Wrong direction: Uber versus taxis and taxes

Thursday, 11 October 2018

Uber BV v Commissioner of Taxation [2017] FCA 110

Introduction

This judgment highlights the importance of ensuring that evidence requested from an expert is not based on a premise that may be inadmissible from the outset. Posing the wrong question to your expert, such as one which relates to an area of common knowledge or one that is not related to an expert’s specialised knowledge, risks receiving a costly answer, and one that the court will ultimately never hear.

Background

Central to these proceedings was the question of whether Uber drivers are required to be registered for GST purposes.

Under the A New Tax System (Goods and Services Tax) Act 1999 (‘the GST Act’), enterprises with an annual turnover of less than $75,000 do not need to register for GST. There is, however, a special exemption for taxi and limousine operators, who must be registered for GST regardless of turnover.¹

To address the question of whether an Uber driver is a ‘taxi’ or ‘limousine’ operator, Uber submitted expert evidence that it asserted was relevant to determining the meaning of those words. Uber’s expert, Dr A, a specialist “on the regulation and economics of the taxi industry ”, submitted three reports on the subject:

• the first focussed on the definition of ‘taxi’
• the second focussed on the definition of ‘limousine’
• the third comprised copies of documents referenced in the first two expert reports.

However, Uber took a wrong turn even before appointing their expert.

Case law on expert evidence regarding the meaning of words

Justice Griffiths summarised the case law² as having established the following principles regarding expert evidence on the definition of words:

1. Courts will not accept expert evidence for the purpose of interpreting the ‘ordinary’ meaning of a word used in a statute (though it may admit evidence that assists in understanding the context of the use of a word).
2. But, courts may admit evidence in relation to the meaning of a word used in statute, where that word is used in a ‘trade’ or ‘technical sense’. There are several general principles under which expert evidence in relation to the ‘trade’ or ‘specialised’ meaning of a word may or may not be admissible.

The admissibility of Uber’s expert evidence

Dr A was found to be “well qualified to give advice on economic and public policy matters ” and Justice Griffiths detailed a number of specific areas in which Dr A had apparent “expertise in the taxi industry.”

Uber contended that the first expert report was admissible as providing “factual context or background of the legislation ”, relying on Justice Hill’s fifth principle in Pepsi. It was also submitted that the report was relevant in assisting to determine the meaning of ‘taxi’ in the industry, which was “a true trade usage. ” It was contended that the regulatory meaning of taxi “necessarily bears on the trade meaning” and that Dr A’s evidence was not related to the “ordinary meaning” of the term taxi.

Justice Griffiths found that Uber’s expert evidence did not define the words ‘taxi’ and ‘limousine’ in terms of their ‘ordinary’, ‘trade’ or ‘specialised’ meaning. Instead, it focussed on the words’ meanings “in public and regulatory discourse.”

This still left some ambiguity as to whether Uber’s position was that these words had an ordinary meaning or a specialised or trade meaning, and consequently, whether the expert evidence was admissible at all.

Justice Griffiths admitted the majority of the first expert report, albeit with ‘strong doubts’ in doing so, resulting from “the fact that the applicant’s case concerning the meaning of ‘taxi’ was put somewhat elusively. ”
However, he considered the word ‘taxi’ to have its ordinary meaning in the context of the GST Act, “which differs from what [Dr A] describes as its meaning as a regulatory concept.” Justice Griffiths therefore concluded that “the material in the first expert report has little if any significance ” in construing the word ‘taxi’.

In relation to the second expert report and the definition of ‘limousine’, Uber confirmed in oral submissions that its case was that the word should be given its ordinary meaning. The second expert report was therefore ruled by Justice Griffiths as inadmissible in its entirety.

For the same reason, those parts of the third expert report that related to the second report were also ruled as inadmissible.

Significance

This judgment is a reminder to legal practitioners that expert evidence will not be admitted if it pertains to the ordinary meaning of words. This is consistent with the Makita³ principles, in that expert evidence is not admissible if it does not relate to specialised knowledge based on an expert’s study, training and experience. Also, the Federal Court rules regarding expert evidence require disclosure of the qualifications of the expert to provide such opinions.

Additionally, it is worth ensuring that the questions being posed to an expert relate to the actual issues in contention. It is a waste of time and money if expert evidence (or any other evidence) is prepared that is inadmissible.

Notes
1.    A New Tax System (Goods and Services Tax) Act 1999, Division 144-1.
2.    Referring to Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation [1995] FCA 1655.
3.    Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
4.    This case review was originally authored by Katharine Toney.

This case review is an extract from Expert Evidence: Recent Cases Edition 2.

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