Secure Parking Pty Ltd v The Director General of the Department of Transport
[2020] WASC 232
•22 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SECURE PARKING PTY LTD -v- THE DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT [2020] WASC 232
CORAM: MASTER SANDERSON
HEARD: 19 MAY 2020
DELIVERED : 22 JUNE 2020
PUBLISHED : 22 JUNE 2020
FILE NO/S: CIV 1179 of 2020
BETWEEN: SECURE PARKING PTY LTD
Plaintiff
AND
THE DIRECTOR GENERAL OF THE DEPARTMENT OF TRANSPORT
Defendant
Catchwords:
Practice and procedure - Application for discovery to identify a party - Parking infringement
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Discovery ordered
Category: A
Representation:
Counsel:
| Plaintiff | : | A P Herschowitz |
| Defendant | : | K E Ellson |
Solicitors:
| Plaintiff | : | SRB Legal |
| Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Nil
MASTER SANDERSON:
This is the plaintiff's application made pursuant to O 26A(3) of the Rules of the Supreme Court 1971 (WA) (Rules) for discovery from the defendant to allow the plaintiff to ascertain the identity of a party against whom it wishes to take action. The defendant has consented to the order having satisfied himself on legal advice the application is properly made. Given the nature of the application the registrar has referred this matter for determination. For reasons which follow, orders ought be made in terms of the consent orders filed by the parties on 1 April 2020 and 26 May 2020.
The relevant facts are as follows. The plaintiff conducts the business of providing public access to private property for the purposes of parking motor vehicles.[1] The plaintiff conducts its business in a variety of ways. First, there is ticketed parking where the customer stays for any period of time and pays the parking fee at the time of exiting the car park or the customer prepays for a monthly reserved parking bay. Second, there is ticketed parking at private car parks and shopping centres where the customer pre‑purchases a ticket prior to leaving their vehicle and displays that ticket on the dashboard indicating the intended duration of the parking. Third, there are parking arrangements in shopping centre car parks where parking for an agreed period of hours is free but a breach notice is issued for over‑staying the free period. Fourth, there is permanent parking in private car parks for which a monthly fee is paid. Fifth, ticketed parking at private car parks and shopping centres is provided where the customer pre‑purchases a ticket prior to leaving their vehicle at the car park and displays that ticket on the dashboard indicating the intended duration of their parking with the first hour free.[2]
[1] Plaintiff's outline of submissions filed 4 May 2020 [1].
[2] Plaintiff's outline of submissions filed 4 May 2020 [2].
The plaintiff relies on its standard terms and conditions with minor variations between the different categories of car parks. The standard terms and conditions are displayed at or near the entrance to each car park.[3] Pursuant to the plaintiff's standard terms and conditions, the plaintiff is entitled to issue non‑compliant breach notices to customers who breach the standard terms and conditions.[4] The fee imposed by the breach notices for breaches of the standard terms and conditions is $77.00 which may be reduced to $65.00 if paid by the customer within a certain period.[5]
[3] Plaintiff's outline of submissions filed 4 May 2020 [3].
[4] Plaintiff's outline of submissions filed 4 May 2020 [4].
[5] Plaintiff's outline of submissions filed 4 May 2020 [5].
There is then a clear contractual arrangement between the plaintiff and any person using one of the plaintiff's car parks. Properly analysed the contractual position is this. The plaintiff offers to any person driving a motor vehicle the opportunity to park on its premises subject to terms and conditions. When a motorist takes a ticket and enters the car park a contract is formed. The terms of that contract are as set out in the plaintiff's terms and conditions. Applying basic contract law there is an offer made by the plaintiff and there is an acceptance by a motorist who takes a ticket. So there is a contract established between the two parties.
This arrangement stands in contrast to a situation where parking is provided by a local authority. A motorist who parks at the kerbside is obliged to comply with the regulation adopted by the local authority governing car parking. So if the motorist overstays the period for which parking is permitted an infringement notice may be issued. But this is not done pursuant to any contractual arrangement between the motorist and the local authority. The local authority imposes a penalty pursuant to the by‑laws it has adopted in relation to parking. The motorist who overstays has contravened the by‑law and is therefore liable to a penalty. There is no question of a payment being required from the motorist pursuant to any breach of contract.
Returning to this case, over a period of approximately 13 weeks prior to 10 February 2020 the drivers of certain motor vehicles failed to pay the required fee for parking at various car parks operated by the plaintiff. In so doing the plaintiff says that it breached the plaintiff's standard terms and conditions.[6] That may or may not be the case. But on the materials available on this application it is clearly arguable. That is to say, it is arguable that certain persons breached their contractual arrangement with the plaintiff.
[6] Plaintiff's outline of submissions filed 4 May 2020 [6].
The plaintiff has provided a schedule with the details of the registration numbers of the motor vehicles allegedly parked in breach of the plaintiff's terms and conditions.[7] Traffic Monitoring Services Pty Ltd (TMS), a wholly owned subsidiary of the plaintiff, acting on behalf of the plaintiff, issued breach notices to all the customers who failed to comply with the standard terms and conditions.[8] Each breach notice identifies the date of issue, the nature of the breach, the location, the time of issue of the breach notice, the vehicle registration make and colour and the amount the plaintiff claims for breach of contract.[9]
[7] Plaintiff's outline of submissions filed 4 May 2020 [7]; Affidavit of Clinton Leigh Watts sworn 10 February 2020; Annexure CLW7.
[8] Plaintiff's outline of submissions filed 4 May 2020 [8].
[9] Plaintiff's outline of submissions filed 4 May 2020 [9].
None of the registered owners/drivers of the motor vehicles referred to in the schedule have paid the amount of the breach notices issued nor any reduced amount.[10] The plaintiff is unable to identify the registered owners of the motor vehicles referred to in the schedule.[11] That is the information it wants from the defendant. The plaintiff says it wishes to commence proceedings against the registered owners/drivers of the motor vehicles referred to in the schedule but is unable to do so because it is unaware of the identity of the customers or their residential addresses.[12] Order 26A r 3 of the Rules is in the following terms:
[10] Plaintiff's outline of submissions filed 4 May 2020 [10].
[11] Plaintiff's outline of submissions filed 4 May 2020 [11].
[12] Plaintiff's outline of submissions filed 4 May 2020 [12].
3.Discovery etc. to identify a potential party
(1)This rule applies if a person who appears to have a cause of action against a person (the potential party) wants -
(a)to commence proceedings against the potential party; or
(b)to take proceedings against the potential party in the course of an action to which the person is a party,
but the person, after reasonable enquiries, has not been able to ascertain a description of the potential party sufficient for the purposes of doing so.
(2)If there are reasonable grounds for believing that another person (the non‑party) had, has, or is likely to have had or to have, possession of information, documents or any object that may assist in ascertaining the description of the potential party, the person may apply for an order under this rule.
(3)The application shall be supported by an affidavit and a copy of both shall be served on the non‑party.
(4)On the application the Court may order the non‑party, and if the non‑party is a body corporate, a person having the management of the body to do either or both of the following:
(a)to give discovery to the applicant of all documents that are or have been in the non‑party's possession relating to the description of the potential party;
(b)to personally attend the Court to be examined in relation to the description of the potential party.
(5)If the Court orders a person to personally attend the Court, it may order the person to produce to the Court any document or object in the non‑party's possession that relates to the description of the potential party.
(6)The Court may direct that the examination of the person be by a registrar.
(7)A person required to personally attend the Court shall be entitled to the like conduct money and payment for expenses and loss of time as on an attendance at a trial in Court.
There are then four prerequisites for making an order requiring a non‑party to give discovery to identify a potential party. First, the applicant wants to take proceedings against the potential party in the course of an action to which the applicant is a party. Second, the applicant has made reasonable enquiries. Third, the applicant has not been able to ascertain a description of the potential party sufficient for the purposes of taking proceedings against that potential party. Finally, there are reasonable grounds for believing the non‑party has possession of information that may assist in ascertaining the description of the potential party.[13]
[13] Plaintiff's outline of submissions filed 4 May 2020 [17].
An order for discovery to identify a potential party will not be made unless it would be reasonable for the applicant to bring a proceeding against the prospective defendant. A prima facie case need not be shown but there must be some indication that the applicant has a cause of action.[14] An order for discovery will not be made if the prospective action is merely speculative.[15] In the exercise of the court's discretion it is necessary to consider whether the applicant will be left without an effective remedy if the order is not made.[16]
[14] Plaintiff's outline of submissions filed 4 May 2020 [18].
[15] Plaintiff's outline of submissions filed 4 May 2020 [19].
[16] Plaintiff's outline of submissions filed 4 May 2020 [22].
Clearly this is a case where all the requirements for the making of an order have been met. As I have indicated, it is arguable the persons parking the vehicles detailed in the schedule have breached their contract with the plaintiff. The plaintiff has made reasonable enquiries and has not been able to identify the owners of the vehicles. If the information is not provided by the defendant, then the plaintiff will almost certainly be left without an effective remedy. There is no other reason why an order should not be made.
There is no doubt the making of an order invades the privacy of those individuals who are the owners/drivers of the vehicles named in the schedule. That result is a direct consequence of the form of the Order in the Rules. The Order itself was introduced to remedy a mischief - a party may have been denied the opportunity to take action simply because it was unable to identify the party against whom the action could be brought. It may well be the rule was introduced to plug a gap in commercial litigation. But there is no reason why it cannot operate in a case such as this. The defendant was quite right to consent to the order. It would have been improper for it to do otherwise.
I will make the order upon publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson22 JUNE 2020
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