Purpose and Intention
10The Rule allows the court to grant discovery where :-
(1) ............ it appears to the court that :
(a) the applicant, having made responsible enquiries, 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 ....... that tends to assist in ascertaining the identity or whereabouts of the person concerned.
11A consideration of the judgment of Adams J in RTA v Care Park Pty Ltd is germane to the disposition of the appeal. As in the instant appeal, the critical question before Adams J. was whether the magistrate erred in holding that the defendant had established that it sought the information requested from the plaintiff "for the purpose of commencing proceedings against the person" within the meaning of UCPR 5.2. Adams J. determined that :-
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 the Local Courts Act 2007.
12In determining whether leave ought be granted, Adams J. reluctantly decided that leave ought be granted "having regard to the likely repetition of applications of this kind".
13There was evidence before the Local Court in RTA v Care Park Pty Ltd that established to the magistrate's satisfaction that the information in respect of each vehicle was being obtained for the purpose of commencing proceedings against the registered owner of the vehicle, even though ultimately those proceedings might for various reasons not be commenced. That evidence consisted of the contents of an affidavit of the company's managing director, which outlined the procedure following the receipt of the information from the RTA. In short, the company wrote to each of the operators of the respective vehicles and in the absence of payment of the required sum, or in the absence of the company agreeing to waive its claim, the company would commence legal proceedings to recover the relevant amount from the registered proprietor or, in the event that the registered proprietor advised that the vehicle was in the possession of another person at the relevant time, the company would commence legal proceedings against that other person.
14Adams J. noted that the RTA did not take issue with these findings. Rather, the argument advanced by the RTA before Adams J. was that the "person concerned" in UCPR 5.2 (1)(a) and (b) must mean the registered owner, and because the company might not be able to commence proceedings against that person, in the event that the registered owner was not the driver of the vehicle, or might not commence proceedings at all, it therefore followed that the company did not have the relevant purpose. It was said that the real purpose for obtaining the information was to allow the company to determine whom it could sue or whether to sue at all.
15In rejecting this argument, Adams J. reviewed the various circumstances that might lead to a failure to sue, notwithstanding that an applicant under Rule 5.2 might demonstrate an intention to sue the person whose identity is sought at the time of the application. Relevantly, his Honour said at [13] - [14] :-
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 [the retail outlet]), 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.
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 without undue technicality. ....... 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.
16His Honour further held that the phrase "relates to the identity or whereabouts" within the Rule is very wide and "arguably might extend to indirect identification by enquiries of the owner".
17The reasoning of his Honour in this regard was supported by reference to Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Ltd [2007] NSWCA 114. The determination by the Court of Appeal that the rule does not require that the applicant establish a fixed or unqualified intention at the time of the application, together with the fact that the identification of the registered owner is likely to have the "requisite tendency in ascertaining the identity or whereabouts" of the driver against whom it is intended to proceed, was material to his Honour's decision.
18The plaintiff maintains that there is a distinction between intention and purpose when one is considering the basis for an application under the Rule. The plaintiff contends that an applicant's intention may change in the light of changed circumstances, but the purpose required by the Rule cannot change.
19"Intention" does not appear in the Rule. The Court of Appeal in RTA v ANCP held that the Rule "implies that the applicant intends to sue the person whose identity is sought" (at [12]), although that intention need not be "immutably fixed or unqualified". The Court of Appeal seems to have equated intention with purpose in this regard. Adams J drew no relevant distinction between the intention of an applicant and the "purpose" required by the Rule.
20The plaintiff submits that the passage set out at [15] above is plainly wrong and that RTA v Care Park Pty Ltd should not be followed. More particularly, the plaintiff submits that a conditional intention is insufficient to engage the Rule. The plaintiff acknowledges that a letter of demand is a legitimate step before commencing proceedings, but argues that the defendant's "substantive purpose" (an improper purpose) is to "recover the alleged debt by sending letters of demand and engaging debt collectors (even if on occasion there might ultimately be proceedings)." This assertion is itself dependent on a finding of fact that the defendant had such a "substantive purpose".
21In my view, the plaintiff's argument would operate to effectively deprive a significant number of potential litigants of the information necessary to commence proceedings against the proper defendant. To take a hypothetical case, an applicant in possession of the registration number of a vehicle which caused serious damage to the applicant's vehicle stands in the same position as the defendant in this appeal. Such an applicant cannot know whom to sue, or whether the driver is immune from suit, unless the court grants discovery under the Rule.
22I can see no relevant distinction between this scenario and that confronting the defendant in this appeal. The same contingencies are capable of arising in either case. A letter of demand might issue, offers of settlement might be exchanged, and proceedings may never be commenced. The hypothetical applicant's intention to sue the driver of the car is, at the time of the application, conditional upon a failure to recover compensation in some other way. There can be no doubt that the hypothetical applicant requires the information for the purpose of taking proceedings, if that is ultimately necessary. That is precisely what the Court of Appeal meant by the statement that the intention to sue need not be fixed or unqualified.
23I am not persuaded that Adams J was wrong in his analysis. To the contrary, his Honour's decision is consistent with the Court of Appeal's judgment in RTA v ANCP. It follows that there is no sound basis for refusing to follow the decision of another judge of this Court. There is no relevant distinction between the issues determined by Adams J and the issues in the instant appeal.
24It is not necessary to refer further to the magistrate's reasons below. The plaintiff did not contend that there was a complete absence of evidence capable of supporting the finding of fact that the defendant's intention in seeking discovery was to commence proceedings against the drivers of the relevant vehicles. Rather, the plaintiff submitted that the magistrate had applied the wrong test by referring to the issue of intention, consistent with the Court of Appeal's judgment in RTA v Care Park Pty Ltd , and failing to identify the required purpose. For the reasons I have already expressed, I am not persuaded that the magistrate erred.
25A further submission, to the effect that the defendant was required to establish the requisite purpose in respect of each of more than 8,000 individuals, lacks merit. There is nothing in RTA v Care Park Pty Ltd or RTA v ANCP which supports such an approach. Both of those decisions also arose out of applications by car park administrators for discovery in relation to several hundreds of persons.
26Notwithstanding that I have dealt with the merits of the appeal, it is appropriate that leave is refused in this matter. The plaintiff did not develop the argument in the Local Court that sought to distinguish intention and purpose. The plaintiff was aware at the time of filing the Summons that an appeal raising identical issues was pending in this Court. That appeal was heard by Adams J three weeks after the Summons was filed in this matter and the decision was handed down seven weeks after the Summons was filed. The plaintiff persisted with the appeal. It did not identify any compelling reason for pressing the appeal in addition to the detriment flowing from the decision in the Local Court : Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780.
27Leave to appeal is refused. The plaintiff is to pay the defendant's costs.