Roads & Traffic Authority vs Australian National Car Parks

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Citation: Roads & Traffic Authority vs Australian National Car Parks [2007] NSWCA 114.

This information can be found in the Textbook: Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, pp. 585-5.

Contents

Background facts

  • The Respondent [ANCP] is a car-park company who was looking to bring claims against people who parked without paying the parking fees. It only had the registration numbers of the offenders.
  • The Respondent applied for preliminary discovery for the purpose of ascertaining the identity and whereabouts of prospective defendants (UCPR, r 5.2) from the Appellant [RTA], who obviously had all the details of the cars' owners on its registration system.

Argument

  • The Appellant contested the order on the basis that it fails to satisfy two of the requirements of the order.
    1. The information in this case would not assist in establishing identity of the driver of the car (who was the prospective defendant), since it would only establish the registered operator of it, who might not have driven it that day.
    2. The Respondent has not made "reasonable enquiries", since it did not make the usual application under the Freedom of Information (FOI) principles, which people usually do in order to find out other drivers' identity from the RTA.

Legal issues

Judgement

  • With regards to the first ground of appeal, the requirement in r 5.1 does not require the applicant to establish that the desired information will necessarily reveal the identity or whereabouts of the prospective defendant - only that it "may" do so, or that it would assist in doing so.
    • The information does not that to be "the last piece in the jigsaw puzzle" - it only needs to help in the process.
    • In the present case, despite the fact that the RTA would only reveal the registered operator of the car and their address, it is common that this information would assist in the ascertainment of the identity or whereabouts of the driver. In most cases, the operator will be the driver, and in all but a fraction, they will know who was the driver on the particular day.
    • Thus, there is no ground of appeal on this basis.
  • With regards to the second ground of appeal, the fact that there is an alternative mode of ascertainment which has not been tried does not automatically mean that the applicant failed to make reasonable enquiries - the other methods might be, in the circumstances, unreasonable due to cost, delay or uncertainty.
    • In the present case, the alternative (request under the FOI act) would involve high cost and delay. This avenue involves making individual applications to the RTA for all 294 offenders, who then asks every person if they consent to having their information given, and if that is denied there is an internal review etc.
    • It would not have been reasonable for the Respondent to make the enquiries under the FOI act, especially when preliminary discovery represents such a simpler options.
    • Thus, there is no ground of appeal on this basis.
  • The appeal is dismissed.

References

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