Stewart v Uber Technologies Incorporated

Cross-vesting

Pursuant to ss 5(2) and 5(7) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), either a party or the Court of its own motion may transfer proceedings pending in the Supreme Court of New South Wales to the Supreme Court of another State, when it appears that the former proceedings are related to proceedings pending in the latter and it is more appropriate that the relevant proceeding be determined by that other Supreme Court or that it is otherwise in the interests of justice that that occur.
The obvious overlap between the NSW Proceedings and the Original and Salem Proceedings on its face recommends a transfer of the NSW Proceedings to the Supreme Court of Victoria in circumstances where the proceedings in that Court are more advanced, and the defendant parties have a legitimate interest and desire in being sued in one forum in respect of broadly similar complaints.
It was in this context that Garling J, at an early stage of the NSW Proceedings, raised with the parties the question of transfer, and removed the question to this Court for determination.
The essence of the argument advanced by Mr Edwards on behalf of Mr Stewart was that a real risk exists that, if the NSW Proceedings are transferred to Victoria, the group members he represents will lose the benefit of s 182 of the NSW Civil Procedure Act such that, if any group member were to opt out of the transferred proceedings, time for the purposes of the limitation period would not be taken to have been suspended. This risk is perceived to exist by reason of some dicta in Wileypark in relation to the continuing effect of a provision such as s 182 of the NSW Civil Procedure Act (which is arguably to be characterised as "procedural" rather than substantive, for private international law purposes) upon a transfer of proceedings to another State.
Mr Edwards contended that the existence of this risk meant that the Court could not be affirmatively satisfied that it was in the interests of justice within the meaning of s 5(2) of the NSW Cross-vesting Act to transfer the NSW Proceedings to Victoria. He submitted that the NSW Proceedings could be held in abeyance or temporarily stayed, pending resolution (by decision or settlement) of the Victorian Proceedings without prejudice to any party. In particular, it was submitted that once the Victorian Proceedings were determined, however they were determined, the defendants would have the benefit of estoppels: Peterson v Merck Sharpe and Dohme (Australia) Pty Ltd (No 3) [2009] FCA 5.
Wileypark was a case in federal jurisdiction, involving alleged breaches of the Corporations Act 2001 (Cth). In form, it was a class action commenced in the Federal Court against AMP Ltd. Similar, albeit not identical, class actions had been commenced in the Supreme Court of New South Wales by different lead plaintiffs and with different firms of solicitors instructed with different structures of litigation funding applying to different sets of proceedings. AMP applied to have the Wileypark proceedings cross-vested from the Federal Court to the Supreme Court of New South Wales pursuant to s 1337H of the Corporations Act. The Full Court of the Federal Court acceded to that application. Separate sets of reason were delivered by Allsop CJ, Middleton and Beach JJ respectively.
One of the issues each of their Honours considered, albeit very briefly, was as to whether s 33ZE of the Federal Court of Australia Act (the equivalent to s 33ZE of the Victorian Supreme Court Act and s 182 of the NSW Civil Procedure Act) would continue to have any operation on the transfer of the Federal Court proceedings to the Supreme Court of New South Wales. Their Honours differed on this question.
Allsop CJ held that s 33ZE of the Federal Court of Australia Act would continue to operate, albeit that his Honour's analysis at [37]-[48] was heavily influenced by the fact that the proceedings to be transferred were in federal jurisdiction. Middleton and Beach JJ, in separate sets of reasons, favoured the view that, upon transfer of the Federal Court proceedings to the Supreme Court of New South Wales, s 33ZE of the Federal Court of Australia Act would cease to have effect. Their Honours' views were also informed by the fact that federal jurisdiction was implicated. Thus, at [63], Middleton J said: "As to the question whether upon transfer s 182(1) and (2) of the CP Act govern suspension and the end of suspension, not s 33ZE(1) and 182(2), I would prefer the view that all elements of s 182 of the CP Act would be picked up by s 79 of the Judiciary Act 1903 (Cth), which could then be applied consistently with the other relevant provisions of the Corporations Act. On this basis, s 182(1) and (2) would govern the situation upon transfer."
Beach J was of the opinion (at [86]) that "after the transfer of the four Federal Court proceedings, no aspect of s 33ZE would continue to have operation. But all elements of s 182 of the Civil Procedure Act would operate as picked up by s 79 of the Judiciary Act."
There is scope for confusion arising from Wileypark in that their Honours references to s 33ZE of the Federal Court of Australia Act in that case must be transposed to s 182 of the NSW Civil Procedure Act in the current case. The views of Middleton and Beach JJ would tend to support Mr Stewart's apprehension that, upon a transfer of the NSW Proceedings to the Supreme Court of Victoria, the group members from New South Wales in the NSW Proceedings would lose the benefit of s 182 of the NSW Civil Procedure Act.
Neither side appearing before this Court on what was, in effect, an interlocutory issue concerning transfer of proceedings, wished the Court to engage in, still less to determine, the potentially complex questions raised by Wileypark. Any such exploration would need to separate out the impact of the fact that the Wileypark proceedings were in federal jurisdiction. It may also require a consideration of the operation of ss 9 and 11 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and the effect of the conferral of jurisdiction on the Supreme Court of Victoria by s 4(3) of the NSW Cross-vesting Act. That is also an area bedevilled by complexity (see Nygh at 6.35-6.65). There is also a potentially lurking constitutional issue, raised but not decided in [70] of Pfeiffer: see also Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1 at 43; [2002] HCA 27 at [80].
Mr Sulan, who appeared for the Australian Defendants, recognised the potential prejudice which was a source of concern for Mr Stewart and the members of the group he represented, and formulated a form of undertaking that could be given by the defendants designed to ameliorate any potential prejudice that may arise on a transfer.
One obvious difficulty with the undertaking proposed by Mr Sulan was that he did not act for the Overseas Defendants who, at the time of the hearing, had yet to enter an appearance in the NSW Proceedings, and who did not themselves proffer any undertaking. Accordingly, in Supplementary Submissions, Mr Sulan proposed an order in these terms: "Upon each Defendant, within 7 days of the Overseas Defendants Filing an Unconditional Notice of Appearance in the NSW Proceedings, proffering an undertaking to the Court in the form attached to this order and marked "A": 1 Order that pursuant to sec 5(2) of the Jurisdictions of Court (Cross-vesting) Act 1987 (NSW) the NSW Proceedings be transferred to the Supreme Court of Victoria."
The form of proffered undertaking was as follows: "The [number] Defendant hereby undertakes to the Court and to the Plaintiff and to Group Members that it will not raise a defence in this or any other proceeding commenced by a Group Member, including a Group Member that opts out of this proceeding, to the effect that section 182 of the Civil Procedure Act 2005 (NSW) ceases to apply to the claims made in this proceeding by or on behalf of the Plaintiff or Group Members by reason of the transfer of this proceeding to the Supreme Court of Victoria."
At least two contingencies were embedded in this approach. First, that all of the "Overseas Defendants" entered unconditional appearances in the NSW Proceedings and, secondly, that they all proffered an undertaking in the form set out in the previous paragraph.
On 12 August 2020, following the decision of the Victorian Court of Appeal in Uber Australia Pty Ltd v Andrianakis (see [9] above), the Overseas Defendants entered an appearance in these proceedings and are now represented by the same firm of solicitors as the Australian Defendants. On 27 August 2020, those solicitors forwarded to my chambers a communication which indicated the following: "The Respondents have indicated they are prepared to give undertakings to the Court in the form referred to in the Applicant's further supplementary submissions dated 17 July 2020. Should the Court consider that the Proceeding ought be transferred to the Supreme Court of Victoria on the basis of the undertakings, the Respondents and Applicant agree that orders in the form attached would give effect to that decision. Should the Court be minded to make the orders, and wish for our clients to proffer the undertaking orally by counsel in open court we will make arrangements accordingly. This email is sent with the consent of the solicitors for the Applicant." The reference in this email to Respondents and Applicant was inapposite. In a case such as the present where the proceedings at first instance were removed into this Court for the purposes of considering cross-vesting, the parties to the group proceedings remain properly described as plaintiff and defendants.
By email of 31 August 2020, the solicitors for Mr Stewart indicated that his position was that he did not oppose the matter being transferred provided the undertaking was made in the form proposed on 27 August 2020. The proposed undertaking was in these terms (with corrections made to reflect the reference to the parties by their proper description): "The Defendants referred to in the attached schedule hereby undertake to the Court, to the Plaintiff and to Group Members that they will not, raise a defence in this or any other proceeding commenced by a Group Member, including a Group Member that opts out of the proceeding, to the effect that section 182 of the Civil Procedure Act 2005 (NSW) ceases to apply to the claims made in this proceeding by or on behalf of the Plaintiff or Group Members by reason of, or after, any transfer of this proceeding to the Supreme Court of Victoria pursuant to s 5(2) of the Jurisdiction of the of the Court (Cross Vesting) Act 1987 (NSW). Definitions: Group Members means the persons defined in paragraph 2 of the Statement of Claim filed on 9 April 2020 in NSW Supreme Court Proceeding 2020/00111269 and, for the avoidance of doubt, means any such person who may opt-out of this proceeding."
For the avoidance of any doubt, the defendants referred to in the schedule to the proposed undertaking were Uber Technologies Incorporated (4849283), Uber International Holding BV (RSIN 851 929 357), Uber BV (RSIN 852 071 589), Uber Australia Pty Ltd (ACN 160 299 865), Rasier Operations BV (RSIN 853 682 318), Uber Pacific Holdings BV (RSIN 855 779 330) and Uber Pacific Holdings Pty Ltd (ACN 609 590 463).
In light of the proffered undertaking and Mr Stewart's communicated non-opposition to it, and given the obvious commonality of the questions involved in these proceedings and the Victorian Proceedings, it is appropriate that these proceedings be cross vested on the giving of the undertaking outlined above.
MEAGHER JA: I agree with Bell P.
GARLING J: I agree with the orders proposed by the President and with the reasons which he has expressed. The substantive resolution of the complex issues discussed by the President seems to call for legislative reform uniformly across the Australian jurisdictions.

Judgment

BELL P: Class action proceedings between Mr Peter Stewart as lead plaintiff (Mr Stewart) and various companies in the Uber group of companies (the NSW Proceedings) were removed into the Court of Appeal for the purpose of determining whether or not the Supreme Court of New South Wales should, of its own motion, transfer the NSW Proceedings to the Supreme Court of Victoria where virtually identical proceedings (albeit with different lead plaintiffs but the same defendants) are pending.
Although such relief had not been sought by any of the defendants, the only two defendants in the NSW Proceedings who had appeared at the time of the hearing before this Court (the Australian Defendants) supported the transfer. The transfer was opposed by Mr Stewart.
Unlike this Court's recent decision in Wigmans v AMP Ltd (2019) 373 ALR 323; [2019] NSWCA 243 (Wigmans), this is not a case where the different representative parties in the various proceedings are represented by different firms of solicitors, and issues which arose in that case (and in Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1; [2018] FCAFC 143 (Wileypark)) do not arise in this case although, as shall be seen and explained, certain dicta in Wileypark assumed importance in the present case.

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