Roads and Traffic Authority of New South Wales v Care Park Pty
Ltd (2012) NSWCA 35
Rule 5.2 of the NSW Uniform Civil Procedure Rules
provides that prior to commencing formal court proceedings,
prospective litigants may apply for preliminary discovery from
persons who may have documents which show the identity or
whereabouts of a prospective defendant "for the purpose of
commencing proceedings" against the prospective
The NSW Court of Appeal has recently considered the
circumstances in which an order for preliminary discovery under
rule 5.2 may be granted.
Care Park operates car parks using a "pay and display"
system where car parking is permitted in accordance with the terms
and conditions displayed at the entrances and inside its car parks.
One of the conditions requires customers to obtain a ticket from a
machine within the premises and display it on the dashboard of
their vehicle. Where customers do not display a ticket on the
dashboard of a car or the ticket that is displayed has expired, a
photograph is taken of the number plate of the vehicle and a
payment notice placed on the windshield of the car. A displayed
term of parking is that by failing to comply with the requirement
to display a valid ticket on the dashboard of the car when parking
in the car park, 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".
Care Park brought an application in the NSW Local Court to
obtain identification information about car owners' vehicles
from the Roads & Traffic Authority (the RTA).
The RTA refused to provide the information and opposed the
At first instance in the Local Court, Care Park's
application for preliminary discovery was granted. The RTA appealed
to the Supreme Court but the appeal was dismissed by Justice Adams.
The RTA filed a further appeal to the Court of Appeal.
The appeal turned on the extent to which an applicant for
preliminary discovery needs to establish a "desire" to
commence proceedings against the prospective defendant, or whether
the existence of "desire" is only a discretionary
consideration. At issue was whether Care Park had a genuine desire
to commence proceedings against owners of vehicles.
Justice Barrett (with whom Beazley and Campbell JJA agreed)
found that rule 5.2 required the court to be satisfied that the
application was indeed for "the purpose of commencing
proceedings" as opposed to any other purpose. This involved a
subjective evaluation of whether the applicant for preliminary
discovery had a "desire" to bring proceedings. In the
circumstances of the case, Barrett J considered that at the time it
made the application for preliminary discovery, Care Park had 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. Accordingly, he dismissed the appeal.
In a separate judgment, Justice Basten similarly found that an
applicant for preliminary discovery 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 inquires. He also dismissed the appeal.
Justice Young took the view that the proper interpretation of
rule 5.2 was that a "desire" to commence proceedings was
merely a discretionary factor. Nonetheless, he considered that the
grant of preliminary discovery by the lower courts was not
inappropriate in the circumstances, and also dismissed the
The effect of the judgment is that an applicant for preliminary
discovery must establish that the application is based on a genuine
desire by the applicant to commence proceedings against the person
about whom identifying information is sought. If the application is
for any other purpose it should not be granted.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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