It has been interesting reading the media’s coverage of the County Court of Victoria’s decision in the case of Brenner v Taxi Services Commissioner (‘TSC’). In some instances, the decision is used to support the conclusion that Victoria has effectively legalised Uber, when on any reading of the judgment, this isn’t the case. 

You see, Judge Chettle was quite happy to conclude that the ride given by Brenner was “for hire or reward” irrespective of whether the fare was paid to Uber or him. On that basis, Brenner was found to have operated a commercial passenger vehicle – an offence under the Transport (Commercial and Miscellaneous) Act 1983 (Vic) (the Act). In fact, the reasoning applied by the learned Judge means that even a person or company which allows their car to be used as a commercial passenger vehicle (without the necessary licence) will fall foul of the law. Consequently, businesses that knowingly lease cars to Uber drivers may be the subject of prosecutions under the Act.

The reason the Judge dismissed the charges against Brenner was due to an obscure defence available because only one of the Taxi Compliance Officers who rode with him paid for the service. Had there been only one Taxi Compliance Officer in Brenner’s car, then his conviction and sentence issued out of the Magistrates Court of Victoria would have been upheld.

So Why All the Fuss About the County Court’s Decision?

The County Court’s decision comes at a time when other States and Territories have already legalised Uber. Brenner’s case highlights the fact that the laws governing the operation of commercial passenger vehicles in Victoria are (to some degree) outdated and in need of change.

The status quo is that the TSC could only justify prosecuting Uber drivers who either carry one passenger at a time or multiple passengers who ‘fare split’ using the Uber app. But if a driver was prosecuted for carrying multiple passengers who used the ‘fare split’ option, wouldn’t this just result in passengers paying each other back for shared fares outside of the app? After all, taxis don’t offer a split fare option and their passengers seem to find a way to remain friends nonetheless.

Key Takeaways

So, it appears that if the TSC wishes to be able to effectively prosecute Uber drivers, then the law will need to be amended. But if this is the case, does it make sense to do so in favour of the taxi industry and further TSC prosecutions, or could legislative change be better used to create a framework regulating commercial ride sharing? The answer depends on who you ask. Whatever conclusion you reach, the Brenner case merely confirms that in Victoria, Uber still represents a movement that is not yet ‘legal’, but one that hasn’t resulted in a successful prosecution against its drivers either.

What do you think? Tag us on Twitter @legalvision_au and let us know.

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