RTA v Australian National Car Parks Pty Ltd

[2006] NSWSC 1300

CITATION:	RTA v Australian National Car Parks Pty Ltd [2006] NSWSC 1300
HEARING DATE(S):	29/11/06
JUDGMENT DATE :	1 December 2006
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Preliminary discovery - threshold requirements - discretion - discretionary considerations - appeal from interlocutory decision - leave.
LEGISLATION CITED:	Freedom of Information Act 1989 (NSW) Privacy Act 1988 (Cth) Road Transport (Vehicle Registration) Act 1997 (NSW) Road Transport (Vehicle Registration) Regulation 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
PARTIES:	Roads and Traffic Authority of New South Wales Australian National Car Parks Pty Ltd
FILE NUMBER(S):	SC 12384/2006
COUNSEL:	Mr S Rushton SC with Mr T Lynch (Pl) Mr M Walton SC with Ms V Culkoff (Def)
SOLICITORS:	Hunt and Hunt (Pl) Steven Klinger (Def)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	78/06
LOWER COURT JUDICIAL OFFICER :	Hannam LCM
LOWER COURT DATE OF DECISION:	7 April 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Australian National Car Parks Proprietary Limited v Roads and Traffic Authority of New South Wales

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

1 December 2006

12384/06 The Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd

JUDGMENT

1 HIS HONOUR: The defendant is the operator of a number of private car parks in New South Wales. The terms and conditions of usage of each car park require the obtaining of a valid ticket or pass and the display of the same. A breach of that requirement is said to give rise to a claim for, inter alia, liquidated damages. It has been said that the terms and conditions are directed towards a driver of the vehicle using the car park.

2 A system employed by the defendant enables the recording of the registration numbers of vehicles. The defendant seeks to obtain information from the plaintiff concerning registration numbers.

3 On 14 February 2006, the defendant brought proceedings by Summons in the Local Court and sought preliminary discovery pursuant to Part 5 Rule 2 of the Uniform Civil Procedure Rules2005 NSW (the Rules) of the names and addresses of the owners of 294 vehicles.

4 The relevant provisions of the Rule are as follows:-

“ 5.2 Discovery to ascertain prospective defendant’s identity or whereabouts

(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.”

5 A contested hearing took place before the Magistrate (Ms Hannam) on 7 April 2006. The parties were legally represented. Mr Abramowicz appeared for the defendant. Mr Hearnden appeared for the plaintiff. Both are solicitors. There was limited material placed before the Court. Mr Abramowicz relied on an affidavit that had been sworn by himself. The plaintiff relied on an affidavit sworn by Phillip John Youngman (the manager of the Records Access Unit of the plaintiff).

6 Mr Youngman is the person responsible for the processing of applications under the Freedom of Information Act 1989 NSW (the FOI Act) lodged with the plaintiff and the plaintiff’s compliance with the requirements of the Act.

7 It appears that, initially, the application was opposed on three bases. Ultimately, it appears that only two of them were pressed.

8 Broadly speaking, the plaintiff took the stance that the defendant should have made application for the information pursuant to the FOI Act and not approached the Court for relief by way of preliminary discovery. It was common ground that the pursuit of either avenue would, at best, produce the same information from the same source.

9 Firstly, it was said that the defendant had failed to satisfy the provisions of sub-section (1)(a) (it had failed to make reasonable inquiries in the sense that it had not made an application pursuant to the FOI Act). Secondly, it was said that the information that the plaintiff would be required to reveal would not be information as to the identity of the person against whom proceedings would be commenced, because the only information that could be given was about the registered operator.

10 The Magistrate came to the view that sub-section 1(a) had been satisfied. She dealt with the only issue litigated before her by the plaintiff (whether or not it was reasonable for the defendant to have made inquiries pursuant to provisions of the FOI Act). There was no issue that the defendant was otherwise unable to sufficiently ascertain the identity or whereabouts of the person’s concerned (it seemed to be common ground that the defendant had available to it two sources of inquiry only, that is either to pursue the discovery application or to take action pursuant to the FOI Act). The Magistrate concluded that it would not be reasonable for the defendant to have to take that latter course.

11 In dealing with the second of the two bases, the Magistrate observed that:-

“… the applicant has made it clear that when that in- formation is obtained that the proceedings will not immediately be commenced against the person nominated as the registered operator but that some other steps will need to be taken to ascertain prospective defendants.”

12 After a consideration of the submissions, the Magistrate also came to the view that the provisions of 1(b) had been satisfied. In so doing, she had regard to the particular language employed by (b). What has to be satisfied is that some person other than the applicant may have information, or may have or have had possession of a document or thing and that information or document or thing tends to assist in ascertaining the identity or whereabouts of the person concerned.

13 In concluding her judgment she said:-

“…I do not accept that it would be reasonable, on the evidence before me, for the applicant to have to make 200 odd individual applications, pay the fee, go through the whole process in each and every matter, and taking into account also the objects of course of the Act, I do find that the applicant has made all reasonable inquiries because in my view it is not reasonable to require an individual Freedom of Information request in each of these matters. So I do find that the applicant has made all reasonable inquiries and is unable to sufficiently ascertain the identity of the person concerned for the purpose of commencing the proceedings. I am also satisfied, because there is no dispute, that the other person, the respondent, may have the information, in fact does have information and that that is information that tends to assist in identifying the identity of the whereabouts of the person concerned, in that it is one of the steps in the chain concerned.”

14 The affidavit of Mr Abramowicz had an annexure B (it was similar to Appendix A to the Summons). This annexure contained a list of vehicles which allegedly were the subject of a failure to comply with the terms and conditions.

15 The effect of the order made by the Magistrate was for the giving of discovery in respect of information concerning the registered operator of the list of vehicles. The final form of the order was reached in consultation with the legal representatives.

16 The plaintiff has now brought proceedings in this Court. It propounds a case as set forth in an amended summons filed on 21 September 2006. The grounds of appeal contained therein are as follows:-

“5. The Court below erred
(a) in finding that the proceedings before it were for the discovery of documents that related to the identity or whereabouts of a person in respect of whom there was any proper basis for commencing proceedings as asserted in the affidavit of Waldermar Abramowicz sworn 14 February 2006,
(b) in not finding that the proceedings before it were for the discovery of documents that did not relate to the identity or whereabouts of a person in respect of whom there was any proper basis for commencing proceedings as asserted in the affidavit of Waldermar Abramowicz sworn 14 February 2006.
6. The Court below erred
(a) in finding that an application under the Freedom of Information Act was not in the premises and for the purposes of r5.2(1)(a) UCPR a “reasonable inquiry” that ought to have been made prior to the commencement of the proceedings before it No.78 of 2006,
(b) in not finding that an application under the Freedom of Information Act was in the premises and for the purposes of r5.2(1)(a) UCPR a “reasonable inquiry” that ought to have been made prior to the commencement of the proceedings before it No.78 of 2006.”

17 The proceedings were brought out of time. However, no issue concerning it arises in this appeal. As a challenge is being made to an interlocutory decision, leave is required. An appeal, as of right, is only available where there has been error in point of law. A challenge may be made where the alleged error concerns a question of mixed law and fact. However, such a challenge requires a grant of leave.

18 The onus rests with the plaintiff. There needs to be a demonstration of a material error which justifies the disturbing of the decision of the Local Court.

19 Before proceeding further, it may be helpful to make certain observations concerning the Rule.

20 The Rule has application where the requirements set forth in (a) and (b) of sub-rule (1) have been satisfied (these are of a threshold nature). When it has application, sub-rule (2) confers a discretionary power to make the orders set forth therein. The applicant bears the onus of demonstrating an entitlement to relief.

21 In determining whether or not the applicant has made reasonable inquiries, the Court will have regard to the nature of the information that is sought, to the potential sources of inquiries and to what has been done in relation to those sources. The absence of any potential source of inquiry would not appear to be intended as barring the granting of relief pursuant to the Rule (it is not necessary to make inquiry that is predictably unproductive). It needs to be understood that what must appear to the Court is that the applicant is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person (after having made inquiries that were reasonable to make).

22 Before proceeding further, I should mention the provisions of certain legislation that was relied on by the plaintiff. The Court has been taken to provisions of the Road Transport (Vehicle Registration) Act 1997 NSW, the Road Transport (Vehicle Registration) Regulation 1998 NSW and the FOI Act.

23 The Road Transport (Vehicle Registration) Act 1997 contains definitions of “Register” (which means the Register of Registrable Vehicles maintained in accordance with the Regulations) and “registered operator” (which means a person recorded in the register as a person responsible for the vehicle). Part 2 Division 1 of the Act sets out the powers and functions of the plaintiff. The functions include the maintaining of a Register of Registrable Vehicles in accordance with the Regulations (section 7). Section 10 provides that the Register does not provide evidence of title. Section 11 is headed “Security of Information in Register”. It provides that the plaintiff must ensure that the information in the Register that is of a personal nature or that has commercial sensitivity for the person about whom it is kept is not released except as provided by the regulations or under another law.

24 The Road Transport (Vehicle Registration) Regulation 1998 deals, inter alia, with matters such as eligibility for registration and applications for registration. It also deals with the Register (including the maintenance thereof). The regulations specify matters that must be recorded in the register (including the name of the person who owns or manages the vehicle and each registered operator’s name and residential address). The Regulations also provide that the Register information is to be subject to Information Privacy Principles (a request for information about the particulars of a registered vehicle or registered operator are to be treated by the plaintiff in accordance with the Information Privacy Principles in section 14 of the Privacy Act 1988 (Cth)). Principle 11 of the Information Privacy Principles imposes limits on disclosure of personal information. The Principle contains the following:-

“1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:
(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;
(b) the individual concerned has consented to the disclosure;
(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d) the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.”

25 The Court has been referred to the objects of the FOI Act (including the intention that the discretions conferred by it shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information). The disclosure of information under the Act is discretionary. The registered operator whose details are the subject of the application of disclosure is consulted. There is a consideration of the reasons advanced for the request of the information. There is provision for an internal review. From that review, appeal lies to the Ombudsman and/or the Administrative Decisions Tribunal.

26 The plaintiff has taken the stance that, under the terms and conditions, liability could only be sheeted home to a driver. It draws attention to a document headed “Payment Notice” which is apparently used by the defendant in an endeavour to recover liquidated damages. It is a document directed to the owner.

27 It is also said that the disclosure of information concerning a registered operator would not assist the defendant in the recovery of liquidated damages. It seems to me that this approach is misconceived (often, the registered operator will also be the driver and when the defendant is armed with information concerning the registered operator it may be able to elicit from such operator information as to the driver).

28 What was said by the plaintiff in respect of (b) of sub-rule (1) seems to me to misconceive the content of that provision. In the circumstances of this case, the defendant had to show that the plaintiff may have possession of a document or thing and that the document or thing tended to assist in ascertaining the identity or whereabouts of the person concerned. The defendant did not have to demonstrate that the document or thing would reveal the identity of the person concerned. It merely had to show that there was a tendency to assist in ascertaining that identity.

29 The discretionary power is unfettered. It is to be exercised having regard to the relevant circumstances of the particular case before the Court and so that the dictates of justice are best served.

30 At this point, the question of the granting of leave can be put to one side. I shall first look at the merits of the appeal. It would be futile to make any grant if the appeal is devoid of merit.

31 In determining the question of whether or not the requirements of subsection (1) had been satisfied, the Magistrate was faced with two issues raised by the plaintiff. In my view, the Magistrate did not err in dealing with either of those issues. The first issue gave rise to a question of fact. Even if there had been error in the deciding of it (and I am not satisfied that this was the case) any such error would not have assisted the plaintiff in this appeal. The second issue raised by the plaintiff involved the misconception earlier referred to. In my view, the Magistrate correctly addressed the threshold requirement set forth in (b) of subsection (1).

32 I am not satisfied that there was any error of construction or misdirection on the part of the Magistrate. I am not satisfied that any basis was shown for the disturbing of her decision.

33 In my view, the grounds of appeal (which were largely ignored in submissions) both misconceive what was done by the Magistrate and the requirements of subsection (1). In making these observations I put aside any question as to whether all or any of them should be permitted to be raised in this appeal.

34 It may be added that the word “relate” (which has been treated as being of wide meaning) appears only in (b) of subsection (2). Subsection (2) does not set forth requirements that have to be satisfied to obtain an order. What it does is set out the nature of the orders that may be made by the Court (an order to give discovery of “all documents” “that relate to the identity or whereabouts of the person concerned”).

35 During the hearing of this appeal, the plaintiff has sought to ventilate various matters. It is unnecessary to deal with them individually (one was an alleged failure to demonstrate a prima facie case against the person concerned). They fell outside the scope of the matters that were agitated before the Magistrate (two concise issues only were litigated before her). They were matters upon which evidence may have been led if raised in the court below. I do not consider that the plaintiff should be permitted to raise them for the first time in this appeal.

36 In my view, the plaintiff has failed to demonstrate either error in point in law or error concerning a question of mixed law or fact.

37 In these circumstances, the question of leave does not require consideration. Little was said by the plaintiff concerning it. Questions of leave involve the consideration of the existence of manifest error and other matters (including matters of public interest or of some legal importance). If the proceedings had been conducted differently at first instance, it may be that certain of the other matters could have been ventilated in support of an application for leave.

38 Before concluding this judgment, for completeness I should mention that similar relief has been obtained elsewhere (Care Park Pty Ltd v Registrar of Motor Vehicles No.179/2005 in the Supreme Court of South Australia).

39 The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

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