British Airways Plc v Roller Truck Australia Pty Ltd

[2023] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:

British Airways PLC v Roller Truck Australia Pty Ltd & Anor [2023] NSWDC 112

Hearing dates:

20 April 2023

Date of orders:

24 April 2023

Decision date:

24 April 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 63

Catchwords:

CIVIL PROCEDURE – preliminary discovery application – ‘identity’ discovery – property damage to aircraft following collision with trailers following disconnection from a truck operated by applicant - whether it is necessary to engage r 5.2 that the applicant has identified a cause of action - whether applicant has a genuinely held and objectively based desire to commence a claim – whether discretion to order relief should be exercised

Legislation Cited:

Airports Act 1996 (Cth)

Airports (Control of On-Airport Activities) Regulations 1997 (Cth) rr 123,125, 126

Insurance Contracts Act 1984 (Cth) s 48

Uniform Civil Procedure Rules 2005 (NSW) rr 5.1, 5.2, 5.3

Cases Cited:

Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560

Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506

Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (No 2) (2007) 163 FCR 372

Midland Railway Co v Robinson (1887) 37 Ch D 386

O’Connor v O’Connor [2018] NSWCA 214

Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35

Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114

RTA of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114

RTAof NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502

Steffen v ANZ Banking Group [2009] NSWSC 666

The Age Company Ltd v Liu (2013) 82 NSWLR 268

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Roller Truck Australia Pty Ltd (Applicant)
Menzies Aviation (Australia) Pty Ltd (Respondent)

Representation:

Mr S Belafoutis SC with Ms M Kearney for the Applicant
Mr B Lloyd for the Respondent

Solicitors:
Waterloo Legal for the Applicant
HWL Ebsworth for the Respondent

File Number(s):

2022/00337044

Publication restriction:

Nil

REASONS FOR JUDGMENT

Background

1. This proceeding involves a claim for damages in negligence for property damage (and consequential financial loss) to a B777-30 aircraft owned by British Airways (BA). The claim arises from an incident on 21 November 2016 when the second defendant, Mr Mirigliani, attempted to connect two tow ‘dollies’ (also known as trailers) to a Tow Truck (also known as a ‘tug’) in a storage area adjacent to Bay 77 of Sydney International Airport. The owner of that tug is a third party to the proceeding, Menzies Aviation (Australia) Pty Ltd (“Menzies Aviation”). Mr Mirigliani admits in his Defence that the dollies became disconnected from the tug and collided with the right hand engine thrust reverser cowl of the aircraft. He further admits (in paragraph 10(a)) that some damage was caused to the aircraft by the collision, though he puts in issue the extent of that damage. He also admits that at this time he was under the influence of cannabis.

2. BA commenced this proceeding on 10 November 2022. It sued not only Mr Mirigliani, but also the first defendant, Roller Truck Australia Pty Ltd (“Roller Truck”). BA contends, but Roller Truck denies, that Mr Mirigliani was at the material time, a Roller Truck employee and that Roller Truck was accordingly vicariously liable for tort committed by Mr Mirigliani. Roller Truck contends that he was an independent contractor. BA also contends that Roller Truck breached a duty of care owed to it directly; essentially through inadequate systems of training and supervision of its employees or management care and control of its vehicles and equipment. Both defendants deny that Mr Mirigliani acted negligently and therefore that they are liable to BA for the alleged loss or damage it claims.

3. Mr Mirigliani has also cross-claimed against Roller Truck, seeking indemnity on the premises that he was a Roller Truck employee and that BA’s case against him is made out. Roller Truck denies that claim by contesting the premise that he was an employee.

The application for preliminary discovery

4. By a notice of motion filed 20 December 2022, Roller Truck applies for preliminary discovery against Menzies Aviation for insurance policies it held in the period from 1 July 2015 to 30 June 2017 relating to its ownership and/or operation of vehicles at Sydney Airport.

5. The notice of motion did not, by its terms, identify the source of power for the order for preliminary discovery. But Roller Truck’s written submissions on the application (MFI 1) indicated its reliance upon r 5.2 of the Uniform Civil Procedure Rules 2005 (UCPR). Roller Truck’s written submissions did not refer to r 5.3 as an alternative source of power for the order. Neither did Roller Truck’s oral argument presented by its Senior Counsel rely upon r 5.3.

6. Rule 5.2(1) of the (UCPR), is in the following terms:

“(1) This rule applies if it appears to the court that--

(a) the applicant, having made reasonable inquiries, 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, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2) The court may make either or both of the following orders against the other person--

(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.”

7. Rule 5.1 defines ‘identity or whereabouts’ as:

“the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation”

8. By r 5.2(9), preliminary discovery may be sought by a party in a subsisting proceeding against another person who is not a party. This is the position that Roller Truck is in.

The evidence on the application

9. Roller Truck’s application is partly supported by an affidavit of Roller Truck’s solicitor, Mr Philip King, sworn on 20 December 2022. Roller Truck relies upon other documentary evidence.

10. The application is opposed by Menzies Aviation, which relied upon an affidavit of its solicitor, Livija Kristine Berzins, of HWL Ebsworth, affirmed 23 March 2023.

11. It is common ground that on or about 24 March 2014, Menzies Aviation and Roller Truck entered into a trucking subcontractor agreement. This written agreement was annexed to Ms Berzins’ affidavit and parts of it were relied upon by Menzies Aviation (see below).

Mr King’s evidence

12. Based on information and belief, sourced from the sole director of Roller Truck (Mr Robert Burge), Mr King deposed that on the date of the incident, Mr Mirigliani operated a tug, owned by Menzies and, at that time, was pulling two dollies behind the tug. It was these dollies which detached from the tug and collided with the aircraft.

13. Mr King deposed in some detail to the efforts made by Roller Truck (by itself, its insurer and by its solicitor) to obtain from Menzies Aviation the policies of insurance relating to the tug. This included communications with Menzies Aviation’s insurance broker (Sydney Insurance Brokers); and personnel within Menzies Aviation. Ultimately, on 15 December 2022, Mr Gordon Simpson, who carried the title ‘VP Insurance’ and whose email address indicated that he may have been located in Scotland, declined the request. The present application was brought 5 days later.

14. At paragraphs 25-26 of his affidavit, Mr King deposed to the following:

“25. Roller Truck seeks these documents for the purpose of identifying the entity which provide insurance for Menzies’ vehicles at Sydney airport. Under section 48 of the Insurance Contracts Act 1984 (Cth), a third-party beneficiary under an insurance policy has a right to recover its loss from the insurer.

26. If Roller Truck is a third-party beneficiary under Menzies insurance policy (as an operator of Menzies’ vehicles), Roller Truck will be entitled to recover its loss (being any damages payable to British Airways) from Menzies’ insurer. Accordingly, once Roller Truck has a copy of Menzies’ insurance policy, Roller Truck:

(a) will ascertain whether it is a third-party beneficiary under the insurance policy, and if it is;

(b) intends to make a cross-claim in these proceedings against Menzies’ insurer under the insurance policy; and

(c) will consult with Menzies’ insurer about the nature of its defence to British Airways’ claim. It may be a term of Menzies’ insurance policy that Roller Truck not take any step in these proceedings (such as enter a defence or compromise the proceeding) without the insurer’s consent. Roller Truck does not wish to take any steps that would prevent it from seeking indemnity under Menzies’ insurance policy.”

[emphasis supplied]

15. Mr King was not cross-examined and his evidence as to Roller Truck’s state of mind, as he had described it, may be accepted. Indeed, Menzies Aviation relied upon it as amounting to evidence that was contrary to Roller Truck’s interests on the application.

Context

16. Mr King’s affidavit (at paragraph 8) also argued that, as the owner of the tug, Menzies was responsible for taking out the requisite insurance policies which were a requirement for users of vehicles that held an ‘Authority for Use Airside’. The tug that was driven by Mr Mirigliani, Roller Truck contends, was subject to an Authority for Use Airside by reason of it being used at Sydney Airport.

17. Roller Truck relied upon two supporting documents to place its application in context.

18. The first of these (Exhibit B) was an extract of the Airports (Control of On-Airport Activities) Regulations 1997 (Cth) (issued under the Airports Act 1996 (Cth)). By Regulation 123, a person must not take or operate a vehicle on the airside of a regulated airport unless: (a) the person holds an ADA and the vehicle is subject to an AUA ^[1] ; or (b) the vehicle is escorted by a person authorised, in accordance with the Airside Vehicle Control Handbook, to provide airside vehicle escort services.

    1. For the purpose (inter alia) of Regulation 123, an ‘ADA’ means an Authority to Drive Airside (issued under Reg 125) or a document issued (under Reg 126) that is taken to be an ADA. An AUA meant an Authority for Use Airside issued (under reg 127) or a document issued (under Reg 128) that was taken to be an AUA.

19. The second document (Exhibit C) was the Airside Vehicle Control Handbook issued by the Sydney Airport Corporation Ltd. Senior Counsel for Roller Truck drew the Court’s attention to sub-sub paragraph 2.5.1 of that handbook, which relevantly stated that:

“Applicants for an AUA must, while they operate or otherwise have a Vehicle on the Airside:

(a) take out and maintain an insurance policy with an insurer insuring against any liabilities for death personal injury or property damage incurred in connection with the use of vehicles on the Airside …”

The trucking subcontract agreement

20. As indicated, the trucking subcontract agreement of 24 March 2014 was in evidence. Menzies Aviation referred in its written submissions to the following terms of that agreement which may be paraphrased as follows:

1. Cl 5.3: Menzies shall not be liable for any damage suffered by Roller Truck arising directly or indirectly from the implementation of the agreement except where the damage was occasioned by the negligence of Menzies;

2. Cl 6.1: Roller Truck is essentially obliged to indemnify and hold Menzies harmless from all claims, liabilities, costs, proceedings, damages and expenses to the extent caused by, relating to or arising from the provision of the services, or as a consequence of a breach or negligent performance or failure to delayed performance of Roller Truck’s agreement; and

3. Cl 6.2: during the term of the agreement Roller Truck shall have in place Public and Product Liability Insurance, Property insurance and Professional Indemnity policies.

Principles

21. For the purposes of r 5.2 the cases suggest that certain requirements must be satisfied. The first of those requirements is that of ‘reasonable enquiries’. Within that requirement, Roller Truck must prove that:

1. it has made ‘reasonable enquiries’ about the identity of the ‘person concerned’; and

2. despite those enquiries, it does not possess the information^[2] .

   2. The Age Company Ltd v Liu (2013) 82 NSWLR 268 (“Liu”) per Bathurst CJ (Beazley JA and McColl JA agreeing) at [51]

22. Menzies Aviation concedes that this first requirement is satisfied.

23. The second requirement is that Roller Truck establishes that it has a desire to commence the action against the (yet to be identified) ‘person concerned’^[3] . The desire to commence need not amount to an unconditional intention to commence the proceeding ^[4] . But it must be a genuinely held and objectively based desire ^[5] . Satisfaction of this requirement is in issue.

    3. Roads & Traffic Authority (NSW) v Care Park Pty Ltd [2012] NSWCA 35 (“Care Park”) at [98], [105]-[106]

    4. Care Park at [118]-[119]

    5. Care Park at [106]; Liu at [87]

24. The third requirement is proof that the ‘other person’ has information which “tends to assist” in ascertaining identity ^[6] . Menzies Aviation concedes that this requirement is also satisfied.

    6. Care Park at [120]-[121]

25. Assuming the Court’s power is enlivened under r 5.2, the Court retains a discretion to order preliminary discovery and, as with all procedural applications, it must then take into account case management objectives generally, and the dictates of justice in particular, when deciding whether to exercise its discretion to make the order.

Parties’ arguments

26. The applicant and respondent relied upon written submissions (the applicant’s submissions being, as indicated, MFI 1 and the respondent’s submissions being MFI 2). These were amplified in oral argument.

27. Noting the concessions that were made by Menzies Aviation in argument, as identified above, I will address the points that were contentious.

Roller Truck’s contentions

28. Senior Counsel for Roller Truck emphasised that it was a requirement that Menzies Aviation, as owner of the tug, and as the holder of an ADA, have a policy of insurance whose coverage would broadly extend to “any liabilities” for death, personal injury, or property damage incurred in connection with the use of the tug on the Airside. This broad expression of coverage could conceivably extend insurance coverage to cover the situation of damage caused to the BA aircraft through the sub-contractor, Roller Truck’s operation of the tug owned by Menzies Aviation.

29. Roller Truck says that its present purpose is to seek cover from the insurer of the tug. On the assumption that an insurance policy, or policies exist by which it is entitled to claim against the insurer as a third party beneficiary, it intends to bring a claim against the insurer identified by the policy. In this regard it anticipates that it may have a right to recover under s 48 of the Insurance Contracts Act 1984 (Cth) (“IC Act”). That statutory provision confers an entitlement upon the third party to bring a claim against the insurer in accordance with the terms of the insurance contract.

30. Roller Truck submits that it currently has a desire to commence a proceeding against the insurer, whoever that is. Just because it later obtains information pointing to the inappropriateness of that course does not preclude the operation of the rule since the rule contemplates that an applicant may change its mind as to its desire to commence a proceeding. What matters is that it has the desire to commence the action when it brings the application for preliminary discovery. The insurance policy, or policies, which are the subject of the application may do more than identify the insurer, and conceivably may assist Roller Truck to make an informed assessment of whether to commence the action against an insurer (as the ‘person concerned’ under r 5.2(1)(a)) at all. But, that is no impediment to the success of its application: the scope of r 5.2(b) is such that it is apt to facilitate the Court making an order for discovery of documents that ‘relate’ to that person’s identity.

31. Accordingly, the threshold requirements under r 5.2(1) are satisfied. On the matter of discretion, Roller Truck emphasised that it was a narrow class of documents for which it sought discovery (and there was no suggestion by Menzies Aviation of oppression). There would be substantial injustice to Roller Truck if it were unable to see a document identifying the insurer.

Menzies’ Aviation’s contentions

32. Menzies Aviation argues that r 5.2 only authorises preliminary discovery in circumstances where the applicant currently knows that it has a cause of action. This was supported by case-law authority, including what was said by Barrett JA in Care Park at [103], and also in what was subsequently said by Campbell J in Brydon v Australian Rail Track Corporation Ltd [2014] NSWSC 1560 (“Brydon”) at [20], [22] and [35]. Counsel for Menzies Aviation observed that both of these authorities post-dated the decision that Roller Truck relied upon (see below). As to Care Park, that was a conventional demonstration of a claimant who knows that it has an action in contract seeking to ascertain from ‘the other person’ (in that case, the RTA) to ascertain the identities of the users of the car park. It is not a matter of having confidence in the soundness of the prospective cause of action, but the action must at least be known.

33. In Care Park, in the leading judgment of Barrett JA, it was determined that an applicant had to do more than have a subjective desire to bring an action ‘unsupported by any ground for believing that the object of the desire can be realised’^[7] . There had to be a genuinely held and objectively based desire ^[8] .

    7. Citing Midland Railway Co v Robinson (1887) 37 Ch D 386 per Lopes LJ at 405

    8. Care Park at [106]

34. Menzies Aviation argues that Roller Truck does not presently know whether it has a cause of action against the insurer and would learn whether it has such a cause of action only after an order for preliminary discovery was made. But if the object is to elicit information to determine whether an action should commence, it is more properly the subject matter of an application under r 5.3. Rules 5.2 and 5.3 have separate work to do and cannot, in the words of Campbell J, be ‘blended’ ^[9] .

    9. Brydon at [20]-[22]

35. Menzies Aviation refers to paragraphs 25-26 of Mr King’s affidavit as indicating that Roller Truck does not presently know whether it has a cause of action against its insurer. It only apprehends that it might have a right to claim against the insurer as a third party beneficiary.

36. Counsel for Menzies Aviation submitted that an application for discovery of a document that would identify the insurer and would identify the terms of insurance (including, relevantly, the parties entitled to cover) invites the Court to engage in the blending disfavoured by Campbell J.

37. Menzies Aviation submitted that if, contrary to its primary submissions being accepted, it was found that the circumstances in r 5.2 were satisfied, the application should be refused on the discretionary ground that it amounted to fishing – a ‘stab in the dark’ to ascertain whether the requirement in s 48 of the Insurance Contracts Act1984 (Cth), being that Roller Truck is “specified or referred to… by name or otherwise” as a person to whom insurance coverage extends, is satisfied.

Roller Truck’s contentions in reply

38. Roller Truck submitted that Menzies Aviation was trying to elevate passages from judgments that it relied upon into an additional threshold requirement under r 5.2: that an applicant has an identified cause of action in circumstances where neither the text of the rule, nor the historical context, required an applicant to establish that it has a prima facie case ^[10] . That was also an unwarranted gloss on the rule. It relied upon a decision of McDougall J, being Steffen v ANZ Banking Group [2009] NSWSC 666, where his Honour rejected a submission that r 5.2 could only apply where a cause of action was known and crystallised but the identity or whereabouts of the (prospective) defendant was unknown.

    10. RTA of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114 at [13]; Steffen v ANZ Banking Group [2009] NSWSC 666 at [120]-[121]

39. McDougall J indicated that the existence or strength of a prima facie case went only to the exercise of discretion, rather than whether the rule was engaged. Roller Truck embraced the correctness of that proposition, noting that it had been approved at the intermediate appellate court level ^[11] .

    11. Liu at [89], [102]

40. Roller Truck argued that r 5.2 needed to be construed in a practical fashion. It emphasised the passage from Barrett JA’s decision in Care Park at [117] – [118] accepting that the circumstance that an applicant’s desire to commence a claim may be conditional upon the happening of an event and could be abandoned at a later point does not mean that the desire did not exist when expressed. To similar effect, Mason P (McColl JA and Bell J agreeing) observed in Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502; [2007] NSWCA 114 at [12] that the applicant’s ‘intention’ (or more accurately in the light of subsequent authority in Care Park, ‘desire’) to sue need not be “immutably fixed or unqualified”.

41. Alternatively, if there is a requirement that an applicant has identified a cause of action, then the requirement was satisfied. There was a requirement for Menzies Aviation, as holder of the AUA, to have insurance broadly covering ‘any liabilities’ for property damage incurred in connection with the use of the tug. Here a subcontractor used the tug. A statutory right action under s 48 of the Insurance Contract Act has been identified. Whether such an action will likely succeed is a matter that need not be established.

42. Roller Truck also submitted further that if there were to be a requirement that it has a current desire to commence a proceeding, rather than merely a potential desire, that requirement was also satisfied.

43. In answer to Menzies Aviation’s reliance upon the highlighted provisions of the subcontractor agreement, Roller Truck argued that the limitation on liability clause (in cl 5.3), by its terms, only limited Menzies Aviation’s liability. However, Roller Truck was only proposing to sue the insurer to Menzies Aviation.

44. It submitted, also, that by the terms of r 5.2(2)(b), the scope of what may be discovered may be broad enough to include documents that “relate to” the identity of the person concerned.

Consideration

45. I have already noted Menzies Aviation’s concessions that at least some of the requirements for r 5.2 have been satisfied.

46. In light of the way that the parties conducted their arguments, it appears to me that the questions to be decided are:

1. whether it is a requirement, for the purpose of r 5.2(1)(a), that an applicant has identified a cause of action against the person concerned;

2. if so, whether Roller Truck has identified the cause of action;

3. if the answer to both (a) and (b) is in the affirmative, whether the Court should exercise the discretion to make the orders sought.

Is there a requirement to identify a cause of action?

47. In Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (No 2)  (2007) 163 FCR 372 Siopsis J, with reference to the (then applicable) rule for ‘identity discovery’ in the Federal Court of Australia, said (at [26]) that:

"The definition of 'description' in O 15A r 1 is indicative of the limited nature of the information which is available to an applicant under this rule - being the basic information needed to commence a proceeding, namely, the name, address, sex and occupation of the person to be sued, and whether that person is a natural person, or a corporation. The fact that O 15A r 1 provides that the definition of 'description' 'includes' these items of information, emphasises the limited scope of the information that is obtainable under this rule. Accordingly, this rule will have application where the applicant has already identified a cause of action against an anonymous person or persons and desires to commence a proceeding against that person or those persons, but is unable to do so because of the absence of the necessary information."

(emphasis added)

48. In Care Park, Barrett JA (with whose reasons Beazley P, Campbell JA both expressly agreed and with whom Basten JA reasoned to similar effect at [8]) said at [104] that those observations by Siopsis J also applied to r 5.2 of the UCPR (with the definition of ‘identity or whereabouts’ in r 5.1 substantially replicating the concept of ‘description’ under the former O 15A r 1 of the Federal Court Rules). This passage was also approved by Campbell J in Brydon at [20].

49. Prior to those two decisions, as noted, McDougall J doubted that there was a requirement that a cause of action be known to the applicant, subject to the identity (or whereabouts) of the prospective defendant.

50. I accept that care must be exercised before a Judge considering the construction and application of r 5.2 of the UCPR impermissibly glosses the rule by importing requirements not supported by the text and, further, by the context in which the rules appear.

51. Nevertheless, in the first instance, I respectively consider myself bound to follow what Barrett JA said in Care Park at [103] - [104], through which his Honour applied the approach of Siopsis J to the construction to r 5.2. Properly construed, an applicant’s successful invocation of r 5.2 means that:

1. an applicant for preliminary discovery cannot have formed what Barrett JA described as a ‘genuinely held and objectively based desire’ to commence an action against the person concerned unless it has identified a reasonably arguable cause of action available to it; and

2. the reason the applicant has not yet commenced the action is because it does not know of any one or more of the limited matters referred to in r 5.1.

52. In other words, as to (a), whilst there is no express or free-standing requirement for an applicant to have identified an arguable action against the person concerned, without its identification, the applicant cannot be said to have an objectively based desire to commence the action against it.

53. To my mind, it is not to the point, on the facts in this case, that the applicant’s ‘desire’ at the time it brings the application can subsequently change so that, for example, in this case, upon review of the policy or policies it has accessed after an order for discovery under r 5.2, Roller Truck ascertains that it has no right of action and refrains from commencing a suit. That is not, to my mind, the type of change in circumstance referred to in the cases when reference is made to an applicant’s ‘conditional’ desire. The example given by Barrett JA at [118] in Care Park relating to an applicant’s ‘conditional desire’ refers to the situation of someone who knows what it wants to do, but conditions that intended course of conduct upon the happening of an anticipated event or, perhaps, may be frustrated by an event which is not anticipated. So long as the desire is genuinely held and objectively based at the time it is expressed, that is enough to engage the rule. In the litigation in the Court of Appeal involving the car parks, the RTA knew that it had an action, but for reasons other than the availability of an action, it contemplated that it may have had other reasons for not proceeding to commence the action. Examples of these reasons were referred to by Barrett JA at [116]. None of those matters involved uncertainty on the part of the RTA that it identified an action in contract (or action in debt) against the park users ^[12] , even if it was uncertain whether it might be met with defences in the case of individual park users, or whether it might experience difficulties in prosecuting or enforcing actions against the park users. Knowing it had the cause of action, what prompted it to apply for preliminary discovery was to ascertain the identity and whereabouts of the park users. In short, the RTA did not need, nor sought, preliminary discovery to find out whether it had a cause of action at all against the users of the car parks.

    12. RTA of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502 per Mason P at [3]-[4]

54. In the case here, Roller Truck not only does not know the name of an insurer to sue. It does not know whether or not it can commence an action against an insurer to Menzies Aviation. The circumstance that it is aware of a statutory right of action under s 48 is insufficient, without knowledge of the facts that make out a third party beneficiary’s entitlement to sue an insurer under that provision. At the moment, the posited right under s 48 is an abstraction, or only a possibility for potential invocation. The circumstance that Roller Truck understands that there is a compulsory requirement in Menzies Aviation to have insurance does not say anything in itself about who is covered by such insurance. If Roller Truck does not know whether it can commence an action, it is not at the point where it can be said that it has an objectively based desire to commence the action.

55. As to (b), this is, in effect, a causation question. It is the ignorance about the identity or whereabouts (as that expression is defined) of the person concerned which is the stumbling block to the applicant giving effect to its desire to commence the action against the person concerned and which motivates the applicant to bring this particular application under r 5.2. Here, however, it is not ignorance of the identity of the person concerned which is really holding the applicant back from commencing the action. It is ignorance of the facts that might allow it to invoke the statutory action under s 48 of the IC Act.

56. I respectfully accept the force of what Campbell J said in Brydon against the ‘blending’ of the operation of rr 5.2 and 5.3. If it was enough (subject to other requirements conceded in this case by Menzies Aviation) for an applicant in Roller Truck’s position to obtain an order for preliminary discovery under r 5.2 where it needed certain information that it did not have to determine (a) who was the insurer and (b) whether to bring a claim against an insurer, that would be a ‘blended’ application which, if acceded to, could render recourse to the specific rule in r 5.3 otiose and thereby circumvent other requirements associated with that rule ^[13] . That concern cannot be overcome, as the applicant submits, by reference to the broad scope of discovery permissible under r 5.2(2)(b). That puts the cart before the horse. The scope of discovery permitted under r 5.2(2)(b) is only considered once the Court finds a valid requirement under r 5.2(1) and is inclined to exercise its discretion to order discovery.

    13. Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; applied in O’Connor v O’Connor [2018] NSWCA 214 at [78]

57. Roller Truck apprehends that it might have a possible cause of action against an insurer but will only know for sure after an order for preliminary discovery has been made and enforced. That is not the purpose to which the power exercisable under r 5.2 is directed.

58. Roller Truck is not currently in the position where the stumbling block to its commencing a proceeding is ignorance of the identity of the insurer. Such desire as it has to commence an action against a person concerned is not objectively based even if it is genuinely held. The threshold requirement in r 5.2(1)(a) is not satisfied.

Discretion

59. Against the possibility that I am wrong about my construction or application of r 5.2, it is appropriate to briefly address the question of discretion.

60. Roller Truck acknowledges that the existence or not of a prima facie case (against the ‘person concerned’ or prospective defendant) is relevant to the exercise of the discretion ^[14] . Roller Truck is not in a position to say that it has such a prima facie case. Indeed, it may be thought counter-intuitive to expect that Menzies Aviation’s insurance coverage would extend to benefit Roller Truck in circumstances where the subcontracting agreement obliged Roller Truck to have in place its own insurance policies, including public liability and property insurance policies under cl 6.2, and where Roller Truck agreed to indemnify Menzies Aviation in relation to services performed on the former’s behalf causing loss or damage arising from its performance of the subcontracting agreement. Those provisions suggest a clear intention on Menzies Aviation to shift the burden of losses from the operation of the vehicles to Roller Truck and it is not self-evident that Menzies Aviation and its insurer might contemplate a need to insure Roller Truck, its employees or agents. Indeed, it is not an exaggeration to say that the proposed case is speculative or remote.

    14. Liu at [89], [102]

61. Be that as it may, whatever the strength of a prospective case as it currently appears, I accept Menzies Aviation’s submission that it is fishing. It is substantially seeking to run what might otherwise have been an application sourced in r 5.3 without complying with the requirements of that specific rule to see whether it has an action against an insurer to Menzies Aviation. Whilst acknowledging other relevant considerations, such as the limited scope of discovery, by itself, this would be a decisive reason against acceding to the application in the exercise of the Court’s discretion.

62. The application for preliminary discovery under r 5.2 is accordingly refused.

63. The Court orders that:

1. the First Defendant’s notice of motion dated 20 December 2022 is dismissed.

2. the First Defendant is to pay Menzies Aviation (Australia) Pty Ltd’s costs of the motion on the usual basis.

3. if either party to the application wishes to vary the costs order, it should do so within 14 days of these orders and further directions will ensue for the determination of such application.

**********

Endnotes

Decision last updated: 24 April 2023