Private car park fines

Have private car parks shifted their focus from collecting fees to handing out dodgy fines?
 
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01.Deceptive tactics

car-parking-lead

We take a look at private car parks and whether they've shifted their focus from collecting fees to handing out dodgy fines.

For at least the past five years, some private car park operators have been slapping motorists with bogus “fines” and threatening legal action if they don’t pay up. 

In the cases CHOICE has heard about, the operator gives no clear indication that a parking ticket is needed, and then sticks a $66 or $88 notice on vehicles that don’t display one. 

The confusing part for drivers is that the parking is generally free for an hour or two and there are no boom gates or ticket machines at the entrance – but you still need to display a ticket.

For more information about legal, see Shopping and legal.

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. 

But Hardy 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 deceptive. 

“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?”

Money maker

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. Demand-for-payment notices threatening legal action have been sent out on behalf of ANCP under the name of Sydney-based solicitor Michael Roper. One letter we’ve seen adds an additional $85 fee to the original $88 payment for “liquidated damages”. 

It is CHOICE’s view that the almost doubling of the parking charge and the threat of legal action are excessive.

 
 

 

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