Legal Info

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.
 
This page explains some of the legal rights of drivers who have received private car park fines from companies such as ANCP and Care Park and Parking Patrols (Vic).  See links at left to fully navigate this website.


For a list of free legal resources, click here to see who can help you for free
 
 
In NSW
 
In Victoria
  In Victoria, you can apply for a case to be heard in vcat ( http://www.consumeraction.org.au/downloads/FS31Privatecarparkingfines110511.pdf   whereby the proceedings in the Magistrates Court can be transferred to VCAT).
 
 

 
Australia wide
  • the relative bargaining strength of the parties
  • the use of undue influence, pressure or unfair tactics
  • whether the stronger party made adequate disclosure to the weaker party
  • the willingness of the stronger party to negotiate
  • the extent to which each party acted in good faith
  • the stronger party unfairly exploits the weaker party's disadvantage the stronger party unfairly exploits the weaker party's disadvantage
  • the stronger party relies on their legal rights to take advantage of the weaker party in a way that is harsh or oppressive
  • the stronger party allows the weaker party to rely on an incorrect assumption, or fails to disclose an important fact
  • one party benefits unfairly from the deal at the expense of the other party
  • the weaker party is unable to understand the deal, due to lack of experience or professional advice.
 
Community legal organisations (in either state)
 
Consumer Action is alleging in VCAT that the amount of the charge, which is supposedly intended to
compensate ANCP for ‘losses’ suffered as a result of the failure to display a ticket, is unlawful.
Specifically, Consumer Action alleges the terms which impose the charge are unfair contract
terms under the Victorian Fair Trading Act 1999, because they seek to recover in excess of the
actual loss ANCP has incurred. They are also aguing that it is impossible for a driver to make out print that small from sitting inside a vehicle and entering the car park.  Read more..
 
Consumer Action Law Centre has written to Australian National Car Parks Pty Ltd and Care Park Pty Ltd seeking a review of their business practices and the installation of barriers so that consumers are not fined unfairly when they forget to obtain tickets.   “We are inundated with complaints from consumers alleging that they have been fined unfairly” said Consumer Action Director of Policy & Campaigns Gerard Brody, “in most cases, consumers are only parking within the free period, yet are being fined between $60 and $80”.  “These private companies do not have the power to issue fines” said Mr Brody.  “Theoretically, they can seek recovery of any loss suffered when a consumer breaches cark 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”, said Mr Brody.  This means it is arguable that the payment notices seek to impose unlawful penalties, he said.  Read more...
 
Consumer Action solicitor, Tom Willcox, said that his client, Mr Gary Tan, alleges that he was
unaware he had parked in a Care Park carpark due to inadequate signage.  “Due to the inadequate signage at the time, he still doesn’t know if he actually parked in the Care Park area or not.”  “It is hard to see how it cost Care Park $88 simply because our client didn’t display a ticket for one hour in a cheap, if not free, car park,” said Mr Willcox.  “Private car parks such as Care Park must have adequate signage and clearly displayed terms and conditions for their customers. Read more...
 
During the year, we brought to ANCP’s attention several of its terms and conditions that we considered were unfair under the Fair Trading Act 1999, which voids unfair terms in consumer contracts. In particular, terms that:
- Deemed consumers to have accepted the terms and conditions immediately upon entry into the car park (rather than after having a reasonable opportunity to read them)
- Imposed liability for any liquidated damages on the owner of the vehicle, rather than the driver
- May have been misinterpreted and caused consumers to believe that the liquidated damages were official fines for which they could be prosecuted    Read more ...
 
Over the last year, CAV received a high volume of enquiries about Australian National Car Parks Pty Ltd (ANCP) in 2006–07. CAV does not receive the same high level or type of complaints about car parks that require consumers to obtain tickets prior to entry. Installation of barriers would, in CAV’s view, eliminate the cause of the complaints....  The changes further clarify that it is the person who parked the car in the car park, rather than the owner of the car, who is liable to pay. This is because the liability stems from alleged breach of contract, and the contract is between the person parking the car and the car park operator.  Read more ...
 
Whilst the legal position is complicated, we take the view that if there is a binding contract - which may or may not be the case, the terms of that contract are unfair and the amount demanded is a penalty rather than a genuine assessment of the company's loss.  If you do nothing and do not write and provide your personal contact details to the company, it will need to apply to the Magistrates Court to obtain your details from Vic Roads. It may be that this extra step will deter the private car park operator from taking action against you.  If you are sued in the Magistrates' Court, you can take advantage of a transfer procedure available under s 112 of the Fair Trading Act 1999 (Vic), whereby the proceedings in the Magistrates Court can be transferred to VCAT, provided the sum claimed is paid to VCAT in trust.  Read more ...
 
In particular, CAV has received complaints and enquiries about Australian National Car Parks Pty Ltd and Care Park Pty Ltd allegedly ‘fining’ people for failing to display valid tickets while their vehicles were in the car park. A number of complaints concerned the apparent speed in which breach/payment notices were placed on vehicles after being parked.  Some owners, believing that the payment notices are statutory infringement notices or fines (under which the owner is deemed to be the driver) believe that they are responsible for payment even though they were not the driver at the time. Because the contract is between the driver and the car park operator, only the driver is liable to pay the liquidated damages. CAV has not received the same level or type of complaints about more traditional car parks that require a ticket before entry. Installation of barriers would, in CAV's view, virtually eliminate the cause of the complaints.  CAV has required changes to the notices to make the situation clearer, including that it be addressed to the driver of the car, not the owner.  Read more ...
 
We informed Dun and Bradstreet that we did not think ANCP could use the credit reporting system in Australia because it cannot be regarded as a credit provider under the Privacy Act. Accordingly, we alleged that claims that Susie’s credit rating would be affected were misleading and deceptive. Dun and Bradstreet agreed to close Susie’s “account” with ANCP and not pursue the matter further.  Read more ...
 
One consumer, acting for himself, has taken the battle with Australian National Car Parks (ANCP) to a new level. After he launched a legal action at VCAT, ANCP desperately tried to settle the matter by “waiving the fine”, but this consumer refused to back down on the basis that the case wasn’t just about this occasion but any future fines that may arise as part of his ongoing use of the Barkly Square car park in Brunswick. He took it all the way to a hearing and we expect a decision any time now.  Read more ...

Last August, then NSW fair trading minister Diane Beamer urged drivers to "exercise extreme caution" in Australian National Car Parks car parks because the company could have been engaging in "improper, misleading and deceptive conduct".  Read more ...

Debt collection guidelines
 
This publication has a section on "False or misleading statements and/or conduct by debt collectors.  It says that debt collectors must not make false statements about the amount you owe, or the status of your debt – for example:
– say you owe a debt when you do not
– say the amount you owe is greater than it is
– say that you have no choice but to pay a debt if you have a valid defence against
payment, unless there has been a court judgment
This ACCC publication says that:
  • In the first instance, you may want to discuss concerns about misconduct directly with the debt collector. Tell them you believe their conduct is unacceptable and refer them to the Debt collection guideline for collectors and creditors that we produced jointly with the Australian Securities and Investment Commission (ASIC).
  • If the harrassment is serious and/or ongoing, you should reportit to the ACCC or ASIC, or to the consumer affairs or fair trading agency in your state or territory. Conduct involving assault or threats of violence should be reported to the police. The consumer protection responsibilities of these ACCC and ASIC are outlined below.
 
Section 12 on page 32 says that if a liability is disputed:
  • A debt collector "must not persue a person for a debt unless the collector has reasonable grounds for believing the person is liable for the debt". 
  • If a debt collector "continues with collection activity without properly investigating claims that a debt is not owed, the debt collector is at considerable risk of breaching one or more of the legal prohibitions of the Commonwealth laws if the debtor is not in fact liable for the debt.  If the creditor and/or collector are not able to establish the debtor’s ongoing liability for the debt when challenged, collection activity should cease. The creditor should also consider providing a letter to the debtor advising that collection activity has ceased and the circumstances (if any) in which collection activity may be resumed in the future.
  • Further communication with a debtor, after the debtor has formally denied liability and/or stated an intention to defend any legal proceedings brought against them, is not appropriate. In these circumstances, the debt collector has the option of starting legal proceedings if they choose to pursue the debt.
(2) In subsection (1), prohibited debt collection practice means—
...
(k) making a false or misleading representation
Example: Falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt.
...
(m) contacting a person about a debt after the person advises in writing that no further communication should be made about that debt, unless the contact is by way of—
   (i) an action issued through a court or the Tribunal; or
   (ii) the threat of an action that the person to whom the debt is owed is entitled to issue through a court or the Tribunal and which the person intends to take;
...
(o) demanding the payment of a debt from a person without having a belief on reasonable grounds that the person is—
   (i) the debtor or the debtor's agent or representative; and
   (ii) liable for the debt;
 
 
From Legal Aid NSW: "The business models of many private car parks appear designed to trap consumers".  See: http://www.legalaid.nsw.gov.au/__data/assets/pdf_file/0018/13743/CLSD-e-update-July-August-2012.pdf

Australian Consumer Law

http://www.consumerlaw.gov.au/content/the_acl/downloads/ACL_guide_to_provisions_November_2010.pdf
 
NSW Legal Aid Office
 
 
If the creditor offers to reduce the debt
In the NSW government publication "The Law Handook" it states: "An offer by the creditor to reduce the debt should be viewed with suspicion, particularly if no reason is given. It could mean there are inaccuracies in the creditor’s accounting, or that the creditor is unable to prove the debt, perhaps through loss of records. An offer to reduce could be the basis for much harder negotiation by the debtor"  See http://www.legalanswers.sl.nsw.gov.au/guides/law_handbook/pdf/Ch17_debt.pdf
 
 
 
Disclaimer: the author of this website is not a lawyer.  The information provided on this website is of a general nature only, and does not in any way constitute legal advice or recommendations.  The information is provided "as is" and there may be errors or inaccuracies or the information may not be completely up-to-date. The information may also relate to consumer law in a different state to where you live.  Always check the information provided before relying on it.  You should always obtain independent legal advice before relying on any information provided on this site.   the author of this website is not a lawyer and this site does not constitute legal advice.
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