One of the many joys of living in Bridgetown is the absence of parking wallopers, those soulless dispensers of misery dedicated to making your day just that little bit less happy by slipping a piece of paper under your wipers.
That’s not the case in Bunbury and elsewhere, of course. Overstay your time, misunderstand some incomprehensible parking sign, or just forget to pick up that ticket and you’re likely to find something nasty stuck to the windscreen demanding payment for your unspeakable crime against humanity.
Now most people just curse their luck, damn all parking wallopers to eternal hellfire and torment and reluctantly pay-up.
Well if it happens to you it’s worth taking a second look at that piece of paper because not all parking fines are created equal, some aren’t really fines at all, and some of them, legally speaking, are pretty damn dodgy.
It all comes down to who’s handing it out. You see only government authorities, that’s federal, state or local governments, can hand out fines. So if the council’s given you a ticket then you either pay-up or argue your case with them if you think they’re wrong. Yeah, OK, good luck.
But if the ticket’s coming from some private company, for instance TMS, Wilson Parking or Bastards R Us Parking Services, then it’s a different story. They can’t fine you, they can only issue you with a claim for liquidated damages.
In effect they’re trying to claim that because you didn’t pick up a ticket, or you overstayed your time, or whatever hideous parking sin you committed, that it’s cost their client (usually a shopping centre) money and you have to pay the poor dears to compensate them for their loss.
Now there’s more than the odd lawyer who thinks this is pretty legally wobbly and that Bastards R Us, or whoever, are going to have to jump a few legal hurdles to prove their case.
For starters they’re going to have to prove that you were driving the vehicle at the time of the alleged “offence”. Because while they can probably track down the vehicle’s owner, they then have to prove the owner was driving it when it happened.
Then comes their next hurdle. They have to prove that you read that long list of terms and conditions at the entrance to the car park and agreed to them before you entered it. What? You didn’t! What’s wrong with you?! The Victorian Consumer Action Law Centre is just one organisation that things the legality of that is unsettled.
From there Bastards R Us have to prove that their poor hard-done-by client has suffered the financial loss they’re claiming as liquidated damages on the ticket from your wicked behaviour.
And again, the Victorian Consumer Action Law Centre reckons that’s pretty dodgy:
While the legal position is unsettled, we take the view that if there is a binding contract – which may or may not be the case – the certain terms of that contract are arguably unfair and the amount demanded is a penalty rather than a genuine assessment of the company’s loss.
It’s worth repeating that unlike government bodies, businesses can’t issue penalties and the amount they’re claiming in damages is usually arbitrary and absurd. It’s a fair bet that they’d have a hard time justifying it to a local magistrate, should it come to that (and it probably won’t).
So what do you do if there’s some nasty little ticket under your wipers from one of the private wallopers?
One option is to do nothing and see what happens next. Then if they persist you could write to them, arguing that their contract is unfair and their claims for costs are unreasonable. Here’s a link to a helpful form letter.
After that they may huff and puff and bluster a bit but they’re unlikely to take it much further. They’d be too worried they’d lose.
Now all of this comes with the usual disclaimers. I’m no lawyer and this shouldn’t be taken as legal advice. It’s just general in nature and you should see a proper lawyer if you need one and please don’t sue me!