Is it legal?
Should you be fined and fail to send off the
cash, you can expect a threatening note
on paper with a legal letterhead and an
updated demand for about $170. According to Melbourne-based traffic
court barrister Sean Hardy, “it is
impossible for a private car park company
to issue a fine. So the $88 claim is not
a fine even though they try to make it
look like one”.
He confirmed that an
earlier post on his online Victorian traffic
law forum, pointing out that “private
companies are never allowed to issue their
own parking fines or enforce them in a
court, so the company [instead] says it is
claiming the money under a contract it
has with the driver”, still holds true.
The NSW Roads and Maritime Service
(RMS, formerly the RTA) also told
CHOICE that “funds claimed by car park
companies are not fines and we advise
customers to seek professional advice”
if they receive a demand for payment.
Some car park operators are now using
the term “liquidated damages” instead of
“fine” in their collection notices, based on
the premise that the motorist has entered
a contract by using the car park.
says the contract argument is flimsy and
that “even if the driver has entered into a
contract with the car park company, the
contract cannot lawfully claim a sum that
is greater than the reasonable loss suffered
by the company as a result of the breach of
contract”. He estimates any reasonable
loss to be less than $10.
Hardy believes the car park tactics are
“The number of consumers
who receive a demand after parking at
a ‘first hour free’ car park is high, and all
of them say they are misled by the signs.
If it’s mandatory for all drivers to display a
ticket, why not have the ticket machine at
the boom gate like legitimate car parks?”
Despite the set-up being of questionable
legality, it appears to be doing brisk
business. In 2010-11, Consumer Affairs Victoria received 1615 inquiries and
270 complaints about private car park
operators, and VicRoads was reportedly
obliged by state courts to provide the
details of about 70,000 car registrations
so car park operators could mail out
demands for payment.
In July last year, the RTA appealed a
NSW court order to provide names and
addresses to private operator Care Park.
The RTA lost the appeal but protested
that it shouldn’t have been forced to
surrender motorist details since, among
other things, any legal action attempted by Care Park “would be doomed to fail”.
Still, the game goes on. In July this year
one of the biggest operators, Australian
National Car Parks (ANCP), was in court
in Sydney attempting to obtain motorists’
names and addresses from the RMS. And
earlier this year, in May, the RMS mailed
a letter to ANCP and Care Park fine
recipients warning that the agency had
been ordered by the court to release their
names and addresses. The letter provided
a list of consumer protection agencies.
threatening legal action have been
sent out on behalf of ANCP under the
name of Sydney-based solicitor Michael
letter we’ve seen adds an additional $85
fee to the original $88 payment for
It is CHOICE’s view that the almost doubling
of the parking charge and the
threat of legal action are excessive.