Uber Australia Pty Ltd v Chief Commissioner of State Revenue (Costs) [2024] NSWSC 1324

Supreme Court New South Wales

Medium Neutral Citation: Uber Australia Pty Ltd v Chief Commissioner of State Revenue (Costs) [2024] NSWSC 1324 Hearing dates: On the papers Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: The defendant is to pay the plaintiff's costs of the proceedings. Catchwords: COSTS – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – Whether costs should follow the event or some other order should be made – Whether to determine costs on the basis of separating out issues – HELD – Costs should follow the event and it is not appropriate, in this case, to apportion costs based on issues or arguments Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 Cretazzo v Lombardi (1975) 13 SASR 4 Category: Costs Parties: Uber Australia Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: J Lockhart SC and C Burnett SC with B Mostafa and D Lewis (Plaintiff) S Balafoutis SC with D Mitchell and C Chiam (Defendant)

Solicitors: Ashurst Australia (Plaintiff) Crown Solicitor (Defendant) File Number(s): 2021/00307779 Publication restriction: Nil

JUDGMENT 1. I gave the principal judgment in these proceedings on 6 September 2024: Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124. 2. Definitions used in the principal judgment are used here. 3. Only the question of costs remains. The parties are agreed that costs should be dealt with on the papers and written submissions have been provided. 4. Uber succeeded, but not on all the arguments it propounded, including as to whether any of the exclusions applied. 5. The Chief Commissioner argues that, despite Uber's success, he should pay no more than one third of Uber's costs because: 1. there were six issues at trial and Uber succeeded on only two, namely, whether the amounts payable were taken to be wages under s 35(1) and on remission of the premium component of interest. The Chief Commissioner succeeded on the remaining four issues, which he says constitutes substantial success; 2. the issues upon which Uber succeeded were clearly separable from those upon which he succeeded. In support of the contention that the various issues were discrete, the Chief Commissioner makes the point that Uber had separate counsel addressing separate issues; 3. the issues upon which he succeeded took up most of the time at the trial and most of the evidence relied on by Uber was relevant only to the separate issues upon which he succeeded; and 4. the argument upon which Uber won was only raised in its amended appeal statement filed on 16 April 2024 by which stage all of Uber's evidence had been served. 1. Costs are within the discretion of the Court, but the two starting points are: 1. costs follow the event (unless it appears to the Court that some other order should be made: UCPR r 42.1); and 2. the Court generally does not determine costs on the basis of separating out issues: see Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 at 330-331 per Mahoney JA. 1. As Jacobs J aptly cautioned in Cretazzo v Lombardi (1975) 13 SASR 4 at 16: … [T]rials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues. 1. The arguments in this contest were complex. But there are only two issues to which all arguments were addressed, namely, whether Uber was liable to pay payroll tax assessed by the Chief Commissioner and, if so, whether the premium component of interest should be remitted. Uber succeeded on both. The complexity of the matter is revealed, amongst others, by the fact that the Chief Commissioner's case substantially changed over the course of the proceeding. 2. I have given careful consideration to the Chief Commissioner's submission that costs should not follow the event but should be compartmentalised and attributed on the basis of how various issues and sub-issues were ultimately determined. I have concluded that this should not be done and that the general position that the Court does not do this should be followed in this case. 3. In determining the question of costs, a holistic analysis is appropriate to be employed in this case. 4. Additionally, at or shortly before the hearing, the Chief Commissioner correctly made certain concessions which meant that the Assessments were to be varied in any event. 5. The Chief Commissioner is to pay Uber's costs of the proceedings. 6. The Court orders: 1. The defendant is to pay the plaintiff's costs of the proceedings.