Section 4 – Legal Background
This section describes the legal principles being used by Care Park and by the letters you write. I want to re-iterate I am not a lawyer, so this does not constitute any sort of legal advice, however I am knowledgeable about legal issues, in particular legal contracts.
Criminal law and civil law
There are two fundamentally separate sections of the law in Australia (which itself is based on English law): Criminal law and civil law. To quote Wikipedia: “Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment.”
One of the key differences between the two is punishment. Only the various arms of government are allowed to punish people and this usually comes under criminal law. No other entity is allowed to do this, in fact this is explicitly prohibited by the criminal law – it is called vigilantism.
In our day-to-day lives we are used to living “within the law”, which usually means the criminal law. We don’t commit violence, we obey speed limits and we don’t steal things. We do this because we believe in the system of law and we know that there are consequences of not obeying the law. If we are accused by the government of breaking the law (such as speeding), we either decide to accept the punishment or we take our case to court to claim our innocence. For small offences, particularly ones that we know we have committed, we usually just accept the punishment and move on. There is no point taking the case to court, because we know we will lose.
This is particularly true with car parking, we have all at some point forgotten to pay for the ticket or put enough money in the meter and received a parking fine from the local council. We just pay it and move on. We don’t take it court because it is a time consuming process and we wouldn’t be likely to win anyway. Local councils are part of the government and are specifically allowed (via a “Parking Scheme”) to collect payments for parking and issue fines (punishment) if the payments are not made.
Care Park rides on this general wave of apathy and attempts to engender the same disinterest in fighting their parking “payment notices”. However they are not able to use criminal law, because they are not the government, so they attempt to use civil law and in particular contract law to achieve the same goal. Hoping that most people don’t understand the difference and not understanding their civil rights, just pay their “payment notices”. You will note that they go to some lengths to say these are not “fines”. Because that would put them foul of the law that surrounds punishment and who is allowed to do it.
The problem with civil law is that unlike criminal law, which has a group of people whose job it is to enforce it (the police mainly), there is no body to enforce civil law independently of the victim. If my my car is stolen, I report it to the police and they will track down the thief and take them to court – I don’t have to do anything more than alert the authorities. However with civil law if I believe someone has transgressed my civil rights, I have to demand my rights and if necessary take my case to the courts as a dispute.
Care Park and contract law
Care Park claim that by entering their car park, the operator of a vehicle is entering into a contract with them. A contract is essentially a promise – a promise by one side to provide some goods or service in return for the other side providing some payment. The contract may specify the terms on how the product or service is to be delivered, when payment is to be made and what actions constitute a breaking (or “breach”) of that contract. Normally contracts are written on paper and signed by both parties (such as a the sale of a house), then it is clear that both parties agree to the contract. However not always. You can enter into a contract by your actions. An obvious example is when you go to a petrol station and fill up your car with petrol, you are entering into a contract to pay for that petrol at the advertised price. In more modern times there is the “click through” contract found on websites – you click the “I agree” button to accept the terms of the contract.
Standard Form Contracts and Unfair Contracts Terms
Care Park’s use of a large sign entitled “You are entering into a contract” at the entrance to the car park is without doubt a “Standard Form Contract” under Australian Consumer Law. There are a number of tests for a Standard Form Contract and it is the responsibility of the company to demonstrate that a contract is not a Standard Form Contract. The most obvious test is that the contract is presented on a “take it or leave it basis” – as a consumer you must accept the contract in it’s entirety or not at all, there is no opportunity to negotiate over the terms. This is clearly the case here (indeed on most signs it even says this: “If you do not accept these terms and conditions, you must immediately remove your vehicle from the car park.”)
Once a contract is deemed to be a “Standard Form Contract”, then it comes under Australian Consumer Law, which regulates what terms are allowed in the contract and in particular decides on what terms can be deemed to be “unfair” and struck off (i.e. removed from the contract). You can read more about this in a great document at the Australian Consumer Law website. Broadly speaking a contract term is deemed “unfair” if it:
- would cause a significant imbalance in the parties’ rights and obligations arising under the contract and
- is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term and
- would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
1 & 3 are clearly the case in many of the terms (particularly around the “liquidated damages” terms), 2 is not so clear. However remember the legitimate interest of Care Park is to manage car parks and collect parking fees. Collecting large amounts of money on “payment notices” is not a legitimate interest.
Standard Form Contracts terms also require “transparency”. They must be easy for the layman to understand and they must be also presented clearly and be readily available to the party (i.e. you) who are affected. Putting a sign up in the car park (even if it says “you must read this”), may well be not enough.
Breaking a contract
However for the moment let’s assume you did read all the fine print on the signs, and that it is indeed a valid contract. You didn’t put enough money for the ticket and now they claim you have broken (“breached”) their contract.
First of all it is not illegal to break a contract. It happens all the time. When a contract is broken, the side who loses out (“the injured party”) is entitled to request compensation for the broken contract (“breach”). This compensation is called “damages”. The damages are intended to give to the injured party what they would have gained had the contract not been broken and also compensate them for any costs they might have incurred due to that breach. The intention is that the injured party is no worse off.
The key thing to understand is that damages are compensation for a loss – it is not a punishment to the person who broke the contract. The injured party (Care Park) is not entitled to come out ahead due to the breach.
Because contracts are broken all the time and the costs and headache with working out what the actual losses are, the idea of “liquidated damages” has evolved. Liquidated damages is an agreement between the parties to the original contract, usually written into the contract, that if the contract is broken, what the damages will be or how those damages will be calculated. The intention in law is to simplify the process of breaking a contract and calculating the damages. However they are still damages, they are still not meant to be any sort of punishment, or out of proportion to the actual costs incurred or money lost by the injured party.
In the contract with Care Park you have agreed that the liquidated damages (should you break the contract) are $55 or $28 if paid within 14 days. I believe that this is totally out of proportion to the actual costs or lost revenue that Care Park have incurred. The fact that they are willing to accept just $28 for quick payment means that their costs are likely to be at least below $28. I therefore believe that this is very much an unfair term in their contract and is therefore very unlikely to be enforceable in court.
So Care Park are demanding one amount, you are only willing to pay a smaller amount in compensation. This constitutes a commercial dispute – a disagreement. In civil law it is expected that the people involved will attempt to reach a resolution themselves and if that fails then each side gets its chance to argue the case before a judge in a court who will make the final ruling. That ruling is then enforceable (debt collectors, garnishing of wages etc)
The court process
The court is the final arbiter of any dispute. However going to court can be expensive, you don’t have to use a lawyer (you can represent yourself), but Care Park probably would. The big problem with the court process is nothing is guaranteed. There are lots of things that can go wrong and you might think you have a water tight case, but still lose. The problem with losing is that the winning side is entitled to also apply to the court to have it’s costs (lawyers, barristers etc) paid for by the losing party. So even if you are going to court to fight a $55 charge, if you lose you could end up paying thousands of dollars of the other sides legal fees. Not good.
There are some that would argue that these costs are a failing of the justice system – it is expensive and risky to get justice through the courts. However there is one side benefit to this – the parties in a dispute have a lot of incentive to reach an “out-of-court” settlement (one by mutual agreement), because neither side really benefits from going to court. There are so many disputes in life that there is no way the court could handle them all. In fact some courts actually require that official mediation be attempted before being allowed to come to court.
Attempts at coming to a settlement
The courts are so keen to have parties settle their own disputes, they have come up with a legal language to help this to occur. It is called “without prejudice”. To allow the parties to attempt to reach settlement and allow them to speak freely without risking saying something that will prejudice (badly affect) any possible future court action, the courts have allowed the parties to communicate “without prejudice”. By putting the words “without prejudice” at the top of any communication you have, you are saying that anything you say cannot be quoted in court. You can admit whatever you like, but it won’t affect (prejudice) your case in court. This is why the words “without prejudice” are put at the top of our letter of offer to Care Park. They cannot produce this in court and say, for example, “well the guy offered to pay us X, so therefore he admits that the contract is valid and that he broke the contract.”
Court and Legal Costs
I said before that going to court is risk and expensive, however there is a little legal trick here that is almost a get-out-jail free card around legal costs. Once a case is heard and a judgement is made, the winning side can then (and only then), apply to the court for payment of it’s court costs – this is separate legal case in itself. At this point if instead of just using the words “without prejudice” in your offer letter, you used the words “without prejudice, save as to costs”, then this letter of offer can be produced in court when deciding these costs. This is important, because the only costs that can be awarded are those that are unavoidable in obtaining the result that was obtained in court. This is best explained by an example.
Let’s say that Care Park are demanding their $55. You make a “without prejudice, save as to costs” offer to them for damages of $10, which they decline and they then proceed to take you to court. The court then decides that you have indeed broken their contract (unlikely, but this is what we are looking to protect ourselves from), however that the $55 is not a reasonable estimate of the actual damages, and instead awards the more reasonable amount of $5. Care Park have technically won their case – even though the amount is lower than they were demanding. So now they apply to the court to pay $2000 in legal fees. At this point you produce your offer letter (you are allowed to now, since it is discussing costs and you had the “save as to costs” in your letter) and demonstrate to the court that you made an attempt to settle the matter for an amount greater than they finally received in court before they incurred all these legal costs. Therefore the only reason that these legal costs were incurred was due to Care Park’s unwillingness to negotiate. The court would then refuse to allow any costs incurred after the offer letter be included in any costs awarded against you. Care Park would then be left collecting their $5, but have incurred $2000 (their own legal costs) to get it. Not a great result.
The point here is that Care Park know this. Once they have received your offer letter and turned it down, they know they had better have a strong likelihood that they will win any case (which itself is fraught with difficulties and risk), but also get an amount in damages more than you are offering. A tall ask. You have now been put into the “too hard” basket.
The too hard basket
Remember how I said that going to court can be expensive. This works both ways. If a dispute goes to court and they lose, they get to pay your legal costs as well as their own. Would they want to spend $2000 in order to try and collect $55, with no guarantee of success? So it is not necessary to have a “water tight” case that you are right and they are wrong. All that is necessary is to stack the odds in your favour enough that they decide it is not worth the effort and risk. Given the amount of money they are trying to collect (relatively small) versus the cost of court proceedings (high) this is not hard. Make it clear you are not going to just roll over and pay and are willing to fight this in court, they will see you as more trouble than you’re worth.
In effect you have turned their methods back against them. They are hoping that with all their threatening legal language you will decide that it is pointless fighting them all the way to court and pay up. You are turning that around and showing them that you have enough understanding and knowledge to fight them and that for them to take it to court is fruitless.
Registered Owner versus the Operator
In the early days of the private car park operators, many people realised that they could just ignore the “payment notices” because the operator was unable to get their name and address and therefore chase them. Then Care Park have found a way to get the registered owner’s name and address from some of the government vehicle licensing authorities. However this has been done with a lot of controversy and this is in no way signifies that the government approves of what they are doing. It was done with much fanfare and Care Park announced they were now going to go after all these unpaid fines.
However in practice this has given them no new legal powers. Whatever contract they have is with the Operator (the driver) of the vehicle, however they only have the Registered Owner. Sure they now have the name of someone to harass with their letters, however you can easily turn around and say that you weren’t the operator of the vehicle at that time and they would have to prove otherwise (eye witness accounts etc).
In my experience Care Park will request that you do not park in their car parks until any dispute you have with them is resolved. I believe this is so that if you do continue to park in their car parks, then they can accuse you of trespassing. Trespassing is in fact a criminal act – it is the entering of another persons property (usually land or a house) without their permission. However trespassing is very far down the list of serious crimes, particularly if no damage has occurred.
Even if they do accuse you of trespassing, they still are not allowed to take the law into their own hands, they must report it to the police who then will decide if they want to act. Generally speaking it is the responsibility of the landowners to erect barriers (fences, gates etc) to entry, before they can accuse people of trespassing (Care Park often do not). The other problem for Care Park, is that generally speaking it is people who trespass, not cars. While the law of trespass does cover leaving things on other people’s property – the police have to prove it was you and not someone else who left the car in the car park. Very hard to do and it is unlikely that the police would express much interest in dealing with it, given their limited resources.
Wheel Clamping, Towing etc
Care Park have recently threatened (in a “prohibition notice” attached to my car), that they may wheel clamp my vehicle. I do not know if they actually have the means to do this, however if they did, they would be on extremely thin legal ground. In NSW due to a large number of complaints and even some fights that required the police to attend, wheel clamping is now explicitly illegal if performed by private individuals or companies. It is unclear if this will be mirrored elsewhere in Australia
Interestingly the laws of trespass work the other way around when dealing with wheel clamps. Interfering with a vehicle is trespass in itself (again without the owner’s permission). They get around this by inserting into their “contract” that you give permission to enter the vehicle for “operational or safety reasons”. However given that the permission is only implied by the contract (not explicitly given), I think this would be a very hard to prove that you had given permission – see the section on “unfair contract terms”.
One easy fix to the problem is to put a note on your dashboard that explicitly revokes that permission. The note would say: “To private car park operators and their contractors, for the avoidance of doubt, you are hereby notified that I do not give permission for you to interfere with this vehicle, including such actions as wheel clamping, towing away or entering. Any attempt to do so will be immediately reported to the police as trespass or theft.”
The next question is whether you could remove the wheel clamp by force, such as with an angle grinder. Here the law gets murky. Clamping your vehicle amounts to a legal term called “capture”. However much of the law is designed around leaving stock (cattle etc) on another property and where it causes damage to that property. The owner of the property is entitled to “capture” that stock until reasonable compensation is paid for the damage. Where there has been no damage (as in this case), then it is hard to imagine the owner is justified in capturing the vehicle. As the owner of the vehicle you may be entitled to “re-capture” (i.e. get back) your vehicle using reasonable means. Whether this includes using an angle grinder, is very unclear – you are damaging their property. The bigger problem is that if some burly bloke turns up from the car clamp company, things could get very awkward (which is the main reason why car clamping by private companies is now illegal in NSW). My strong recommendation is that you get the police involved, cooler heads prevail when the police are present.
If your car has been towed away (I don’t know of Care Park ever doing this), then I do suggest that you call them and demand return of the vehicle within a reasonable time (an hour) – don’t pay them any money – otherwise you will report it to the police as theft.
Care Park and this website
I do not know what Care Park’s reaction will be to this website – I’m sure they won’t happy – after all I am attacking their core business model. I dare say they will have a crack at me through some sort of legal means (libel etc). However this will likely backfire since the last thing they want is publicity (lookup the “Streisand Effect” on Wikipedia).