Ace Parking Supreme Court Trial

Who brought the charges against Ace Parking?

Consumer Affairs Victoria brought the charges against Ace Parking. Consumer Affairs had received hundreds of complaints about Ace Parking. Consumer Affairs chose a representative sample of six motorists and lodged the Supreme Court case on the basis of affidavits they received from those six motorists. The case was held on 2nd September 2011 in the Supreme Court of Victoria. The court reserved its judgement until 13^th April 2012 when it handed down its judgement. Peter Hiland is the Solicitor that represented Consumer Affairs.

The charges against Ace Parking

Ace Parking were charged under the Victorian Fair Trading Act (1999) with the following:

1. Engaging in misleading and deceptive conduct

2. Making false or misleading representations

3. Harassment and coercion

These charges came about from the following conduct:

1. Issuing parking tickets that mimicked those used by official government authorities such as councils. This included:

· Using shape and size that was similar to council authorities

· Using the words “offence”, “breach”, “fine”.

· Using a map of Victoria.

· Using the name “Parking Infringements Victoria”.

· Referring to the Victorian Road Safety Act and implying they had authority under this act to issue infringment notices.

1. Threatening owners or drivers with legal proceedings when they had no intention of carrying out such proceedings.

1. Stating that drivers could be prosecuted for parking offences in private car parks.

1. Having onerous terms in the contract for example, saying cars could be held by Ace Parking until “fines” were paid.

1. Threatened owners of cars that if a sum of money was not paid by the due date, then they would be lawfully obliged to pay a higher amount when this was not the case.

1. Threatening the owner or driver of a car with legal proceedings when legal proceedings were not possible.

1. Stating that if the registered owner was not the driver of the car when it was parked in an Ace Parking car par, that the registered own is required to provide Ace Parking with a statutory declaration stating the name and address of the owner, and that otherwise the registered owner of the car becomes liable for the mounts owing.

Outcome of the case

The court found in favour of Consumer Affairs Victoria and against Ace Parking. The court found that private companies:

• Are not permitted to use terms such as “fine”, “penalty” or offence or similar terms that imply you have committed a criminal offence.

• Are not allowed to mimick government or council documents; and

• Have no power to demand statutory declarations from owners of cars.

• Cannot demand money from the owner of a car if the owner was not the driver.

• Cannot claim breach of casual user’s contract from drivers who parked in permit areas of a private car park such as disabled parking bays.

The following were the orders of the court:

• Ace Parking to pay $12,000 towards the costs of the Supreme Court Action

• An injuction restraining Ace Parking from:

  • Using tickets that mimick council tickets

  • Using terms such as offence or fine, that imply the drivers has committed a criminal offence.

  • Making false or misleading representations to drivers or owners about the consequences of not paying demands for payment.

  • Unfairly sending letters of demand to owners or drivers

  • Threatening owners or drivers parked in a private car park that if they do not pay a demand, then they would be lawfully obliged to pay a higher amount when that is not the case.

  • Unfairly threatening the owners of drivers with the institution of legal proceedings.

• Ace Parking to pay $300 compensation to each of the 6 drivers represented in the court action, as well as refunding in full any fines that they paid. The $300 is to cover stress and inconvenience with regards to the illegal fines.

• Ace Parking to place a public notice in a major metropolitan newspaper The Age and Herald Sun admitting they have broken the law.

Where were the defendants

1. Ace Parking

Ace Parking was incorporated in Melbourne in May 1998. Ace Parking is the operator of 24 car parks in Melbourne. Ace Parking business is to operate and manage car parking facilities for profit. It leased or managed land, put up signage and installed parking ticket machines on the sites. The sites it managed, it managed for a fee, and the ones it operated it operated for its own benefit. Ace Parking is owned and operated by James English, Kevin Enlish (James’ father) and Carol Lanyon (James’ mother).

1. Parking Infringements Victoria

Parking Infringements Victoria was established by Ace Parking in 2007 to enforce Ace Parking’s parking fees. This is the company that would put the tickets on driver’s windscreens, and send them letters threatening legal action if they didn’t pay. The director’s of Ace Parking stated under oath, that the object of setting up Parking Infringements was to distance itself from Ace Parking so that Ace Parking wouldn’t be bothered by phone calls regarding fines driver’s had received. Parking Infringements Victoria provided only a voice recording and did not provide a phone number by which people would ring it.

1. Parking Patrols (Vic) Pty Ltd

Parking Infringements Victoria was renamed to Parking Patrols (Vic) Pty Ltd after Consumer Affairs Victoria advised them the name mimicked a statutory authority.

How much did the scam net the defendants?

For the period of 31 March 2007 to February 2009 alone, Ace Parking issued 7,468 demands for payment. It received $231,610 from persons who paid fines between the period 1 January 2007 to 5 December 2008.

How did the scam operate?

1. Parking Infringements Victoria (and later, Parking Patrols (Vic) Pty Ltd) would place fines of $66.00 on the windscreen’s of people who had not paid for a parking ticket or who had overstayed.

1. If the driver did not pay within 28 days, then PIV would apply to Vicroads for the name and address of the owner of the car.

1. PIV would then write a letter of demand for $88 to the owner of the car, threatening that if they did not pay, it would increase to $129.

1. If the owner did not pay, they would get a demand for $129.

1. If the owner did not pay this demand, they got a threat of legal action from Christopher Hill of Hill lawyers.

1. If the owner wrote to PIV saying they weren’t the driver, PIV sent them a letter saying that if they weren’t the driver, then they had to provide a statutory declaration naming the driver, and if they didn’t produce such a statutory declaration, then the fine stayed with the owner of the car. This is a catch 22 because the owner may not know who was driving their car on that that date and therefore cannot produce a statutory declaration. Unlike government fines, owner onus does not apply to private parking fines, and private companies are forbidden from asking for statutory declarations. Under contract law, responsibility lies with the person who claims the debt is owed, to prove who owes it.

1. If people wanted to call to discuss, then they couldn’t because there was no phone number provided for Parking Infringements. The only number provided had a recording message.

1. If drivers rang the Ace Parking office, or rang James or Kevin English, then they were told that PIV had nothing to do with Ace Parking and that they couldn’t help. They would also sometimes tell the person that they should pay the fine or they would be taken to court.

1. Kevin English admitted under oath that they never had any intention to take legal action, and that the letters were just threats and bluff. (Consumer Affairs Victoria however considered this “bluff” to be misleading and deceptive conduct, as a person can only threaten legal action if they intend to take such action).

How was evidence obtained?

Consumer Affairs Victoria used their coercive powers under Section 106I of the Fair Trading Act to require James and Kevin English to produce documents and provide information to them.

It was thru the information obtained under Section 106 that CAV obtained enough information to prosecute both men in the Supreme Court.

The evidence obtained under Section 106 was enough to show that James and Kevin English were “directing minds” in the scam and had an intimate knowledge of how the scam operated. In fact, the evidence obtained from the English’s under Section 106 showed that James and Kevin were the architects of the scam. The evidence obtained also revealed that the Kevin and James knew what they were doing was wrong and that it was deceptive.

Connection with Adelaide City fines?

The judgement lists as a precedent the Federal Court judgement handed out to a company called “Adelaide City Fines” in 2009 for similar deceptive conduct in handing out penalties that were designed to look like government fines. See http://www.adelaidenow.com.au/news/south-australia/council-acts-on-car-fines-deception/story-e6frea83-1111112896296 and http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/132.html

However, the connection with Adelaide City Fines and Ace Parking goes beyond using the Adelaide City Fines case a precedent against Ace Parking. The director and owner of Adelaide City fines is Damian Lester. Damian’s father – David Lester – is listed as the director of Parking Patrols (Vic) Pty Ltd. So the two Lesters are associated with the two parking companies that have been found guilty of misleading and deceptive conduct. David Lester was not specifically named in the Ace Parking Supreme Court action, but is listed on the ASIC register as the sole director of Parking Patrols (Vic) Pty Ltd.

Affects on other parking companies?

Without a doubt, this is a landmark case which will set precedents that will have implications for the way that other car park companies run their businesses. For example, Australian National Car Parks and other private car park companies routinely demand statutory declarations from drivers, and routinely inappropriately threaten legal action against owners when the owner was not the driver.

Counsel for consumer affairs, Peter Hiland, said "a number of other private parking companies were believed to be using similar methods and would also be breaching the Fair Trading Act". In my opinion, ANCP have arguably committed similar offences under the Victorian Fair Trading Act and it would be open to Consumer Affairs to take the same Supreme Court action against ANCP.

Links to further information

• Supreme Court judgement against Ace Parking

• Box Hill Centro shoppers may not have to pay fines (Whitehorse Leader)

• Car Park Bully accused of dodgy tactics (Herald Sun)

• Car Park notices may be unlawful (The Age)

• Supreme Court orders against Car Park operator (Herald Sun)

• Consumer Affairs Victoria media release

• Car Park operator runs full page ad to say sorry for issuing misleading tickets (Herald Sun)

• Full page public notice in the Herald Sun paid for by Ace Parking (Herald Sun)

• A major parking company has copped a massive fine (Today Tonight)

• ABC News on the Supreme Court judgement (Channel 2)

  • ACE Parking Pty Ltd and others - Court action (CAV website)

  • Landmark court ruling could help thousands stung by parking 'fines' (Herald Sun blog)

Example demand letters from Parking Patrols and their lawyers

http://sites.google.com/site/unfairfines/companies/parking-patrols-vic-pty-ltd

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