Roads and Traffic Authority of New South Wales v Care Park Pty Limited

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 1BEAZLEY 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. 2BASTEN 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. 3The 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]. 4The 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. 5The 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.) 6Rule 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". 7The 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". 8While 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. 9In 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". 10CAMPBELL 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. 11YOUNG 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. 12The 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. 13It 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. 14The 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. 15The 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: ...