In recent years, a number of private car park companies have been operating in some fast food outlets such as McDonald's and shopping centres. They demand that all motorists entering the car park take tickets and place them on their dashboards and if they do not, they are "booked" and then a "fine" is sent to them.
Some of the most notorious of these companies are Australian National Car Parks (ANCP) and ACE Parking. They have been the subject of consumer affairs and legal action and in fact ACE Parking found itself in the Victorian Supreme Court at the losing end of a Consumer Affairs action that makes fascinating reading - Victorian Supreme Court order against ACE Parking.
Car parks such as at McDonald's and shopping malls are private property. Motorists must understand that when they enter such car parks that are managed by private companies, they have an obligation to adhere to the conditions imposed by those companies. If a car park company makes it a condition that a motorist must display a parking ticket, then the motorist should comply. If a private car park company imposes time limits, motorists parking on those premises are obliged to adhere to those time limits.
Motorists have to realise that if they do not follow the conditions that the private car park companies impose, then they could be guilty of trespass. However, those private car park companies do not have the legal right to demand money with menaces in the form of bogus "fines" or by other threats. There is no excuse for people to be bullied or coerced by them into paying those illegal "fines".
Private parking companies do not have the legal power to issue fines. What they are actually doing is sending letters of demand, some contrived to look like official government infringement notices and then following them up with Statements of Liquidated Claim in the local courts. Many motorists are fooled into thinking that these private parking companies have the legal power to fine motorists, but they do not.
Every person has the right to silence and cannot be forced to testify against himself. Therefore if the car park company cannot provide conclusive evidence that you were indeed the driver at the time that your vehicle was parked in its car park, a magistrate cannot lawfully find you guilty. A magistrate cannot infer that you are guilty of an offence without evidence to prove so, merely because you refused to cooperate and abrogate your right to silence.
This is MOST IMPORTANT - private parking companies DO NOT have this power either. If they cannot prove who was driving a car at the time it was parked without a parking ticket, then they do not have a leg to stand on to run any sort of case to pursue their phoney fine.
However, if the car park company decides to pursue you via civil legal action, there is a procedure called Discovery, where each party is required to truthfully provide answers to questions put to them by the other party. So you may be asked during Discovery whether you were the driver of the vehicle when it was parked in the company's car park and you are required to answer this truthfully. But of course if the car park company has no way of proving with hard evidence that you were the driver and you don't admit anything or you respond to the question by stating that you do not remember, then the car park company really does not have any hard evidence to produce in court in regard to this.
Under the ACCC Debt Collection Guidelines, proof of the debt rests with the creditor (the car park company) and they cannot require you to provide proof that you were not the driver. Therefore if they don't have that hard proof that you were the driver and you don't admit that you were, then their entire case is screwed.
Private car park operators are exactly that - private companies. Under civil law, they are prohibited from restricting the exit of people or impeding them in any way. Therefore if a person is accosted by a private car park attendant who attempts to restrict him from leaving, that person has grounds to have that car park attendant charged with serious crimes. The attendant's employer is also liable for the actions of its employees and can suffer the consequences of the law, as well as being liable to be sued for damages under civil law.
It is important to understand that private car park operators and their employees do not have the right to perform a citizen's arrest unless a crime has been committed. However, because private car park operators do not have the legal right to levy fines, motorists who park in car parks controlled by them who leave without paying or who park without displaying a ticket cannot be legally restrained by a citizen's arrest and if they are, they can have the car park operator charged with a serious crime and also sue the car park operator for damages under civil law.
Private car park operators are also restricted from discovering the registration details of motorists. So if a person receives a notice or a so-called "fine" from one of these car park operators because his registration information was accessed, that person can report this to police and have the car park operator charged with a criminal offence.
According to a person who works for one of these private parking companies, the best way is to simply not respond to any payment notices or demands from these companies. Just ignore them completely. He stated this to me:
The important thing to remember is that a person can refuse to give any information to car park operators or their legal representatives as to the identity of the driver at the time when the vehicle was parked in the private car park. Absence of evidence is not evidence in a court of law.
So if you receive a "fine" or a demand for payment from one of these private parking companies, this is what to do.
This procedure will generally result in their action being dropped on the spot, unless the car park operators can actually prove that you were the driver of the car at the time of the alleged "offence" that is not an offence at all.
But this hinges on one very important thing - NEVER EVER admit anything to any adversary that can be used against you. For instance, don't respond to the car park company with something like, "But I was only in the car park for 10 minutes" because that is an admission that will allow the car park company to nail you in court. Obviously if they have to prove that you were the driver and they have no evidence and can't get that evidence from an admission by you, then they are screwed.
If you get one of these "fines" from one of these private car park operators, DO NOT EVER admit that you were the driver and just follow the procedure outlined above and you should be able to force the car park operator to withdraw his illegal "fine". Being a motorist is like boxing - Protect yourself at all times or you'll get knocked out.
At the end of the day, you have to understand that those car parks are private and you can only use their facilities if you agree to the conditions of entry, including paying a fee for parking in them, displaying a ticket on your dashboard or whatever else the operators demand. If you are not willing to do this, then you should not enter and park in those car parks in the first place.
Michael Franco had an issue with Australian National Car Parks (ANCP) and wrote the following on his Facebook page:
Michael received this correspondence from ANCP:
As far as I am concerned, this is the greatest load of utter crap and hollow threats that I have seen for a long time and may be indicative of the sort of tactics that has landed ANCP in legal hot water previously.
Firstly, ANCP does not own car parks such as those it operates at shopping centres and fast foods outlets such as McDonalds. Therefore ANCP does not have the right to restrict access to anybody wishing to enter those premises or do business with them. If this means that people walk through the car parks of those businesses to gain access to them, ANCP has no right to prevent this.
One can imagine that those businesses would be most incensed to discover that ANCP is trying to prevent customers from getting to their stores. So that threat to Michael Franco that ANCP will take action against him for merely entering an ANCP controlled car park, for instance to buy something at McDonalds, is a load of garbage and cannot be enforced.
Furthermore, the threat by ANCP that its parking officers have the power to arrest Michael and hold him under citizen's arrest is utter rubbish. To perform a citizen's arrest requires a person to be confident that a crime has been committed. But walking through a car park to legally access a business is not a crime and if an ANCP parking officer so much as lays a finger on a person for doing so leaves that employee and ANCP open to a massive damages lawsuit, as well as criminal charges of kidnap, believe it or not.
I advised Michael to send the following response to ANCP and it should be used by any other person who has received a similar notice from these clowns.
I challenge ANCP and any other private car park company to try and restrict me from accessing any business or food outlet by threatening me with the same nonsense with which they threatened Michael Franco. I state for the record that if this happens, the perpetrators will find themselves not only charged with serious crimes if they lay so much as a finger on me, but will be sued for actual and exemplary damages. I have the knowledge and expertise to do exactly what I have stated here.