faq08
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. You should always obtain independent legal advice before relying on any information provided on this site.
8. I have received court documents
This is a relatively rare occurrence for reasons explained on other pages of this site (see especially FAQ02 and FAQ10), however it does happen, especially with Care Park in Victoria.
Your options:
If you receive a statement of claim stamped by the NSW local court or Melbourne Magistates court then you have the following general options:
- Pay the amount they are asking.
- Try and negotiate a lower amount with the company and settle it (either before or after your defence is lodged).
- Defend the matter by completing a defence form yourself by the due date
- Hire a lawyer to defend (you must also do this by the due date)
- Other options I may have missed and your lawyer can discuss with you.
Things to watch for:
- Make sure you understand the full amount the company is asking for in the court documents. Their claim will often include not just the penalty, but legal costs for the company's lawyers to complete the court papers, as well as the cost of serving the papers on you, and the cost of filing the papers in court. In Victoria, the legal costs are hidden in a separate section of the forms, separate to the parking penalty costs.
- If you complete a defence yourself, it needs to be completed on a special form and lodged in a certain way by a specific date. In NSW it is usually 28 days or 21 days in Victoria. This time starts from when you are served the papers. But check the date with your lawyer or the court if unsure.
- In general, you need to respond to each point on the statement of claim. So if there are 15 points on the statement of claim, you need to respond to each of the 15 points in your defence. If you want to add additional information, you can add it at the end of your defence. e.g. as point number 16 is there 15 points in the car park's claim.
- If you or your lawyer don't lodge a defence with the required time, then the company can apply to the court for what is known as a "default judgement" which basically means you lose the case by default becasue you didn't put in a defence. If a default judgement is issued against yhou, then you must pay the original amount, as well as another amount for the company's lawyers to go to court to get the default judgment.
- It is recommended that you have a lawyer to prepare your defence and represent you. At the very least, you should have a free community lawyer help prepare your defence form for you, even if you don't have a lawyer defend you in court.
- Remember, the onus is on the parking company to prove that you parked the car in the car park on that day. If you deny or do not admit parking there, then the company will need to prove you did park there, otherwise their case will potentially be thrown out of court. Usually, the only proof they have that you parked there is a photo of their infringement notice on your car. However, this is not proof that YOU parked there. It could have been anyone who has access to your car that parked it there.
- The company will often claim that "you or your agent" parked the car or "you or a person authorised by you" parked the car. It is important to address this in your defence if the company uses these words in the statement of claim. You might for example say "I dispute authorising or allowing another person to use my car to park in the car park, and the <company name> has provided no information as to who this person may be" (this is an example only, your lawyer will advise the wording required in your case).
- If you submit a well written defence, then it is quite possible that the car park company will drop the claim (sometimes as late as the night before the actual case).
Possible defences:
- The defendant denies being the driver (if you can swear you weren't the driver).
- The defendant does not admit being the driver (if you can't swear you weren't the driver but you want the company to prove who was driving).
- The defendant did not authorise another person to park their car in the car park, and the company has failed to name such a person.
- The defendant denies entering into any contract.
- The defendant denies liablity for all amounts claimed by the plaintiff.
- The Amount Claimed is a penalty and is therefore void.
PARTICULARS
The Applicant refers to and relies upon the general law and says further that the Plaintiff seeks to recover damages in excess of a reasonable pre-estimate of loss suffered as a result of breach.
If the date of the fine is before 1st January 2011 the following can also be used:
- Further or in the alternative, the Contract is a “consumer contract” within the meaning of that term in the Fair Trading Act 1999 (Vic) (the Act).
-Any term of any contract which holds the Applicant liable to pay the Amount Claimed is an unfair term within the meaning of section 32W of the Act.
PARTICULARS
a) The Defendant refers to and relies upon sections 32W and 32X(c) of the Act.
b) Further, or in the alternative, as a result of the Conditions being inadequately displayed, it was not reasonably practicable for the Defendant to read the Conditions prior to entering the Car Park.
c) Further, or in the alternative, the Plaintiff knew or ought to have known that it was not reasonably practicable for persons using the facilities of the car park to read the Conditions prior to entering the Car
Park.
- Thus, any term of any contract which holds the defendant liable to pay the Amount Claimed is void pursuant to section 32Y(1) of the Act.
If the date of the fine is after 1st January 2011 the following can also be used:
- Further or in the alternative, the Contract is a “consumer contract” within the meaning of that term in The Australian Consumer Law (The ACL)
- Any term of any contract which holds the Defendant liable to pay the Amount Claimed is an unfair term within the meaning of section 24 of The ACL.
PARTICULARS
a) The Defendant refers to and relies upon sections 24 and 25(c) of the ACL.
b) Further, or in the alternative, as a result of the Conditions being inadequately displayed, it was not reasonably practicable for the Defendant to read the Conditions prior to entering the Car Park.
c) Further, or in the alternative, the Plaintiff knew or ought to have known that it was not reasonably practicable for persons using the facilities of the car park to read the Conditions prior to entering the Car Park.
- Thus, any term of any contract which holds the Defendant liable to pay the Amount Claimed is void pursuant to section 23(1) in The ACL.
If you need help completing your defence form, and help can be found on various lawlink websites, and thru free legal aid centres. There is a link at the bottom of this Legal Aid page http://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/private-car-park-finespayment-notices in the section "What should I write in the Defence?".
If you email me I can also provide a referral to free community lawyers in your state who should be able to help you write a defence.
Cost limits in the NSW local court
The costs are limited to the following in NSW in the local court Amount of Claim Maximum costs
$0.01-$1000 $372.68
$1000.01-$5000 $559.02
$5000.01-$10000 $745.36
There is also the court filling fee on top of that as well which is around $180. So in most cases (where ANCP are seeking $1,000 or less), ANCP's cost claims against you are limited to $552.68
CTTT
In NSW, another option you have is to make an application to the local court seeking the matter be transferred to the CTTT under section 23 of the Consumer, Trader and Tenancy Tribunal Act 2001 however the other party has to agree or the local court has to order it in which case there would be a hearing before the local court to determine whether the matter should be sent to the tribunal. The advantage of moving the case to the CTTT is that it limits the costs orders that can be made against you. It costs $35.00 to make the application, and then each party covers their own costs and you represent yourself so that are not legal fees to pay even if you lose.
References
This "A current Affair" segment reports on Andrew Borodin who challenged a fine in court and the case against him was dropped.
Responding to a statement of claim
Civil forms (including a "Form 7B defence").
This practice note explains how the local court works. Refer to the section on Small Claims: http://www.lawlink.nsw.gov.au/lawlink/local_courts/ll_localcourts.nsf/vwFiles/PNCiv1.pdf
For more legal resources, see this page.
In order to commence proceedings in NSW, the car park's law firm needs to certify that there were reasonable prospects of success (pursuant to section 347 of the Legal Profession Act). If proceedings were commenced without reasonable prospects and were ultimately unsuccessful, the court could make an order for costs against the law firm itself.
If anyone receives a statement of claim, they can send me a copy to my email address (see contact page). I am not a lawyer, and can't fill it out for you, and can't tell you what to put in it, but I will help you if I can with general information on how to complete a statement of claim defence form by referring you to websites and other official resources that explain how to fill them out.
Disclaimer: the author of this website is not a lawyer and this site does not constitute legal advice.