On 25 August 2025, the Supreme Court of Victoria handed down its decision in Taxi Apps Pty Ltd v Uber Technologies Inc & Ors (Taxi Apps decision) deciding, inter alia, whether Uber’s expansion in Australia constituted a tortious conspiracy that caused Taxi Apps Pty Ltd (Taxi Apps) loss.
Taxi Apps was ultimately unsuccessful in proving its claims in conspiracy. The decision nonetheless provides guidance on the requisite intention for the tort of conspiracy, and in what circumstances statutory illegality will be a sufficient basis for finding ‘unlawful means’.
What is the tort of conspiracy?
Although long-established in Australian law, the tort of conspiracy remains a relatively uncommon cause of action. The Taxi Apps decision serves as a reminder that tortious conspiracy is more than an abstract tradition of UK jurisprudence. Rather, the tort of conspiracy can be a realistic cause of action for plaintiffs who have suffered loss at the hands of two or more persons/parties who have collaborated to undertake illegal acts.
In Australia, the tort is divided into:
- Unlawful means conspiracy
- Unlawful purpose conspiracy.
The Taxi Apps decision confirmed the relevant elements a plaintiff must prove for unlawful means conspiracy are that:
- there was a combination or agreement between two more persons engaged in conduct amounting to ‘unlawful means’;
- a purpose of that combination was to injure the plaintiff;
- the combination or agreement was carried into effect by the commission of the agreed unlawful acts;
- those unlawful acts cased damage to the plaintiff; and
- that it was the unlawful part of the conspiracy that caused loss to the plaintiff.
Background
Taxi Apps claimed that the expansion of UberX in Australia constituted a tortious conspiracy, whereby Uber committed unlawful acts to purposefully injury Taxi Apps’ success in the Australian market. Taxi Apps claimed that the defendants (seven Uber entities in a corporate group) engaged in four state-based conspiracies to injure Taxi Apps by unlawful means.
In 2011, Taxi Apps launched ‘GoCatch’ in Australia, an app which enabled users to request a taxi through their smart phone. Subsequently in 2014, Uber launched ridesharing app ‘UberX’ in Australia in breach of local licensing laws.
Taxi Apps argued that Uber sought to ‘crush’ GoCatch before it established a market position in taxi bookings, which could have bene leveraged to its advantage to be the first in the market of ridesharing. That is, Uber tried to gain a market share prior to GoCatch by deploying its ride sharing app at a time when ridesharing was illegal.
Issues
Nichols J summarised the four key issues in dispute as follows:
- Whether there was a combination or agreement. Uber contended that there was no agreement or combination. It said that as a matter of law there cannot be a conspiracy within a corporate group for the purposes of the tort;
- Whether the offences amounted to ‘unlawful means’ for the purposes of the tort. Uber said they do not;
- Whether the defendants had the relevant intentionfor the purposes of each alleged conspiracy. Uber said they did not;
- Whether the unlawful acts caused damage to the plaintiff. Uber said that the plaintiff has not made out its causation case.
Judgment
Taxi Apps was unsuccessful in proving its claims in conspiracy.
Intention
Nichols J found that Taxi Apps established the requisite intention to harm in relation to Uber’s operation in NSW, but not in WA, Qld or Vic.
Her Honour confirmed the following principles to be applied when proving intention for conspiracy:
- A claimant must establish what the object in the mind of those combining was when they acted as they did. It is insufficient to show that the acts necessarily involved injury to the plaintiff, or that the plaintiff was a person reasonably within their contemplation as a person likely to suffer damage as a result of the conspiracy.
- Intention to harm the plaintiff as a means to another primary purpose is sufficient. Intention to harm the plaintiff only needs to be one of several motives or reasons for the relevant unlawful conduct.
- It is not enough that to show that harm to the plaintiff was a necessary consequence of the relevant unlaw conduct. The defendant must intend to harm the plaintiff, not just intend to engage in conduct which would necessarily harm the plaintiff.
- However, where a defendant intends to pursue a course of conduct to obtain a gain and knows subjectively that obtaining that gain would necessarily injure the plaintiff, if obtaining the gain and the injury to the plaintiff are ‘inseparably linked’ the requisite intention (that the defendant intended to harm the plaintiff) can be inferred.
- The relevant intention must attach to unlawful conduct. An intention to injure the plaintiff is insufficient. What is required is an intention to injure the plaintiff through the wrongful/unlawful act, i.e., the wrongful act complained of must have been done ‘with the design of injury’.
- The relevant harm “may be aimed at the plaintiff in a relevant sense notwithstanding that it is only as a means to achieving the defendant’s ultimate objective. Subjective intention to cause harm the plaintiff by the unlawful conduct must nevertheless be proved. The defendants must have acted in order that the plaintiff should suffer damage (either as an end in itself or a means to an end) and not merely with the result that damage be caused to the plaintiff.”
- The requisite intention may be held in respect of a class of persons including the plaintiff.
Unlawful means
Taxi Apps failed to prove that the acts of Uber were unlawful in the sense required to prove the tort of conspiracy for all four conspiracies. Nichols J confirmed that whether the wrong alleged was unlawful under statute or under common law will determine what test to apply to establish ‘unlawful means’. While statutory wrongs may be unlawful means, they will only qualify as such where it can be properly understood (through statutory interpretation) that Parliament intended to create or provide for remedies other than those provided for in the statutory terms.
This contrary intention may be found where the relevant obligation or prohibition was imposed by the statute for the benefit or protection of a particular class of individuals, or where the statute creates a public right and a particular member of the public suffers particular, direct or substantial damage, different from that which was common to the rest of the public.
For Taxi Apps’ purposes, the wrong alleged was only unlawful under statute (a regulatory scheme for taxis). Upon statutory interpretation Nichols J determined the statute was imposed for the benefit of the public (Cf taxi drivers). For this reason, Her Honour concluded that the plaintiff had not established unlawful means required to establish the tort of conspiracy, as it could not be established that Parliament intended other remedies (such as through the tort of conspiracy) to be available for breach of the regulatory scheme.
Key takeaways
Superior court decisions on the tort of conspiracy are few and far between. The Taxi Apps decision provides a helpful overview of the status of this action in Australian law. Despite the plaintiff ultimately being unsuccessful in their case, the decision also serves as a reminder that the tort of conspiracy is more than a mere abstraction, but a genuine action through which a plaintiff can recover compensation.
While Nichols J concluded that existing authorities on the elements of the tort remain insufficient in some respects, Her Honour affirmed existing decisions and provided the following additional principles:
- A defendant’s intention to do an act that will have the necessary consequence of injuring a plaintiff is insufficient to prove the tort of conspiracy, unless the act and the injury to the plaintiff are inseparably linked. There should accordingly be a focus on obtaining evidence as to the defendant’s subjective intention to harm the plaintiff (i.e., malice towards the plaintiff), rather than mere intention to do the harmful act.
- Only certain acts that are only illegal under statute will constitute unlawful means. Whether the illegal act can be unlawful means will depend on whether the statute, when interpreted, indicates Parliament’s intention to offer relief/remedy (i.e., tortious claim of conspiracy) other than that provided in the statute. That a statute creates a public right and a plaintiff has suffered unique harm will point towards Parliamentary intention for broader remedies such as through tort law.
Authors: Jeremy King and Ella Hadley
How can I learn more?
Jeremy King.
Principal.
- Injury Law & Police Misconduct
- 03 9890 3321
- Email Address: j.king@robinsongill.com.au
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. With an imposing track record of high-profile actions against the Victorian police, Jeremy is at the forefront of the fight for police oversight and accountability. Through both his landmark litigation and advocacy work, he has played a key role in shaping legislative reform across Australia.
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