A LEGAL loophole means parking fines issued in shopping centre car parks might not be upheld in court.
According to the ABC, a number of drivers in Queensland and Victoria have reportedly been stung with penalties of more than $70 despite a lack of signage in some car parks.
Some claim they were fined before the parking time limit expired while others say they were targeted because their ticket was incorrectly displayed.
But a legal expert said the fees were too high for such minor breaches.
Queensland property lawyer Tim O’Dwyer told the ABC drivers who overstayed their allocated time were considered by car park operators to be in breach of a contract — but that a dispute over the so-called fines probably wouldn’t wind up in court.
“I suspect they’re probably working on the basis that people will be spooked and won’t do it again,” he said.
“If you don’t pay, they might huff and puff and they might write you a letter or two but you don’t have to pay until a court says you have to.”
In a nutshell, private car park companies claim that by entering the premises, drivers also enter into a binding contract and agree to only stay for a specified time, or risk a penalty.
However, according to Legal Aid, car park fines are “arguably misleading” as only the government can issue fines.
“We take the view that even 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 private car company’s loss,” the website states.
While Legal Aid does not recommend ignoring a fine altogether, it suggests first writing to the car park company to dispute the fine before lodging a complaint with your state’s tribunal such as the NSW Civil and Administrative Tribunal.
A Queensland Government website also states car park rules could be considered unfair by a court if they “suggest a consumer who enters your car park has automatically agreed to your terms and conditions”.
It explains that a car park company can only enforce a fee through the courts, after justifying the contract breach with evidence, proving the “demand for payment is equal to your loss from the alleged breach of contract” and securing a ruling that the customer “did not meet the terms and conditions of the contract and is liable to pay”.
Parking Australia chief executive Lorraine Duffy said while parking time limits were essential to help ease congestion, support businesses and make shopping more convenient for customers, the relatively new Accredited Operator Scheme was helping to crack down on “rogue” operators and make the system fairer for all users.
The scheme has already audited more than 800 private parking sites across the country, with participants agreeing to a code of practice designed to ensure “transparency and fairness”.
“We don’t condone bullying behaviour by operators in any way but 99.9 per cent of operators are doing the right thing. The scheme is there to protect consumers and retailers and keep the system fair,” she said.
“It’s about separating operators who are doing the right thing from those who aren’t.”
Ms Duffy said customers with a legitimate reason for overstaying their time limit or those who believe they have been unfairly penalised should first contact the operator to resolve the issue.
Complaints and feedback can also be made here.
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