County Court Appeal Verdict
May 18 2016
The outcome of Brenner's appeal case has come as a suprise to many and relies on very complex legal interpretation. The advice from our lawyers about the verdict is as follows:
On 18 May 2016, Judge Chettle handed down a decision in which he allowed the appeal by Brenner and set aside the orders of Magistrate Ayers made in the Magistrates Court. Brenner’s costs of the County Court appeal were also awarded in his favour, in an amount to be determined between the parties.
Judge Chettle did not accept the Defendant’s argument that Brenner did not receive any reward for carrying Morris and Robinson as passengers.
Judge Chettle found that section 159 of the Act must be given meaning and therefore is to be interpreted as being a defence to any prosecution of a driver or owner of a commercial passenger vehicle, in circumstances where the reward received for the carriage of the passengers was not separate and distinct for each passenger. His Honour arrived at this decision having regard to principles of statutory interpretation that require that all words and phrases in an act must be given meaning and effect.
It follows that the section 159 defence can be argued by UberX who are carrying two or more passengers, and may also still be arguable even where an UberX driver carries only one passenger.
The written decision of Judge Chettle is published on the County Court website here.
This case has been a comedy of errors from the very beginning.
The onus now lies with Taxi Services Commissioner Graeme Samuel to explain how several amendment bills and two year state-wide industry inquiry failed to identify the potential implications of this clause, and remove it.
Clearly the relevant clause in the Act (159) was not intended to offer a loophole for providers of illegal services to avoid prosecution and enforcement.
You might as well throw the taxi and hire car bill out the window. This outcome fundamentally undermines the integrity of the framework of rules and laws regulating the commercial passenger vehicle industry in Victoria.
The Victorian taxi industry will continue to ensure its drivers and operators are accredited in the interests of the travelling public. We will do this despite the ongoing refusal of some that we continue to be expected to compete with who actively undermine the rules in place to protect passengers.
Swift action must be taken to ensure the community is protected and a clear and enforceable set of rules that apply to all participants in the commercial passenger vehicle industry is put in place.
The following background on the legal matters surrounding the case has also been provided by our lawyers:
UberX Appeal – Nathan Brenner v Taxi Services Commission
Nathan Brenner, previously found guilty in the Magistrates’ Court of breaching the Transport (Compliance and Miscellaneous) Act 1983 (the Act)by owning /driving a commercial passenger vehicle without being authorised to do so, has appealed that verdict to the County Court of Victoria.
The appeal was heard in the County Court of Victoria on 16 and 17 May 2016.
The Appeal was heard de novo, that is, as a complete retrial of the facts, evidence and arguments of both of the parties.
Breach of Section 158 of the Act
The offences allegedly committed by Brenner are breaches of sections 158 and 165 of the Act, being that Brenner drove a commercial passenger vehicle, without being authorised or accredited to so operate by a license, permit or other authority.
A commercial passenger vehicle is, relevantly, defined in section 86 of the Act as any motor vehicle which is used, or intended to be used, for carrying passengers for hire or reward.
Evidence of the Offence
At the appeal, very little evidence was led. The prosecution called David Morris, formerly of the Taxi Services Commission, who, along with officer Rodney Robinson, was one of the two authorised officers who rode in Brenner’s UberX.
Mr Morris testified that he had booked a trip in Brenner’s Uber through the UberX smart phone application, using a pseudonym, and was driven by Brenner from a hotel in East Melbourne, to the Como Centre in South Yarra, for a fare of $9.00. The $9.00 fare was deducted from Morris’ credit card, but subsequently refunded by Uber, who stated the trip had not taken place.
The Defendant largely conceded that the facts as stated by Mr Morris in his evidence were correct, and did not seek to adduce any evidence to the contrary.
The Defendant did, however, cross examine Mr Morris on a number of issues including the refund of the $9.00 fare and the conversation that occurred between Mr Morris and Brenner regarding the calculation of the $9.00 fare.
The Defendant did not lead any evidence from any other witnesses.
There were two main points of defence argued by the Defendant.
Firstly, it was argued that Brenner did not carry Morris and Robinson for hire or reward, on the basis that Brenner received no reward from Morris or Robinson, only Uber did. The Defendant then also alleged that the prosecution had failed to establish any relationship between Uber and Brenner, which could prove that Brenner was paid by Uber for the carriage of Morris and Robinson.
Secondly, the Defendant relied upon an argument concerning an obscure section of the Act, section 159, which it argued operated as a defence to the breach of section 158 of the Act, because Brenner did not carry the passengers for “reward at separate and distinct fares for each passenger”.
The History of section 159
Section 159 provides:
In any prosecution against the owner or driver of any commercial passenger vehicle the onus shall lie upon the accused of proving that the passengers carried upon such vehicle were not carried for reward at separate and distinct fares for each passenger but the accused shall not be under any obligation to discharge such onus until the informant first discharges the onus of proving that the passengers carried upon such vehicle were carried for reward.
In order to consider the application of section 159 of the Act, it was necessary to consider the history of the section.
Originally, section 46 of the Transport Regulations Act 1933 (1933 Act) existed in order to prevent errant bus drivers from collecting multiple passengers, charging them each a fare, and transporting them around Victoria without being licensed or accredited.
The 1933 Act defined a commercial passenger vehicle as a motor car carrying passengers for reward at separate and distinct fares for each passenger.
Section 47 of the 1933 Act, save for minor amendments to terminology, is identical to section 159 as extracted above.
In 1941, the 1933Act was amended so as to narrow the definition of commercial passenger vehicle, as the phrase “separate and distinct fares for each passenger” was removed.
However, there was no consequential amendment made to section 47.
The Defendant noted that this was apparently a drafting error by parliament, and was not intended to remain in the Act after the 1941 amendment.
Despite the anomaly that now presents itself in the legislation, the Defendants argued that its existence entitles them to rely upon that section as a defence to the offence in section 158.
Interpretation of Section 159
The Defendant referred to a number of High Court authorities which consider statutory interpretation principles. Of relevance are the requirements that each word or phrase in legislation must be given work to do – that is, parliament cannot have included a word or phrase in legislation without intending for that word or phrase to have some effect.
Also, in the construction of a penal provision, that is, one of criminal consequence, the provision must be interpreted in the favour of the accused. All parties accepted that section 159 was a penal provision.
Essentially, the Defendant argued that, should Judge Chettle accept their antiquated, 83 year old interpretation of section 159, then that section operates as a defence for Brenner, in that as he did not charge two separate and distinct fares for each of Morris and Robinson, he cannot be said to have breached section 158 of the Act.
The absurd outcome that results from this argument is that if a driver carries two or more passengers, they do notcommit an offence. However, we note that it is possible that an interpretation of the section may mean that a driver carrying only one passenger may rely upon this defence.
This was acknowledged by the Defendant, who, despite the farcical nature of such an interpretation, contended he should still be entitled to rely upon the section.
Further still, despite the Defendant arguing that this provision exists only by error of history, they should, nevertheless, be entitled to rely upon it.
In response, the Prosecution argued that section 159 cannot be said to provide a defence to Brenner. Alternatively, they asserted that section 159 is an anomaly of history, erroneously included as the legislation has developed. However, they argue that if the section does have any work to do, it merely serves to shift the evidentiary burden of proof to the Defendant.
The Prosecution said further that section 159 may exist to assist a prosecutor in establishing the commission of multiple offences by an accused, which have arisen out of the same events or circumstances.
In the alternative, the prosecution asserted that, should the intention of parliament have been for section 159 to operate as a defence to section 158, it would have been included in section 158(4), which presently incorporates two other defences to section 158.
Finally, the prosecution asserted that in repealing and amending the definition of a commercial passenger vehicle in 1941, parliament also intended to repeal the phrase “separate and distinct fares for each passenger” from section 159, and such a repeal of that phrase from section 159 should therefore be implied.
 Transport Regulations 1933 (Vic) s. 5.
 Transport Regulations 1933 (Vic) s. 47.
 1941 amendment
 Krakouer v R (1998) 194 CLR 202.