Roads and Traffic Authority of New South Wales v Care Park Pty Ltd (2012) NSWCA 35
Rule 5.2 of the NSW Uniform Civil Procedure Rules provides that prior to commencing formal court proceedings, prospective litigants may apply for preliminary discovery from persons who may have documents which show the identity or whereabouts of a prospective defendant "for the purpose of commencing proceedings" against the prospective defendant.
The NSW Court of Appeal has recently considered the circumstances in which an order for preliminary discovery under rule 5.2 may be granted.
Facts
Care Park operates car parks using a "pay and display" system where car parking is permitted in accordance with the terms and conditions displayed at the entrances and inside its car parks. One of the conditions requires customers to obtain a ticket from a machine within the premises and display it on the dashboard of their vehicle. Where customers do not display a ticket on the dashboard of a car or the ticket that is displayed has expired, a photograph is taken of the number plate of the vehicle and a payment notice placed on the windshield of the car. A displayed term of parking is that by failing to comply with the requirement to display a valid ticket on the dashboard of the car when parking in the car park, the parker of the vehicle agrees "to pay liquidated damages of $88 to Care Park and that the notice attached to the vehicle is notice of that claim".
Care Park brought an application in the NSW Local Court to obtain identification information about car owners' vehicles from the Roads & Traffic Authority (the RTA). The RTA refused to provide the information and opposed the application.
At first instance in the Local Court, Care Park's application for preliminary discovery was granted. The RTA appealed to the Supreme Court but the appeal was dismissed by Justice Adams. The RTA filed a further appeal to the Court of Appeal.
Appeal
The appeal turned on the extent to which an applicant for preliminary discovery needs to establish a "desire" to commence proceedings against the prospective defendant, or whether the existence of "desire" is only a discretionary consideration. At issue was whether Care Park had a genuine desire to commence proceedings against owners of vehicles.
Justice Barrett (with whom Beazley and Campbell JJA agreed) found that rule 5.2 required the court to be satisfied that the application was indeed for "the purpose of commencing proceedings" as opposed to any other purpose. This involved a subjective evaluation of whether the applicant for preliminary discovery had a "desire" to bring proceedings. In the circumstances of the case, Barrett J considered that at the time it made the application for preliminary discovery, Care Park had a genuinely held and soundly based desire to sue the owner of each relevant vehicle, albeit a desire that might be abandoned for good reason later. Accordingly, he dismissed the appeal.
In a separate judgment, Justice Basten similarly found that an applicant for preliminary discovery must demonstrate a desire, intention or purpose to commence proceedings against another person, whose identity or whereabouts are unknown and have not been revealed by reasonable inquires. He also dismissed the appeal.
Justice Young took the view that the proper interpretation of rule 5.2 was that a "desire" to commence proceedings was merely a discretionary factor. Nonetheless, he considered that the grant of preliminary discovery by the lower courts was not inappropriate in the circumstances, and also dismissed the appeal.
Conclusion
The effect of the judgment is that an applicant for preliminary discovery must establish that the application is based on a genuine desire by the applicant to commence proceedings against the person about whom identifying information is sought. If the application is for any other purpose it should not be granted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
