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Expert Blog

Asking the Right Questions: Uber v Commissioner of Taxation

Is an Uber a Taxi? 

National GST legislation currently requires taxi and limousine operators to be registered for GST regardless of their turnover. ­

Uber B.V. v Commissioner of Taxation [2017] FCA 110 concerned whether the use of Uber services could constitute a form of ‘taxi’ or ‘limousine’ travel within the meaning of s 195-1 of the Goods and Services Tax Act 1999 (GST Act). If so, the legislation would require Uber Drivers to register to register for GST purposes regardless of whether they made an annual turnover of less than $75,000.

This case is a timely reminder that, when questions are asked of expert witnesses, they must be written with s79 of the Evidence Act in mind, in that an expert’s opinion should be wholly or substantially based on their specialised knowledge. Opinions not based on specialised knowledge, and instead based on common knowledge, are unlikely to be accepted by the court.

Issues of Contention:

The case centred around the correct interpretation of statute. How should the terms ‘taxi’ and ‘limousine’ in the GST Act be defined? And how wide should the scope of its meanings be to include or exclude Uber services?

The Expert Evidence:

Uber engaged Dr Peter Abelson, an expert on the regulation and economics of taxi travel.

Dr Abelson gave evidence stating that Uber Services did not fit the description of transportation ‘by taxi’ because of the “distinct meanings in public discourse” that terms like ‘taxi’ and ‘Uber’ hold. [95] He distinguished his interpretation of the term ‘taxi travel’ from an interpretation of the terms according to their everyday meaning: ‘taxi-cab’ and ‘taxi services’ refer to a category of transport outlined by its own trade-related framework of rules and state regulations. His report stated that, in a trade context, ‘taxi travel’ does not include travel by Uber, because terms like ‘taxi-cab’ and ‘taxi services’ relate specifically to the “rank and hail” channels of transportation. [33]

Dr Abelson gave additional evidence on the meaning of the term ‘limousine’, according to its everyday usage. Counsel for Uber had asked Dr Abelson to offer his opinion on whether the services provided by UberX Partners to Riders involved transporting passengers by limousine for fares. [112] Dr Abelson responded in his report with a discussion of the very diverse uses of the term ‘limousine’ across different states and business contexts.

He concluded that UberX travel did not constitute travel by limousine, insofar as the term in all contexts denotes common features of limousines, such as the use of limousine vehicles for luxury or special occasions, significant hire charges, and the ability of customers to select the type of limousine vehicle. [113]

Rejection of Expert Evidence

The court found that the use of Uber services qualifies as ‘taxi travel’ within the meaning of
s 144-5(1) (as defined in s 195-1) of the GST Act. Whilst noting that Dr Abelson was “well qualified to give advice on economic and public policy regulatory matters” [88] the court ultimately excluded Dr Abelson’s opinions on the meaning of the terms ‘taxi’ and ‘limousine’. Justice Griffiths found that both terms should be interpreted according to their everyday meaning. [135] In that regard, Dr Abelson’s expert evidence offered an incorrect interpretation of the term ‘taxi’.

Dr Abelson’s second expert witness report was deemed inadmissible by the court, to the extent that the report attempted to determine the meaning of the term ‘limousine’ in “public and regulatory discourse”. [114] The court found that this approach required Dr Abelson to interpret the words of the statute according to their everyday use. Consequently, the court excluded this part of the expert evidence as well, citing the well-established rule that evidence for the purpose of interpreting a word in a statute in accordance with its ordinary English meaning is inadmissible. [104]

Takeaways:

This case demonstrates the limited extent to which expert witnesses should be called to provide an opinion on statutory interpretation. Courts will not accept expert evidence interpreting statutory language that is in common usage and intended to be intelligible to a lay person.

The court’s decision to reject Dr Abelson’s second report also highlights the importance of ensuring that expert evidence contributes opinions that are related to their area of specialised knowledge, or that require the expert to apply areas of their expertise.

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This article was co-written with Shelley Jiang.