Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd

The Roads and Traffic Authority of NSW (RTA) sought preliminary discovery from Australian National Car Parks Pty Ltd (ANCP) to identify potential defendants in proceedings concerning alleged breaches of privacy. The dispute arose from the RTA's use of ANCP's parking meter data, which the RTA allegedly disclosed to third parties without proper authorisation. The RTA contended that this disclosure constituted a breach of privacy and sought to identify the individuals responsible for authorising or carrying out the disclosure. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the RTA had made "reasonable enquiries" to ascertain the identity of the potential defendants, as required by rule 5.2(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW), and whether the requested discovery would "tend to assist in ascertaining the identity" of those persons, pursuant to rule 5.2(1)(b). The Court also considered whether the RTA should have pursued a Freedom of Information application as a prerequisite to seeking preliminary discovery.

The Court of Appeal reasoned that the RTA had not demonstrated that it had made reasonable enquiries to identify the individuals involved. The Court noted that the RTA had not provided sufficient evidence of the steps it had taken to investigate the matter internally or to seek information from ANCP prior to commencing the preliminary discovery application. Furthermore, the Court found that the discovery sought from ANCP was unlikely to directly assist in identifying the specific individuals responsible for the alleged privacy breaches, as ANCP's records would likely relate to the data itself rather than the decision-making process within the RTA. The Court emphasised that preliminary discovery is an exceptional remedy and requires a strong evidentiary basis to justify compelling a third party to disclose information.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision to refuse the application for preliminary discovery.