Supreme Court New South Wales Medium Neutral Citation: Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2011] NSWSC 1183 Hearing dates: 12 August 2011 Decision date: 07 October 2011 Jurisdiction: Common Law Before: Latham J Decision: Leave to appeal refused Plaintiff to pay the defendant's costs Catchwords: PROCEDURE - preliminary discovery - application for leave to appeal against Local Court order granting discovery - Uniform Civil Procedure Rules 2005, r 5.2 - no sound basis for refusing to follow decision of Adams J in RTA v Care Park Ltd [2011] - no relevant distinction between intention of applicant and "purpose" required by the rule - magistrate did not apply the wrong test by referring to intention rather than purpose. Texts Cited: RTA v Care Park Pty Ltd [2011] NSWSC 714 Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd [2007] NSWCA 114 Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780 Category: Procedural and other rulings Parties: Roads and Traffic Authority of New South Wales - Plaintiff Australian National Car Parks Pty Ltd - Defendant Representation: Counsel: GC Giles - Plaintiff V Culkoff - Defendant Solicitors: Hunt and Hunt - Plaintiff Steven Klinger - Defendant File Number(s): 2011/172690 Judgment 1The plaintiff filed a Summons on 26 May 2011 appealing against the decision of a Magistrate granting discovery to the defendant in respect of the names and addresses of the owner or operator of a number of vehicles which had used the defendant's car parks. 2The Summons contains two grounds, only one of which is now pressed. Before turning to that ground, it must be noted that there is a decision of this Court (Adams J) which is substantially on all fours with the instant appeal : RTA v Care Park Pty Ltd [2011] NSWSC 714. The plaintiff sought to distinguish it according to its facts, but it was recognised that, failing a basis for doing so, the decision is persuasive, unless I was of the view that it is demonstrably wrong. The plaintiff has filed an appeal against Adams J's judgment. The Background to the Appeal 3The defendant (ANCP) is a national operator of public car parks, using a system called "pay and display". It operates car parks adjoining retail outlets such as Woolworths where consumers are provided two to three hours free parking. Otherwise, persons using the car park must buy a ticket. ANCP is retained by these retail outlets to regulate the car park and ensure that consumers do not abuse the stipulated time limits. ANCP regulates these car parks by issuing payment notices in the sum of $88 to those who park without a ticket or park in excess of the time limits, in accordance with its terms and conditions displayed at each facility. 4The RTA maintains a register of cars registered in NSW, which records the name and address of the registered owner. ANCP commenced proceedings in the Local Court for discovery pursuant to UCPR 5.2, to ascertain information relating to the identity and whereabouts of the registered owners of 8890 cars. Each of those cars was said to be indebted to ANCP for a parking fee in the sum of $88 on each occasion that the vehicle breached the relevant parking conditions. 5ANCP had previously obtained orders for discovery in relation to 13,667 cars. It commenced proceedings against 155 of those persons identified by the discovery. Proceedings against named individuals are taken after a letter of demand has issued and remained unsatisfied, or after the matter has been referred to a debt collection agency which has been unsuccessful in recovering the debt. 6The RTA argued in the Local Court that ANCP had not established to the requisite standard that it intended to commence proceedings against each of the persons whose identity was sought. It was further submitted that ANCP had not established the purpose of the application, without which the discretion to grant discovery was not enlivened. In addition, the RTA argued that ANCP had at best a speculative cause of action in the light of the fact that there was no enforceable contract between ANCP and each individual registered owner, or in the alternative, that the fee was in fact a penalty. This latter argument has been abandoned for the purposes of the appeal. 7On 2 May 2011 the Local Court made orders pursuant to Part 5 rule 2 of the UCPR granting ANCP discovery from the RTA, within two months of the date of the order, of the names and addresses of the owner or operator of the vehicles the subject of the application. 8The plaintiff alleges that the Local Court erred in law, or in law and in fact, in failing to find that the defendant had not established the requisite purpose, namely, the purpose of "commencing proceedings against that person", within the meaning of that phrase in UCPR 5.2. The drafting of this ground does not clearly elucidate the point that the plaintiff sought to take on the hearing of the appeal, which was, in effect, that there is a distinction to be drawn between the purpose of obtaining discovery on the one hand and an intention to sue on the other, albeit that the two overlap to some extent. This was not a point that was expressly taken before the Local Court. 9The drafting of the ground of appeal itself, in so far as it refers to a failure to find a requisite purpose, suggests that the ground rests on nothing more than an error of fact. The defendant relies upon this aspect of the appeal, which it maintains is supported by references in the transcript of the proceedings below, in submitting that leave ought be refused. Purpose and Intention 10The Rule allows the court to grant discovery where :- (1) ............ it appears to the court that : (a) the applicant, having made responsible enquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant (the other person) may have information ....... that tends to assist in ascertaining the identity or whereabouts of the person concerned. 11A consideration of the judgment of Adams J in RTA v Care Park Pty Ltd is germane to the disposition of the appeal. As in the instant appeal, the critical question before Adams J. was whether the magistrate erred in holding that the defendant had established that it sought the information requested from the plaintiff "for the purpose of commencing proceedings against the person" within the meaning of UCPR 5.2. Adams J. determined that :- whether the requisite intention was present is plainly a matter of fact or, at most, a question of mixed fact and law (since it involved the interpretation of the rule); it is not a 'question of law' within the meaning of s 39 the Local Courts Act 2007. 12In determining whether leave ought be granted, Adams J. reluctantly decided that leave ought be granted "having regard to the likely repetition of applications of this kind". 13There was evidence before the Local Court in RTA v Care Park Pty Ltd that established to the magistrate's satisfaction that the information in respect of each vehicle was being obtained for the purpose of commencing proceedings against the registered owner of the vehicle, even though ultimately those proceedings might for various reasons not be commenced. That evidence consisted of the contents of an affidavit of the company's managing director, which outlined the procedure following the receipt of the information from the RTA. In short, the company wrote to each of the operators of the respective vehicles and in the absence of payment of the required sum, or in the absence of the company agreeing to waive its claim, the company would commence legal proceedings to recover the relevant amount from the registered proprietor or, in the event that the registered proprietor advised that the vehicle was in the possession of another person at the relevant time, the company would commence legal proceedings against that other person. 14Adams J. noted that the RTA did not take issue with these findings. Rather, the argument advanced by the RTA before Adams J. was that the "person concerned" in UCPR 5.2 (1)(a) and (b) must mean the registered owner, and because the company might not be able to commence proceedings against that person, in the event that the registered owner was not the driver of the vehicle, or might not commence proceedings at all, it therefore followed that the company did not have the relevant purpose. It was said that the real purpose for obtaining the information was to allow the company to determine whom it could sue or whether to sue at all. 15In rejecting this argument, Adams J. reviewed the various circumstances that might lead to a failure to sue, notwithstanding that an applicant under Rule 5.2 might demonstrate an intention to sue the person whose identity is sought at the time of the application. Relevantly, his Honour said at [13] - [14] :- Once it be accepted that, for a variety of appropriate reasons, the intention to sue can properly be conditional, there is no bright line which separates qualifications which are consistent with the required purpose and those which are not - the matter will always be one of fact and degree. Here, the mere fact that it is envisaged that, in certain circumstances only known to the particular potential defendant (for example that the parker was someone else or was a customer of [the retail outlet]), the action will not be commenced against that person is logically to raise the same problem and, in my view, will not exclude the operation of the Rule. The present form of the Rule is intended to facilitate the interests of justice and widen the ability of the Court to provide a means by which a litigant can pursue its legal remedies in cases where it has an arguable right to litigate them. The Rule is not to be interpreted without undue technicality. ....... Of course, if an applicant sought the information for an ulterior purpose and not for the purpose of undertaking litigation, an order would be refused. 16His Honour further held that the phrase "relates to the identity or whereabouts" within the Rule is very wide and "arguably might extend to indirect identification by enquiries of the owner". 17The reasoning of his Honour in this regard was supported by reference to Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd [2007] NSWCA 114. The determination by the Court of Appeal that the rule does not require that the applicant establish a fixed or unqualified intention at the time of the application, together with the fact that the identification of the registered owner is likely to have the "requisite tendency in ascertaining the identity or whereabouts" of the driver against whom it is intended to proceed, was material to his Honour's decision. 18The plaintiff maintains that there is a distinction between intention and purpose when one is considering the basis for an application under the Rule. The plaintiff contends that an applicant's intention may change in the light of changed circumstances, but the purpose required by the Rule cannot change. 19"Intention" does not appear in the Rule. The Court of Appeal in RTA v ANCP held that the Rule "implies that the applicant intends to sue the person whose identity is sought" (at [12]), although that intention need not be "immutably fixed or unqualified". The Court of Appeal seems to have equated intention with purpose in this regard. Adams J drew no relevant distinction between the intention of an applicant and the "purpose" required by the Rule. 20The plaintiff submits that the passage set out at [15] above is plainly wrong and that RTA v Care Park Pty Ltd should not be followed. More particularly, the plaintiff submits that a conditional intention is insufficient to engage the Rule. The plaintiff acknowledges that a letter of demand is a legitimate step before commencing proceedings, but argues that the defendant's "substantive purpose" (an improper purpose) is to "recover the alleged debt by sending letters of demand and engaging debt collectors (even if on occasion there might ultimately be proceedings)." This assertion is itself dependent on a finding of fact that the defendant had such a "substantive purpose". 21In my view, the plaintiff's argument would operate to effectively deprive a significant number of potential litigants of the information necessary to commence proceedings against the proper defendant. To take a hypothetical case, an applicant in possession of the registration number of a vehicle which caused serious damage to the applicant's vehicle stands in the same position as the defendant in this appeal. Such an applicant cannot know whom to sue, or whether the driver is immune from suit, unless the court grants discovery under the Rule. 22I can see no relevant distinction between this scenario and that confronting the defendant in this appeal. The same contingencies are capable of arising in either case. A letter of demand might issue, offers of settlement might be exchanged, and proceedings may never be commenced. The hypothetical applicant's intention to sue the driver of the car is, at the time of the application, conditional upon a failure to recover compensation in some other way. There can be no doubt that the hypothetical applicant requires the information for the purpose of taking proceedings, if that is ultimately necessary. That is precisely what the Court of Appeal meant by the statement that the intention to sue need not be fixed or unqualified. 23I am not persuaded that Adams J was wrong in his analysis. To the contrary, his Honour's decision is consistent with the Court of Appeal's judgment in RTA v ANCP. It follows that there is no sound basis for refusing to follow the decision of another judge of this Court. There is no relevant distinction between the issues determined by Adams J and the issues in the instant appeal. 24It is not necessary to refer further to the magistrate's reasons below. The plaintiff did not contend that there was a complete absence of evidence capable of supporting the finding of fact that the defendant's intention in seeking discovery was to commence proceedings against the drivers of the relevant vehicles. Rather, the plaintiff submitted that the magistrate had applied the wrong test by referring to the issue of intention, consistent with the Court of Appeal's judgment in RTA v Care Park Pty Ltd , and failing to identify the required purpose. For the reasons I have already expressed, I am not persuaded that the magistrate erred. 25A further submission, to the effect that the defendant was required to establish the requisite purpose in respect of each of more than 8,000 individuals, lacks merit. There is nothing in RTA v Care Park Pty Ltd or RTA v ANCP which supports such an approach. Both of those decisions also arose out of applications by car park administrators for discovery in relation to several hundreds of persons. 26Notwithstanding that I have dealt with the merits of the appeal, it is appropriate that leave is refused in this matter. The plaintiff did not develop the argument in the Local Court that sought to distinguish intention and purpose. The plaintiff was aware at the time of filing the Summons that an appeal raising identical issues was pending in this Court. That appeal was heard by Adams J three weeks after the Summons was filed in this matter and the decision was handed down seven weeks after the Summons was filed. The plaintiff persisted with the appeal. It did not identify any compelling reason for pressing the appeal in addition to the detriment flowing from the decision in the Local Court : Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780. 27Leave to appeal is refused. The plaintiff is to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2011