Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35 Hearing dates: 9 February 2012 Decision date: 09 March 2012 Before: Beazley JA at [1]; Basten JA at [2]; Campbell JA at [10]; Young JA at [11]; Barrett JA at [82] Decision: 1. Grant leave to appeal. 2. Order that a formal notice of appeal be filed within seven days. 3. Order that the appeal be dismissed. 4. Order that the appellant pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE- preliminary discovery- UCPR 5.1, 5.2- respondent operated car parks and knew registration numbers of vehicles which had parked but had not paid fee- requested information from appellant identifying the owners of such vehicles- information provided would, in first instance, be used to contact registered owners of the vehicles- whether preliminary discovery only available if applicant establishes a threshold requirement that it has a "desire" to commence proceedings or whether that is only a discretionary consideration- there is a threshold requirement that applicant must have "desire" to bring proceedings (per Basten JA, threshold requirement is that the applicant has "the purpose of commencing proceedings"), [Young JA in dissent on this point, "desire" or purpose not required but rather a discretionary factor]- desire may be characterised as something less fixed and certain than an "intention" or "purpose" (per Barrett JA, Beazley and Campbell JJA agreeing)- desire may be conditional- respondent found to have requisite desire- appeal unanimously dismissed.