Car park fine

I too have just received a bogus demand from ANCP.

My husband is an experienced commercial barrister and has advised me that the company is in breach of the Trade Practices Act and the Fair Trading Act Victoria. It is also liable in the tort of deceit.

This is because:
(a)the company is passing itself off as a enforcement agency and purporting to issue fines when it has no legal standing to do so.
(b) the propositions of contract law contained in their letters of demand are false and by now ANCP must know this to be the case (this type of conduct is fraudulent.

It is unclear how ANCP is managing to obtain confidential information from VicRoads but I will pursue this matter as far as I can. According to VicRoads the information should not be given out without a subpoena or court order. It is possible to make an FOI request to obtain details regarding how the information was obtained.

I am obtaining a company search from ASIC from which I should be able to obtain details regarding the directors of the company.

I will be taking action against the company. If anyone else (particularly in Victoria) is interested in joining me please let me know.

It doesn't sound like anyone has actually been taken to court by ANCP.

Is anybody able to advise me whether the solicitor involved holds a practicing certificate from the NSW Law Society. I think it is time that a complaint was made regarding his conduct.

This has recently been introduced in NSW at a medical centre where I was the unwitting one. ANCP. This medical centre is uphill from a railway car park, very steeply so, and there is no other parking reasonably close at hand for elderly or frail who attend these places. It is a very good thing for me since the people parking all day at no cost were blocking most of the available parking for people to attend appointments. There is no way I can do the climb from the rail station carpark. I am an unwitting victim of a new system however.

In this situation they are dealing with a predominantly aged society. Slapping cars with payment demands in less than 30 minutes during the establishment phase is quite affronting. The folks who don't get out much are least likely to know about the 'display' system, I know I couldn't fathom it. I did see the last sign closest to where I parked and on looking around saw many more all pointing to a ticket machine that didn't seem to exist on a vacant wall. I was sure I somehow sailed right past a new ticket machine on the way in and had to drive around a loop on my way out where there would surly be a person I could tell that I had no money on me.

Attending a doctor's appointment without any money is not at all unusual, it's not a shopping centre. I asked about it at the doctor's office and borrowed a dollar from reception upon learning I had to find this ticket machine. I got back too late as it turned out, I'm not so fast on my feet any more, this took 30 minutes. The parking attendant who I spent more time searching for once I returned to my car a second time, after having seen the doctor, was far more illusive than the ticket machine which turned out to be just around the corner. I felt like a right goose thinking two arrows indicating 'around the corner' might have pointed it out to me. Not that it would have helped since there was no human to speak to anyway.

If the intention is to provide a fair service to all then the establishment sting has to be removed. For at least six months imho they should be required to mark cars that don't have tickets and leave a polite notice on the car explaining the new system, requesting future cooperation and warning of the payment demands. They should log the number-plate to a searchable data base which hand held technology certainly affords. If the car is still there some hours later or pre-exists as a ‘warned’ vehicle in the data base (for the centre in question) then they should do their thing with our blessing for more parking spots.

Truth is that people don't adapt to change well and particularly not when it's not necessarily fair to all in the introduction phase.

If you have been attending certain car parks for donkey's years your not on the look out for new signs since you know the place like the back of your hand. Blocking entry to have people agree to new parking terms first, is fool poof. Perhaps that is what they should have to do for six months first, put a human at entrances to educate people about new systems. Signs in parking lots are not entirely effective for a wide variety of reasons.

I don't think claiming lack of English skills would work in any case since it is assumed through the process of acquiring a licence the driver can read road and parking signs.

What I am wondering for those who don't pay is whether this company, and others like them who can access RTA information, can also list non payment to individual credit history?

Edited by solo - 25/August/2009 at 20:02

Genesis

I was in touch with Consumer Affairs yesterday, and they informed me that they can't take action unless ANCP are being fraudulent, misleading or deceptive. Unfortunately nothing in the the initial NIS is actually purporting   to be something other than it is. It is bullying, and 'trickery' but alas not fraudulent.

Without seeing the actual letter you received back, but reading your reply, it seems the next letter could be close to being deceptive.

I'm still waiting for my response.

Good work!!

Edited by tigermoth - 21/August/2009 at 09:14

I have been reading this for a while, I have also had the letter to sue rubbish from these clowns... I may be well and truly sadistic though, I enjoy writing letters to them, just to see what the response is, unfortunately they are no longer playing ball. Anyway, for those interested, here is my response for the NOTICE of INTENTION to SUE (you may recognise large portions of it from a pro-forma letter floating around.

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xxxxxxxxxx
                                                       xxxxxxx
xxxxxxxxxx
xxxxxxxxxxxxxxxxxxx


Australian National Car Parks                         
P.O. Box 81, Annandale, NSW 2038
                        

WITHOUT PREJUDICE


Dear Sir/Madam


xxxxxxxxxxx
Ticket Number xxxxx issued xxxxxx, xxxxx P.M.
Barkly Square Shopping Centre Car Park


On xxxxx of xxxxxxxx 2008, you report that my car was parked in the car park located at Barkly Square Shopping Centre. You further report that on this date I had been issued with a “fine” for $66.00.

Being that this is the first time this matter has been bought to my attention in any form and after careful consideration of your correspondence dated the xxxxx of xxxxxx 2009, title “IMPORTANT NOTICE OF INTENTION TO SUE”, I wish to challenge this matter.

I believe that there is no evidentiary implication that I, as the registered owner of the vehicle on this date, was in fact the driver of this vehicle. This subsequently means that, on the balance of probabilities, I was unable to reasonable enter any contract with you or your representative on this date. I am unable to provide you with the details of the individual driving the vehicle on this date, the vehicle was for sale and as such multiple “test drives” were taking by prospective buyers.

I further note that you do not have the statutory authority to impose fines. I consider the “fine” you have imposed to be a penalty as it is not a reasonable estimate of the damage, if any, you have suffered due to the failure of the driver to display a ticket on my car. Penalties imposed for breach of contract are void, and a Court would not enforce the “fine” against me.

Further to this, under the terms governing the use of the car park, the driver is permitted three hours free parking. Given that in this case you are unable to demonstrate with any evidentiary value the period of time for which my vehicle was parked at Barkly Square Shopping Centre Car Park, your company can not accurately estimate the cost of damages and loss you have suffered, if any, as a result of the driver’s failure to display a ticket.

The imposition of such a “fine” is an unfair contract term as per section 32W of the Fair Trading Act 1999. There is a clear difference in bargaining power between Australian National Car Parks and the driver as an individual consumer. As you would be aware, the driver had no opportunity to negotiate the terms of this parking contract with you and, in any case, would have no ability to change any of the terms of said contract for failure to display a ticket. In these circumstances, it would be unconscionable for you to enforce the “fine”.

As such, by “fining” me in such a manner, you are engaging in unconscionable conduct within the meaning of section 51AB of the Trade Practices Act 1974 (Cth), particularly because of my lack of bargaining power relative to you (being that I was not the driver and not privy to the terms and conditions of said “contract”) and the fact that the terms imposing the “fine” are not reasonably necessary for the protection of your legitimate interests.

Accordingly, please confirm that you withdraw the “fine” imposed on me. If you maintain my liability in this matter, please provide a breakdown of the loss and damage you have allegedly incurred as a result of my actions. I also request any evidence indicating that I was in fact the driver of the vehicle on this date that you propose to present to the Victorian Civil and Administrative Tribunal and ultimately the Magistrate’s Court of Victoria as I intend to contest this matter fully.

I look forward to receiving your written response within 21 days of the date of this letter.

If I do not hear from you, I may take further action against you to protect my position.


Yours sincerely


xxxxxxxxxxxxxxxxxxxxx

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So from that I got a fairly run of the mill and extremely average response, effectively, still pay us we want your money and will sue you yadda yadda yadda, to which I replied with the following.

xxxxxxxxxx

xxxxxx                                                  
xxxxxxxxxxx
xxxxxxxxxxxxxxxxxxx


Australian National Car Parks                         
P.O. Box 81, Annandale, NSW 2038
                        

WITHOUT PREJUDICE


Dear Sir/Madam


xxxxxxxxxxxxxxx
Ticket Number xxxx issued xxxxxxxx 2008, xxxxxx P.M.
Barkly Square Shopping Centre Car Park

I respond to your correspondence dated xxxxxxxxx 2009. After considering your correspondence I wish to inform you that I will continue to challenge this matter. While you may have duly noted part of my previous correspondence was taken from the Consumer Action Law Centre, and indeed the Consumer Affairs website, you may have also noted that the correspondence was far from pro forma.

You continue to insist that you have in fact not imposed any “fine” on me. I am pleased to see that you acknowledge the simple fact that you do not have the statutory right to do so. You will further note that under the Road Safety Act 1999 (Victoria) the power to demand the name of address of a driver and/or person in charge of a motor vehicle only extends to authorised officers. Authorised officers as defined by the act are Police Officers, Fisheries Parks and Wildlife Officers and Authorised Council Officers. None of which your privately run company are categorised under, thus there is no legal obligation on the owner of the vehicle to, where possible, provide the details of the driver at a specific time.

Further more, being that you are attempting to obtain information by purporting to act under such powers, namely demanding a Statutory Declaration (which again, you do not have the power to do so), I will insist that this is a “fine” by definition as you are attempting to use or at a bare minimum appear to use the powers contained under this state act.

I would also bring your attention to the your correspondence dated the xxxxxxx 2009 in which you refer to your employee’s as “Patrol Officers”, again a further implication that you may be attempting to masquerade as something you are not, certainly at a bare minimum, in a legal letter, an attempt to demonstrate some form of legislated authority.

I am however happy to provide you with a Statutory Declaration reiterating the information contained in my correspondence dated xxxxxxxxx 2009 and also outlining the date the vehicle in question was sold.

I would also like to point out at this stage that you have stated in your correspondence dated the xxxxxxxxxxxxx 2009, “Payment Notices are issued for a breach of the Terms and Conditions of Entry into the car parks managed and operated by Australian National Car Parks Pty Ltd.” As I was not the driver on this date I again present to you the argument that I am unable to enter this contract as I am not privy to its terms and conditions, I also ask if there is any method of preventing someone from entering the car park in question if they have not read the “contract”, namely boom gates or entry and exit point manned booths.

I will also take this opportunity to bring to your attention the following statement made by you in your correspondence dated xxxxxxxx 2009, “On no view is the modest sum of $66, which is payable in the first instant (or the greater amount) – extravagant and unconscionable.” As your previous correspondence was my first notification of any such payable sum, “fine”, I have never received a request for $66.00. Further my understanding is that there is a period of three (3) hours free parking at the Barkly Square Car Park after which a paid ticket is required. I highly doubt that you can demonstrate that my vehicle has been parked in your car park for a period of time that equates to $66.00 or the initial amount you requested from me of $88.00. It is in this sense I view this as a “fine”, and an unconscionable request. At the time you notified me (xxxxxx 2009) this amount was excessive and above extravagant. A break down, as stated by you and prepared by Price Waterhouse Coopers as a genuine pre-estimate of damage is requested. If this matter reaches the Victorian Civil and Administrative Tribunal and/or the Magistrate’s Court of Victoria an independent pre-estimate will be requested.

Further to my previous correspondence I again request a breakdown of the loss and damage you have allegedly incurred as a result of the drivers actions. I also request any evidence indicating that I was in fact the driver of the vehicle on this date. Your solicitor’s will note that under Section 1A of Schedule 2 of the Magistrate’s Court Act of Victoria they are obliged, under law, to provide the defendant (civil or criminal) or their representative, a pre hearing disclosure of all documents to be presented to the court, all evidence to be presented to the court and the names of all witnesses to be called before the court. Given that you clearly insist on carrying this matter forward I again request this information, including any reports prepared by any Fair Trading Statutory Bodies as well as a certified copy of the original, hand written or computer printed “fine”. A repeated breach of this request will result in a breach of the Magistrate’s Court Act (Victoria) and an official complaint will be made to the presiding Magistrate.

Again I inform you that I will contest this matter fully, accordingly to prevent this matter reaching the Victorian Civil and Administrative Tribunal and ultimately the Magistrate’s Court of Victoria I request that you please confirm that you withdraw the “fine” imposed on me.

I look forward to receiving your written response within 14 days of the date of this letter.

If I do not hear from you, I will take further action against you to protect my position.



Yours sincerely


xxxxxxxxxxxxxxxxxxxxxxxxxxxx

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At this stage I would like to point out I'm in no way a lawyer. Feel free to use or re-produce this at any time, however do so at your own peril.

At this stage they have not responded withing almost 28 days of the date of the letter. I'm missing my play friends now, these letters were fun to write.

The next letter will relate to whether signage is erected in accordance with the Road Safety Act (Regulations) of Victoria and whether there is any notes made at the time by the "Patrol Officer" to indicate these weren't obstructed etc etc.

tigermouth - that's very strange as I called Vicroads about 1 month ago to see if they did and they told me yes. They are legally obliged to give our details to "government bodies and private car park companies" end quote. I thought this response was ridiculous and he added "oh and other authorities as well". That's what I was told anyway.

Hi,

There is no use in getting angry, the company is clearly out to profiteer, they are obviously causing a lot of anguish in the community and should be stopped from distributing the peace in that way.

Boom gates are not causing issues or same level of stress in the community and the company should adopt using boom gates should they honestly be interested in the services they provide to that community.

Start a petition, use this words, "The company is causing anguish and disturbing the piece by imitating Enforcement Law Agency by issuing what appears to be fines for parking. It is not serving the community in good faith, it is out to profiteer from less literate community members. The petition is to get the local council to order the company to stop this current practice and replace it with more socially acceptable solution for free parking measuring eg: boom gates. (proven not the cause so much stress)."


Print your self a petition and stand in from of the market to collect signatures - you need name, contact phone number, date and signature. Encourage others to run a separate petition. The more petitions the better, the more signatured the better.

Send a copy of the petition to your local council, department of fair trading and your local member for parliament.

Tell us in this formu how many you got and where you have sent them.

I have collected so far 20 signatures, am planning to get at least 30 more to mak it to 50 and then I will send them to Canterbury Local Council CC: department of fair trading to start with. I still need to know who is the local politician.

Will post you more soon.

Good luck.

BlondM007

Hi All,
Have a "Reminder Unpaid Payment notice" from 10/3/2008, It does state that unfortunately long delays can be experienced during recovery process, generally with obtaining information from the appropriate authority in regards to vehicle ownership. I e-mailed Vicroads and was directed to their website.

http://www.vicroads.vic.gov.au/Home/Registration/ChangeOfVehicleDetails/RequestingVehicleInformation.htm#Registered

This basically states that the registered owner is the only person who can get the Private info. If it is my Insurance company they have just lost a customer and i will be looking closely at their privacy statements.

Does anyone have any information on the keeping of private data, has ANCP a data base of people they have communicated with and are they allowed to keep this data and for how long?

I have asked ANCP to advice me which authority has provided them with the details so i can take action under the privacy act. Will let you know if they tell me.

Personally it is the shopping center or the store that has leased the car parks to ANCP for profit!

I no long shop at Barkly Sq or the Safeways in Albert St Brunswick and will advise the store managers of this. There is a Coles in Union ST that does not have ticketed parking so they are the winner.

Finally i will be placing a sign at the front and rear of my vehicle which will be along the lines of..

"Any individual or company other than organisations statutorily approve by government, that attaches any advertisement or notice to this vehicle will be liable to remunerate the owner to the sum of $100 to cover the removal and cleaning of the area that it is attached to. By placing the aforementioned notice to this vehicle the individual or company have indication acceptance of this agreement and will be deemed to have entered in to a contract and accept liability."

It is as valid as their claim.

This company parks their staff cars illegally outside their business every day. They park within ten metres of an intersection every single business day. Go check out their business premises at the rear of 261 trafalgar street annandale entrance on the corner of Rose Lane. It's not their car park where they park its a public road. It's a very interesting building too!

In regards to Supermarket car park fines, same thing.
Carry a small sign into the supermarket, saying, "If you have not served me within 2 minutes, you will be fined". (could be on a tshirt)

Once they are serving you, they have now entered into this agreement, as they chose to serve you, despite them taking longer than 2 minutes to serve you.

As you entered the car park without a written legal agreement, and they have not served you within 2 minutes, and there is also no written legal agreement for this, you can fine them, just as much as they think they can fine you.

Both parties have NOT entered a written legal agreement about terms and conditions.

Next time you go into the supermarket, carry a small but visible sign.
Once they have started serving you, it means they agreed to the terms and conditions, by "visual".
Just as they expected you to agree to terms and conditions "visually" with the car park.

Once again, both parties have no written agreement, thus in court, both fines would be cancelled. Their fine on you, and your fine on them.

Keep your receipt.

There is a lot of talk about these operators sending letters to people. If privacy principles apply, surely it would be appropriate to send an FOI request to the relevant authority who may have provided the information asking the who,hows and whys?