Judgment
Introduction
1On 18 April 2011 the Local Court made orders under rule 5.2 of the Uniform Civil Procedure Rules 2005 in the following form -
The RTA to provide within 28 days in electronic form the names and addresses of the registered proprietor of each of the vehicles listed in exhibit C to the affidavit of Robert Paul Belteky of 15 April 2011;
The RTA to pay Care Park Pty Limited's costs in the proceedings on an indemnity basis; and
Care Park Pty Limited to pay the RTA's reasonable costs of complying with the order to produce, the amount of such costs to be agreed or, in default of agreement, as determined by the Court.
2The RTA appeals to this Court seeking an order setting aside the judgment of the Local Court and dismissing the Care Park's summons with costs together with certain ancillary orders. The crucial question in the appeal is 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. 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 of the Local Courts Act 2007. Accordingly, the appeal can only proceed by leave under s 40 of the Act. I admit to a degree of hesitation about whether leave should be granted but, having regard to the likely repetition of applications of this kind, it seems to me that, on balance, leave should be granted.
3The RTA also contends that the order should not have been made as any action brought as foreshadowed by Care Park would be doomed to fail and, lastly, whatever be the outcome of the substantive issues, the learned Magistrate erred in making an order for indemnity costs.
UCPR 5.2
4The rule is in the following terms, so far as it is relevant -
(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.
Was there an intention to sue?
5Care Park operates car parks in this State using a system called "pay and display", in which car parking is permitted in accordance with terms and conditions displayed at the entrance to and within the premises. One of the conditions requires customers to purchase a ticket obtained from a ticket machine within the premises and display it on the dashboard of their parked vehicle. Where a ticket is not displayed or the time has expired an employee photographs the numberplate of the vehicle and places a payment notice under the windshield. The displayed terms of use of the car park provide that, by failing to comply with the requirements as to obtaining a ticket and staying only for the indicated time, the parker of the vehicle agrees "to pay liquidated damages of $88 to Care Park and that the notice attached to the vehicle is notice of that claim". The relevant car parks are operated on behalf of Officeworks, the owner, the customers of which are given free parking.
6Care Park relied on UCPR 5.2 to obtain information about the owners (called "operators") of the vehicles from the RTA. The RTA refused to provide the identification information.
7The affidavit of Mr Belteky, Care Park's managing director was read in the proceedings and he was cross-examined. The Magistrate in substance accepted the following passage -
In the event that the RTA gives discovery of the details of the operators ... Care Park intends to write to each of the operators of the vehicles. Absent payment of the sum sought in this letter or absent Care Park agreeing to waive its claim by reason of further information brought to its attention by the recipient of the letter or otherwise, Care Park intends to commence legal proceedings to recover the sums sought in the letter from the relevant registered operator or, in the event that the registered operator advises that some other person was driving or responsible for the vehicle at the time it was parked in a Care Park car park, to commence legal proceedings against that other person.
If the owner informed Care Park, for example, that the driver was a customer of Officeworks, the claim would not be pressed. Other reasonable excuses might be accepted. If the claim is paid, of course, legal proceedings are not commenced; so also if the owner or the parker cannot be located. The Magistrate noted however, "[i]n many instances when ... payment has not been made upon request, the plaintiff has commenced proceedings to recover that amount". His Honour in substance concluded that the information in respect of each vehicle was being obtained for the purpose of commencing proceedings against that person even though (in effect) ultimately those proceedings might for various good reasons not be commenced.
8The RTA does not take issue with any of these findings. It submits however, that they do not demonstrate that Care Park had "the purpose of commencing proceedings against the person" in respect of whom the information is sought. It contends that the " person concerned" must mean the owner in the present context and, because Care Park might not actually commence proceedings against that person (not being the parker) or might not commence proceedings at all, it does not have the relevant purpose. It argues that the information is really required in order to allow Care Park to determine whether or who to sue and this is not the function of the Rule.
9The decision in Roads & Traffic Authority of New South Wales v Australian National Car Parks Pty Limited [2007] NSWCA 114, where the Court concluded, in a similar factual context that RTA records did tend to assist in ascertaining the identities of the parkers, did not directly deal with the issue placed in contention in the present case. However, it is useful to note the following passage from the judgment of Mason P (with whom the other members of the Bench agreed) -
[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 ... This does not mean that such intention must be immutably fixed or unqualified . [Emphasis added.]
10It 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.
11An 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.
12To 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?
13Once 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.
14The 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.
15As 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.
16An alternative approach to the application of the Rule is (in the present circumstances) to regard " the person concerned " as the parker, so that the potential distinction between the owner on the one hand and the person intended to be sued (other excises aside) is immaterial. The question would then be whether the information required from the RTA "relates to the identity or whereabouts" of the parker within the meaning of Rule 5.2(3)(a) although it is only the relevant identifying information of the owner. The phrase "relates to" is very wide and arguably might extend to indirect identification by enquiries of the owner. However, this argument was not put and I express no final view about it. Of course, it would still be necessary to deal with the other matters that might lead to action not being commenced.
Is the proposed action doomed to fail
17It was argued on behalf of the RTA that, even if the requirements of the Rule were satisfied, the Court should have refused an order in the exercise of its discretion because the proposed action, if undertaken, was doomed to fail. It is submitted that no consideration flows from Care Park so that there is no contract created between the person parking the vehicle and Care Park since Care Park has no authority to exclude the driver from the car park. It is enough to say that the precise relationship between Care Park and the owner of the land is not the subject of any detailed evidence and it therefore cannot be said with any sufficient degree of certainty that an action for breach of contract must inevitably fail. At all events, documents were tendered before the Local Court concerning the agreement between the owner of the premises and Care Park which required, amongst other things, the supply and installation of the parking ticket machine which set out the terms and conditions of parking. Mr Belteky gave evidence of the relationship between the company and the owners and the management arrangements between them. To my mind it is inescapable that the substance of the agreement was to require Care Park as agent for the owner to enter into contracts with drivers using the parking area and collect, for the mutual benefit of owner and manager, parking fees paid or obtained. It is unnecessary, however, to finally determine the precise extent of the mutual rights of Care Park and the owner. I am satisfied that it cannot be said that an action brought to enforce the parking infringement notice would be doomed to fail. I note that in Care Park Pty Limited v Universal One Communications Pty Limited & Anor [2009] NSWSC 1405 dismissed a similar argument.
18It was also submitted by the RTA that the amount of $88 was a penalty and thus the claims would fail. This is a matter of fact or mixed fact and law decided adversely to the RTA. This submission is so devoid of merit that leave to litigate it on appeal is refused.
Indemnity costs
19The reasons given by the learned Magistrate for ordering indemnity costs be paid by the RTA appear to be as follows. The first matter to which his Honour referred was a letter of 4 January 2011 from the RTA's solicitors to the applicant's solicitors which states, inter alia -
"The Authority opposes your client's application for preliminary discovery on the grounds:
Your client does not have a proper cause of action against the registered proprietors of the vehicles; and
The application is not made for a proper purpose, namely that your client does not intend to commence proceedings in relation to the vehicles for which you have sought operator details."
20By way of further explanation, the RTA's solicitors explained that the cause of action proposed to be taken against the operators and or drivers of the vehicles for breach of contract was merely speculative and one which could not succeed upon the basis that there was no consideration passing from the applicant. I have dealt with this argument above. The next matter relied on was the fact that the details of many operators (in excess of 10,000) were produced to the applicant under previous notices to produce, effectively by consent, yet very few proceedings had been commenced as a result so that it appeared that the applicant did not intend to commence proceedings against the operators of the vehicles or at least most of them. The learned Magistrate dealt with these contentions by pointing out that it appeared from the affidavit of Mr Belteky that there was an intention to commence proceedings together with "the option to consider all options in respect of each breach" and, in effect, that a very significant number of the claims may have been disposed of by payment or waiver or other relevant considerations. His Honour also referred to the argument that the claim was for a penalty which was made for the first time in Court but not suggested in the letter of 4 January 2011. Whist it may be that the contention that the proposed cause of action was doomed to fail had very little to commend it, the argument as to the nature of the purpose for which the information was sought was arguable, although not for the arithmetical reasons stated.
21The next matter referred to by the Magistrate is the fact that there were previously five sets of similar proceedings in which orders were made requiring production of the information, in two or three cases by consent and in others after some opposition, culminating in a sixth set of proceedings which were decided by the Court of Appeal in the judgment to which I have referred. His Honour also referred to the judgment of Hoeben J in Care Park v Universal One Communication Pty Limited & Anor . His Honour said that it was of great concern to him that in a facts sheet between solicitors retained by the RTA (privileged but disclosed by mistake) a note in the hand of the RTA's principal solicitor said "nil to lose save costs" next to two crosses denoting cross-examination.
22The Magistrate concluded, taking all this material into account, that the opposition of the RTA to production was motivated by an intention to "stonewall the plaintiff", adding "it was the defendant ... exercising a degree of muscle that they inappropriately exercised ... [reeking] of bloody- mindedness, inappropriateness and causing the Court to waste a lot of precious time, and these proceedings today, in the face of the authorities and in the face of the proceeding litigation between the plaintiff and defendant, was, if not an abuse of process at least an abuse of appropriate use of the Court's time, and that is why I am making the order for indemnity costs".
23It seems to me that the mere fact that there had been previous proceedings which had been resolved by consent and others resolved after some opposition did not suggest that litigating the present application was improperly undertaken by the RTA. The decision of the Court of Appeal did not clearly dispose of the principal argument. The outcome, though likely, was not self-evident. The mere fact that the argument as to consideration and penalty had been disposed of, in effect, by Hoeben J's judgment in this Court did not make it improper to attempt to advance the argument in a somewhat different form before the Magistrate. At all events this was but a small part of the case. The general principle is that "the Court can award indemnity costs if it appears that proceedings have been commenced or continued where a party should have known that there was no real prospect of success": East West Airlines Ltd v Turner (No 2) [2010] NSWCA 159 at [17]. However, care should be taken not to retrospectively find that litigation was unjustified because the party is question is unsuccessful: Dean v Stockland Property Management Limited & Anor [2010 NSWCA 141.
24Nor does it seem to me that the notations were of significance. First, it was the opinion of the solicitor that should not be attributed to the RTA and, secondly, the note was capable of being read as a mere observation that there was no financial risk, except for legal costs, facing the RTA, which was an entirely correct observation, so far as it went. The implication that cross-examination might yield some useful material is not an improper consideration even though, as it happened, it did not materially assist the RTA.
25With respect to the learned Magistrate none of these matters either individually or taken together suggested that the RTA was attempting to bully the applicant out of pressing its case. His Honour's comparison of the "might of [the RTA's solicitors] and the might of the RTA with small park operators and a small firm of solicitors ... in Melbourne" added, with respect, some indignant colour but was not material to the exercise of the discretion. In my respectful opinion there was no basis for concluding that the RTA or its solicitors had acted with such a degree of impropriety as to justify an order for indemnity costs.
Conclusion
26Leave to appeal from the orders for production is granted but the appeal is dismissed. The appeal in respect of the order for costs is allowed, the order is quashed and substituted therefore is an order that the RTA must pay Care Park's costs as agreed or assessed in the Local Court. The RTA is to pay Care Park's costs of the appeal.
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Decision last updated: 14 July 2011