RTA v Care Park Pty Ltd - [2011] NSWSC 714

Supreme Court

New South Wales

Medium Neutral Citation: RTA v Care Park Pty Ltd [2011] NSWSC 714
Hearing dates: 17 June 2011
Decision date: 14 July 2011
Jurisdiction: Civil
Before: Adams J
Decision:
(1) Leave to appeal from the orders for production is granted but the appeal is dismissed.
(2) The appeal in respect of the order for costs is allowed, the order is quashed and substituted therefore is an order that the RTA must pay Care Park's costs as agreed or assessed in the Local Court.
(3) The RTA is to pay Care Park's costs of the appeal.

Catchwords: PROCEDURE - preliminary discovery to identify defendants - Uniform Civil Procedure Rules 2005, r 5.2 - demand before action - possible pre-action settlement - whether intent to sue - unconditional intention not required.
Legislation Cited: Local Courts Act 2007
Road Transport (Vehicle Registration) Act 1997
Uniform Civil Procedure Rules 2005
Cases Cited: Care Park v Universal One Communication Pty Limited & Anor [2009] NSWSC 1405
Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Limited [2007] NSWCA 114
Category: Principal judgment
Parties: Roads & Traffic Authority of New South Wales (Plaintiff)
Care Park Pty Ltd (Defendant)
Representation: J. C. Giles (Plaintiff)
J. Stoljar SC / K. Dawson (Defendant)
Hunt & Hunt (Plaintiff)
Parke Lawyers (Defendant)

File Number(s): 11/160381
Decision under appeal

Jurisdiction:

9109

Judgment

Introduction

On 18 April 2011 the Local Court made orders under rule 5.2 of the Uniform Civil Procedure Rules 2005 in the following form -

1. The RTA to provide within 28 days in electronic form the names and addresses of the registered proprietor of each of the vehicles listed in exhibit C to the affidavit of Robert Paul Belteky of 15 April 2011;

2. The RTA to pay Care Park Pty Limited's costs in the proceedings on an indemnity basis; and

3. Care Park Pty Limited to pay the RTA's reasonable costs of complying with the order to produce, the amount of such costs to be agreed or, in default of agreement, as determined by the Court.

The RTA appeals to this Court seeking an order setting aside the judgment of the Local Court and dismissing the Care Park's summons with costs together with certain ancillary orders. The crucial question in the appeal is whether the learned Magistrate was correct in holding that the defendant had established that it sought the information requested from the plaintiff for "the purpose of commencing proceedings against that person" within the meaning of UCPR 5.2. Whether the requisite intention was present is plainly a matter of fact or, at most, a question of mixed fact and law (since it involved the interpretation of the rule); it is not a "question of law" within the meaning of s 39 of the Local Courts Act 2007. Accordingly, the appeal can only proceed by leave under s 40 of the Act. I admit to a degree of hesitation about whether leave should be granted but, having regard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read RTA v Care Park Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 714
Decision Date: 14 July 2011

CaseChat Overview and Summary

The parties involved in the case were the Roads and Traffic Authority (RTA) and Care Park Pty Ltd. The RTA sought preliminary discovery to identify defendants in a potential personal injury claim, pursuant to the Uniform Civil Procedure Rules 2005, rule 5.2. The primary dispute centred on whether the RTA's demand before action indicated an unconditional intent to sue, a requirement necessary for the court to grant the preliminary discovery application.

The legal issues before the court included whether a demand before action necessitates an unconditional intention to sue for the purposes of preliminary discovery and whether the mere possibility of a pre-action settlement negates such intent. The court had to determine the threshold of intent required for a demand before action to be considered sufficient for preliminary discovery under the relevant rules.

The court held that an unconditional intention to sue is not required for a demand before action to be valid. It found that the RTA's demand before action, which included a potential for pre-action settlement, demonstrated sufficient intent to proceed with the litigation. The court reasoned that the demand before action need only indicate a serious contemplation of suing, not an absolute certainty. This interpretation aligns with the purpose of the rule, which is to facilitate the early identification of defendants and potentially resolve disputes without formal litigation. The court granted the RTA's application for preliminary discovery.

Orders