Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Care Park Pty Limited [2012] NSWCA 35
• Hearing dates: 9 February 2012
• Decision date: 09 March 2012
• Before: Beazley JA at [1]; Basten JA at [2]; Campbell JA at [10]; Young JA at [11]; Barrett JA at [82]

Decision

1. Grant leave to appeal.

2. Order that a formal notice of appeal be filed within seven days.

3. Order that the appeal be dismissed.

4. Order that the appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE- preliminary discovery- UCPR 5.1, 5.2- respondent operated car parks and knew registration numbers of vehicles which had parked but had not paid fee- requested information from appellant identifying the owners of such vehicles- information provided would, in first instance, be used to contact registered owners of the vehicles- whether preliminary discovery only available if applicant establishes a threshold requirement that it has a "desire" to commence proceedings or whether that is only a discretionary consideration- there is a threshold requirement that applicant must have "desire" to bring proceedings (per Basten JA, threshold requirement is that the applicant has "the purpose of commencing proceedings"), [Young JA in dissent on this point, "desire" or purpose not required but rather a discretionary factor]- desire may be characterised as something less fixed and certain than an "intention" or "purpose" (per Barrett JA, Beazley and Campbell JJA agreeing)- desire may be conditional- respondent found to have requisite desire- appeal unanimously dismissed.; PRACTICE AND PROCEDURE- preliminary discovery- UCPR 5.2- does information identifying the owner of the vehicle "relate to" the identity of the person concerned (prospective defendant)- a document which assists in ascertaining the identity of the prospective defendant is a document which "relates to" the person's identity.
• Legislation Cited: Federal Court Rules 1979 (Cth), O 15A, rr 1, 3; Local Court Act 2007, ss 39, 40; Supreme Court Act 1970 (NSW), s 101; Uniform Civil Procedure Rules 2005, rr 5.1, 5.2
• Cases Cited: Cardale v Watkins (1820) 5 Madd 18; 56 ER 801; Chandler v DPP [1964] AC 763; Hearne v Street [2008] HCA 36; 235 CLR 125; Hetherington Ltd v Carpenter [1997] 1 NZLR 699; Hooper v Kirella [1999] FCA 1584; 96 FCR 1; Liu v The Age Ltd [2012] NSWSC 12; Lyle & Scott Ltd v Scott's Trustees [1959] AC 763; Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (No 2) [2007] FCA 1510; 163 FCR 372; Midland Railway Co v Robinson (1887) 37 Ch D 386; Putnin v Commissioner of Taxation (1991) 27 FCR 508; Re Application of Cojuangco (1986) 4 NSWLR 513; Reiner v Marquis of Salisbury (1876) 2 Ch D 378; Roads and Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd [2007] NSWCA 114; 47 MVA 502; Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran [1994] 1 AC 438
• Category: Principal judgment
• Parties: Roads and Traffic Authority of New South Wales (Appellant); Care Park Pty Limited (Respondent)
• Representation: Counsel: P Greenwood SC and J Zerilli (Appellant); J Stoljar SC and K W Dawson (Respondent); Solicitors: Hunt & Hunt (Appellant); Parke Lawyers (Respondent)
• File Number(s): CA 2011/160381

Decision under appeal

• Citation: RTA v Care Park Pty Ltd [2011] NSWSC 714
• Date of Decision: 2011-07-14 00:00:00
• Before: Adams J
• File Number(s): SC 2011/160381

Judgment

1 BEAZLEY JA: I have had the opportunity of reading in draft the reasons of the other members of the Bench in this matter. Having given careful consideration to the terms of the Uniform Civil Procedure Rules 2005, rr 5.1 and 5.2, I am of the opinion that the construction given to r 5.2 by Barrett JA is the correct construction. It follows that my judgment in this matter is that I agree with the orders proposed by Young JA for the reasons given by Barrett JA.

2 BASTEN JA: On 18 April 2011, Local Court Magistrate Maloney made an order in favour of the respondent in this Court, Care Park Pty Ltd ("Care Park") requiring that the Roads and Traffic Authority ("the RTA") provide details of the registered owners of vehicles believed by Care Park to have used its parking facilities without payment. The order, for what is known as "preliminary discovery", was made pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 5.2.

3 The RTA appealed from that order to the Common Law Division, pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW). To the extent that it sought to challenge findings of fact made by the magistrate, the RTA required and was granted, leave to appeal: RTA v Care Park Pty Ltd [2011] NSWSC 714 at [2] (Adams J). However, the appeal was dismissed: at [26].

4 The RTA sought leave to appeal to this Court, presumably on the basis that the amount in issue did not satisfy Supreme Court Act 1970 (NSW), s 101(2)(r). By an amended summary of argument, filed in December 2011, the applicant made clear that it sought to challenge, to the extent necessary, the decision of this Court in Roads and Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd [2007] NSWCA 114; 47 MVR 502.

5 The critical issue between the parties is whether, in order to engage the power conferred by r 5.2, an applicant must demonstrate a desire, intention or purpose to commence proceedings against another person, whose identity or whereabouts are unknown and have not been revealed by reasonable inquiries. (The text of the rule is set out at [26] below.)

6 Rule 5 contains two preconditions to engagement. First, having made reasonable inquiries, the applicant must be "unable to sufficiently ascertain the identity or whereabouts of a person ( the person concerned ) for the purpose of commencing proceedings against the person". Secondly, there must be some other person who "may have information ... that tends to assist in ascertaining the identity or whereabouts of the person concerned".

7 The argument focussed on whether the "purpose" referred to in the first condition merely characterised the lack of information available to the applicant, or whether it also identified a purpose which the applicant was required to hold. The conclusion that it had a dual function is supported by the reference in r 5.1, in the definition of " identity or whereabouts ", to "the person against whom the applicant desires to bring proceedings".

8 While I accept that it is appropriate to resolve the ambiguity in r 5.2(1)(a) by reference to the language in the definition in r 5.1, I would have reached the same conclusion without reference to r 5.1. The critical factor is the context of r 5: that context includes its history, which is briefly set out by Hunt J in Re Application of Cojuangco (1986) 4 NSWLR 513 at 521. The rule is found in the Uniform Civil Procedure Rules, the purpose of which, as is sufficiently revealed by the name, is to regulate civil proceedings in the various courts in this State to which the Rules apply. The purpose of Part 5 is self-evidently to facilitate the enforcement of civil causes of action by proceedings in a court where a person who might otherwise wish to bring proceedings is prevented from doing so by a lack of information as to the identity or whereabouts of the prospective defendant. The rules have no broader or separate purpose. It would follow from that context that any ambiguity in r 5.2(1)(a) should be resolved in favour of the reading that "the purpose of commencing proceedings" has the dual function noted above.

9 In all other respects I agree with Barrett JA. That concurrence extends to the discussion at [120]-[121] as to the identification of the driver of the vehicle as "the person concerned".

10 CAMPBELL JA: I agree with the orders proposed by Young JA, for the reasons given by Barrett JA. The interpretation of Rule 5.2 at which Barrett JA arrives emerges in part, but only in part, from the syntax of Rule 5.2. It also emerges in part from the requirement that there be a "person against whom the applicant desires to bring proceedings" that the definition of "identity or whereabouts" in Rule 5.1 requires to be read into Rule 5.2.

11 YOUNG JA: This is the concurrent hearing of an application for leave to appeal and, if that leave is granted, the hearing of the appeal itself. The decision the subject of the case is that of Adams J, [2011] NSWSC 714, entituled in the same manner as this appeal. Adams J himself was hearing an appeal by leave from Local Court Magistrate Maloney.

12 The basal background facts are that the respondent operates a number of pay and display car parks and other car parks throughout the State. Many of these are operated in connection with major retail stores. The examples used before the Magistrate in this case were those operated in conjunction with Officeworks.

13 It would appear that the car parks operate on the basis that there is often a free parking period and/or that customers of the sponsoring store park free, but that apart from this a parking fee on a time basis is charged. People pay this fee at a machine and receive a voucher which is then displayed in the vehicle where it can be clearly seen.

14 The respondent's experience is that a number of people park a car in its car parks, but either do not pay or do not display their payment voucher or overstay.

15 The respondent has notices displayed at the entry to all its car parks which include the following:

"By entering and remaining in this car park you enter into a contract with Care Park upon these terms and conditions:

...

1. You must...obtain a valid ticket or pass and display it clearly on the dashboard of the vehicle while parked...

2. If you fail to comply with condition 1, or if your ticket and pass expires, you agree to pay liquidated damages of $88.00 to Care Park. You further agree that claim for liquidated damages is given sufficiently by Care Park affixing a Payment Notice to your vehicle.

3. Provided payment of the liquidated damages is made within 14 days, Care Park will accept $66.00 in settlement. If the liquidated damages remain unpaid for 42 or more days, you agree to also pay $77.00 legal costs for our lawyers to demand payment."

16 There is no issue in the instant case as to whether one can at law impose liquidated damages by a unilateral notice of offer to be accepted by conduct, nor whether a flat fee no matter how long the "offending vehicle" is parked can ever be properly classed as liquidated damage, nor whether it is permissible to claim the extra $77 where a debt collector is employed.

17 There is also the difficulty that, whilst there may well be a contract between the driver of the car and the respondent, there can be no contract with the registered owner as such even though the respondent's letters of demand seem to suggest to the contrary.

18 Whilst these are all awkward questions, they will probably never be raised in practice as sensible people will realise that the amount of any dispute will be nowhere near the legal costs of the argument. However, the above needs to be said in case my silence is read as my endorsement of the respondent's scheme.

19 I should note that the learned Magistrate did find as a fact that the $88 was properly liquidated damages and there is no appeal on that finding, nor could there be as the only right of appeal is on a question of law or by leave on a mixed question of law and fact ( Local Court Act 2007, ss 39 and 40). Adams J gave leave to appeal to the Supreme Court in this case.

20 The respondent employs attendants who patrol its car parks and note the numbers of vehicles that do not display tickets or whose payment voucher has expired or are otherwise parked contrary to the regulations. An attendant will place a numbered payment voucher on each allegedly offending vehicle with doubtless some leeway for the exercise of discretion.

21 The respondent has a practical difficulty in administering its scheme in that whilst it knows the number of the vehicle involved, it does not know who parked it let alone who is the registered owner.

22 In order to overcome the lastmentioned difficulty, the respondent sought from the Local Court an order for preliminary discovery against the appellant, the authority which keeps records of such information. The application covered 1397 vehicle licence plates.

23 The learned Magistrate granted an order in favour of the respondent. He ordered that the reasonable cost of complying with the order be paid by Care Park and if not agreed, made provision for its ascertainment.

24 The RTA lodged an appeal by leave to the Supreme Court which was heard by Adams J who dismissed it, though his Honour varied the order made by the Magistrate for costs. The RTA seeks leave to appeal from that decision to this Court.

25 This concurrent application came on for hearing on 9 February 2012. Mr P H Greenwood SC and Mr J Zerilli appeared for the RTA and Mr J Stoljar SC and Ms K Dawson appeared for Care Park.

26 The relevant Rule governing such applications is UCPR 5.2 which, so far as it is relevant, reads as follows:

(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.

27 It is necessary to refer also to the definitions in Rule 5.1 which defines the term "identity or whereabouts" as follows:

includes 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.

28 It is apparent that there are difficulties of interpretation with respect to Rule 5.2. There are at least three possible constructions, which I will note in summary to be expanded later as follows:

A. There are two threshold or jurisdictional barriers for an applicant to surmount, namely: (1) that he or she has made reasonable inquiries; and (2) the defendant may have information to assist. All other factors are in the realm of discretion.

B. As well as the matters referred to in A, the applicant must at least also show that he or she has, at the time of the application, the purpose of commencing proceedings against the person in question.

C. In order to sue, a plaintiff must have certain details. The purpose noted in 5.2.1(a) refers to collecting that detailed information.

29 There have been a number of prior decisions over parking stations and preliminary discovery. The most significant is the decision of this Court of Appeal in Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114; 47 MVR 502 (hereafter the " 2007 RTA case ").

30 In that case, Mason P, with whom McColl and Bell JJA agreed, said at [12], following Re Application of Cojuangco (1986) 4 NSWLR 513, 521:

Rule 5.2(1)(a) implies that the applicant intends to sue the person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery...This does not mean that such intention must be immutably fixed or unqualified.

31 Mason P continued at [14]:

14 Rule 5.2(1) effectively states two threshold requirements. First, the applicant must be unable sufficiently to ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to the FOI Act ) does not in itself make it unreasonable to claim an alternative remedy under the rule (see Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 at 307). The cost, delay and uncertainty of alternative measures is relevant to the rule's "reasonable inquiries" component.

15 Secondly, the applicant must show that the respondent to the application "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 prospective defendant.

32 In the instant case, Magistrate Maloney followed the decision of this Court in the 2007 RTA case and held that there were two threshold requirements which were satisfied and that it was proper to give the present respondent the order it sought with indemnity costs.

33 The basic complaint of the appellant before Adams J and before us is that the Court should adopt what I have called "Interpretation B" noted earlier. On this test the RTA submits, the Magistrate's findings do not demonstrate that Care Park had "the purpose of commencing proceedings against the person" in respect of which the information was being sought. This is because, as the RTA contends, "person concerned" must mean the owner of the vehicle and Care Park might not actually commence proceedings against that person as he or she was not the person who parked the car; indeed, it might not sue at all.

34 It was common ground that, statistically, operators of car parks appear to sue only 100 out of 10,000 reported defaults. The most common proceedings are against persistent offenders who regularly park without payment. In most cases, reasons for this include that the owner of the vehicle settles the claim or satisfies the operator that, in the circumstances, no fee was payable because the car was only parked whilst the occupiers were shopping in a store which had arranged free parking with the respondent for the store's customers or that the parking was for less than the maximum period for which free parking is permitted.

35 The appellant says that a person whose prime purpose is to issue paper demands, but only takes proceedings in about one per cent of cases, has not demonstrated that the information it requested is being sought for the purpose of commencing proceedings.

36 Adams J followed the 2007 RTA case and thus rejected the appellant's submissions. In effect his Honour adopted Interpretation A. Subsequently, Latham J refused to give leave to appeal in a similar case on the grounds that Adams J was clearly correct; see RTA v Australian National Car Parks Pty Ltd [2011] NSWSC 1183. The RTA says that the 2007 RTA case was wrongly decided. Hence, a bench of five judges is considering this matter.

37 Adams J considered the objection that, at the time of the application, Care Park would not be in a position to show that its dominant purpose was to commence proceedings.

38 At [10]-[15] of his reasons, Adams J said:

10 It is self evident that a case could not properly proceed if, being (say) to recover a liquidated sum, the defendant paid the debt and costs. If payment were made on a letter of demand prior to commencement of action, it would be not only unnecessary but improper to commence proceedings for its recovery. In virtually every case of debt it is common practice, indeed necessary, having regard to the responsibility to avoid useless litigation, to first make a demand for payment before suing. Such demands are often paid or lead to a negotiated settlement. To interpret this Rule as, for example, requiring a creditor to intend to sue whether or not payment or settlement were proffered, would plainly be contrary to the interests of the administration of justice.

11 An even more obvious case is where there is no certainty - which is a very real possibility - that the identified potential defendant can be found. The intention to sue is inevitably qualified by the need to locate the defendant.

12 To require a would-be plaintiff to disregard the possibility that, before action is commenced, a bona fide defence might be put forward and intend to sue whatever might be disclosed is similarly objectionable. What if the potential defendant is impecunious or bankrupt?

13 Once it be accepted that, for a variety of appropriate reasons, the intention to sue can properly be conditional, there is no bright line which separates qualifications which are consistent with the required purpose and those which are not - the matter will always be one of fact and degree. Here, the mere fact that it is envisaged that, in certain circumstances only known to the particular potential defendant (for example that the parker was someone else or was a customer of Officeworks), the action will not be commenced against that person is logically to raise the same problem and, in my view, will not exclude the operation of the Rule.

14 The present form of the Rule is intended to facilitate the interests of justice and widen the ability of the Court to provide a means by which a litigant can pursue its legal remedies in cases where it has an arguable right to litigate them. The Rule is not to be interpreted with undue technicality. The Court retains the discretion to refuse an order in an appropriate case, say where the order would be oppressive or there would be an undue interference with significant privacy interests of third parties which could not be protected. Of course, if an applicant sought the information for an ulterior purpose and not for the purpose of undertaking litigation, an order would be refused.

15 As was pointed out in Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd at [16], so far as the situation is concerned, where the registered owner is not the driver, it is evident that identification of the registered owner is likely to have the "requisite tendency in ascertaining identity or whereabouts" of the driver against whom, as the evidence to which I have referred makes clear, it is intended to proceed.

39 The RTA, submits that the Magistrate and Adams J applied the wrong test, that Interpretation B is correct and that an applicant for preliminary discovery under the Rule must satisfy the court that the information is sought "for the purpose of commencing proceedings". It submits that this element is a jurisdictional matter, a threshold requirement and that the 2007 RTA case wrongly relegated it to a matter of discretion. Further, it submits that purpose is to be determined objectively and does not depend on the expressed intention of the party making the application.

40 As to para [12] of the 2007 RTA case, the appellant submits that, whilst it may be true that the applicant's intention can bear on the exercise of discretion, that is not to diminish the fact that the applicant must first establish the requisite purpose in order to found jurisdiction to make the order. The Court of Appeal in the 2007 RTA case did not cover this aspect of the dispute and in not so doing fell into error.

41 In the instant case, both Adams J and Magistrate Maloney focused on the respondent's expressed intention to sue. The RTA submits that there is a subtle, but significant, difference between the intention to sue and the purpose of the application.

42 The RTA's submissions are reinforced by calling attention to the principle that material obtained on discovery is only permitted to be used for the purpose for which the order was conferred. The RTA relies on authorities connected with the proper use of statutory powers; see eg Hearne v Street [2008] HCA 36; 235 CLR 125.

43 The RTA submits that preliminary discovery is not for obtaining information as to the identity of people who may or may not have a liability to the applicant so that it can send letters of demand to them: it is limited to occasions when someone wishes to sue a person and needs to ascertain their identity for that purpose .

44 Mr Stoljar and Ms Dawson put that Adams J's decision was clearly correct. The Rule must be construed beneficially, not with undue technicality. Any misuse can be dealt with by the appropriate use of discretion.

45 They also put that the decisions of the Magistrate and of Adams J were evaluative decisions and should not be disturbed lightly on appeal. This is, of course so, but the prime thrust of the RTA's submission is that the wrong test was applied below, with a focus on the applicant's intention, rather than a focus on the objective purpose of the application.

46 Having discussed the possible interpretations of the Rule and the parties' submissions, I must now turn to the fate of the appeal.

47 Interpretation C was put forward in argument by the Bench. It was not embraced by counsel, though, when pressed, Mr Stoljar submitted that if his primary argument failed, he would rely on it as a back up submission.

48 Interpretation C is suggested by the syntax of the Rule.

49 Campbell JA put the following to counsel:

The relevant bit that's in dispute is that the applicant, having made reasonable inquiries, is "unable to sufficiently ascertain the identity or whereabouts of a person for the purpose of commencing proceedings against the person."

Now if you ask what's the syntax, "for the purpose of commencing proceedings against the person" looks like it's an adverbial phrase. What does it qualify? "Unable to sufficiently ascertain", presumably. Does that mean that what is missing is information that is adequate for the purpose of commencing proceedings? Now if that's right that's a quality of the information that's missing rather than a quality of the state of mind of the person who doesn't have the information. One needs to work out the syntax before one can work out what are the relevant questions.

50 Later his Honour said:

What I'm putting to you is that someone is unable to sufficiently ascertain the identity or whereabouts of a person for the purpose of commencing proceedings if what they don't have is the information that is needed for the purpose of commencing proceedings.

51 Barrett JA assisted counsel by saying:

Justice Campbell's suggestion is that the current wording focuses attention on the intrinsic quality of the missing information as an objective matter rather than the content of the brain of anybody.

52 Interpretation C is largely based on the fact that the "for the purpose..." phrase is an adverbial phrase. The question then is, what does it modify? The answer is: sufficient information about the identity of the person so that he or she may be sued. On this basis, there is no need for any inquiry as to whether the applicant has a purpose to commence proceedings.

53 Interpretation C does combine nicely with Rule 5.1 so that under 5.2(1)(a) the Court is shown that the applicant has made reasonable inquiries and also that the body of information that the applicant has falls short of what is required to sue.

54 The fact that the phrase is an adverbial phrase and that Interpretation C may be nearest to the literal meaning of the Rule may make this interpretation technically correct. However, there are a number of reasons why I do not favour it.

55 First, the flavour of the authorities on the Rule is that it should be applied beneficially, purposively and not technically; see eg Hooper v Kirella [1999] FCA 1584; 96 FCR 1, 11.

56 Secondly, Pt 5.1 focuses on a person who desires to bring proceedings.

57 Thirdly, no previous decision either in this Court or the Federal Court has contemplated such an interpretation, nor does any counsel for the parties suggest it.

58 Fourthly, Interpretation C runs contrary to what Hunt J said in Re Application of Cojuangco at 521 that :

the applicant must intend to commence proceedings against the person so identified.

59 Fifthly, it runs contrary to the whole concept behind this Rule, that is, that the process is in aid of pending or intended actions. In equity the Court was accustomed to follow the view of Lord Redesdale in Mitford on Pleadings (4 th ed p 185) . This passage was quoted and adopted by Malins VC in Reiner v Marquis of Salisbury (1876) 2 Ch D 378, 384:

This jurisdiction is exercised to assist the administration of justice in the prosecution or defence of some other suit either in the Court itself or in some other court."

60 Where there was no such suit, the Bill for Discovery was demurrable. Thus, in Cardale v Watkins (1820) 5 Madd 18; 56 ER 801, the whole report states:

A bill was filed merely for a discovery, but stated no purpose for which the discovery was sought. A demurrer was put in and allowed; THE VICE-CHANCELLOR [Sir John Leach], observing that a Court of Equity does not compel discovery for the mere gratification of curiosity, but in aid of some other proceeding either pending or intended, and that there must be allegations to that effect.

61 Cardale v Watkins is the basis of the opinion in Bray on Discovery (p 611) which was adopted by the Full Federal Court in Hooper v Kirella at p 9.

62 Although the Federal Court observed that its preliminary discovery rule (identical to our 5.2) departed from the old equity rule in important respects, it stated at p 11 that it "plainly contemplates that the applicant needs to ascertain the identity of the relevant person in order to institute a proceeding in the Court against him or her."

63 Hooper v Kirella confirms the view that both under the Rule as well as with the former equitable process the procedure exists to assist a person who desires to commence proceedings, but does not have the necessary information.

64 It follows from previous decisions that whether one looks to expressed intention or objective purpose, so long as the purpose is present at the time of the application, it matters not that it is abandoned afterwards, except to the extent that any information obtained may have to be destroyed.

65 I should note that, whilst generally, the New Zealand authorities and the Australian authorities run on similar lines, the New Zealand provision speaks of an applicant who "is entitled to claim"; see eg Hetherington Ltd v Carpenter [1997] 1 NZLR 699 (CA).

66 Interpretation B suffers from the problem that it promotes an adverbial phrase into a requirement.

67 Whilst Interpretation B does catch hold of the traditional rule that the discovery must be in aid of a pending or intended proceeding in the court, it actually introduces a higher threshold by substituting "sole or major purpose" for the traditional "intended".

68 The word "purpose" is one which can have many shades of meaning depending on context. As Viscount Radcliffe said in Chandler v DPP [1964] AC 763, 794-5:

All controversies about motives or intentions or purposes are apt to become involved through confusion of the meaning of the different terms and it is perhaps not difficult to show by analysis that the ideas conveyed by these respective words merge into each other without a clear line of differentiation. Nevertheless a distinction between motive and purpose, for instance, is familiar enough in ordinary discussion....

69 Purpose may be discovered by looking at objective facts such as the situation where a person has to prove the purpose of expending money on legal fees for defence of a criminal prosecution was for the purpose of earning his income (eg Putnin v Commisisoner of Taxation (1991) 27 FCR 508). However, often the only guide to an actor's purpose will be his or her statements of intention. The cases, eg Re Application of Cojuangco at 521, use the words "purpose" and "intention" interchangeably.

70 To my mind, so inflating the concept of purpose (particularly bearing in mind the chameleon quality of that word as noted earlier) is not to be followed. The word here means no more than that the applicant has an intention or desire to commence proceedings if, after inquiry, that still is perceived as a proper course to take.

71 It is erroneous to elevate the use of the word "purpose" into a jurisdictional requirement.

72 It is to be noted that the Rule speaks of the purpose of the applicant. It must follow that the court must look at the substantial and dominant purpose.

73 It was open to both the Magistrate and Adams J to find the purpose of the application by focussing on the respondent's intention which was not shown to be a sham.

74 For the reasons set out above, I do not consider that either Interpretation C or B is correct. I favour Interpretation A which I consider is close to the wording and which is a practical non technical approach and is consistent with the previously decided cases.

75 On Interpretation A being accepted, it follows that Magistrate Maloney and Adams J made a finding of fact that there was the relevant purpose and that finding must stand. Thus, even if the Court were to adopt Interpretation B, the appeal would still fail.

76 I respectfully agree with Barrett JA at [120]-[121] that enquiries which would reveal the identity of the registered owner of a vehicle "relate to" the identity of the person who parked the vehicle.

77 As to the 2007 RTA case, in my view it was correctly decided. In saying that, I bear in mind that every judicial decision is directed to deciding the points in issue in the particular case. It would be possible to read the 2007 RTA case as if it also decided matters which were not before that court. One can hardly say that the decision was wrong on that basis.

78 The Rule is not clear and the Rule Committee should give consideration to clarifying it, though it may be that, as it was copied from a Federal rule, this might not be able to be easily accomplished.

79 For the reasons set out above, in my view, the appeal must fail.

80 However, in the circumstances where this sort of problem has been occupying the time of the courts for some years despite the answers given in the 2007 RTA case , it is appropriate to grant leave to appeal.

81 Accordingly, I would propose the following orders:

1. Grant leave to appeal.

2. Order that a formal notice of appeal be filed within seven days.

3. Order that the appeal be dismissed.

4. Order that the appellant pay the respondent's costs of the appeal.

82 BARRETT JA: The questions before the court concern the discretion under rule 5.2(2) of the Uniform Civil Procedure Rules 2005 to order what is sometimes called "identity discovery". The factual background and the circumstances giving rise to the proceedings appear from the judgment of Young JA.

83 The primary judge (at [2]) described the "crucial question" before him as:

" . . . 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."

84 His Honour then said:

"Whether the requisite intention was present is plainly a matter of fact or, at most, a question of mixed fact and law . . ."

85 After setting out findings made by the magistrate and observing (at [8]) that RTA did not take issue with any of them, the primary judge noted the submission of RTA that those findings "do not demonstrate that Care Park had 'the purpose of commencing proceedings against the person' in respect of whom the information is sought". He went on to decide (at [13]) "the intention to sue can be conditional" and to uphold the decision of the magistrate.

86 The judgment proceeded on the footing that an applicant for an order under rule 5.2(2) must have "the purpose of commencing proceedings against" a particular person; and, at several points, "purpose" and "intention" were referred to in such a way as to imply that they are, at least in the particular context, synonymous.

87 The contention of RTA on appeal is that the primary judge erred in holding that, on the findings made by the magistrate and on the proper construction of rule 5.2, Care Park had established that it was for the purpose of commencing proceedings against them that it sought discovery of the identities of the persons the subject of its discovery application, that is, the persons recorded in the statutory records kept by RTA as the operators of motor vehicles identified by the registration numbers appearing on their number plates (to avoid possible confusion, the person who is, in statutory terms, a "registered operator" will be referred to here as an "owner").

88 RTA submitted in this court that a threshold requirement for the exercise of the power to make an order under rule 5.2 is that the information sought through the order is sought "for the purpose of commencing proceedings", that that purpose is to be determined objectively and that the primary judge (like the magistrate) had wrongly focussed on whether Care Park held an actual subjective intention to commence proceedings.

89 RTA further argued that, to the extent that this court, in the 2007 RTA case, held (or implied) that the purpose of commencing proceedings goes only to the exercise of the discretion to order identity discovery and does not amount to a jurisdictional requirement, the decision is wrong and should not be followed. Particular reference was made to the following passage in the judgment of Mason P (with whom McColl JA and Bell JA agreed) at [12]:

"Rule 5.2(1)(a) implies that the applicant intends to sue the person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery: Re Application of Cojuangco (1986) 4 NSWLR 513 at 521. This does not mean that such intention must be immutably fixed or unqualified."

90 Counsel for RTA also made submissions about whether "purpose" and "intention" are in truth synonymous and whether the purpose in question must be a "substantial" or "leading" purpose or may be one of several purposes to each of which comparative weight or prominence is not attached.

91 Care Park accepts that an applicant for an order under rule 5.2 must demonstrate, as a threshold matter, that it has the purpose of commencing proceedings. It says that there is nothing in the 2007 RTA case contrary to this and, in particular, that the statement at paragraph [12] of the judgment, which equates purpose and intention, indicates that the intention is pertinent to the exercise of the discretion because it is relevant to the threshold matter of purpose as well as being something to be taken into account in exercising the discretion.

92 The central issue is whether the court must be satisfied, as a condition going to its ability to make an order, that the applicant has a purpose of commencing proceedings against a particular person and whether what might be termed a "conditional purpose" - that is, a purpose of suing that may be abandoned in the light of information brought to light by the discovery order - is a sufficient purpose to permit the court entertaining the discovery application to move to the next stage of deciding whether actually to make an order.

93 It is necessary to look closely at the words of the rules. Rules 5.1 and 5.2 are as follows:

5.1 Definitions

"In this Part:

applicant means an applicant for an order under this Part.

identity or whereabouts includes 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."

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."

94 The discretion to make an order under rule 5.2(2) is enlivened only if the court is satisfied as to the matters in both rule 5.2(1)(a) and rule 5.2(1)(b). It is rule 5.2(1)(a) that calls for particular examination in this case.

95 The second definition in rule 5.1 is of special importance. Read in the light of that second definition, rule 5.2(1)(a) directs attention to the question whether the "applicant" (that is, according to the first definition, the person seeking an order under rule 5.2(2)) has made reasonable inquiries and, having done so, has been unable to sufficiently ascertain certain information about "a person" (including 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") for the purpose of commencing proceedings against "the person".

96 Attention is directed to the information that the applicant's reasonable inquiries to date have produced regarding the person referred to in the second rule 5.1 definition, that is, "the person against whom the applicant desires to bring proceedings". The question is whether the applicant, having obtained that information, has been unable "to sufficiently ascertain the identity or whereabouts of" that person "for the purpose of commencing proceedings against the person".

97 The "purpose of commencing proceedings" is thus the yardstick against which sufficiency of information in the applicant's possession is measured, not something that the applicant must have. It is the objective sufficiency of the possessed information to fulfil the "purpose" of commencing proceedings to which the court must have regard, not the question whether the applicant has a purpose of commencing proceedings. That objective sufficiency will be determined by the requirements of the rules of court prescribing the particulars of a defendant to be given in (and in connection with) an originating process of the kind appropriate to the particular proceedings.

98 The mental state that the applicant must be found to have regarding the bringing of proceedings is indicated by the words "the person against whom the applicant desires to bring proceedings". The task of the court is to decide whether the applicant has established that he or she has such a "desire".

99 Rule 5.2(1)(a) is, in relevant respects, similar to the rule considered in Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (No 2) [2007] FCA 1510; (2007) 163 FCR 372 . Order 15A rule 3(1) of the Federal Court Rules then in force provided:

"Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called the person concerned ) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may make an order under subrule (2)."

100 Order 15A rule 1 contained a definition as follows:

" description includes the name, and (as applicable) the place of residence, registered office, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding, and also whether that person is an individual or a corporation.

101 Siopis J said (at [26]):

"Order 15A r 3 permits an applicant to obtain information limited to the ascertainment of the description of the person or persons against whom he or she desires to commence a proceeding."

102 Having thus identified the person in respect of whom information could be sought as the person against whom the applicant "desires to commence a proceeding" (as referred to in the definition of "description"), his Honour continued:

"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."

103 And then:

"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."

104 By stating in this way the circumstances in which the now superseded Federal Court rule had application, Siopis J was identifying the matters that must "appear to the court" (to use the terminology in our rule 5.2(1)) before it can exercise the discretion conferred by the rule. His observations about the findings necessary to make the discretion available are, in my opinion, equally applicable to the provisions of the Uniform Civil Procedure Rules now under consideration.

105 One of the findings on which the power to make an order depends is a finding that the applicant "desires" to commence proceedings against a particular person whose particulars are insufficiently known to fulfil the purpose of commencing proceedings against him or her, with sufficiency for that purpose being determined in the way already mentioned.

106 The "desire" of the applicant might, in one sense, be seen as a subjective matter but it would, I think, be wrong to think that regard should only be had to what the applicant says about what he or she wishes to do. The relevant desire must be what Lopes LJ, in Midland Railway Co v Robinson (1887) 37 Ch D 386 at 405, referred to as "a bona fide desire" and not merely "a capricious desire" unsupported by any ground for believing that the object of the desire can be realised. In Lyle & Scott Ltd v Scott's Trustees [1959] AC 763 at 779, Lord Reid said that he would not hold a desire "proved by some equivocal words or acts". The existence of a serious question to be tried is sometimes said to depend on whether there is a substantial question of fact or law, or both, which the claimant " bona fide desires to have tried ": Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. The same quality of genuinely held and objectively based desire is relevant in the present context . It is therefore for an applicant under rule 5.2 to do more than simply assert some subjective desire.

107 I turn now to the 2007 RTA case and to the question of what was there decided about threshold requirements. I have already set out paragraph [12] of the judgment. It is necessary to quote also paragraphs [14] and [15]:

Rule 5.2(1) effectively states two threshold requirements. First, the applicant must be unable sufficiently to ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to the FOI Act ) does not in itself make it unreasonable to claim an alternative remedy under the rule (see Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 at 307). The cost, delay and uncertainty of alternative measures is relevant to the rule's "reasonable inquiries" component.

Secondly, the applicant must show that the respondent to the application ' 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 prospective defendant. ' Identity or whereabout' is given an extended definition in r5.1 to include:

'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'

108 There is reference here, in the description of the "two threshold requirements", to "the intended defendant" and "the prospective defendant". Part of the "two threshold requirements" is therefore a finding that there is an "intended defendant" or "prospective defendant". This is consistent with the observation of Mason P at paragraph [12] that rule 5.2(1)(a) implies that "the applicant intends to sue the person whose identity is sought".

109 It is true that paragraph [12] goes on to say that "[d]emonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery". But I do not read anything in paragraph [12] or elsewhere in the judgment as saying that demonstration of the intention is not, in the first instance, part of the "threshold requirements", as implied by the references in paragraphs [14] and [15] to "the intended defendant" and "the prospective defendant". It follows that I respectfully do not share the opinion of McCallum J in Liu v The Age Ltd [2012] NSWSC 12 (at [76]) that the reasoning in the 2007 RTA case was that

"a plaintiff's state of mind as to the future commencement of proceedings against the person concerned is appropriately regarded as a pertinent factor in the exercise of the discretion, but not as a condition precedent to the exercise of the power, provided the application is brought for a proper purpose".

110 Demonstration of a relevant state of mind of the applicant as to future commencement of proceedings was, in my opinion, seen in the 2007 RTA case as going to the availability of the discretion to order discovery. In that way, the state of mind does not first arise for consideration when the question of exercise of the discretion is being addressed. It plays a part in the decision as to the existence of the court's power to exercise the discretion, although it may subsequently become relevant again to the question of exercise. At that later point, it may be appropriate to assess the quality of the applicant's state of mind with respect to the bringing of the particular proceedings against the particular person and, for example, to consider whether it is insubstantial or misguided so as to make any proceedings merely speculative, doomed to fail or otherwise not deserving of the discretionary assistance that the court is empowered by rule 5.2 to give.

111 But while a finding as to the applicant's state of mind is necessary at the threshold, it is, in my opinion, incorrect to regard the necessary finding as one that the applicant "intends" to bring proceedings; and to the extent that a different view forms any part of the decision of this court in the 2007 RTA case, that view should not be accepted. Having regard to the second definition in rule 5.1 and its impact on the meaning of rule 5.2(1)(a) in the way I have already described, the state of mind that must be found at the threshold is that the applicant "desires" to bring proceedings.

112 It follows, in my opinion, that the correct construction of the rules is Young JA's "Interpretation B", but with "desire to commence" substituted for "purpose of commencing".

113 The difference between intention (or purpose) and desire will be of little consequence in many cases, since a search for what someone "desires" will often bring to light the thing that they "intend" and demonstrate what their "purpose" is; and likewise something that a person intends or in respect of which they have a purpose is, of its nature, something that they desire, since, in the ordinary course, everyone has a desire to effectuate their intentions and purposes. As a matter of language, however, a desire may be characterised as something less fixed and certain than an intention or a purpose. A person with an intention or purpose has progressed to a degree of determination stronger than that of a person with only a desire.

114 On what I consider to be its correct construction, rule 5.2(1)(a) does not require the court to inquire into the applicant's intention so far as proceedings against the prospective defendant are concerned; but it does make necessary an inquiry into the applicant's desire in that regard. To inquire into intention (or purpose, which was regarded as the same thing), as both the magistrate and the primary judge did, was therefore to embark on a course that lies beyond the scope of the rule. But the positive conclusions to which they came as a result of the inquiry into intention and purpose indicate even more strongly the existence of the matter into which they should have inquired, that is, a desire on the part of Care Park.

115 It follows that, if the inquiry into intention or purpose made by the magistrate and upheld by the primary judge addressed the correct subject (in the sense of "intention to do or purpose of doing what?"), the result of that inquiry should be accepted as having determined the existence of the requisite "desire" so that, despite deviation in that respect from the course the rules dictate, appellate intervention is not warranted.

116 But did the inquiry into intention or purpose in the courts below address the correct subject? The intention or purpose of Care Park, as found by the magistrate and accepted by the primary judge, was to bring debt recovery proceedings against the owner of each relevant vehicle as recorded in RTA's register unless Care Park, having received and considered the information brought to light through the discovery order, decided, for some cogent reason, not to proceed. Such reasons would include (a) inability of Care Park to find the person despite having the information from the register; (b) its being shown to Care Park's satisfaction that it was someone other than the owner who had parked the vehicle in the relevant car park at the relevant time; and (c) the debt (or some smaller negotiated sum) being paid after initial contact by Care Park and before action.

117 In other words, the intention or purpose, as found, was a conditional one, the condition being that some factor making it pointless, as a practical matter, to implement the intention or purpose did not emerge once the identity of the owner had become known and normal pre-action steps had been taken. That conditional intention or purpose was held to be sufficient for the purposes of the rules as interpreted by the magistrate and the primary judge.

118 On the construction I consider to be correct, the question that should have been addressed is whether Care Park had a "desire" to commence proceedings against each owner. The issue is therefore whether a "desire" that is conditional in the way I have described is nonetheless a "desire" of the kind with which the rules are concerned. In my opinion, it is. Someone who says, "I wish to be taken to visit my son tomorrow unless he comes to visit me today" has a present and subsisting desire about what is to happen tomorrow, albeit a desire formulated in a way that makes it clear that it will be abandoned in a stated event. The desire exists and will continue to exist unless and until terminated by the happening of that event. Assume the person merely says, "I wish to be taken to visit my son tomorrow." The fact that it is later learned that the son is away and will not be available tomorrow, so that an attempted visit will be futile and no visit is ultimately made, does not mean that the desire does not exist when expressed.

119 In the present case, it was open to conclude on the findings made that Care Park had, at the time it made its application for identity discovery, a genuinely held and soundly based desire to sue the owner of each relevant vehicle, albeit a desire that might be abandoned for good reason later discovered by Care Park. That was a desire of the kind relevant to the activation of the court's discretion to make the order that was sought. It was therefore open to conclude that the threshold requirements for the exercise of the discretion had been satisfied and that the discretion was properly exercisable.

120 One other matter should be mentioned. Care Park sought information from RTA about the identity of the owners of certain vehicles but did not claim a right of action against those persons. It knew it could sue only a person who had parked a vehicle. Identification of the owner would, however, tend to assist in identifying whether it was the owner who had parked the vehicle and, if not, who had. That would be sufficient to satisfy the test in rule 5.2(1)(b). On that approach, the person concerned would be the person who parked the vehicle rather than the owner as such.

121 The order obtained from the Local Court was for the production of documents concerning each vehicle that would identify the owner as recorded by RTA. Whether they are properly described as documents which "relate to" the identity of the parker for the purposes of rule 5.2(2)(b) was not directly addressed in the course of argument. However, the term "relate to" is one of potentially broad and variable connotation; and part of the context in which it appears is the qualifying condition that the person against whom discovery is sought have information which "tends to assist in ascertaining the identity" of the prospective defendant. That context requires that a document which provides such assistance will be a document which relates to the person's identity. Accordingly, the language of rule 5.2(2) does not require an answer different from that which would otherwise follow from the construction of r 5.2(1).

122 For reasons differing from those of Young JA, I agree that the primary judge's conclusion was correct, even though the process by which the conclusion was reached was not. I therefore agree with the disposition of the leave application and the appeal that Young JA proposes.

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Amendments

16 March 2012 - Typographical error
Amended paragraphs: 104, 105

Decision last updated: 16 March 2012