The County Court in Victoria has found an anachronistic part of law that means Uber is technically legal in the state.

Uber’s legality in Australia depends on where you are. New South Wales, the ACT and Western Australia have all moved to legalise the transport hire service, but Victoria and Queensland in particular are lagging behind.

Uber drivers operating in states where it has not yet been legalised face fines and could have their licences suspended if they are caught. One such driver, Nathan Brenner, was caught in August 2014 driving his Chrysler 300, when he picked up an authorised taxi compliance officer. He was was found guilty in December 2015 of being an owner of a commercial passenger vehicle and operating that vehicle for hire and reward without a licence under the Transport (Compliance and Miscellaneous) Act 1983.

Brenner appealed, citing a rather outdated section of the act dating back to 1927, which Brenner’s counsel described as “delicious”. Section 159 outlines that there is a defence if the accused can prove that the passengers in the vehicle were not carried for reward at “separate or distinct fares”. In Brenner’s case, there were two passengers in the car, and they were charged a single fare.

This particular section had been carried over in legislation throughout the years, despite legislation being amended in 1941 to remove the phrase “separate and distinct fares for each passenger” from other sections of the act. This particular section was even amended in 2009 to change some of the wording used, and yet the phrase remained. The court accepted the argument that this section of the act, although outdated, had to be considered because only Parliament could repeal it.

“s.159 continues to thrive like a thistle. Parliament chose to amend it rather than slash it. It exists and must be given some meaning … It may be an unintended anachronism but I cannot ignore it. It is no part of my function to amend 19 or repeal sections of legislation.”

Judge Geoffrey Chettle, therefore, found Brenner had a defence, and set aside the original orders, and ordered the Victorian Taxi Commission to pay Brenner’s fees.

The Victorian Taxi Association has described the outcome as “a comedy of errors” and called on Taxi Services commissioner Graeme Samuel to explain how his wide-ranging reviews and amendments to taxi legislation in Victoria failed to identify this section of the act as a potential loophole. A spokesperson said in a statement:

“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 CEO of the Taxi Services Commission Aaron de Rozario said that Brenner only won due to “an obscure technical argument,” and the commission would consider whether to appeal.

“The TSC is considering its options, including an appeal, and will work with the government and Department of Economic Development to further assess the impacts of this decision and our next steps.”

Public Transport Minister Jacinta Allan has said the government is considering the ruling. Any move to amend the legislation is likely to include a push for Uber to be legalised in Victoria, but it will face strong resistance from the taxi industry.