Australian National Car Parks Pty Ltd v State of New South Wales
[2014] NSWCA 298
•29 August 2014
Court of Appeal
New South Wales
Case Title: Australian National Car Parks Pty Ltd v State of New South Wales Medium Neutral Citation: [2014] NSWCA 298 Hearing Date(s): 28 August 2014 Decision Date: 29 August 2014 Before: Basten JA; Gleeson JA; Leeming JA Decision: Orders made on 28 August 2014:
1. Dismiss the amended Writ of Summons filed in the High Court on 7 August 2013 and remitted to the Supreme Court of New South Wales by Gageler J on 24 September 2013.2. Order the plaintiff to pay the defendant's costs in this Court including, pursuant to Order 4 made by the High Court, the costs of the proceedings in that Court.
[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: CONSTITUTIONAL LAW - validity of prohibition in State legislation on preliminary discovery - essential characteristics of state courts - no warrant for concluding that preliminary discovery was an essential characteristic
STATUTORY CONSTRUCTION - principles - natural meaning of text - unlikelihood of alternative meaning - obligation to construe so as not to exceed legislative powerLegislation Cited: Interpretation Act 1987 (NSW), s 31
Judiciary Act 1903 (Cth), ss 44, 78B
Road Transport Act 2013 (NSW), ss 4, 279
Road Transport (General) Act 2005 (NSW), s 244B
Road Transport (General) Amendment (Private Car Parks) Act 2012 (NSW)
Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.21Cases Cited: Australian National Car Parks Pty Ltd v State of New South Wales [2013] HCATrans 228
Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133
State of South Australia v Totani [2010] HCA 39; 242 CLR 1
Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181Category: Principal judgment Parties: Australian National Car Parks Pty Ltd (Plaintiff)
State of New South Wales (Defendant)Representation - Counsel: Counsel:
V Culkhoff (Plaintiff)
M G Sexton SC SG / S Robertson (Defendant)- Solicitors: Solicitors:
Steven Klinger (Plaintiff)
Crown Solicitor's Office (Defendant)File Number(s): 2014/85890
JUDGMENT
THE COURT: Orders were made by the Court at the conclusion of the hearing, dismissing the summons by which the plaintiff sought a declaration that s 279 of the Road Transport Act 2013 (NSW) (Act) is invalid. Those orders are to be supported by construing s 279, following a concession on behalf of the plaintiff. These reasons explain why the plaintiff's construction of s 279 cannot be accepted, and why the concession was properly made.
It is common ground that the plaintiff is involved in the management of private car parks, and that part of its business is seeking to recover amounts alleged to be payable by users of those car parks. It is common ground that, prior to 2012, the plaintiff had sought and obtained orders for preliminary discovery, seeking the names and addresses of the registered operators of registered vehicles which it alleges owe parking fees. Section 279 of the Act, which is headed "Preliminary discovery of information for recovery of private car park fees", is directed to such applications.
The plaintiff commenced proceedings in the original jurisdiction of the High Court of Australia, seeking a declaration that s 279 of the Act is constitutionally invalid. On the defendant State's application, the proceeding was remitted to this Court, pursuant to s 44 of the Judiciary Act 1903 (Cth): Australian National Car Parks Pty Ltd v State of New South Wales [2013] HCATrans 228. It was thereafter removed to the Court of Appeal pursuant to Pt 1 r 1.21 of the Uniform Civil Procedure Rules 2005 (NSW). The Court was told that notices pursuant to s 78B of the Judiciary Act had been issued. The Solicitor General appeared for the State; no other Attorney intervened. Detailed written submissions were exchanged between the parties, which made it plain (as had been anticipated on the removal application) that the parties were in dispute as to the proper construction of the section.
The constitutional arguments invoked to support a declaration of invalidity turned on implied limitations on legislative power associated with Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. However, early in her address, counsel for the plaintiff conceded that the constitutional arguments fell away if the plaintiff's construction of s 279 were rejected.
Section 279 of the Act is in the same terms as s 244B of the Road Transport (General) Act 2005 (NSW), which was inserted by the Road Transport (General) Amendment (Private Car Parks) Act 2012 (NSW) with effect from 20 November 2012. The Act replaced the Road Transport (General) Act 2005 with effect from 1 July 2013. The Minister's second reading speech identified practices which he described as "shameful" (including a single application which contained more than 40,000 names and "a business model of posting mass demands to customers and relying on a proportion of them paying"): Hansard, Legislative Council, 25 October 2012, p 16464.
The impugned section is in the following terms:
"279 Preliminary discovery of information for recovery of private car park fees (cf Gen Act, s 244B)
(1) The Authority cannot be required by preliminary discovery to disclose any information about a registrable vehicle or the registered operator of a registrable vehicle (including information contained in a relevant register) if the preliminary discovery is for the purpose of the recovery of private car park fees.
(2) Preliminary discovery is considered to be for the purpose of the recovery of private car park fees if the preliminary discovery is in connection with ascertaining the identity or whereabouts of a person for the purpose of commencing proceedings against the person for the recovery of private car park fees or is otherwise in connection with the commencement of proceedings for the recovery of private car park fees.
(3) In this section:
preliminary discovery means an order under Part 5 of the Uniform Civil Procedure Rules 2005 or any requirement imposed for a similar purpose by or under any other Act, rule or law.
private car park fee means any amount alleged to be payable under the terms and conditions of a contract, arrangement or understanding in relation to the use of a car park (such as an amount payable for the use of the car park and including an amount payable for breaching any such terms and conditions), but not including an amount alleged to be payable under the terms and conditions of a contract that is in writing and signed by the relevant parties.
relevant register means a register maintained by the Authority under any Act."
The Authority is defined by s 4 to mean Roads and Maritime Services, a corporation constituted under the Transport Administration Act 1988 (NSW).
The plaintiff submitted that the section did not alter the usual way in which preliminary discovery might be sought and obtained from a court. The plaintiff emphasised the word "by" in s 279(1). It submitted that the section had no operation until and unless an order requiring preliminary discovery was made. However, if and when such an order were made, then a court before which an application was made to enforce the order would be commanded by s 279 to disregard the order. This was said in a variety of ways to be unconstitutional: it was said not to foster confidence in the judiciary, to give rise to conflicting orders, to provide the Authority with a "mandate to disobey" an order, and to involve an impermissible interference with the operations of the judicial branch. (We do not purport exhaustively to summarise the strands of the constitutional submissions.)
On the question of construction, it is perhaps best to repeat the plaintiff's written submissions in reply, to which counsel spoke (emphasis in original):
"Once the Order is so made - in the normal course and applying the discretionary principles dealt with extensively by the two Court of Appeal decisions with respect to private car park operators - then and only then does s 279 bite.
Sub-clause 1 - as the key operative provision - reinforces that by stating that the Authority cannot be required by preliminary discovery - meaning an Order under Part 5.
... [Section] 279 does not, in its face, affect the operation of Part 5 r 2. It says nothing about the Court's practice or procedure in that regard, contrary to the Submissions of the Respondent.
... [Section] 279 is dependent on an order being made before it is engaged. It does not remove any power under Part 5.
Nor does s 279 'prescribe' any kind of 'practice or procedure' relating to the exercise of the judicial discretion under Part 5, as contended by the Respondent. ...
The words used in s 279 could not be more plain."
The State submitted that this construction was "completely misguided". It said that the section was directed to the power of a court, and amounted to a legislative exception to the powers of a court to order production of documents.
The plaintiff's submission on construction is not sound, and the State's submission is correct. It is not difficult to demonstrate why.
First, the State's construction accords with the natural meaning of the section. The critical words in s 279(1) are "cannot be required by preliminary discovery". Those words are directed to power. No one can be "required" to do anything by preliminary discovery unless there first be power to order preliminary discovery. Moreover, "cannot" is the ordinary language used to deny the existence of power. The critical words in the section presuppose that there may otherwise be power to require something to occur by preliminary discovery, and detract from such power in the circumstances to which the section applies.
Secondly, the plaintiff's alternative construction is improbable in the extreme. This may be seen by testing how it would operate in practice. Orders for preliminary discovery against the Authority are not made ex parte. Suppose, as the plaintiff contended, there were a contest, but ultimately in the exercise of the Court's discretion the Authority were ordered within, say, 14 days, to provide names and addresses related to particular registrable vehicles. On the plaintiff's construction, until the order was made, the section would have no operation. However, the moment it was made, the Authority would be able to invoke it, thereby giving rise to the risk of inconsistent orders etc on which the plaintiff's constitutional arguments depended. It is absurd to construe the section so as to give rise to that result.
Thirdly, the foregoing is sufficient to dispose of the plaintiff's submission that the words "by preliminary discovery" entail that the section has no operation until and unless an order is made. Once it is appreciated that the Authority is relevantly required to do something if and only if there is an order for preliminary discovery, then it can be seen that the section strikes squarely at the power to order preliminary discovery.
Another way of exposing the difficulty is this. The plaintiff understandably wishes to put distance between the making of an order, and the obligation to which the Authority becomes subject, in order to support its constitutional arguments. Thus it was put at times in oral address that when an order was made and served on the Authority, the Authority would have no choice but to approach the Court for a declaration that it is immune. (It might be asked why that would be so? - why would the Authority instead do nothing, and if prosecuted for contempt, claim that s 279 gave it a lawful excuse? - but that was not addressed by the plaintiff.) However, it is the making of an order which, then and there, imposes a requirement on the Authority to disclose information. The fact that the performance of the obligation imposed by the order might not be required for, say, 14 days, does not detract from the fact that the making of the order imposes the requirement. That confirms that the section is directed to the power of the Court at the time it is asked to make an order, not some subsequent immunity upon the Authority from complying with the order.
Fourthly and finally, let it be assumed for the sake of argument that there were some force in the plaintiff's constitutional submissions. Even so, s 31 of the Interpretation Act 1987 (NSW) requires that s 279 be construed so as not to exceed the legislative power of Parliament. Of course, there are limits to the extent to which this may be done: see for example Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at [102]. But no such limit prevents giving to the section what in any event we would regard as its ordinary meaning. In short, to the extent that the plaintiff's constitutional submissions have any force, they are self-defeating, for they undermine the construction of the section on which those submissions depend.
Notwithstanding her concession, counsel was not prepared to abandon in their entirety what appeared to be freestanding constitutional arguments capable of application even on the construction of s 279 which we consider to be correct. Lest it be thought that there remained an outstanding constitutional issue which was not resolved because it was not pressed, the alternative arguments should be briefly identified. That exercise will explain why counsel's concession was correctly made.
The plaintiff submitted that the section "deprives the plaintiff of its fundamental common law rights before the law to sue a third party for alleged breaches of contract", by denying the plaintiff access to information necessary to identify the third party. The underlying assumption appeared to be that the power to order preliminary discovery was a "defining" or "essential" characteristic of a court. The impugned section, which purported to deprive a court of that power, impaired such a characteristic, so as to overreach the power of a parliament of a state. The submission expressly adopted the language of French CJ in State of South Australia v Totani [2010] HCA 39; 242 CLR 1 at [68].
Modern practice for preliminary discovery in this State (and in most Australian jurisdictions) derives from rules of court which did not exist prior to 1970. The power to order preliminary discovery before the enactment of such rules did not depend upon any common law power, but rather the availability of a bill in equity. In Hooper v Kirella Pty Ltd [1999] FCA 1584; the Full Court of the Federal Court (Wilcox, Sackville and Katz JJ) noted at [24]:
"The bill of discovery has a long history in equity, although its role in preliminary discovery seems largely to have fallen into disuse between the decision in Orr v Diaper (1876) 4 Ch D 92 and the revival of the procedure in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133."
That is not a promising start for an essential characteristic of a state court, as it would have been understood in 1900. However, at least at that time, other limitations would have been understood to apply, as explained by Lord Reid in Norwich Pharmacal, at 174. Noting that a rule which would have prevented an order for discovery against a "mere witness" was an inappropriate restriction, Lord Reid continued:
"But that does not mean, as the appellants contend, that discovery will be ordered against anyone who can give information as to the identity of a wrongdoer. There is absolutely no authority for that. A person injured in a road accident might know that a bystander had taken the number of the car which ran him down and have no other means of tracing the driver. ... I am satisfied that it would not be proper ... to order discovery in order that the person who has suffered damage might be able to find and sue the wrongdoer. Neither authority, principle nor public policy would justify that."
It is not necessary to explore such limitations further, because the plaintiff did not attempt to make good its assertion that there was some "fundamental common law right" permitting it to obtain information as to the identity of a possible wrongdoer from a government authority which had absolutely no connection with the wrongdoing. Whatever the essential characteristics of a state court for constitutional purposes, it can be confidently assumed that the power relied upon by the plaintiff in the present case is not amongst them. Apart from anything else, such a contention would apparently limit the true meaning of "court" for the purposes of Ch III of the Constitution, to courts which enjoyed equitable jurisdiction.
These apparently insuperable obstacles not having been explored in the plaintiff's submissions, it was appropriate to accept the concession that no case was available unless the plaintiff succeeded on its point of statutory construction which, for the reasons given above, must be rejected.
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