Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd
[2012] VSC 137
•13 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2010 1785
| DIRECTOR OF CONSUMER AFFAIRS VICTORIA | Plaintiff |
| v | |
| PARKING PATROLS VIC PTY LTD | First Defendant |
| - and - | |
| ACE PARKING PTY LTD | Second Defendant |
| - and - | |
| KEVIN JOHN ENGLISH | Third Defendant |
| - and - | |
| JAMES JOHN ENGLISH | Fourth Defendant |
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JUDGE: | GARDINER AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2011 | |
DATE OF JUDGMENT: | 13 April 2012 | |
CASE MAY BE CITED AS: | Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 137 | |
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TRADE PRACTICES – Consumer Protection – Operator of private car parks issuing documents which purported to impose “penalties” alleging that “offence” had been committed – Director of Consumer Affairs alleges misleading and deceptive conduct, false representations, harassment and coercion – Declaration, injunctions, adverse publicity orders and compensation sought under Fair Trading Act 1999 (Vic) ss 145, 149, 149A, 153(1), 158, 158(2)(h), 163.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Bhojam | Mr P Hiland, Solicitor to the Director for Consumer Affairs Victoria |
| For the Defendant | Mr M Witt | Findlay Arthur Phillips Lawyers |
HIS HONOUR:
The Director of Consumer Affairs Victoria (“the Director”) has the responsibility in this State for the enforcement of consumer protection legislation, including the now repealed Fair Trading Act 1999 (Vic) (“the FTA”).
From 2008 to 2010, the Director received a number of complaints from people who had parked their vehicles in privately operated car parks maintained by the second defendant, Ace Parking Pty Ltd (“Ace Parking”) and who were issued with documents entitled “payment notices”[1] by the first defendant, Parking Infringements Pty Ltd (“Parking Infringements”) which demanded payment of “penalties” and which threatened that court action would follow if payment was not made. This was followed by correspondence from Parking Infringement and its solicitors threatening legal action.
[1]In these reasons, I shall refer to the documents produced by Parking Infringements as “infringement notices” but as these reasons reveal and the defendants accept , they do not have the status of a traffic infringement notice issued by the police or other legally authorized agency such as a municipal council.
The Director brings this proceeding to protect the public interest and alleges that the defendants “engaged in conduct” within the meaning of that expression as it appears in the FTA. The defendants’ conduct is alleged to be contrary to the misleading and deceptive conduct provisions, the false representation provisions and the harassment and coercion provisions of the FTA.
The alleged conduct consisted of issuing of documents to drivers and owners of cars parked in one of the car parks operated or managed by Ace Parking which had the following features:-
-a design, layout or get up similar to that of parking tickets and documents issued by government authorities for alleged public parking offences;
-terms such as “offence”; “offence date”; “breach”; “code”; “the relevant regulations”; “fines” and other similar words or expressions connoting that an offence had been committed;
-the shape of an outline of the State of Victoria in the heading;
-the term “Parking Infringements Victoria”;
-references to “VicRoads” and the “Road Safety Act 1986 (Vic)”;
-wording similar to the wording used in the Road Safety (General Regulations) 1999 (Vic) to describe regulatory contraventions or offences.
The issue of documents by the defendants having these features is alleged by the Director to have had the effect or likely effect of misleading users of the car parks about the basis or nature of the authority to issue such documents and to pursue demands for payment.
In addition, the Director alleges that the issuing of such documents had the effect of representing that users of Ace Parking’s car parks may be prosecuted and be subject to a fine or a penalty for breaching regulations or committing an offence, whereas in fact those persons had not breached any regulation or committed any offence and were not liable to prosecution, fines or penalties. It is also alleged that the defendants represented that official car parking regulations applied to users of Ace Parking’s car parks, when such car parks were private property and car parking regulations had no force or effect. The defendants are also alleged to have represented that, by entering and parking a car on a casual basis in an Ace Parking Permit Zone car park, the driver or owner of the car had entered into a contract with Ace Parking when that was not the case.
The defendants are also alleged to have engaged in undue harassment and coercion conduct within the meaning of the FTA by reason that they -
-made false or misleading representations to users of the car parks about the consequences of not paying demands for payment;
-sent letters of demand to owners of cars parked in an Ace Parking car park regarding demands for payment;
-threatened owners of cars parked in an Ace Parking car park that if the sum of money demanded by the due date was not paid that they would be lawfully obliged to pay a higher amount when this was not the case;
-unfairly threatened the users of Ace Parking car parks with the institution of legal proceedings.
The evidence put on by the Director reveals that many recipients paid without raising objection and that a considerable sum of money was raised by the defendants in the absence of any legal entitlement to do so. For the period 31 March 2007 to 26 February 2009 alone, Parking Infringements issued 7,468 demands for payment. It received $231,610 from persons who received demands for payment during the period 1 January 2007 to 5 December 2008. Those who did not pay were pursued by a solicitor demanding payment.
Ace Parking is the operator of 24 car parks in the Melbourne metropolitan area. It takes leases of vacant blocks of land, erects signage and installs parking ticket machines at those sites. The third and fourth defendants, Kevin English and James English, organised the design, form and content of the parking tickets issued from the parking ticket machines operated by Ace Parking. Aside from operating its own car parks, Ace Parking also manages a number of large car parks.
Parking Infringements was established as a separate entity at the instigation of Kevin and James English to protect the income of Ace Parking by patrolling Ace Parking car parks and issuing infringement notices to vehicles parked without a ticket or permit. Kevin and James English were responsible for the design, form and content of the infringement notices issued by the employees of Parking Infringements. In May 2009, Parking Infringements changed its name to Parking Patrols Victoria Pty Ltd.
Kevin English is and was the sole director of, and one of the three shareholders in Ace Parking. He is also a shareholder in Parking Infringements, and was a director and company secretary of that company from 1 August 2006 to 1 July 2008. James English is and was a shareholder in Ace Parking. He is also a shareholder of Parking Infringements and was a director from 1 August 2006 to 1 July 2008. I consider that the evidence, which includes admissions made by Kevin and James English, establishes that they are the “directing minds” of Ace Parking and Parking Infringements.
The evidence also establishes that James and Kevin English were jointly responsible for the follow‑up actions taken by Parking Infringements if the infringement notices issued by that company were not paid. Initially they attended to this themselves but as time went on, from 1 November 2008 they engaged others, including solicitors, to do it.
The evidence in support of the Director’s case is contained in 14 affidavits located in five volumes of court books containing over 1700 pages of material. The defendants did not file any answering affidavits to the affidavits filed on behalf of the Director as required by the order of Daly AsJ of 16 November 2010 and the Director’s evidence is uncontested. I do not consider that there is any reason why the Director’s evidence should not be accepted in its entirety.
At the trial of this proceeding the defendants appeared through counsel who indicated that the defendants were prepared to consent to the orders being sought by the Director. The orders sought included injunctive and declaratory relief, as well as orders for publication of advertisements informing the public of the outcome of this proceeding, for damages to be paid to identified complainants and that the defendants pay part of the Director’s costs of the application.
Despite the agreement of the defendants to the orders sought by the Director, because the provisions of the FTA are considered to be public laws, the Court must satisfy itself that the relief sought by consent is appropriate and must consider whether it is within the power of the Court to make such orders and that it is appropriate to exercise its discretions in the manner sought.[2]
[2]Director of Consumer Affairs Victoria v DW International Trading Pty Ltd and anor [2010] VSC 515, [4] (Dixon J); Director of Consumer Affairs Victoria v Top Light Trading Pty Ltd [2011] VSC 408, [3] (Williams J).
The Director seeks declarations pursuant to s 36 of the Supreme Court Act 1986 (Vic) and s 158(2)(h) of the FTA, injunctive relief under s 149 of the FTA, orders for compensation and recovery of loss or damage under s 149A and s 158 of the FTA, and an order pursuant to s 149A and s 153(1) of the FTA requiring that the defendants publish a public notice in respect to the outcome of this proceeding. As against Ace Parking alone, the Director seeks declarations pursuant to s 36 of the Supreme Court Act 1986 (Vic), s 158(2) and s 163 of the FTA and injunctive relief. As against Kevin and James English, declarations are sought under ss 145, 149, 149A, 153 and 158 of the FTA, together with injunctive relief.
The evidence of users of the car parks who complained to the Director and who have given affidavit evidence in this proceeding establishes the alleged contraventions occurred between March 2007 and March 2010. The relevant provisions of the FTA were repealed on 1 January 2011 with the introduction of the Competition and Consumer Act 2010 (Cth) which enacted the Australian Consumer Law. It is accepted by the parties that the alleged contraventions by the defendants of the FTA occurred whilst it was still in operation and that its provisions remain applicable in relation to the relief claimed by the Director in this proceeding.
I consider that there is abundant evidence to justify the making of the orders and declarations which are proposed by the director.
Relevant legislation
Section 1 of the FTA describes its main purposes. These include:
(a)the promotion and encouragement of fair trading practices and a competitive and fair market;
(aa)the protection of consumers;
(b)the regulation of trade practices.
Section 3, which prescribes definitions, defines “engaging in conduct” as meaning:
In relation to a person, includes all or any of the following –
(a)the doing of any act by the person;
(b)the refusal by the person to do any act;
(c)the person refraining (otherwise than inadvertently) from doing an act;
(d)the person making it known that an act will not be done;
(e)the person offering to do an act or to do an act on a particular condition;
(f)the person making it known that he or she will accept applications, offers or proposals to do the act or to do the act on a particular condition;
Section 4 provides for the definition of the notion of “Representations as to future matters”. It states:
(1)For the purposes of Part II, if a person makes a representation about a future matter, including the doing of, or the refusing to do any act, and the person does not have reasonable grounds for making the representation, the representation is deemed to be misleading;
(2)in any proceeding under this Act concerning a representation made by a person about a future matter, the person making the representation bears the burden of proving that he or she had reasonable grounds for making the representation.
(3)Sub-section (1) is deemed not to limit by implication a reference in Part II to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
Section 9 deals with misleading or deceptive conduct. It states:
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive;
(2)Nothing in the succeeding provisions of this Part is to be taken as limiting by implication the generality of sub-section (1).
Paragraph 1 of the originating motion provides particulars of the allegations against all the defendants as to misleading or deceptive conduct under s 9 of the FTA. Paragraph 11 makes allegations directed against Ace Parking alone. They are far too lengthy to recite in the body of these reasons. Because of their significance in this application, they appear as an appendix at the conclusion of these reasons.
Section 12 is concerned with the notion of false representations in relation to goods and services. In the present context, it provides relevantly:
False representation in relation to goods and services
(1)A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion or advertising by any means of the supply or use of goods or services –
…
(e)represent that goods or services have a sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; or
(f)represent that any person has a sponsorship, approval or affiliation that the person does not have; or
…
(k)make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy;
…
(n)make a representation that is false, misleading or deceptive in any material particular.
Paragraph 2 of the originating motion gives particulars of the alleged false or misleading representations for which declarations are sought under s 12 of the FTA. Again, they are lengthy and elaborate and I will not recite them in the body of these reasons and they are contained within the appendix. They might be described as something of a variation on a theme of the allegations made in paragraph 1 of the originating motion, where particulars are provided of the alleged misleading or deceptive conduct under s 9 of the Act.
Section 21 is concerned with a description of what constitutes harassment and coercion. It provides, relevantly:
(1)A person must not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to another person or the payment for goods or services by another person. [The penalties for the breach of that provision are then set out which are not relevant for current purposes.]
(2)Without limiting sub-section (1) the following conduct is deemed a contravention of sub-section (1):
(a)Using a document resembling a court document or a Tribunal document or an official document to mislead a person in connection with a debt or the consequences of not paying a debt;
(b)making a misrepresentation to a debtor about the consequences of not paying a debt or about the method of recovering a debt;
…
(f)use of a letterhead by a person which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead;
Paragraph 3 of the originating motion details the particulars of how it is alleged that the defendants were involved in harassment and coercion within the meaning of that expression in s 21 of the FTA. Those particulars are also contained in the annexure appearing at the conclusion of these reasons.
Section 100 prescribes the functions and powers of the Director. Sub‑section (1) provides relevantly, for the present context:
(1)The functions of the Director include the following:
…
(c)to investigate breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act;
(d)to prosecute breaches of this Act or the regulations or of a Consumer Act or the regulations under a Consumer Act;
(e)to institute and defend proceedings to achieve the purposes of this Act or the purposes of a Consumer Act;
Section 106I deals with the power of the Director to obtain information, documents and evidence:
(1)If the Director believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, the Director may, by notice in writing, require that person –
(a)to provide to the Director, by writing a sign by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or
(b)to produce to the Director, or to a person specified in the notice acting on the Director’s behalf, in accordance with the notice, those documents;
(c)to appear before the Director, or a person specified in the notice acting on the Director’s behalf, at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents.
(2)The Director of the person specified in the notice acting on the Director’s behalf may require the evidence referred to in sub‑s(1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.
(3)A person must not –
(a)refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or
(b)in purported compliance with the notice under this section, knowingly provide information or give evidence that is false or misleading; or
(c)obstruct or hinder the Director in exercising that power under this section.
Penalty: 60 penalty units.
(4)Subject to sub-section (5) a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person.
(5)Despite sub-section (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section, is not admissible in the evidence against the person –
(a)in a case of a person not being a body corporate – in any criminal proceedings other than proceedings under this section; or
(b)in the case of a body corporate – in any criminal proceedings other than proceedings under this Act.
Kevin and James English were both the subject of notices under s 106I(1) to appear before the Director’s delegate and to give evidence orally. They cooperated in that exercise, and apparently directed the solicitors who act for them in this proceeding to provide documentation and information to the Director when requested to do so.
Section 145 provides relevantly for the present context:
A reference in this Division to a person involved in a contravention of this Act means a reference to a person who –
(a)has aided, abetted, counselled or procured the contravention;
(b)has induced, whether by threats or promises or otherwise, the contravention;
(c)has been in any way, directly or indirectly knowingly concerned in or party to, the contravention;
(d)has conspired with others to effect the contravention.
Section 149 provides for the remedy of injunctions.
Injunctions to restrain conduct
(1)The Minister, Director or any other person may apply to the Supreme Court, County Court or Magistrates’ Court for the grant of an injunction restraining a person from engaging in conduct that constitutes –
(a)a contravention of any provision of this Act; or
(b)attempting or conspiring to contravene such a provision; or
(c)aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d)inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or
(e)being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.
The nature of the injunctive relief sought by the Director is set out in paragraph 4 of the originating motion and appears in the annexure to these reasons. In substance, it seeks an injunction restraining the defendants from continuing to engage in the offensive conduct which is identified in that paragraph.
Paragraph 153 of the Act makes provision for adverse publicity orders. It provides as follows:
Adverse publicity orders
(1)A court may, on the application of the Minister or the Director, make an adverse publicity order in relation to a person if the court is satisfied that the person has contravened or has been involved in a contravention of Part 2, 2A, 2B, 3, 4, 5 or 6.
(2)If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix or order it may make, may make an adverse publicity order in relation to the person.
(3)In this section, an adverse publicity order, in relation to a person, means an order that –
(a)requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession for access to; or
(b)requires the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(4)This section does not limit a court’s powers under any other provision of this Act.
The order sought in respect of that adverse publicity is detailed in paragraph 7 of the originating motion and seeks that the defendants place an advertisement in the Herald Sun and The Age newspapers in the form of a public notice which follows the template of Annexure B to the originating motion. That notice has been the subject of subsequent refinement in the Director’s written submissions.
Section 158 provides for orders to be made against persons found to have contravened the FTA, including orders that a person pay the amount of any loss of damage suffered by an aggrieved person. Paragraph 6 of the originating motion seeks such an order in favour of several complainants.
The evidence filed by the director
The Director’s evidence consisted of affidavits of several complainants, its own officers, a person involved in the production of the parking and infringement notices on behalf of the defendants and an officer of VicRoads (who provided information from the VicRoads database to the defendants pursuant to orders made by the Magistrates’ Court) to enable them to pursue customers of the car parks. I will deal first with a survey of the evidence of the various complainants, who are all members of the public who parked at one of Ace Parking’s car parks.
Glenda Ruggeri
Ms Ruggeri parked her vehicle in a car park at Prospect Street in Box Hill at approximately 5.40pm on 16 June 2008 in order to go shopping at the Centro Complex in Box Hill. When she parked her car in the Prospect Street car park, there were only about eight or so cars parked around the perimeter of the car park and it was largely empty.
Ms Ruggeri had not previously parked in that car park. When she went to the Centro Complex, she usually parked her car in a car park which she believed was operated by the local council. She would do this approximately once a week. When the car park was part of the Box Hill Bowl, the Prospect Street car park was a council operated car park.
When she entered the Prospect Street car park on 16 June, it was dark. She did not see any signs or notice any differences between that car park and the council car park where she usually parked. She did notice a ticket machine in the car park that was very similar to those located in the council car park and the former Box Hill Bowl car park. Because of this, she believed it was a council operated car park and that parking would be free after 6pm.
Because it was just before 6pm and she considered that she would be quick getting her shopping, she did not obtain a ticket from a ticket machine located in the car park. She went into the Coles supermarket to do her shopping. When she emerged about 15 minutes later and returned to her vehicle, she found a rectangular piece of paper affixed to her windscreen with a piece of adhesive tape which she immediately believed to be a parking fine. When reading the notice, she read that she had been fined $66 for failing to pay and display a valid ticket.
The notice attached to Ms Ruggeri’s car was printed on both sides. On one side, underneath the heading “Parking Infringements Victoria” (which was superimposed over a logo in the shape of an outline of a map of the State of Victoria) the following appeared:
“Payment Notice”
Failing to pay within 28 days will incur additional costs.
It then stated
Offence Date: 16/6/2008 05.41pm
Penalty $66
Due on 14/07/2008
The notice was assigned a ticket number and set out a date and time. The location of the car park was identified, underneath which the following words were written:
Offence BR207(2) fail to pay fee/display a valid ticket and obeying instructions on sign/metre/ticket et cetera (NO VALID TICKET)
The details appearing below the heading on that side of the notice were electronically generated, presumably by a portable machine. On the reverse side of the notice, the name Parking Infringements Victoria again appeared with an outline of the map of Victoria as part of the logo. It required the recipient to pay the notice within 28 days, stating:
You are in breach of the Conditions of Entry displayed in the location and as a result you are required to pay the amount stated under this notice within 28 days. If such amount is not paid within 28 days the fees will increase to $88 and legal action will be commenced against you without further notice for the full amount owing, plus costs in the Magistrates’ Court of Victoria.
It then prescribed methods of payment, including provision for payment by credit card. It also stated:
CONTESTING THIS NOTICE, an objection must be made in writing within 14 days from the date of this notice, including a copy of this payment notice to: “Parking Infringements Victoria” PO Box 353 Prahran VIC 3181.
The wording on the parking notice which is exhibited to Ms Ruggeri’s affidavit uses the words “offence” and “penalty” and “fail to pay”. She states that this gave her the impression that she had broken the law and that as a result she was required to pay $66. At the time she removed the ticket from her windscreen on 16 June, there was no‑one present policing the car park or otherwise working there. She went to the ticket machine but had difficulty reading the parking restrictions that applied to the car park because it was dark. She did see however that the restrictions on the parking were said to apply 24 hours a day. She then left the car park.
Ms Ruggeri subsequently became aware that the parking notice had not been issued by the council but by a private company and that the payment could not be paid at the Whitehorse Council Offices. She looked for a telephone number on the parking notice so that she could speak to someone about it but there was no contact number provided. She was able, through other channels, to obtain a contact number for the company but when she called it a recorded message directed callers to put all queries in writing to Parking Infringements Victoria, PO Box 353, Prahran VIC 3181, the same PO Box number on the back of the infringement notice she found on her car.
After making the telephone call to Parking Infringements and hearing the recorded message, she decided that she would not pay the amount demanded. She did not hear anything further until late November 2008. Prior to this, she had contacted the Director’s staff and enquired about her rights in respect of any claims that Parking Infringements had against her. Following that advice, she waited to see whether Parking Infringements would pursue her.
On 27 November 2008, she received a letter from Parking Infringements at her home address. The letter was addressed to her and was headed with a logo with the words “Parking Infringements Victoria” superimposed over an orange image of Victoria in the same format as that on the payment notice she found on her car. The letter stated that the fine had increased, from $66 on the notice, to $129.50. Ms Ruggeri was concerned by the words in the letter that said “Additional costs will be incurred if no action is taken by the due date”.
On 8 December 2008, she contacted Consumer Affairs Victoria and lodged a written complaint following a conversation with the staff at that office.
By mid February 2009, following a request by her to Parking Infringements for photographic evidence of her car to be sent to her, she received a letter from Parking Infringements. The letter attached a photograph of what appeared to be the back of Ms Ruggeri’s car and extended the time for payment of the $129.50 until 5 March 2009.
On 3 March 2009, she wrote to Parking Infringements enclosing a cheque for $66, being the amount originally demanded on the infringement notice. On 14 March 2009 she received a letter from Parking Infringements which rejected her part‑payment of the fine but which indicated that her cheque would not be returned. The letter also indicated that Parking Infringements had extended the “Due Date” for payment until 2 April 2009. Failing which the matter would “be passed on to our legal department for actioning”.
On 30 March 2009, she wrote to Parking Infringements enclosing a further cheque for the balance, $63.50, indicating that she was paying the fine under protest and not accepting liability.
Each of the letters coming from Parking Infringements Victoria was written on a letterhead which included the logo to which I have referred.
Donald Kapevic
On or about 27 November 2008, Mr Kapevic received a letter at his home address. The letter had the words “Parking Infringements Victoria Pty Ltd” written on the top left‑hand side of the page, superimposed over an orange image in the shape of an outline of a map of Victoria. The letter also had a light orange coloured watermark on it which stated “OVERDUE”. The letter required him to pay $129.50 by 15 December 2008 and if this did not happen, a summons would be issued against him to recover that amount, together with any legal costs incurred.
Like Ms Ruggeri, Mr Kapevic’s car was parked in the Prospect Street car park in Box Hill. He customarily does his shopping in the Box Hill Centro Shopping Complex and has done so for a number of years. It is his practise to drive there and park in the Coles supermarket undercover car park but on occasions that car park can become crowded at peak shopping times. When that occurs, he uses the car park located in Prospect Street in Box Hill. He would have done so about two to three times per week in the previous 12 to 18 months. On each occasion that he parked in the Prospect Street car park, Mr Kapevic states that he purchased a ticket from a ticket machine located in the car park. Because he had read the instructions written on the ticket machine when he first used the Prospect Street car park, he habitually abided by those instructions and returned to his car and placed the ticket face up on the dashboard in front of his steering wheel.
Prior to receiving the letter of 24 November 2008, he did not know who owned or operated the Prospect Street car park and cannot recall seeing any other signs in the car park. He had not previously received a payment notice and as far as he was aware, he had not overstayed the time stamped on the tickets or done anything else contrary to the instructions on the ticket machines from which he obtained tickets.
There was no telephone number on the correspondence which he received which he could telephone to speak with anyone about the matter. He states that that made him suspicious the demand may not be genuine.
On 10 December 2008, Mr Kapevic lodged a formal complaint with Consumer Affairs Victoria about Parking Infringements. He was contacted by an officer of Consumer Affairs Victoria shortly afterwards. In late January 2009, on advice from Consumer Affairs Victoria staff, he wrote to Parking Infringements asking it to produce the time, date stamp and photographic evidence referred to in the letter of 24 November 2008. He received a response late January 2009 which enclosed a photograph of his car and which was said to have been taken on 30 June 2008 while parked in the Prospect Street car park. Using digital software available to him at his workplace, he expanded the image in order to read the date which appeared in a shaded bar in the top left-hand corner of the image which was too small to read on the original version. It stated “13 June 2008 0733pm”.
On 24 February 2009, Mr Kapevic wrote to Parking Infringements in response to their letter of 29 January 2009, taking issue with the contention that the photographic image could be said to be evidence of his alleged parking infringement and requesting that Parking Infringements produce “actual evidence” in support of its allegation. The letter was responded to by Parking Infringements but not satisfactorily. Mr Kapevic did not reply.
On 15 May 2009, Mr Kapevic received a letter from Hill Legal Lawyers and Consultants, stating that Hill Legal acted for Parking Infringements and demanded that Mr Kapevic pay $129.50. He did not respond to the letter but he was concerned at the threat made of the institution of legal proceedings.
In mid-June 2009, he received a further letter from Hill Legal stating that “Unless we receive immediate payment of the sum of $129.50 we will be issuing legal proceedings against you.”[3]
[3]Emphasis in original.
Mr Kapevic forwarded the correspondence received from Hill Legal to Consumer Affairs Victoria. After the second letter, there was no further correspondence from Parking Infringements or from Hill Legal.
Like the correspondence received by Ms Ruggeri, all the correspondence from Parking Infringements to Mr Kapevic was written on the letterhead of Parking Infringements with the accompanying logo consisting of an image in the shape of an outline of a map of Victoria.
Wei-Leng Loh
On 31 March 2007, Ms Loh parked her vehicle in an area off Robert Street in Collingwood in order to shop at the Supré Warehouse in Robert Street. The area was fenced off but did not appear to her to be what she described as a proper car park as there was a great deal of graffiti on the walls, a big loading bay shutter door which had been pulled down and which appeared to be locked, and a large quantity of rubbish lying around. All the other shops in the area looked closed. Ms Loh thought that the people who owned or worked in these closed shops must use the parking area to park their cars during the week when those shops were open and that the other cars in the parking areas belonged to other shoppers going to the Supré Warehouse.
When she parked her car, she saw “Permit Zone” signs posted on one of the walls in the area and signs saying “Ace Parking Reserved”, but as the surrounding shops, save for the Supré Warehouse were closed, it appeared to her that any restrictions on parking did not apply on the weekends. When she entered the car park, parked her car and walked to the Supré Warehouse she did not see any permits displayed on the windscreens of other parked cars or anything else that led her to believe that she was not entitled to park there.
When she returned to her car at about 12.45pm, she noticed that there was a white piece of paper under the windscreen wiper affixed to her windscreen with a small strip of adhesive tape. She removed it from her windscreen and read it. The piece of paper had the words “Parking Infringements Victoria”, printed over a yellow outline in the shape of a map of Victoria at its top with the heading “Payment Notice”. The document referred to the Road Safety Act 1986 and stated that if she failed to pay $66 within 28 days she would incur additional costs. The notice stated that it was an offence for her to park her car and not display a ticket. It stated:
Offence: RR185(1) In a permit zone/fail to display a valid permit.
It then gave details of the “offence date”, “penalty” and the date by which payment was due to be made.
The ticket that was affixed to Ms Loh’s windscreen was in identical form to the document affixed to Ms Ruggeri’s windscreen. Like the notices referred to by the other deponents, no telephone contact number appeared on the notice and simply directed Ms Loh to make a payment of $66 by credit card, cheque or money order to “Parking Infringements Victoria”, PO Box 353 Prahran VIC 3181. There was no-one present who was checking cars or issuing parking tickets that she could speak to at that time, nor was there anyone who appeared to be patrolling the car park.
When she arrived home, she conducted a Google search for “Ace Parking” and found a telephone number which she called. The phone was answered by a male person by words to the effect “Hello, Ace Parking”. She explained that she had just got a parking fine from Parking Infringements for parking in an area in Robert Street in Collingwood and that she was trying to find a number for them so that she could telephone them to explain. The person at the end of the phone indicated that he could not give her that number and that she would have to write to them. When Ms Loh sought to take it further, the person said:
You’ll have to pay the fine. If you don’t, Parking Infringements Victoria will take you to court. You are obliged to pay. If you don’t pay, you will have to pay the fine plus Parking Infringements Victoria’s legal costs as well.
Ms Loh described his tone as threatening.
Ms Loh stated that she was confused about the identity and status of Ace Parking and Parking Infringements. She believed that “permit only” signs were used or issued only by government or other official bodies which had the power to issue parking permits. She considered that Parking Infringements must have been such an official or government body and that by parking in the area on the day in question without a permit she had committed some offence or broken a law. This led her to conduct some internet research resulting in a conclusion that if she had indeed breached “RR185 (stopping in a permit zone)”, that offence attracted a penalty of .6 penalty units and that on her calculation she was liable to a penalty of $64 and not $66 as demanded in the infringement notice.
A week later, she contacted the City of Yarra and spoke to a member of the staff there about the notice which she had received. After receiving some advice from that person, she wrote to Parking Infringements on 3 April 2007 asking them to withdraw the notice. The letter articulated in detail why the imposition of the penalty should be waived in her case.
Shortly afterwards, she received a letter from Parking Infringements headed “Payment Notice – to the owner” on the Parking Infringements letterhead described above. The letter enclosed a photographic image of her car and stated that as she had parked her car on private property, the City of Yarra had no jurisdiction over the car parking lot and demanded payment of $66. The letter said that she was now required to pay $88, being the amount described in the original payment notice, plus late fees. The letter gave details of the car park location, the “offence date”, the “Code” (and with it a reference to RR185(1)), and “penalty” ($66 and Due date). The letter contended that as a condition of entry to the car park, “you have expressly consented to us obtaining the vehicle registration information from VicRoads or any other responsible authority under the Road Safety Act 1986”. Like the payment notice affixed to the windscreen, the letter did not provide any contact number for Parking Infringements.
About mid-April 2007, Ms Loh contacted Consumer Affairs Victoria and lodged a complaint about Parking Infringements.
On 22 April 2007, she received a letter from Parking Infringements stating that the information collected by it was treated as private and confidential and that:
Information is used only for communication and prosecution purposes and once the notice has been finalised and payment cleared, payment details are destroyed.
The letter also stated that if Ms Loh did not pay the $88 within 14 days from the date of the letter, legal action would be commenced against her “without further notice for the full amounts owing, plus costs in the Magistrates’ Court of Victoria.”
On 26 April 2007, she posted a cheque for $66 to Parking Infringements Victoria under cover of a letter. In that letter, Ms Loh asked Parking Infringements to give her access to all personal information it had about her. She said that as she had contested the fine it was unfair for them to impose late fees on her and also made the point that by paying the fine she was not admitting any guilt but that she was paying the fine due to Parking Infringement’s threat to take her to court and impose additional charges.
On about 24 May 2007, she received a letter from Parking Infringements stating that the only information obtained about her was from her registration sticker and from her correspondence with Parking Infringements. It also said that she could have asked for an extension of time to pay the original amount but as she had not asked for such an extension, she had incurred late fees and that the amount of $88 stood.
After receiving that letter from Parking Infringements, she has had no further correspondence from that company.
Robyn Cogger
Ms Cogger works in Church Street, Richmond. From about August 2008, she regularly drove to work and usually parked in a car park at 658 Church Street, Richmond. She did this approximately three to four times per week. On each occasion, she obtained an all day parking ticket from a ticket vending machine located towards the front of the car park and displayed the parking ticket as instructed on the dashboard of her car. Since she commenced parking in the Church Street car park, she only noticed one sign that identified the price of all day parking as being $6.
On about 27 September 2008, she drove her car into the Church Street car park and parked her car in a vacant car parking space. As she had done before, she paid for a $6 all day parking ticket from the vending machine and put the ticket on the dashboard of her car and went to work.
Upon returning to her car that afternoon, she noticed a white slip of paper stuck to the windscreen with a small strip of adhesive tape. She removed the piece of paper which appeared to be a parking infringement notice as it had the words “Parking Infringements Victoria” on the top. She was confused as to why she would have received such notice as she had purchased and displayed a parking ticket as required. She then noticed that the parking ticket that she had placed on her dashboard that morning was no longer there. She opened the car door to look for it and found that it was on the floor of the car. She states that it must have fallen down there without her noticing when she closed the door that morning. During the next several days, she arranged to pay the fine by money order. This was one of the three payment options offered on the notice that was affixed to her car windscreen. She paid the fine by posting a money order together with the parking ticket to Parking Infringements Victoria at PO Box 353, Prahran VIC 3181, the name and address given on the notice. She did not hear further from Parking Infringements in respect of the 27 September 2008 infringement notice.
On the morning of 29 September 2008, she again entered the Church Street car park and parked in a vacant car parking space. She paid for a $6 all day ticket from the vending machine and placed it on her dashboard. As she left to head to her workplace, she could see the ticket out of the corner of her eye sitting on the dashboard. She was satisfied that it had not blown off when she closed the door. Ms Cogger could see her car in the car park from her office window and when she looked at it during the day she noticed that there was a white piece of paper on its windscreen. She went down to her car and found another parking notice issued by Parking Infringements. There was no one present who looked like a parking inspector or who looked as if they worked at the car park. She then also noticed that the parking ticket that she had bought that morning was not sitting face up on the dashboard, rather was lying face down which meant that the date and time that she had purchased the ticket was not visible to someone looking into the car. Ms Cogger was sure that she placed it face up on the dashboard but believed it must have blown or flipped over with the gust of air generated when she closed the car door that morning. As this was the second occasion that she had received an infringement notice, despite actually purchasing a ticket, she decided that if she explained the situation to Parking Infringements and showed them the valid ticket they would waive the fine. Like the other deponents, she searched the document for details of a telephone number so that she could ring to explain her position but the only contact details were for a PO box in Prahran which meant that she could only write a letter setting out the position.
She wrote to Parking Infringements at the Prahran address, explaining what had happened and asking that the fines be waived.
In late October 2008, she received a letter at her home address from Parking Infringements. The letter was headed “Payment Notice – to the owner” and enclosed photographic images of her car with an upside down ticket on the dashboard. The letter said that she had committed an offence and that she would have to pay $66 (or $88 for later payment). In the letter, Parking Infringements threatened her with legal action if she failed to pay. The bottom of the letter set out payment methods.
Ms Cogger was frustrated and annoyed that Parking Infringements had not taken into account the fact that she had bought a valid ticket and had produced that ticket as evidence of that fact. In addition, Parking Infringements had taken nearly three weeks to respond to the letter in which she had explained the situation. This delay meant that she only had two days to pay the lesser amount of $66 and, as she was about to go on holidays, it did not give her the chance to further challenge the fine without risk of the penalty increasing. In addition, the payments methods offered, transmission of credit card details or a cheque or money order to the PO box address, were time consuming and inconvenient. There was no opportunity given to pay the amount demanded in person or by Bill Pay or at the post office.
On 27 October 2008, Ms Cogger paid the sum of $66 to Parking Infringements using her husband’s credit card. The total charge was $68, with a $2 fee for the transaction.
Some days after she returned from her holiday, on about 16 November 2008, and after reviewing what had happened, she made a complaint about Parking Infringements to Consumer Affairs Victoria.
Ms Cogger deposes that on each occasion she paid the fines to Parking Infringements, she thought she was paying a fine issued to her for breaking the law. She did not know that Parking Infringements was demanding she pay the amounts on the notices left on her car for what amounted to an alleged breach of contract by her. It was not until she made her complaints to Consumer Affairs Victoria that she became aware that Parking Infringements was not empowered to issue parking fines. Prior to making her complaint, she had not turned her mind to the nature of the relationship that she had with Parking Infringements and nothing she saw at the Church Street car park led her to understand that she had entered into a contract with Parking Infringements by parking in the car park.
Ms Cogger believes, based on the words on the payment notice and the contents of the letter that she received from Parking Infringements, that she had committed an offence and that Parking Infringements was within its rights to fine her or penalise her for breaking the law. She did not know that the final letter sent to her by Parking Infringements was in fact in relation to a civil claim against her for what she now knows to be contended as being “liquidated damages” for breach of contract. She believes that she had to pay the fine or she would be taken to court and possibly end up with what she describes as a “criminal charge” against her name.
The payment notices affixed to Ms Cogger’s windscreen are in identical form to those described above in relation to the other deponents, as is the letterhead used by Parking Infringements in its correspondence to her.
Peter Kaufmann
On 20 June 2009, Mr Kaufmann drove with his son to the Box Hill Centro Shopping Complex in Box Hill. He did not usually shop in this area and went there specifically to buy a mobile phone for his son.
He parked in the car park at 8 Prospect Street which is located just off the street. There was no boom gate when he entered and he did not notice any signs. There was no indication that it was a private car parking area. He found a vacant space and parked his car and it was not until he saw a ticket machine near the parking space that he realised he would have to pay for a parking ticket.
After parking the car, he asked his son to go to the ticket machine and purchase a ticket for parking, which he did. His son returned to the car and Mr Kaufmann saw him place it on the passenger side dashboard of the car. He does not recall if the ticket was face up or down. They then left to go shopping.
When they returned to the car about 40 or 50 minutes later, he noticed that there was a small slip of paper taped to the front windshield. Mr Kaufmann immediately thought it was a parking fine because of his experience with parking fines issued by local councils or the police, which are delivered by sticking them to the car windscreen. Initially, he was not concerned by the situation as he had purchased a ticket to park in the car park. He considered that he would be able to write to the relevant council and tell them that it was a misunderstanding and that they would waive the fine.
He took the piece of paper off the windscreen and read it and it was a notice from Parking Infringements. The notice stated that it was issued at 2.39pm. It was a document in the same form as the others which have been described above and was headed “Payment Notice”. Mr Kaufmann deposes that it had the appearance of an infringement notice or parking ticket that a council would issue. The wording on the top of the ticket, “Parking Infringements Victoria” suggested to him that it was a council body. The payment notice stated that it had been issued because he had not displayed a valid ticket. Mr Kaufman checked the ticket that his son had bought from the ticket machine and saw that it had an expiry time of 3.02pm printed on it. He was annoyed to have been issued with a parking fine when he actually had a valid ticket and he thought that the council had made a mistake in issuing it.
He did not see anybody in the car park that he could speak to about the matter and decided he would write to the council, send them his valid ticket and tell them they had made a mistake.
When he had a chance to closely examine the payment notice, he noticed that it contained words to the effect that if he did not pay the $66 to Parking Infringements Victoria by 18 July 2009, he would have to pay $88 and run the risk of additional costs in legal action if he failed to pay. These words made him suspect that perhaps it was not issued by the council.
Mr Kaufmann deposes that he believed that the only people who could issue parking fines for parking were councils and the police because there are laws allowing them to issue fines and fines cannot be issued without legal authority. He decided to approach Consumer Affairs Victoria for information.
In late June 2009 he made contact with Consumer Affairs Victoria and learnt that the payment notice was not issued by a council but by a private company and was not a fine, but a claim for liquidated damages for alleged breach of contract.
Mr Kaufmann was concerned that the payment notice had been designed to look like a legitimate council parking fine but was in fact not a council issued fine. He decided to completely ignore it. He did not write to the address provided on the payment notice as he did not consider it was necessary and did not want to devote any more time to dealing with it.
On about 26 August 2009 he received a letter from a company called “Parking Patrols (Vic) Pty Ltd”[4] at his home address. The letter was addressed to him and confirmed that the parking fine that he had received on 20 June 2009 had not been paid. The letter contained words to the effect that the fine had now incurred late fees and legal fees and that he now had to pay $129.50. Before he received the August 2009 letter, Mr Kaufmann had thought that the fine had been issued by Parking Infringements. He did not reply to the August 2009 letter or pay the parking fine as demanded.
[4] i.e.the current name of the first defendant
Some six months later, on 2 February 2010, he received a letter from Hill Legal at his home address. The letter from Hill Legal was addressed to him and contained words to the effect that that firm was acting on behalf of Parking Patrols and that if he did not pay the parking fine plus late fees totalling $129.50 within seven days, Hill Legal were instructed to issue legal proceedings against him without further notice. He did not reply to the February 2010 letter or pay the parking fine as requested.
On 2 March 2010, he received a second letter from Hill Legal at his home address. The letter contained words to the effect that unless he paid Hill Legal immediately the sum of $129.50 they would issue legal proceedings against him. Again, he did not reply to that letter or pay the parking fine as requested.
Mr Kaufmann asserts the opinion in his affidavit that the conduct of Parking Infringements is deliberately deceitful and predatory. He states that the company set out to create the impression that their “parking fines” are council parking infringement notices or fines in order to mislead unsuspecting members of the public into paying them. Mr Kaufmann considers that the conduct was an attempt to intimidate him into paying with threats of legal action and that many members of the public are not capable of resisting such threats and end up paying. He considers this to be unjust.
He concludes his affidavit by deposing that, as far as he knows, no legal proceedings have been commenced against him involving the claim that he pay the purported payment notice.
Barend du Plessis
On about 10 December 2007, Mr du Plessis drove to the Centro Shopping Centre in Box Hill and arrived there at about 6pm. He parked the car (which was registered in his wife’s name) at the car park at 8 Prospect Street, like several of the other complainants. He had previously parked in that car park. Each time that he used the Prospect Street car park prior to 10 December 2007, he obtained a ticket from the ticket machine located in that car park and displayed the ticket on the dashboard of the car.
He did not turn his mind to whether the car parks were privately operated or operated by the local council, or whether there were any differences between the car parks near Centro and how they operated. On occasion, Mr du Plessis had parked at another car park opposite the Prospect Street car park.
After parking the car in the Prospect Street car park, Mr du Plessis walked to the Coles supermarket. As it was after 6pm, he did not get a ticket from the ticket machine because he believed the parking was free after that time and no ticket was required. His basis for forming that view was his experience in parking at the other car park and that view was reinforced when he noticed that the boom gate at the entrance of the second car park was open. When he entered the car park at Prospect Street, he did not notice any signs that indicated to him that parking in the car park was not free after 6pm.
When he returned to the car he noticed a piece of paper stuck to the car’s windscreen with a piece of adhesive tape. He read the document which had the words “Parking Infringements Victoria” printed at the top. That document, which is exhibited to Mr du Plessis’ affidavit, is in the same form as the tickets referred to by the other deponents. Mr du Plessis says by reason of the form of the ticket, its positioning on the windscreen of the car and its wording, that he believed it was a parking fine which had been issued to him after failing to pay for parking. He considered that the words of the document were advising him that he had committed an offence by failing to pay for parking and that as a consequence he had been fined $66 which he had to pay to Parking Infringements by 7 January 2008. The ticket contained no contact details or telephone number other than the PO box number where payments were to be directed.
On 13 December 2007, he obtained a postal order in favour of Parking Infringements to pay the amount demanded on the parking ticket. He posted that money order to Parking Infringements at the PO box number identified on the parking ticket. He did not challenge the ticket as he believed he must have misunderstood that parking in the car park was free after 6pm and that he was therefore obliged to pay the amount demanded in the parking ticket.
Significantly, he considered that the name “Parking Infringements Victoria Pty Ltd” had official connotations and believed that he had been issued with a parking fine which was required by law to be paid. He states that being new to this country he did not want to get into trouble by failing to comply with the law.
On 22 May 2008, Mr du Plessis’ wife showed him a notice she received in the mail at their home in Box Hill from Parking Infringements. The document was addressed to Mr du Plessis’ wife and was titled “Payment Notice – to the Owner”. That notice contained a statement to the effect that, because Parking Infringements had not received a payment in the amount of $66 in respect of the parking fine issued in December 2007, the amount outstanding had increased from $66 to $129.50 and the increased sum including late fees and legal fees. The notice threatened his wife with legal action if she did not pay the company the amount of $129.50 by 17 June 2008.
Harassment and coercion – Section 21 of the Act
Parking Infringements Victoria, Ace Parking, Kevin John English, and James John English, in the period and in connection with the supply, or possible supply, of goods or services to users of the car parking services (including, but not limited to, one or more of the complainants identified in Annexure A below) or the payment for goods or services, namely payment by users of the car parking services (including, but not limited to, one or more of the complainants identified in Annexure A below) for the operation of Ace Parking car parks and the provision of tickets or car parking services, or both, used undue harassment or coercion by:
3.1making false or misleading representations, to drivers or owners of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park, being one or more of the following:
(a) they may be “prosecuted” for failing to comply with requirements set out in one or more classes of the car parking documents;
(b) they may be subject to “fines” for failing to comply with requirements set out in one or more classes of car parking documents or “the relevant regulations”;
(c) they have “breached”:
(i)“BR207(2) Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc (NO VALID TICKET)”; or
(ii)“RR185(1) In a permit zone / Fail to display a valid permit”;
(d) they have committed an “offence”;
(e) they are liable to a “penalty” for, or in respect of, the alleged “breach” referred to in paragraph 3.1(c) above –
to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in the Ace Parking car parks about the consequences of not paying requests or demands for payment;
3.2using documents presented as, modelled upon, or resembling official documents to mislead owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park, in connection with tickets, notices, requests or demands for payment, or the consequences of not paying such requests or demands for payment;
3.3unfairly sending, or causing to be sent, letters of demand to the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park regarding requests or demands for payment;
3.4threatening the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park that, if they did not pay the amount of money demanded or requested by the due date, the owners or drivers (including, but not limited to, one or more of the complainants identified in Annexure A below) would be lawfully obliged to pay a higher amount when that was not the case;
3.5unfairly threatening the owners or drivers of cars (including, but not limited to, one or more of the complainants identified in Annexure A below) parked in an Ace Parking car park with the institution of legal proceedings –
in contravention of section 21 of the Act.
B.INJUNCTIVE RELIEF
An order, pursuant to section 149 of the Act, that Parking Infringements Victoria, Ace Parking, Kevin John English, and James John English, either directly or by their servants or agents or otherwise howsoever, be restrained from:
4.1using or issuing, or causing, authorising, or permitting to be used or issued, tickets, notices, demands for payment, and correspondence to the owners or drivers of cars parked in a private car park where such tickets, notices, demands for payment, or correspondence contain or use one or more of the following:
(a) a design, layout, get-up, size, or shape which is the same as, or similar to, parking tickets issued or correspondence sent by Government or official authorities in respect of alleged public parking offences;
(b) references to terms such as “offence”; “offence date”; “penalty”; “breach”; “code”; “the relevant regulations”; “RR185(1)”; “BR207(2)”; “fines”; and “Ticket Number”;
(c) a map of the State of Victoria;
(d) the term “Parking Infringements Victoria”;
(e) references to “VicRoads” and the “Road Safety Act 1986” or “… you have expressly consented to us obtaining the Vehicle Registration Information from VicRoads or any other responsible authority under the Road Safety Act 1986”;
(f) wording, – such as: “BR207(2)”; “Fail to pay fee / display a valid ticket and obey instructions on sign / meter / ticket etc”; and “(NO VALID TICKET)” – that is the same as, or very similar to, that used in the Road Safety (General) Regulations 1999 (Vic), to describe regulatory contraventions or offences;
4.2using or issuing, or causing, authorising, or permitting to be used or issued, documents which contain representations to the owners or drivers of cars parked in a private car park to the effect that they may be prosecuted, liable to a penalty or fine, have breached regulations, or committed an offence;
4.3representing or asserting that a failure by the driver or owner of a car parked in a private car park to comply with directions from the private car park operator could render the driver or owner liable to a fine, penalty or prosecution;
4.4representing or asserting that official laws (by way of regulations) apply to the parking of a car by a driver or owner of a car parked in a private car park;
4.5representing or asserting that the driver or owner of a car parked in a private car park has entered into a contract with the private car park operator when that is not the case;
4.6representing or asserting that the driver or owner of a car parked in a private car park has entered into a contract with the private car park operator, which contains particular terms, when that is not the case;
4.7in connection with the supply, or possible supply, of goods or services or the payment for goods or services:
(a) making false or misleading representations, to drivers or owners of cars parked in a private car park about the consequences of not paying requests or demands for payment;
(b) using documents presented as, modelled upon, or resembling official documents to mislead owners or drivers of cars parked in a private car park;
(c) unfairly sending, or causing to be sent, letters of demand to the owners or drivers of cars parked in a private car park regarding requests or demands for payment;
(d) threatening the owners or drivers of cars parked in a private car park that, if they do not pay the amount of money demanded or requested by the due date, the owners or drivers would be lawfully obliged to pay a higher amount when that is not the case;
(e) unfairly threatening the owners or drivers of cars parked in a private car park with the institution of legal proceedings.
Misleading or deceptive conduct – Section 9 of the Act[27]
[27]Originally Paragraph 11 in the Originating Motion.
In the period, Ace Parking has, in trade or commerce, engaged in conduct which was misleading or deceptive or likely to mislead or deceive in contravention of section 9 of the Act by reason of one or more of the matters set out below:
5.1(a) representing that by the entering and parking of a car by a driver of the car into an Ace Parking car park, Ace Parking:
(i)had a general lien over the car; and
(ii)could retain the car until the driver produced a valid pass or authority and paid all outstanding charges;
(b)(i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or
(ii)in fact, the circumstances set out in paragraph 8.1(a) above did not create a general lien over the car which may or may not have been owned by the driver of the car and did not enable Ace Parking to retain the car as asserted or at all;
5.2(a) representing that by the entering and parking of a car by a driver of the car into an Ace Parking car park and the entry into a contract for car parking services between the driver of the car and Ace Parking, Ace Parking was able to claim that:
(i)it had a general lien over the car; and
(ii)it could retain the car until the driver produced a valid pass or authority and paid all outstanding charges;
(b)(i) such representation is a representation about a future matter for the purposes of section 4 of the Act and the Defendants did not have reasonable grounds for making the representation; or
(ii)in fact, the circumstances set out in paragraph 8.2(a) above did not create a general lien over the car which may or may not have been owned by the driver of the car and did not enable Ace Parking to retain the car as asserted or at all.
ANNEXURE “B”
No.
Name
Date Sworn
1.
SPICE, Gregory Ronald Andrew
23 March 2010
2.
BARBANTE, Vince Joseph
2 July 2010
3.
RUGGERI, Glenda Lesley
25 March 2010
4.
KAPEVIC, Donald Alexander
25 March 2010
5.
LOH, Wei-Leng
29 March 2010
6.
COGGER, Robyn Joy
13 April 2010
7.
KAUFMANN, Peter
22 April 2010
8.
DU PLESSIS, Barend Jacobus
13 May 2010
9.
DU PLESSIS, Dina Alida
20 May 2010
10.
TICKELL, Lisa Anne
5 August 2010
11.
DULLARD, Saul John
6 August 2010
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0
2
0