In early August 2012, some vehicle owners who had written to ANCP denying liability for fines received this ANCP 7 page letter in response from ANCP. The letter was full of legal jargon which the average vehicle owner would have no hope of understanding. I attempt to interpret the letter here, but remember, I am not a lawyer and this is not legal advice.
1. Page one says "We refer to your standardised internet letter and would advise as follows:"
- ANCP clearly received a letter from the vehicle owner. If it is the letter from my website, then it denies liablity, asks them not to make more demands again, and asks for a copy of the contract and a breakdown of debt. These are not unreasonable requests, in fact this is what state authorities recommend you ask for.
2. Page one continues with "ASIC's Debt Collection guidelines are strictly adhered to by ANCP".- If ANCP adhered to the the ASIC/ACCC Debt Collection Guidelines, they should not be writing to you today with another demand. After you have denied liability, then they are not meant to keep contacting you. If they wish to pursue the matter further, they should take you to court. Also the ACCC/ASIC guidelines say that a creditor cannot require a statutory declaration and that it is the creditor who must prove who is responsible for the debt. Further the ACCC guidelines state that if you ask for a copy of the contract and an itemised breakdown, these must be sent to you before further collection activity can resume. As they have not sent you a copy of the contract or an itemised breakdown, then they have also broken these guidelines by pursuing you with this 7 page letter.
3. Page one continues with "Debtors are legally responsible for paying the debts they legitimately owe, and they should not deliberately try to avoid their obligations".
- It is true that if you have a legitimate debt, then you need to pay it, or make arrangements for a payment plan. The question here for many people though is - is it their debt? If the owner wasn't driving, then it is not the owner's debt and they do not have to pay someone else's debt. Further, if they are not sure if the debt is theirs (i.e. they are not sure if they were driving the car or not), then the guidelines state that the creditor must be able to provide proof that the debt is theirs (i.e. ancp must be able to prove who was driving). But even if the vehicle owner remembers that they were driving them self, then there is still the issue of where the signs clear. If the driver did not see the signs because they weren't clear, then it is quite possible there was no contract to start with, therefore there is no debt, and therefore there is no obligation. Each case needs to be taken on its merits, and each person who receives a demand needs to decide if they legitimately owe it.
4. Page one continues with "It is your breach that has resulted in the issuing of the payment notice".
- This is only true if you were driving, and if the signs were clear, and if there was a contract. In many cases, the owner wasn't driving. And ANCP themselves admit further down in their letter that some time ago their signs were not up to standard and that they were told by Consumer Affairs Victoria and Fair Trading NSW to improve them. So if your fine is from some time ago, it may have been from the period when the signs weren't up to scratch.
5. Page one continues with "This is a private car park. As such you and others have no right of entry th an in accordance with ANCP's express terms and conditions".
- This really should say "The driver has no right of entry". And it should be qualified with "if the signs are clear".
6. Page two says: "Your letter makes reference to a "car parking penalty. ANCP emphatically denies it issues any fines".
- That's interesting. The proforma letters from my website have been sent out for over 2 years now, and this is the first time I have heard that ANCP have denied it is a penalty.
7. Page two continues by saying that it sued a person in court and won a judgement against that person. It says that the person had parked their car hundreds of times in breach of the contract.
- What it doesn't give is a case number, or tell us the amount of the judgement. It may or may not be true, there is no way of verifying this without a case number. If it is true that ancp won a court judgement, then anyone with hundreds of parking fines from ANCP should be careful. What it also doesn't mention is the dozens of cases that ANCP lose or withdraw. Why do they withdraw most of their cases if they have such a strong case?
8. Page two and most of page three continues by talking about a NSW published court case of Care Park versus a company called "Universal One Communications". Universal One Communications had employees who were deliberately parking in Care Park car parks without buying a ticket. Care Park got the company's address from the RTA and wrote to Universal One warning them of the terms and conditions. And Care Park took photos of Universal One employees to prove who was driving. There were something like 70 offences. When it went to court, Universal One Communications didn't get a lawyer, and represented themselves. The photos proved in court who was driving, and the warning letters proved they knew of the contract. - Unfortunately Universal One Communications didn't have a lawyer and didn't present the argument that the contract ($66) was an unfair amount and was therefore void. So Care Park's argument that $66 was a fair amount was accepted by the court in this case. However every case would be taken in its merits. If there was a case against you, you could still argue the $66.00 is an unfair amount. Sure, ANCP would put forward the above case to the court, but you would point out that it is clear from the judgement that Universal One Communications did not advance the arguement that the amount was unfair, so it was simply a matter of the court accepting in this case what they were told by one party.
9. The bottom of page three and most of page 4 refers to cases in which the NSW RTA challenged ANCP and Care Park in court and tried to stop the car park companies from obtaining people's names and addresses.
- However, these four cases listed on page four were not cases to decide if a person owed money, they were just cases to decide if ANCP and Care Park has "some prospect of success" in succeeding in a case against drivers in general. The courts in these cases decided ANCP and Care Park had some sort of prospect against drivers and granted them access to people's names and address. But not too much can be drawn into this, as the cases were just to decide if the car park companies could get the names and addresses. But these weren't cases to decide if the people had actually found to have been in debt to ANCP or Care Park. This has to be decided by separate cases that are launched by ANCP or Care Park after they obtain the names and addresses.
10. The bottom of page four then goes back to Care Park v Universal One and refers to the judgement wording of hte case that says basically that a car park can impose a sign with terms and conditions.
- Yes, that is OK, the case does say that a car park can immpose a sign with terms and conditions, but it doesn't change the fact that the signs must be clear, the amount reasonable, and they must prove who the driver was. In Care Park v Universion One, the car owner did not dispute driving.
11. The middle of page five talks about the amount of liquidated damages and whether or not the amount of $66 is reasonable. It refers to a judgement where the court found $88.00 to be reasonable.
- However, the case they refer to is an RTA v Care Park case, so the court isn't actually establishing $88.00 is reasonable in a particular circumstance. The court was only saying that the amount of the claim alone should not stop Care Park from getting access to the RTA records.
12. At the bottom of page five, they talk about a case in Melbournes VCAT tribunal (small claims court), where a car owner challenged ANCP's fine in the tribunal. The car owner claims $88 was unreasonable and was a penalty and void.
- However, the tribunal decided it did not have the power to determine the issue. So that was fairly useless in terms of establishing anything. I don't know why ANCP raised it in this letter.
13. At the top of page six, ANCP claims the amounts of $66 and $88 have been subject to review by two government bodies in NSW and Victoria, but it doesn't mention who they are. In then says it has been subject to review by the Consumer Action Law Centre.
- It is true that the Consumer Action Law Centre in Victoria did review this, but the Consumer Action Law Centre found that the amounts of $66 and $88 were unfair, were penalties and would render the contract void. Refer to https://sites.google.com/site/unfairfines/home/calc_pdf_01 where the Consumer Action Law Centre states “theoretically, they can seek recovery of any loss suffered when a consumer breaches car park conditions. However, we do not see how the companies that operate these car parks suffer loss or damage anywhere near the amount of the payment notices when the car parking is free to begin with” (quoting Mr Gerard Brody of the Consumer Action Law Centre).
14. On the middle of page six, ANCP claim that the parking penalties they give can only be considered unfair if they were drastically extravagant, and that $88.00 is a modest amount.
- Well that's their view, but it hasn't been decided in a properly defended case yet. Only in Care Park versus Universal One when Universal One did not defend on that point.
15. At the bottom of page six it gets really interesting. ANCP claim that they were ordered by Consumer Affairs Victoria and by Fair Trading NSW to fix some of their signs that were unclear. ANCP claim to have done that.
- ANCP's point is obviously that the signs have now passed the CAV and FT tests and so are reasonably clear. However, the really interesting part here, is that ANCP are admitting that originally their signs were not clear, and that they were issuing penalty notices anyway. Given that most people's notices date back to 2009 and 2010, it would appear to me that ANCP may be trying to collect fines against infringements that occurred when the signs were not clear. ANCP conveniently give no dates as to when their signs were rectified.
16. Near the very bottom of page six it says that no regulatory authority in NSW or Victoria has commence proceedings against ANCP.
- It takes a long time for these bodies to launch proceedings. In Victoria with the Parking Patrols case, it took CAV 3 years to get proceedings off the ground. (see https://sites.google.com/site/unfairfines/ace-parking-supreme-court-trial for a description of this Parking Patrols case). Interestingly, Parking Patrols got done in for doing things that ANCP do, such as issuing payment notices to owners instead of drivers. Parking Patrols also got done in for sending false and misleading lawyer letters. I also note that both Parking Patrols and ANCP use the same lawyer (Michael G Roper).
17. At the very bottom of page six, it says "ANCP has, at all times, acted lawfully and responsibly. All consumer complaints received by ANCP in writing are dealt with on its merits".
- People have been sending the template letter for about 2 years now and ANCP have never properly responded to those letters, that I am aware of, until now.
18. Finally at the bottom of page seven it says "ANCP reserves its legal right for your breach of contract". And "Failure to make payment within this time may result in our account being referred for collection which may incur legal costs outlines in the car park Terms & Conditions".
- It is against the ASIC/ACCC Debt Collection Guidelines for ANCP to continue to try and collect a disputed debt. Also, look at the words "reserves its legal right" and "may result in your account being referred". These are all mights and maybes. The other thing to note is that the threat to send your account to a debt collector is somewhat misleading in my opinion. There is no doubt that if you don't pay the account then they will send your account to "Australian Recoveries & Collections". What they don't tell you though, is that Australian Recoveries & Collections is owned by the same two men that own ANCP. They have set up the collection company simply to hide the fact that they are collecting their own debt. They won't be sending your "debt" anywhere, expect to themselves. See https://sites.google.com/site/unfairfines/companies/australian-recoveries-and-collections
For an analisys of the other letters your may receive from them, see ANCP.