ROADS & TRAFFIC AUTHORITY OF NSW v AUSTRALIAN NATIONAL CAR PARKS PTY LTD

Federal Court Rules Freedom of Information Act 1982 LEGISLATION CITED: Road Transport (Vehicle Registration) Act 1997 Road Transport (Vehicle Registration) Regulation 1998 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 Levis v McDonald (1997) 75 FCR 36 CASES CITED: Norwich Pharmacal Co v Commissioner of Customs and Excise Commissioners [1974] AC 133 Re Application of Cojuangco (1986) 4 NSWLR 513 Stewart v Miller [1979] 2 NSWLR 128

PARTIES: ROADS & TRAFFIC AUTHORITY OF NSW AUSTRALIAN NATIONAL CAR PARKS PTY LTD

COUNSEL: Claimant: P Greenwood SC/ T Lynch Opponent: M Walton SC/ V Culkoff

SOLICITORS: Claimant: Steven Klinger Opponent: Hunt & Hunt

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40823/06

MASON P McCOLL JA BELL J

Tuesday 15 May 2007 THE ROADS & TRAFFIC AUTHORITY OF NSW v AUSTRALIAN NATIONAL CAR PARKS PTY LTD JUDGMENT

1 MASON P: The claimant (RTA) seeks leave to appeal against the order of Malpass AsJ dismissing an application to set aside orders for preliminary discovery made in the General Division of the Local Court under Uniform Civil Procedure Rules (UCPR) r5.2. 2 Leave should be granted because the case raises general issues and is, in differing ways, something of a test case for each party. The appeal must, however, be determined in light of the evidence adduced and the manner in which the particular application was fought at first instance. The preliminary discovery rule contains threshold requirements. But, subject to them, an order rests upon the favourable exercise of a judicial discretion. This is more than an interlocutory question of practice and procedure, but the usual restraints upon appellate intervention in a matter involving the exercise of discretion apply. 3 The respondent operates car parks in Parramatta, Blacktown and Auburn. It requires entrants to obtain and display a ticket or pass. Some entrants park without doing so and the respondent wishes to sue them on contracts said to derive from the Conditions of Entry on display. The respondent knows the registration number of 294 vehicles and the day on which each was parked without paying. By implication that is all it presently knows about the identity of the respective drivers. 4 The court is not required at this stage to determine finally the rights of the parties to the anticipated contract claims. It is agreed that any claim would have to be brought against the driver of the car on the occasion in question and that each small debt claim will involve less than $100. That is because the Conditions of Entry said to ground the contract relevantly state: Entering the car park will constitute acceptance of the following conditions. … 2. You are required to obtain a valid ticket or pass and display this ticket or pass clearly within the motor vehicle while parked in this car park. If you fail to do so, or if your ticket or pass expires, then ANCP may seek liquidated damages agreed at [$88] (reduced to [$66] if paid within 14 days) from you together with any resulting legal or other costs ANCP may incur.

5 The RTA maintains a Register of Registrable Vehicles pursuant to the Road Transport (Vehicle Registration) Act 1997 (the Act) and the Road Transport (Vehicle Registration) Regulation 1998. Section 11 of the Act provides: Security of information in Register The Authority must ensure that the information in the Register that is of a personal nature or that has commercial sensitivity for the person about whom it is kept is not released except as provided by the regulations or under another law.

6 Regulation 15 specifies that the Register is to include, among other things, the name of the person who owns or manages the vehicle, the identification details of the vehicle, the vehicle's garage address and each registered operator's name, residential address and address for service of notices. Regulation 15(7) provides that a request for information about the particulars of a registrable vehicle must be treated by the Authority in accordance with the Information Privacy Principles in s14 of the Privacy Act 1988 (Cth). This in turn incorporates the following principle: Principle 11 Limits on disclosure of personal information 1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless: (a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency; (b) the individual concerned has consented to the disclosure; (c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person; (d) the disclosure is required or authorised by or under law; or (e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

2. Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure. 3. A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency. 7 These statutory provisions do not purport to exclude rights of access to the information otherwise conferred by law. Indeed, s11 of the Act (set out above) contemplates release of information "as provided … under another law". Thus, it would be open to a litigant to issue a subpoena for production of specified information relevant to particular proceedings; for a member of the public to make an application under the Freedom of Information Act 1982 (the FOI Act); and (assuming without deciding that the general law is "another law") for a plaintiff to bring a suit for discovery against the RTA pursuant to the principles in Norwich Pharmacal Co v Commissioner of Customs and Excise Commissioners [1974] AC 133. 8 For each species of compelled disclosure there are gateways and controls which are, in the final resort, subject to judicial supervision. 9 UCPR r5.2 offers a further route if its conditions are engaged. It provides: 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. (3) A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders: (a) an order that the other person must produce to the court on the examination any document or thing that is in the other person's possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar. (4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required. (6) If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss. (7) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the other person. (8) An application for an order under this rule is to be made: (a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or (b) in any other case, by summons. (9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.

Some general principles relating to UCPR r5.2 10 The scope of the rule's predecessor (Supreme Court Rules 1970, Part 3 r1) is expounded by Sheppard J in Stewart v Miller [1979] 2 NSWLR 128. Assistance may also be gleaned from caselaw relating to Order 15A rr3-5 of the Federal Court Rules. 11 The application must be made on notice to the person perceived to have the information (r5.2(7)(b)) and be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought (r5.2(7)(a)). 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. 13 The rule's predecessor in the Supreme Court was amended in 1974 to eliminate a requirement that the applicant establish a prima facie case against the intended defendant, but that issue is relevant to the exercise of discretion (Stewart at 139-40; Levis v McDonald (1997) 75 FCR 36 at 41). 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. "Identity or whereabouts" 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.

16 The appellant correctly submits that the information, document or thing that is sought must itself have the requisite tendency in ascertaining identity or whereabouts. However, the words "may" and "tends to assist" in r5.2(1)(b) show that the applicant does not have to establish in advance that the desired information, document or thing will necessarily reveal the identity or whereabouts of the prospective defendant. So too do the consequential powers in sub-r(2), being powers to order the person to attend for examination "as to" the identity or whereabouts of the intended defendant, or to give discovery of documents "that relate to" that matter. 17 There is no basis in the text or context for reading down the words "tends to assist in ascertaining" so that they read "established". The information, document or thing need not be the last piece in a jugsaw puzzle. 18 The applicant must also obtain the favourable exercise of a judicial discretion. I see no reason why that discretion may not be exercised by the framing of a limited order or the imposition of appropriate conditions, including (as in the present case) conditions as to reimbursement of reasonable expenses (see also sub-r(6)).

Particular issues in the appeal 19 The orders under appeal (1) require the RTA to give discovery in respect of the registered operator of the 294 vehicles identified by registration number in an appendix to the summons; and (2) require the respondent to pay the RTA's reasonable costs in complying with the order for discovery. 20 A form of Payment Notice used by the respondent against a defaulting driver is in evidence. The annexure to the summons reveals the respondent as having issued a numbered payment notice on a specified date for each of the vehicles identified by their registration number. The specimen payment notice contains details of the type and make of the car and the time and date of the alleged parking in breach of the Conditions Notice displayed on site. The time span covers the period 15 December 2005 to 18 January 2006. 21 The application was opposed on two broad grounds.

Do the RTA records tend to assist in ascertaining the drivers? 22 This was the main argument pressed in this Court. The RTA submits that the information under its control does not tend to assist in ascertaining the identity or whereabouts of "the person concerned", within the meaning of r5.2(1)(b). 23 The RTA submits, correctly, that subr(1)(a) makes it plain that "the person concerned" must be the person against whom the applicant intends to commence proceedings. And the RTA is also correct in its submission that the rule requires the "information … document or thing" (referred to in para (b)) itself to tend to assist in ascertaining the identity or whereabouts of that intended defendant. The RTA submits that the assistance hypothesised is assistance to the applicant as a potential litigant, not assistance to the court per se. I agree. 24 But the RTA seeks to go further, submitting that the information in its Register goes no further than identifying a potential witness or someone who may be able to assist the applicant with its enquiries. This is said to fall outside the threshold requirement. In my view, this submission draws a distinction without a difference in the present context. 25 The registration scheme is described in s15 of the Act as "a system of registration of registrable vehicles that are used on roads or road related areas that … enables the identification of each registrable vehicle that is used on a road or a road related area, and of the person responsible for it". As indicated, the Register is to include details as to "garage address" (defined in s4 of the Act), and both the person who owns or manages the vehicle and the "registered operator" of a vehicle. "Registered operator" is defined in s4 of the Act to mean "a person recorded in the Register as a person responsible for the vehicle". 26 The putative contract claim would lie against the driver of the car on the day in question. It is not suggested that there is some basis for inferring that the driver was the owner's agent as a matter of contract law. But discovery of the owner and registered operator would enable the applicant to know details of the person with day to day control of the vehicle. For many households, the person who owns or manages the vehicle garaged at that address will be its only driver. For practically all households, the owner will know who was the driver on a particular day. 27 Whether or not a court trying a civil claim could infer the identity of the driver of the vehicle on the day in question from this information alone (and I imply no view either way on that matter), the information would certainly assist the respondent in its task of establishing the driver on the day in question. Perhaps further enquiries are necessary - for example, to determine the number of persons capable of holding a driver's licence who are likely to have had access to the car on the day and time in question. Perhaps the respondent can gather additional evidence by way of admissions from its prospective defendant or from surveillance at the "garage address". The possibility that additional evidence may be required to make out a prima facie case of identifying the driver does not mean that the information in the Register lacks utility or forensic worth as regards the driver's identity or whereabouts. As stated, preliminary discovery is not restricted to applicants seeking the last piece of a jigsaw. 28 The learned magistrate recorded that the applicant had made it clear that additional steps needed to be taken to ascertain the identity of prospective defendants after the discovered material was obtained. Her Honour held that discovery nevertheless tended to assist in that endeavour because it gave information which then led to other steps to be taken to identify the person concerned. Like Malpass AsJ, I see no error in this approach on the particular facts. The reasoning does not assert that anything that could, with additional information, lead to determining identity would satisfy the threshold requirement.

Has the applicant made its own "reasonable inquiries"? 29 The application was opposed in the Local Court on the basis of an affidavit sworn by Mr P J Youngman, the manager of the Records Access Unit of the RTA. It was contended that preliminary discovery should be refused because the applicant would be side-stepping the procedures applicable under the FOI Act in relation to a request by a member of the public to access details of the registered operator. Mr Youngman swore that: 4. Each year the RTA receives hundreds of FOI applications from persons seeking details of the registered operator of NSW registered vehicles. Upon payment of a fee, the RTA routinely processes those applications where sufficient information is provided. Such applications are usually accompanied by detail of the make and model of vehicle, VIN number, engine number and description, which enables the RTA to ensure that it has identified the correct vehicle, as vehicles can be sold, and number plates can be wrongly recorded by the applicant, changed or transferred. 5. On receipt of the application the RTA consults the person whose personal details are sought to provide them with an opportunity to comment on whether they object to their personal information being released. The RTA reviews any reply together with the reason for the request for information before deciding whether the information should be released. The applicant has a right to an Internal Review and, if still not satisfied with the decision, an appeal to the Ombudsman and/or the Administrative Decisions Tribunal.

30 The opponent did not suggest that it had made an FOI request. Indeed, its case was that the cost and delay involved in such a procedure meant that the FOI route did not constitute "reasonable inquiries" within the first threshold requirement of the preliminary discovery rule. 31 The opponent has alternative rights. If, unlike members of the public generally, it can bring itself within the scope of the preliminary discovery rule and obtain a favourable exercise of the judicial discretion, then it may escape the toils and delays of the FOI regime. 32 The Magistrate invited the parties to adjourn the matter in order to supplement the sparse evidence about the FOI processes. The applicant was willing to do so, but the RTA preferred to have the matter dealt with on the spot. In light of this, and the evidence in the Youngman affidavit, it is hardly surprising that her Honour concluded that it would not be reasonable for the applicant to have to make individual applications that were costly and slow. This finding of fact was, in my view, clearly correct. 33 The orders proposed are:

2. Direct claimant to file a notice of appeal within 7 days.

3. Appeal dismissed with costs. 34 McCOLL JA: I agree with Mason P. 35 BELL J: I agree with Mason P.

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