faq04
Disclaimer: the author of this website is not a lawyer and this site does not constitute legal advice. All information on this website is of a general nature only.
4. Can the car park company find out my name and address?
AnswerIt is difficult, but not impossible, for the company to find out your address. Unlike your local council, your the state police force and your toll road company who all have direct electronic access to Road Traffic Authority records, private parking companies ordinarily cannot obtain access to your details.
Private car park companies must apply to the courts to obtain your details and it is at the discretion of the courts whether they will order your details to be handed over. The courts do not grant this automatically. This is a an expensive process for car par companies to have to apply thru the courts. It is possible they will never be successful in obtaining your details.
Recently car parking companies have had come success in obtain details of drivers from the courts. In these cases where they have been successful, the court has ordered the government road traffic agency in your state to hand over your details (your name and address). This is done under a subsection called "preliminary discovery" whereby the private car park companies claim that you have created damages in their car park, and that they need your name and address to take redress. The road traffic authority in your state always opposes these requests. However, if the courts orders them to hand over your name and address, then the road traffic authority must oblige (otherwise they can be held in comptempt of court). You cannot take action against your road traffic agency if they are complying with a court order.
If the car parking company is successful in obtaining your details, then the company will send a reminder notice to your address. If you do receive such a leter in the mail, then it normally means that the private car parking company has obtained your address from the government road traffic agency in your state via a court order.
This difficulty in obtaining your name and address is why it is often such a long time before you receive their letters of demand. It can often be one to two years before they find out your address. Under contract law they have six years to write to you. If you have received a parking fine on your windscreen from a private car parking company, then you should keep any evidence you have for six years - this includes your parking ticket if you have one, and any photos that you have taken at the car park.
Preliminary Discovery and the courts in Victoria and NSW
In Victoria, following is some information from the Vicroads website :- "a Court may order VicRoads to release (make discovery) to the claimant of all or some of the information in VicRoads possession relating to the description of the other person concerned or of the operator of a vehicle. If the Court makes such an order, it may also order that VicRoads produce such information to the Court. This procedure enables VicRoads to disclose information to either to the claimant or the Court, that may assist the claimant to identify the person against whom they believe they have a claim." Refer to letter from Vicroads to Mr Les Kneebone who wrote to Vicroads to complain about his details being given to ANCP.
In NSW the following information is from the NSW RTA website :- "The RTA may have provided your name and address to a car parking company in accordance with a court order. This is not a breach of the RTA’s privacy obligations."
In NSW, the ANCP sought an order for preliminary discovery in 7 April 2006 in the Honrsby Local Court. The NSW RTA opposed this application in the Hornsby Local Court but lost the case. RTA appealed the decision to the NSW Supreme Court but lost the appeal (see judgement) and then the RTA appealed to the NSW Court of Appeal but lost that appeal too (see judgement). See also the 2007 RTA annual report (do a find on ANCP). Read also a legal opinion that the NSW RTA requested from Barister Richard Thomas on the RTA's appeal to the NSW Court of Appeal in which Richard Thomas discussed the pertinent issues.
The Judicial Commision of New South Wales says "If an applicant satisfies the court that, having made reasonable enquiries, he or she is unable to ascertain sufficiently the identity or whereabouts of a proposed defendant (or cross-defendants as the case may be), and that someone may have information, or may have or have had possession of a document or thing that tends to assist in ascertaining such identity or whereabouts, the court may order that such person attend the court for examination or give discovery of such documents: r 5.2. See Roads & Traffic Authority of NSW v Australian National Car Parks Pty Ltd (2007) 47 MVR 502." Read more...
More recently (on 14th July 2011), the NSW RTA was trying to resist giving out driver's details and argued any civil action by Care Park was doomed to fail. Unfortunately the Supreme Court rejected the argument. Read more....
On 9th February 2012, the NSW RTA appealed a Care Park case to the NSW Court of Appeal. Unfortunately, the Court of Appeal rejected the argument. Read more....
See also this case
"ANCP had previously obtained orders for discovery in relation to 13,667 cars. It commenced proceedings against 155 of those persons identified by the discovery". Read more....
"It was common ground that, statistically, operators of car parks appear to sue only 100 out of 10,000 reported defaults". Read more....
Rules for obtaining preliminary discovery
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
Press references to preliminary discovery
Sydney Morning Herald 30/06/2007 - The Roads and Traffic Authority is urging the State Government to review court rules after a private car park company won a long battle in the Supreme Court to force the authority to reveal the addresses of drivers. The Roads and Traffic Authority said it wanted the laws changed. "The RTA will write to the Attorney-General's Department asking it to review the court rules, which allow for the release of this information."
02/12/2007 The Age - Magistrates Court of Victoria figures reveal that ANCP has been using the court to obtain the personal details of thousands of motorists.
27/10/2009 Herald Sun - Care Park applies to a court for an order that the RTA furnish it with the names and addresses of certain vehicles, perhaps hundreds at a time, and since a ruling against the RTA by the NSW Court of Appeal in mid 2007 its application is granted as a matter of course.
10/10/2008 The Herald Sun - Care Park has used the courts to obtain the addresses of more than 16,000 car owners this year. It mentions Australian National Car Parks.
02/12/20007 The Age - Meanwhile, Magistrates Court of Victoria figures reveal that ANCP has been using the court to obtain the personal details of thousands of motorists. Each application costs $34.20, but covers the names and addresses of many hundreds of motorists. Mr Brody said the "discovery" applications were supposed to be a precursor to issuing court proceedings. Yet so far, ANCP had not done so and was using its legal letters to bluff customers into paying up.
30/06/2007 The Sydney Morning Herald - The Roads and Traffic Authority is urging the State Government to review court rules after a private car park company won a long battle in the Supreme Court to force the authority to reveal the addresses of drivers. The authority said it wanted the laws changed. "The RTA will write to the Attorney-General's Department asking it to review the court rules, which allow for the release of this information."
13/10/2008 The Advocate - In Victoria it's been reported that Care Park used the courts to obtain the addresses of more than 16,000 car owners this year, which added up to $1.4 million in "penalties". Care Park Tasmania manager Bob Scholz said the company did not have direct access to the Tasmanian Motor Registry. "They (TMR) don't release the details directly to us. We take a bulk action to sue to get the details," Mr Scholz said.
06/03/2011 The Age - In the past financial year in Victoria alone, private parking operators paid VicRoads to provide the details of 70,640 motorists after being granted court orders through the Magistrates Court.