or a reasonable person in the same position, ought to have inferred that the driver information being sent to and from the GoCatch Application was confidential. There is no evidence of any security being applied to the transmission of the information. To apply a physical analogy, Uber's conduct is more akin to eavesdropping on a public conversation than a private one. Relevantly, the information could be readily reverse engineered, such that it destroyed any character of confidentiality. It followed that 'there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential'.[441]
(c) In both an objective test and a subjective test, applied to Rohrsheim, it should be found that, in all the circumstances, no obligation of confidentiality arose. The contemporaneous documentation demonstrates that the Uber Entities did not understand the information to be confidential or that they were unable to use it. Uber submitted that Rohrsheim understood that GoCatch was 'disclosing' the driver information and that its use was 'kosher'. The second element of Mars UK[442] says that it is not enough to put someone on notice, by encrypting data, that a company was not intending for people outside the company to access the information. Mere notice of confidentiality is not sufficient to import an obligation because it does not give one notice of the kind of protections the plaintiff is otherwise applying to the information or the plaintiff's attitude to the information. Rohrsheim's perception that no obligation of confidentiality arose would have been shared by a reasonable person in the same position.
793 I consider that the Driver List was obtained in circumstances importing an obligation of confidentiality. A reasonable person in the position of Uber Australia, through its employees, would have realised on reasonable grounds that it was not free to deal with the information as its own. I draw that conclusion from the character of the information and from how it was obtained.
794 As to the character of the information, objectively, for the reasons given earlier, it was of substantial commercial value to companies in the position of Taxi Apps and Uber. It was the fact that Uber Australia (whose state of mind can be taken to be that of its director and senior executive David Rohrsheim) regarded the information in that way. Contemporaneous communications reveal that Rohrsheim considered the Driver List to be very valuable. Rohrsheim asked for the information comprising the Driver List because he believed it would 'help [him] acquire drivers' for Uber. When Rohrsheim received the information he messaged colleague Barreto 'The gocatch API is a goldmine'. Later in an email sent from Rohrsheim to colleagues regarding Uber's 'Sydney strategy', Rohrsheim noted that in respect of the taxi supply issue faced by Uber, he had obtained a list of all GoCatch driver phone numbers and Uber was now 'aggressively cold calling [drivers] and had won 56 drivers'. The commercial value associated with the Driver List was clearly the motivation for obtaining it.
795 The resource represented by the Driver List had a quality of scarcity in the sense that drivers were a critical resource and their contact information identified them as persons who were available for and interested in driving for a ridesharing operation. On the evidence considered elsewhere in the Reasons, 'supply' - of which available drivers were the critical element - was a resource in demand and the subject of intense competition. A reasonable company in the position of Uber Australia would conclude that it was not free to deal with the information as its own and that Taxi Apps would not consider it to be public information. The fact that Taxi Apps published driver contact details to its passengers in disaggregated form would not disabuse a reasonable person of that conclusion.
796 As to the means by which the information was obtained, Uber used a proxy to access the GoCatch Database. Taxi Apps characterised Uber's conduct as 'tricking' the GoCatch server to provide one device all driver information comprising the Driver List. Uber characterises its conduct as constructing the Driver List from publicly available information using ingenuity and a freely available online tool, a proxy. A proxy is a tool that can be freely accessed online and a user can teach themselves how to deploy it without specialised skills. However, in a usual commercial setting a proxy is deployed for debugging and testing. I consider that a reasonable person using a proxy would understand that using the tool to intercept an external network hosting a competitor's data is not its standard use; it is conduct outside of normal commercial behaviour. It would be reasonable for a company to expect that a competitor would not use a proxy to obtain commercially valuable information from its databases. A company's use of a proxy, outside of its intended purpose, to obtain commercial information with the intention of putting itself in a better position than that of a person who deals consensually with its owner has a character of unconscionability.[443]
797 Upon obtaining the Driver List, Rohrsheim emailed his Uber colleagues:
This is very clever stuff, but something we must never talk about to anybody outside Uber. It's kosher, but it wouldn't look good in public. Remember we do lots of cool stuff at Uber that we can't boast about.
798 Rohrsheim's email reveals that he considered Uber's conduct to be outside of the bounds of normal commercial behaviour. Uber asked the Court to draw from Rohrsheim's email, and other contemporaneous evidence, that Uber considered the conduct to be 'kosher' - not honourable, but falling short of contumelious disregard for someone's rights. The submission was, as I understand it, directed primarily to the claim by Taxi Apps for exemplary damages. In my view the content of that email evidences Uber Australia's awareness of, and its judgment that, obtaining the Driver List was not consistent with acceptable industry behaviour. The descriptor 'kosher' was self-justifying. The email evidences that Rohrsheim knew that it 'wouldn't look good in public' if Uber were found to have secretly obtained a competitor's data. This begs the question, why would the conduct not look good? It may be implied from the content and tone of the email that it was understood that the conduct would be regarded by reasonable people as falling short of acceptable commercial behaviour, and as morally suspect. That is all consistent with the conclusion that a reasonable person in the circumstances would understand that they were not free to deal with the information as their own.
799 Taxi Apps initially brought a claim for compensation. It now seeks only a declaration that the Uber Entities ('or one or more of them') breached a duty of confidence owed to Taxi Apps.
800 This Court has power to grant declaratory relief - both inherently[444] and under s 36 of the Supreme Court Act 1986 (Vic). The grant of declaratory relief is discretionary.[445]
801 It is accepted that the discretion should be exercised sparingly and that judicial pronouncements ought not to be issued unless there are circumstances that call for their making.[446] A bare declaration of past wrong, with no present or foreseeable consequences, and of doubtful utility to the party seeking the declaration, is only made in rare circumstances.[447] Courts tend to distinguish between proceedings that are instituted to vindicate statutory rights or norms of general application from other proceedings.[448] In cases of the former, the Court has been thought to be more amenable to declaratory relief because it services to record the Court's disapproval of conduct that contravenes a public right or because it might have some wider educative effect.[449] There may be circumstances in which it is appropriate to mark the Court's disapproval of conduct or to achieve a broader educative or deterrent effect, but it will be doubtful that a declaratory order is appropriate where the order amounts to little more than a record of the conclusion obtained by the Court's judgment, understood by its reasons for judgment.[450]
(a) It is appropriate for the Court to mark its disapproval with a declaration. While GoCatch is no longer trading, there is utility in the Court recording its disapproval of egregious conduct by Uber given it is a large business that continues operate in Australia and globally.[451]
(b) In his personal performance review, Rohrsheim boasted that he had 'infiltrated limo and taxi databases to recruit hundreds of drivers' and that 'detest' for competitors motivated him to 'build relationships with investors, politicians and potential employees to hurt [competitors'] development'. The performance review indicated 'fierceness' and the type of conduct undertaken by Rohrsheim is indicative of strong professional performance in line with Uber's business strategy. In other words, conduct of that kind was woven into the corporate culture.
(c) The is no evidence that Uber stopped using the Driver List. It is not open to infer that Uber went to the effort of obtaining the Driver List, in circumstances where Uber acknowledge the information was important and commercially valuable, then stopped using it three weeks after it was obtained. That is, the evidence does not support Uber's de minimis use of the information.
802 Uber submitted that no relief in relation to the alleged breach of confidence should follow because 'bare declarations' should not be made. Its submissions were as follows:
(a) There would be no utility in the Court making a declaration in circumstances where the events occurred more than 10 years ago and the plaintiff is no longer trading, so a declaration would not produce foreseeable consequences for the parties.
(b) The fact Uber is still trading does not inform the question of utility as there is no evidentiary foundation for the proposition that the use may have continued some time into the future or that conduct of this kind is ongoing, and Rohrsheim is no longer employed by Uber entities. There are only two documents that the plaintiff relied upon regarding use of the Driver List. The first is the email from Rohrsheim stating he has won 56 drivers, and the second is a performance review from 2013 where Rohrsheim's review may be read as a self-aggrandising statement. Taken at its highest, the Stone evidence on the Driver List shows some drivers worked across both Uber and GoCatch platforms. Drivers were able to operate across multiple platforms so any driver crossover cannot be attributed to Uber's cold calling efforts.
(c) There is no evidence that Uber's conduct led to Taxi App losing drivers to Uber. Rather, the highest the evidences rises is Uber gained 56 drivers from using the Driver List.
803 I do not consider that there is a proper basis upon which to exercise my discretion to make the declaration that Taxi Apps seeks.
804 Generally speaking, caution should be exercised if the grant of a declaration will not produce any foreseeable consequences for the parties beyond that which will flow from the pronouncement of judgment by the Court.
805 The fact is that Taxi Apps no longer operates its business. The ability of GoCatch passengers to book a trip on the GoCatch App was disabled in around February 2021 and Taxi Apps effectively ceased to operate. The relevant Uber entities are still in operation. They are a commercial presence in Australia and internationally. However, this particular incident was, although wrong and deserving of opprobrium, relatively confined in its scale and reach. It may be contrasted in its scale and reach with the pervasive and systemic unlawful conduct of the Uber Entities more generally in launching UberX in the Australian states when it was illegal to do so. That conduct was not the subject of the claim for breach of confidence.
806 The findings of fact sought by Taxi Apps are recorded in these Reasons, as is the conclusion that Uber Australia engaged in a breach of confidence. That finding should serve an educative and deterrent purpose. The conduct of Uber Australia was wrong and unconscionable in the ways discussed; it was neither honourable nor commercially acceptable. This judgment by a superior Court marks the Court's disapproval and condemnation of that conduct by the standards of the law and by extension, the community.
UBER INTERNATIONAL HOLDING B.V. (RSIN 851 929 357)
UBER PACIFIC HOLDINGS PTY LTD (ACN 609 590 463)
[1] For several purposes it is necessary to distinguish between the Uber entities who are the first to seventh defendants. For convenience only, the terms 'Uber' and 'Uber entities' are used. Differentiation between the entities will be addressed later in these Reasons.
[2] Ridesharing (also known was 'peer-to-peer ridesharing or 'P2P') is a form of passenger transport in which the passenger determines the pickup and time and location and destination by requesting a trip which is accepted by a driver, via an app downloaded onto a smart phone and used by both passengers and drivers. Uber's ridesharing service was facilitated by drivers and passengers contracting with one or other the Uber entities.
[3] These concepts are explained later in these Reasons.
[4] Taxi Apps traded under the business name 'GoCatch'. To avoid confusion, unless the context otherwise indicates the company and business is described here as 'Taxi Apps'. Contemporaneous correspondence and parts of the evidence use the terms 'GoCatch' and 'Taxi Apps' interchangeably.
[5] Uber Australia Pty Ltd v Adrianakis [2020] VSCA 186, [31] (Andrianakis).
[6] Lee v Ebedian (2016) 1 Qd R 549, [70]-[71] (Ebidian); Maritime Union of Australia v Geraldton Port Authority [1999] FCR 34, [421] (MUA v Geraldton).
[7] Like allegations of intentionally assisting, encouraging or directing the commission of the offences with relevant states of mind are also made.
[8] 'Lawful Suppliers' is defined as the defined and limited group of persons who met the legal compliance requirements for vehicles, drivers and operators. It is alleged that the effect of the requirements was that only a limited number of individuals could and would meet the driver or operator requirements and only a limited number of vehicles would meet the vehicle compliance requirements. Lawful suppliers thus had the advantage of being the exclusive providers of point to point passenger transport services in the relevant States.
[9] The nuances of intention case are explained later in these Reasons.
[10] Taxi Apps made no concession in respect of the other defendants. Its case about their respective intentions (and its alternative cases on intention) are described later in these Reasons.
[11] Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169, [7]-[12] (Dresna FC) and the authorities there cited.
[12] This issue is addressed later in these Reasons.
[13] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171.
[14] McWilliams v Penthouse Publications Ltd [2001] NSWCA 237, [17] (McWilliams v Penthouse).
[15] Uber Inc is, and since 16 July 2010 has been, a body corporate registered in the State of Delaware, United States of America.
[16] Uber Black was launched in New South Wales on 19 October 2012, in Victoria on 3 January 2013 and in Western Australia on 21 May 2014.
[17] UberTAXI was launched in New South Wales in June 2013 and not in the other Australian states.
[18] Before the 2015 restructure which introduced the 6th and 7th defendants to the Uber group of companies.
[19] Uber BV is, and since 24 October 2012 has been, a private limited liability company chartered in the Netherlands.
[20] Uber Australia is, and since 11 September 2012 has been, a body corporate registered under the Corporations Act 2001 (Cth).
[21] Rasier Operations is, and since 3 February 2014 has been, a private company chartered in the Netherlands.
[22] Uber Holding is, and since 4 September 2012 has been, a private company chartered in the Netherlands.
[23] Uber Pacific Holdings BV and Uber Pacific Holdings Pty Ltd are, and since 21 December 2015 have been, the partners in a partnership within the meaning of Art 7A: 1655 BW, registered in the Netherlands and known as Rasier Pacific.
[24] The directorships noted here were held throughout the relevant periods unless stated otherwise.
[25] Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch) (Digicel).
[26] Taxi Apps' submissions are taken up further in the analysis below.
[27] Citing Lagunas Nitrate Co. v Lagunas Syndicate [1899] UKLawRpCh 97; [1899] 2 Ch 392, 431_._
[28] O'Brien v Dawson [1942] HCA 8; (1942) 66 CLR 18, 32 (per Starke J), Williams J agreeing at 41, Rich J agreeing at 26 (O'Brien v Dawson).
[29] O'Brien v Dawson [1941] NSWStRp 39; (1941) 41 SR (NSW) 295, 308 (O'Brien v Dawson NSWSC).
[30] LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 (LMI Australasia).
[31] Copperweld Corp v Independence Tube Corp [1984] USSC 137; 104 S.Ct. 2731 (1984) (Copperweld).
[33] Citing for example, Salomon v A Salomon & Co Ltd [1897] AC 22 (Salomon v Salomon) to the effect that the corporate veil will not protect a fraudulent person hiding behind a corporate structure.
[34] Citing DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852.
[35] See for example, Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 189 (Lonrho).
[36] Talacko v Talacko (2021) 272 CLR 678 (Talacko).
[38] Mulcahy v The Queen [1868] UKLawRpHL 15; (1868) LR 3 HL 306, 317; see also as applied in the civil case of Beach Petroleum NL v Johnson (1993) 43 FCR 1, 19 (Beach Petroleum, a civil case of conspiracy by unlawful means).
[39] Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30, 122 (emphasis added) (Williams v Hursey).
[40] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 93 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ) (Ahern).
[41] See, e.g., _Revenue & Customs Commissioner v Total Network S_L [2008] UKHL 19; [2008] 1 AC 1174, 1234 (Lord Hope) (Total Network).
[43] Ahern, 94, citing R v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387, 400 (Northern Collieries)
[44] Beach Petroleum, 19 (and the authorities there cited); Andrianakis, [31] citing Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537, 24 [99] (Dresna).
[48] Ahern, 94, citing Northern Collieries, 400.
[49] See Baxter v Obacelo Pty Ltd (2001) 205 CLR 365, [18]-[19].
[50] Caterpillar Inc v John Deere Ltd [1999] FCA 1503; (1999) 48 IPR 1.
[51] Caterpillar Inc v John Deere Ltd [1999] FCA 1503; (1999) 48 IPR 1, [22]-[25], citing Unilever plc v Gillete (UK) Ltd [1989] 48 APR 1, 608-9.
[52] Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748; (2012) 293 ALR 272; referred to with approval in Australian Mud Co Pty Ltd v Globaltech Corp Pty ltd (No 3) [2022] FCA 1189; (2022) 169 IPR 1, [206]-[207].
[53] Varangian Pty Ltd v OFM Capital Limited [2003] VSC 444, [142], citing Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1, 6; Industrial Equity v Blackburn [1977] HCA 59; (1977) 137 CLR 567.
[55] Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1, 6; Industrial Equity v Blackburn [1977] HCA 59; (1977) 137 CLR 567.
[56] John Shaw & Sons (Salford) Ltd v Shaw [1935] 2 KB 113, 134.
[57] Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 (Burrows).
[58] Burrows, [125]-[126] (Leeming JA).
[59] Varangian v OFM Capital [2003] VSC 444, [142]. See also James Allsop, 'Piercing the Corporate Veil: Recent International Developments' (2023) 33 JBFLP 200, 206, in which it is observed that a common feature of the case law and academic literature on 'piercing the corporate veil' (itself a metaphor rather than a statement of principle) is a recognition that the Salomon doctrine extends to corporate group structures including wholly owned subsidiaries.
[60] Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 (Briggs), 577 (Rogers JA, Hope and Meagher JJA concurring).
[61] Briggs, 568 (Rogers JA, Hope and Meagher JJA concurring). See also James Hardie & Co v Hall (1998) 43 NSWLR 554, 583 (Sheller JA, Beazley and Stein JJA agreeing) (citations omitted) (James Hardie v Hall); adopted in Burrows, [124] (Leeming JA, Meagher and White JJA agreeing); adopted in Al‑Sennag v Statewide Roads Ltd [2008] NSWCA 300, [41] (Tobias JA, Beazley and Bell JJA agreeing).
[62] See, e.g. Briggs, 556 (Meagher JA).
[63] Briggs, 575, citing United States v Milwaukee Refrigerator Transit Co 142 F 247 (1905), 255. More generally on 'veil-piercing' See, e.g. James Allsop, 'Piercing the Corporate Veil: Recent International Developments' (2023) 33 JBFLP 200.
[64] See Prest v Petrodel Resources Limited & Ors [2013] UKSC 34 (Prest).
[66] ACN 007 528 207 Pty Ltd v Bird v Cameron (Reg) [2005] SASC 204; (2005) 91 SASR 570, 592 [96].
[67] See O'Brien v Dawson, 27 (Starke J); O'Brien v Dawson NSWSC, 296, 297, 309-310.
[70] O'Brien v Dawson NSWSC, 308 (citations omitted).
[72] Northside Developments Pty Ltd v Registrar General and Ors [1990] HCA 32; (1990) 170 CLR 146, 171-172 (Brennan J).
[73] Reg v Goodall (1975) 11 S.A.S.R. 94, 100, approved by the High Court in Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121, 128 (per Mason, Wilson and Toohey JJ).
[74] Uber emphasised that the limitation on the director's ability to conspire with his company was of broad compass, directing attention to the 'second limb' of the conspiracy, said to involve procuring a breach of the contract between the company and Dawson. Starke J reached the view that Doyle was acting within the scope of his functions as a director of the company in procuring Dawson to terminate his employment with the plaintiff and to enter into an agreement with the company. Williams J took a different view, saying that it would be hard to see how Dawson and Doyle were acting as agents of the company in respect of the breach by Dawson of his contract with the plaintiff as its general manager. However, that was not the issue on which the case was fought (as the Court's order makes clear) on which his Honour agreed the Supreme Court had reached the correct conclusion (see O'Brien v Dawson, 42). The 'second limb' point does not assist the analysis.
[79] LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 (LMI Australasia NSWCA).
[81] LMI Australasia NSWCA, [94]-[95].
[85] Willliams v Hursey, 128-129, emphasis added.
[86] Egan v Barrier Branch of the Amalgamated Miner's Association (1917) 17 SR 243 (Egan).
[87] Egan, 257-258, relying on the decision of the High Court in Brisbane Shipwright's Provident Union v Heggie (1906) 3 CLR 686 (emphasis added).
[88] Digicel, Annex I [77], emphasis added.
[89] Digicel was applied to the facts in Twentieth Century Fox Film Corporation v Harris [2014] EWHC 1568 (High Court of England and Wales), also a case of conspiracy to injure by unlawful means between a director and the companies he owned and controlled. The defendants submitted that because the corporate defendants were Harris' 'alter ego', it did not make sense to suggest that he had 'conspired with himself'. Barling J disagreed, saying that there was no reason in principle or authority why such a situation should not give rise to a conspiracy. His Honour cited Morgan J in Digicel to the effect that in a group of companies all of the individual companies have separate legal personality and therefore in principle a parent can combine with a subsidiary, adding that 'ill lies in Mr Harris' mouth to argue that the separate legal personalities, which he created specifically in an attempt to distance himself from certain funds, property and related transactions, should be ignored by the court when it comes to consider the question of conspiracy' (at [150]).
[90] MCA Records Inc v Charly Records [2003] 1 BCLC 93 (Charly Records).
[92] Charly Records, [49]-[50], cited in Digicel, Annex I [78]. That reasoning was in obiter.
[93] Palmer Birch v Lloyd [2018] EWHC 2316; [2018] 4 WLR 164 (Palmer Birch).
[97] See e.g. Directory Sales Mgmt. Corp v Ohio Bell Tel Co [1987] USCA6 2216; 833 F.2d 606, 611 (6th Cir.1987), Century Oil Tool, Inc v Production Specialties, Inc., [1984] USCA5 1042; 737 F.2d 1316, 1317 (5th Cir. 1984), and Horst v Laidlaw Waste Systems Inc 917 F.Supp 739 (D Colo 1996). Some lower courts have applied Copperweld in a common law setting and others have refused it apply it: see, e.g. Allied Capital Corp v GC-Sun Holdings LP. Del. Ch. November 22, 2006; Re Transamerican Airlines Inc Del. Ch. February 28, 2006.
[98] Cedric Kushner Promotions Inc v King 121 S.Ct. 2087 (2001), 2092. Kushner was a decision under the Racketeer Influenced Corrupt Organisations Act (RICO Act). There, the Court rejected the submission that a company and its sole shareholder could not be regarded as separate entities for the purposes of the RICO Act because to so hold would be inconsistent with the doctrine established in Copperweld, stating that the intra-corporate conspiracy doctrine turns on specific antitrust objectives, citing Copperweld at 770-771.
[99] See also, Christian Witting, 'Intra-Corporate Conspiracy: An Intriguing Prospect' (2013) 72 Cambridge Law Journal 178, 204-205.
[100] Wagner v Gill [2014] NZCA 336; [2015] 3 NZLR 157.
[101] Wagner v Gill [2014] NZCA 336; [2015] 3 NZLR 157, [27].
[102] Smith v National Money Mart Company (2006) 80 OR (3d) 81, [19].
[103] As explained in LMI Australasia.
[104] See, e.g., Crofter Hand Woven Harris Tweed Company Ltd v Veitch [1941] UKHL 2; [1942] AC 435, 441 (Viscount Simon L.C.) (Crofter Hand).
[105] Penelope Crossley, Jason Varuhas, David Rolph, and M Douglas, Balkin & Davis Law of Torts (LexisNexis, 6th ed, 2021), 749 [21.47]. For that proposition the authors cite Crofter Hand, 441, 448.
[106] The intention element of the tort is discussed elsewhere in these Reasons.
[108] Taxi Apps also alleged that the Uber Entities intended that the means by which UberX would be established and operate would be by UberX partners competing with lawful suppliers in contravention of the relevant statutes and that those matters would result in harm to those suppliers.
[109] The facts alleged were for the most part ultimately agreed or not contested. The fact of combination and intention were denied and contested.
[110] The parties agreed that Uber BV provided access to the software required for the support and operation of the Uber App and the Uber Partner App in Australia.
[111] Those allegations about Uber Holding were not the subject of the statement of agreed facts and not addressed in Taxi Apps' submissions.
[112] That allegation was not the subject of the statement of agreed facts and was not addressed in Taxi Apps' submissions.
[113] The agreed fact was that the Uber BV would facilitate payment of the applicable charges on behalf of the Uber driver partner as their limited collection payment agent.
[114] The agreed fact was that Uber Australia undertook tasks connected to the onboarding of Uber Partners.
[115] That allegation was not the subject of the statement of agreed facts.
[116] The agreed fact concerns the 'onboarding' of drivers.
[117] Taxi Apps also referred to the actions of Roberts and Rossi (Uber Australia), Yoo and Barretto (Uber Inc).
[118] The prospectus was dated after the launch but reflecting a consistent policy throughout the period. Uber's evidence about its vision and intended market is addressed in Part D.3 of these Reasons.
[119] The significance of that involvement is consider later in these Reasons.
[120] The evidence did not establish which of the entities engaged Rohrsheim before his employment with Uber Australia.
[121] Veitch [1941] UKHL 2; [1942] AC 435, 444; Total Network, [100].
[122] 'Lawful Suppliers' was defined as the defined and limited group of persons who met the legal compliance requirements for vehicles, drivers and operators. It is alleged that the effect of the requirements was that only a limited number of individuals could and would meet the driver or operator requirements and only a limited number of vehicles would meet the vehicle compliance requirements. Lawful suppliers thus had the advantage of being the exclusive providers of point to point passenger transport services in the relevant States.
[123] See, e.g., Dresna FC, [7]-[10].
[125] Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169.
[126] Lonrho, 75; Lonrho Plc v Fayed [1992] 1 AC 448, 467 (Lonrho v Fayed).
[128] Dresna, [107], quoting Lonrho, 75; emphasis added.
[130] Dresna FC, [9] (Kiefel and Jacobson JJ, Marshall J dissenting but on that issue).
[131] Dresna FC, [9] (Kiefel and Jacobson JJ).
[132] Dresna FC, [12] (Kiefel and Jacobson JJ).
[133] Andrianakis, [30], [31]-[34], [43].
[134] Andrianakis, [42]-[43] (citations omitted).
[135] Andrianakis, [41] (emphasis original).
[138] McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 (McWilliam v Penthouse).
[139] McWilliam v Penthouse, [13]; Dresna, [108]; see also AI Enterprises v Bram Enterprises [2014] 1 SCR 177, [94]-[95].
[140] ED & F Man Capital Markets Limited v Come Harvest Holdings Ltd [2022] EWHC 229 (Capital Markets), [489] (citing [487]-[489]). Taxi Apps also cited Ensign House Ltd v Ensign House (FEC) Ltd [2023] EWHC 1563 (Ch), [660], in which the reasoning in Capital Markets was adopted and applied.
[141] OBG v Allan [2007] UKHL 21; [2008] 1 AC 1 (OBG v Allan).
[142] Capital Markets, [484]. Calver J cited several other decisions of the High Court and one decision of the Court of Appeal of England and Wales in which legal test for intention in OBG v Allan was taken to apply to the mental elements of unlawful conspiracy. See Palmer v Birch (a partnership) v Lloyd & Anor [2018] EWHC 2316; [2018] 4 WLR 164 (Palmer v Birch), [220]-[222].
[143] Capital Markets, [32]-[33] (Lord Hoffmann), [264] (Lord Walker).
[144] OBG v Allan, [[42] (Lord Hoffmann); [166] (Lord Nicholls).
[145] OBG v Allan [43] (Lord Hoffmann).
[146] Ibid, [165]-[166] (Lord Nicholls), emphasis in original.
[149] See, e.g. Williams v Hursey, 122-123 (Menzies J). See also Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 679, [15]-[16] (Fatimi).
[150] Capital Markets, [479]-[489].
[153] Williams v Hursey, 76-78 (Fullagar J), 106 (Taylor J).
[155] Andrianakis, [43], citing Dresna FC, [7] (Kiefel and Jacobson JJ).
[157] Vickery v Taylor [1910] NSWStRp 86; (1910) 11 SR (NSW) 119.
[161] Dresna, [123] (emphasis original).
[162] British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619, [36] considering Dresna.
[163] Dresna FC, [7]-[11] (Kiefel and Jacobson JJ).
[164] Stanley v & Ors v Layne Christensen Co [2006] WASCA 56 (Stanley).
[166] British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619.
[167] British American Tobacco Australia Services Limited v Gordon (No 3), [37].
[168] Australian Wool Innovation Ltd v Newkirk [2005] FCA 290.
[169] Australian Wool Innovation Ltd v Newkirk, [64], citing Dresna FC, [7] (Kiefel and Jacobson JJ).
[170] Australian Wool Innovation Ltd v Newkirk, [68(a)].
[171] Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751 (Westpac Banking).
[172] Westpac Banking, 265 [1659].
[173] Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 (Meridian)
[174] Beach Petroleum, 30-1; Australian Kunquian International Energy Co Pty Ltd v Flash Lighting Company Ltd [2020] VSCA 239 (Kunqian), [148].
[175] Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153, 170 (emphasis added).
[176] Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121, 127.
[177] El Ajou v Dollar Land Holdings Plc [1993] EWCA Civ 4; [1994] 2 ALL ER 685, 695.
[178] See for example, Westpac Banking, 263 [1658]-[1662].
[179] Chickabo Pty Ltd v Zphere Pty Ltd [2019] VSC 73; (2019) 57 VR 406, 457.
[180] Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 (Kojic).
[182] Kojic, 454 [135], citing Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi SRL (No 12) [2016] ATPR 42-525, [224].
[184] Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294 (Anderson)
[187] Mason v Tritton (1994) 34 NSWLR 572.
[188] The 'secondary' position added the point that Kalanick and Graves were directors of Uber Australia and that they were directors and managing directors of Raiser Operations BV.
[189] In fact, Kalanick and Graves were directors of Uber Inc between 2010 and 2019. For Uber BV Kalanick was only a director in 2012, Graves was a director between 10 April 2013 and 3 April 2014. For Uber Australia Kalanick was a director between 11 September 2012 and 7 April 2014, Graves was a director between 18 June 2013 and 7 April 2014. For Rasier Operations Kalanick and Graves were directors between 3 February 2014 and 31 March 2016. They were managing directors from the date of its incorporation.
[190] Taxi Apps relied on Maritime Union of Australia v Geraldton Port Authority Automotive Group Limited v Prime Constructions Australia [2018] NSWS 1960; [225] and Allied v Multiplex (2012) NSWSC 426, [66].
[192] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel).
[193] McWilliam v Penthouse, [17].
[194] McKernan, 407-408. That reasoning was given in the context of lawful means conspiracy but on this issue it also applies to the tort of unlawful means conspiracy. Taxi Apps did not submit to the contrary.
[196] The evidence did not address market definition as such and nor did the parties attempt to define the market or markets within Australia in any formal way.
[198] Jones v Dunkel, 312 (Menzies J).
[199] Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590; (2017) 353 ALR 460, 576 (Colgate Palmolive).
[201] See, e.g. Colgate Palmolive, [579].
[202] As to proof on the balance of probabilities see, e.g., Helton v Allen [1940] HCA 20; (1940 63 CLR 691, 692; Nguyen v Cosmopolitan Homes [2008] NSWCA 246, [44]-[52].
[206] In the respects described in Part D.2.
[207] Williams v Hursey, [108] (Taylor J); [122]-[125] (Menzies J).
[208] Coal Miners Industrial Union of Workers of Western Australia (1959) 33 ALJR 224 (Collie v True).
[209] Taxi Apps cited Dresna, [167]; Argyle Building Servies Pty Ltd v Franek [2020] VSCA 196, [48]; Dresna FC, [12]-[16]; Australian Wool Innovation v Newkirk (2005) ATPR 42-053; Fatimi, [27] (Handley JA, with whom McColl JA agreed); Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 36; [1991] 1 VR 637, 687 (Brooking J); and MUA v Geraldton, 104 [426].
[210] Deputy Federal Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32 (Brown).
[211] Council of the City of Gold Coast v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; (1998) 157 ALR 135 (Pioneer Concrete).
[212] Taxi Apps cited Secretary of State of Health v Servier Laboratories Ltd [2021] UKSC 24; [2022] AC 959 [102] and JSC BTA Bank v Ablyazov (No 14) [2020] AC 727, [11] (Ablyazov).
[214] Pancontinental Mining Ltd v Posgold Investments Pty Ltd and Others [1994] FCA 983; [1994] 121 ALR 405 (Pancontinental).
[215] Doe d Murray v Bridges (1831) 1 B & Ad (Doe v Bridges).
[216] Wagner v Gill (2014) 3 NZLR 157 (Wagner v Gill).
[217] See the discussion in Ablyazov, [9] and the authorities cited there. Ablyazov considered whether there was an arguable case in which the unlawful means alleged as a breach of court order and contempt. It did not concern a statutory wrong.
[218] MJZP v Director-General of Security (2025) 423 ALR 378, [36].
[219] O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, 267.
[220] Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 [76].
[221] Vanderstock v The State of Victoria (2023) 279 CLR 333, [650] (Edelman J), citing Vunilagi v The Queen (2023) 279 CLR 259 at 308 [155]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 150-151 [134].
[222] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 134.
[223] Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177, 188.
[224] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595, [134].
[225] Ying v Song [2009] NSWSC 1344 (Ying v Song), [23].
[226] Ying v Song, [21]-[23] and the authorities there cited.
[227] Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24, 34-35, [25]-[26].
[228] Lamb v Cotongo [1987] HCA 47; (1987) 164 CLR 1, 11.
[238] McKernan, 350-351 (Gavan Duffy CJ and Starke J).
[245] True v The Coal Miners Industrial Union of Workers of Western Australia (1958) 60 WALR 113.
[246] True v The Coal Miners Industrial Union of Workers of Western Australia (1958) 60 WALR 124.
[248] True v The Coal Miners Industrial Union of Workers of Western Australia (1958) 60 WALR 113, 121; 122 (Dwyer CJ).
[249] Brennan v the King [1936] HCA 24; (1936) 55 CLR 253.
[266] Williams v Hursey, 78 (emphasis added).
[282] Powell v Boladz [1998] Lloyds Rep Med 116 (Powell v Boladz).
[283] Marrinan v Vibart [1963] 1 QB 234; [1963] 1 QB 528; Hargreaves v Bretherton [1959] 1 QB 45; Lonrho.
[284] Total Network, [35], [38]-[40] (Lord Hope).
[285] Fatimi Pty Ltd v Bryant & Ord [2002] NSWSC 750 (Fatimi NSWSC); see also Fatimi.
[287] Fatimi NSWSC, [183], citing Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 (Michaels v Taylor). Fatimi NSWSC and Fatimi were decided before the decision of the House of Lords in Total Network.
[288] Fatimi NSWSC, [185]-[186].
[289] Southan v Grounds (1916) 16 SR 274.
[292] Fatimi NSWSC, at [191]-[192], citing Ansett Transport Industry (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 36; [1991] 1 VR 637, 687 and MUA v Geraldton, 104.
[294] R v Weaver [1931] HCA 23; (1931) 45 CLR 321, 349.
[297] Argyle Building Services Pty Ltd v Franek [2020] VSCA 196 (Franek).
[298] Citing Total Network SL, 1235 [45]; 1253 [94]-[95]; 1258 [116]; 1285-6 [224]-[227].
[299] Citing Ablyazov, 1137 [15]-[16].
[302] Dresna FC, [14]-[16] (Kiefel and Jacobson JJ).
[303] Dresna FC, [19] (Kiefel and Jacobson JJ).
[304] Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] VicRp 36; [1991] 1 VR 637 (Ansett).
[309] MUA v Geraldton, [470]-[473].
[310] MUA v Geraldton, [395]; [408]-[415].
[311] Wolverhampton New Waterworks Co v Hawkesford ( 1859) 6 C.B. (N.S) 355 (Wolverhampton).
[314] Cutler v Wandsworth Stadium [1949] AC 398 (Cutler v Wandsworth).
[318] Citing Wolverhampton, [356].
[320] Brown, 49. Both Dixon CJ and Williams J also reasoned that it as a general principle (Dixon CJ) and as a consequence of the structure of the Act as a whole (Williams J) the liability of any person to pay a debt for unpaid income tax is conditional upon the right of the commissioner to assess that person and upon the correlative right of that person to appeal against the assessment.
[325] OBG v Allan, 33 [55]. That observation was made in the context of discussing unlawful means for the purpose of the unlawful interference tort, while making the point that for that tort the breach had to be actionable by the third party.
[328] Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
[329] Korp v Egg and Egg Pulp Marketing Board [[1964] VicRp 69; 1964] VR 563 (Korp).
[330] R v Barnett [1951] 2 KB 425 (R v Barnett).
[333] Easter Archipelago Co. v Reg [1853] EngR 42; (1853) 2 El. & Bl. 856.
[334] R v Barnett, 427, citing Easter Archipelago Co. v Reg [1853] EngR 42; (1853) 2 El. & Bl. 856, 879.
[337] Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 (Allied Mills).
[339] Ward v Lewis [1966] 1 WLR 9.
[340] Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405 (Pancontinental).
[341] R v Chow (1987) 11 NSWLR 561 (R v Chow).
[342] Pancontinental, 412, citing R v Chow, 570.
[343] Pancontinental, 414. His Honour then observed that in O'Brien v Dawson, Starke J at 27-28 adopted the reasoning in Lord Dunedin in Sorrell v Smith [1925] AC 700, 716 that if combination of persons to do what if done by one would be a tort, a averment of conspiracy, so far was founding a civil action, is mere surplusage; but an exceptional case arises with the civil action for conspiracy where there is nothing done which per se would be a tort.
[344] Council of the City of Gold Coast v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499; (1998) 157 ALR 135 (Pioneer Concrete).
[346] I note that in McKellar v Container Terminal Management Services [1999] FCA 1101; (1999) 165 ALR 409, [197], the applicants in a civil case alleged unlawful means conspiracy in the alternative to a substantive cause of action already pleaded. Weinberg J cited Allied Mills, Pioneer Concrete and R v Chow in support of his decision that, 'to the extent that the applicants seek to plead a tort of conspiracy to contravene the provisions of the [the Trade Practice Act] at common law, outside the form of conspiracy expressly provided for in s 75B(1)(d), such a pleading is not available. The act covers the field in respect of the contraventions thereof, including statutory conspiracy to contravene those provisions'.
[347] Total Network [2008] UKHL 19; [2008] 2 All ER 413.
[348] Total Network, [97]-[100].
[350] Total Network, [93] (Lord Walker).
[351] Total Network, [95] (Lord Walker). As observed earlier in these Reasons, In Lonrho, Lord Diplock discussed legislative intention in the context of disposing of the innominate breach of statutory duty tort, where his Lordship found that the Sanctions Orders were not intended to confer a private cause of action on the claimant, not in the context of discussing conspiracy. Lord Hoffman in OBG v Allan was referring to the general policy that the Court is not to create a private action out of a statute which Parliament did not intend.
[352] Total Network, [96] (Lord Walker).
[355] Total Network, [220] (Lord Neuberger).
[356] Total Network, [221] - a repetition of this theme.
[357] Total Network, [222]-[225].
[358] Total Network, [116] (Lord Mance).
[359] Total Network, [116] (Lord Mance).
[360] Total Network, [119] (Lord Mance).
[362] Total Network, [45] (Lord Hope).
[366] Racing Partnership Ltd v Done Bros (Cash Betting) Ltd [2020] EWCA Civ 1300 (Racing Partnership).
[367] See Racing Partnership, [184]-[156].
[368] Racing Partnership, [150]. See also the discussion in OBG v Allan at [155]-[150] (Lord Nicholls) in the context of the tort of unlawful interference, addressing complications that may arise in the application to that tort where the rights in issue are statute-based.
[371] Leonard Hoffmann, 'The Rise and Fall of the Economic Torts' in Simone Degeling, James Edelman, and James Goudkamp (eds), Torts in Commercial Law, (Lawbook, 2011) 105, 115-6.
[372] Digicel, Annexure I, [48]-[54].
[373] Wagner v Gill [2014] NZCA 336; [2015] 3 NZLR 157 (Wagner v Gill).
[376] Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414, 438 (Deane J, Gibbs CJ, Mason and Wilson JJ agreeing at 421, Dawson J agreeing at 446) (Moorgate). See also Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326, [101] (Campbell JA and McColl JA agreeing at 341, [73]) (Del Casale).
[378] Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; (2010) 265 ALR 281 [39] (Finn, Sundberg and Jacobson JJ).
[379] Coco v AN Clark (Engineers) Ltd [1968] RPC 41, 44 (Coco).
[381] Coco, 47 quoted in Del Casale [103] (Campbell JA). See also Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) [1963] 3 All ER 413, 415 (Lord Greene MR, Somervell LJ and Cohen J agreeing at 415).
[382] Del Casale [103] (Campbell JA).
[383] See for example the list of factors in Del Casale, [40] (Hodgson JA), expanding on Wright v Gasweld NSWLR 334; IPR 489 (Kirby P).
[384] Del Casale, [39] (Hodgson JA).
[386] See Robb v Green [1895] UKLawRpKQB 58; [1895] 2 QB 1, 18-19. See also DC Payments Pty Ltd v Next Payments Ltd [2016] VSC 315; (2016) 51 VR 151, 163-164 [44]-[51], discussing Roger Bullivant Ltd v Ellis [1987] ICR 464, 474-5_, EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3)_ [2012] FCA 48; (2012) 199 FCR 533 167-168 [60]-[65],Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860; (1997) 78 FCR 132, 138-139; International Entertainment New Zealand (No 2) Ltd v Lewis (1998) 42 IPR 162; Prime Creative Media Pty Ltd v Vranjkovic [2009] FCA 1030 [15].
[387] Roger Bullivant Ltd v Ellis [1987] ICR 464, 474 (Nourse LJ).
[388] Telstra Corporation Ltd v First Netcom Ptd Ltd [1997] FCA 860; (1997) 78 FCR 132, 138.
[389] N P Generations Pty Ltd v Feneley [2001] SASC 185; (2001) 52 IPR 563, 568 [11] (Debelle J, Williams and Wicks JJ agreeing at 574 [34]-[35]) cited in DC Payments [50] (N P Generations).
[390] N P Generations, 155 (Debelle J).
[391] IF Asia Pacific Pty Ltd v Galbally and Others [2003] VSC 192, [227] (IF Asia Pacific).
[393] Saltman Engineering Co Ltd and Others v Campbell Engineering Co Ltd [1963] 3 All ER 413 (Saltman).
[394] The following summary is from Saltman, 413-414.
[396] Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226; (1999) 46 IPR 248 ('Mars UK').
[402] Mars UK 256 [32] citing Terrapin Ltd v Builders Supply Co (Hayes) Ltd (1959) IB IPR 177 (Roxburgh J).
[403] Mars UK, 256 [32] quoting Francis Gurry, Breach of Confidence (Clarendon Press, 1984).
[404] Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC 728 (Ch) (Cray Valley).
[411] Cray Valley, [56], discussing Francis Gurry, Breach of Confidence (Clarendon Press, 1984).
[415] See, for example Franklin v Giddins [1978] QD R 72, 80 (Dunn J).
[419] Saltman, 415. See also: Mars UK.
[428] Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, 224 [34]-[35] (Gleeson CJ).
[429] Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 281.
[430] XA v XB [2016] NSWSC 944, [22] citing Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 50 (Mason J). See also: Franklin v Giddins [1978] QD R 72; Heydon, Leeming and Turner_, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies_ (5th edition 2014 Lexis Nexis) 1166 [42-080]; Dal Pont, Law of Confidentiality (LexisNexis Butterworth, 2015) [8.22]-[8.26].
[432] Franklin v Gidins [1978] Qd R 72 (Franklin).
[433] See, eg Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [301] (Callinan J).
[444] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2 per Mason C.J., Dawson, Toohey and Gaudron JJ (Ainsworth).
[445] Ainsworth 564, 581-2 (Mason CJ, Dawson, Toohey and Gaudron JJ); Cruse v Multiplex Ltd & Ors [2008] FCAFC 179; (2008) 172 FCR 279, 299 [55] (Goldberg and Jessup JJ); McLeish v Faure [1979] FCA 38; (1979) 25 ALR 403, 414-415 (Sweeny, Evatt and Northrop JJ).
[446] See the authorities summarised in Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 (CFMEU v Milin) at [77].
[447] Thorpe v Head, Transport for Victoria [2021] VSC 750; (2021) 66 VR 56, [116] discussing Minister for Immigration & Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1, 33 [118] (Kiefel J, Jenkinson J agreeing at 30) (Ozmanian).
[448] CFMEU v Milin [2019] FCA 1070, [91] and the authorities cited there.
[449] See the authorities summarised in CFMEU v Milin [2019] FCA 1070, [91]-[98].
[450] Warramunda Village v Pryde [2001] FCA 61; (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors [2012] FCAFC 56; (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).
[451] Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212, [150] (Lander J); Australian Securities and Investments Commission v McDougall [2006] FCA 427; (2006) 229 ALR 158, [55] (Young J); Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Milin Builders Pty Ltd, [2019] FCA 1070, [98] (Snaden J).
Taxi Apps Pty Ltd
Uber Technologies Inc & Ors [2025] VSC 514
TORTS - Conspiracy - Combination - Combination within a corporate group - Combination not established - O'Brien v Dawson [1942] HCA 8; (1942) 66 CLR 18 - LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 - Copperweld Corp v Independence Tube Corp [1984] USSC 137; 104 S.Ct. 2731 (1984) - Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch).
TORTS - Conspiracy - Intention - Subjective intention - Direction of intention toward all members of class - Rules of attribution of knowledge to a company - Subjective knowledge established in respect of one of three state-based conspiracies - Australian Competition and Consumer Commission v Colgate‑Palmolive Pty Ltd (No 4) [2017] FCA 1590; (2017) 353 ALR 460 - Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2003) ATPR - Lonrho Ltd v Shell Petroleum Co Ltd No 2 [1981] Com LR 6 - Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580 - McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 - OBG v Allan [2007] UKHL 21; [2008] 1 AC 1 - ED & F Man Capital Markets Limited v Come Harvest Holdings Ltd [2022] EWHC 229 - British American Tobacco Australia Services Limited v Slater & Gordon Ltd (No 3) [2009] VSC 619 - Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 - Stanley v & Ors v Layne Christensen Co [2006] WASCA 56 - ; - ; - - ; - ; - [1995] 2 AC 500 -
TORTS - Conspiracy - Unlawful means - Nature of unlawful means - Whether remedy prescribed by statute is exclusive - Whether unlawful means must be independently actionable - Whether unlawful means must infringe a private legal right of the plaintiff - Whether acts caused loss or were merely the occasion of such loss - Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 - Revenue and Customs Commissioners v Total Network [2008] UKHL 19; [2008] 1 AC 1174 - Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 - Fatimi v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678 - Pancontinental Mining Ltd v Posgold Investments Pty Ltd [1994] FCA 983; (1994) 121 ALR 405 - Council of the City of Gold Coast v Pioneer concrete (QLD) Pty Ltd [1994] FCA 983; (1994) 121 ALR 405 - McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 - Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42‑013 -
EQUITY - Breach of confidence - Whether defendants' use of proxy to obtain plaintiff's list of drivers constituted a breach of confidence - Whether information in driver list identifiable with specificity - Whether driver list had necessary quality of confidence - Whether data received by defendants through proxy was in circumstances importing an obligation of confidence - Whether there was a misuse of information without plaintiff's consent - Breach of confidence established - Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 - Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326, referred to - Robb v Green [1895] UKLawRpKQB 58; [1895] 2 QB 1 - IF Asia Pacific Pty Ltd v Galbally and Others [2003] VSC 192 - Saltman Engineering Co Ltd and Others v Campbell Engineering Co Ltd [1963] 3 All ER 413 - Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226; (1999) 46 IPR 248 - Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC 728 (Ch) - Attorney‑General v Guardian Newspapers (No 2) [1990] 1 AC 109 - Smith Kline & French Laboratories (Australia) Ltd and Others v Secretary, Department of Community Services and Health (1990) 22 FCR 73; - ; - [1968] RPC 41.
EQUITY - Breach of confidence - Whether declaratory relief should be granted pursuant to s 36 of the Supreme Court Act 1986 (Vic) - Whether the granting of declaratory relief would produce any foreseeable consequences for the parties - CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256, referred to - Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; (2000) 200 CLR 591, referred to - Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, followed - Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, followed - No declaratory relief granted as it would not produce any foreseeable consequences for the parties.
(1942) 66 CLR 18
(2017) 353 ALR 460
(2020) 61 VR 580
(1988) 166 CLR 121
(1959) 103 CLR 30
(1999) 93 FCR 34
(2004) 59 NSWLR 678
(1994) 121 ALR 405
(1931) 46 CLR 343
(1959) 33 ALJR 224
(1984) 156 CLR 414
(2007) 73 IPR 326
(1999) 46 IPR 248
(1990) 22 FCR 73
(1990) 95 ALR 87
(2010) 265 ALR 281
(2000) 200 CLR 591
(1992) 175 CLR 564
(1980) 147 CLR 39
(2016) 1 Qd R 549
(1938) 60 CLR 336
(1992) 67 ALJR 170
(2021) 272 CLR 678
(1993) 43 FCR 1
(1988) 165 CLR 87
(1911) 14 CLR 387
(2001) 205 CLR 365
(1999) 48 IPR 1
(2012) 293 ALR 272
(2022) 169 IPR 1
(1976) 137 CLR 1
(1977) 137 CLR 567
(1989) 16 NSWLR 549
(1998) 43 NSWLR 554
(2005) 91 SASR 570
(1990) 170 CLR 146
(1906) 3 CLR 686
(2004) 59 NSWLR 679
(2019) 57 VR 406
(1994) 34 NSWLR 572
(1959) 101 CLR 298
(1958) 100 CLR 32
(1998) 157 ALR 135
(2025) 423 ALR 378
(1990) 171 CLR 232
(2005) 223 CLR 189
(2023) 279 CLR 333
(2023) 279 CLR 259
(2007) 230 CLR 89
(1974) 130 CLR 177
(2017) 260 CLR 595
(2022) 275 CLR 24
(1987) 164 CLR 1
(1936) 55 CLR 253
(1931) 45 CLR 321
(1995) 185 CLR 410
(1980) 32 ALR 570
(1987) 11 NSWLR 561
(1999) 165 ALR 409
(2016) 51 VR 151
(2012) 199 FCR 533
(1997) 78 FCR 132
(1998) 42 IPR 162
(2001) 52 IPR 563
(2001) 208 CLR 199
(2008) 172 FCR 279
(1979) 25 ALR 403
(2021) 66 VR 56
(1996) 71 FCR 1
(2001) 105 FCR 437
(2012) 201 FCR 378
(2006) 229 ALR 158