I am pleased to speak on the Road Safety Amendment (Private Car Parks) Bill 2015. It is yet another commitment from the Victorian Labor platform that it took to the people in last year’s election. That is two election commitments fulfilled by this government just this afternoon.
This election commitment was to protect consumers from the unfair and misleading practices that have become the business model of some private car park operators. In short, the business model was an abuse of the court’s discovery process. The next step of the business model was predicated on the harassment and confusion of consumers. This bill addresses those issues.
Before I go into how the bill deals with those issues I will take a minute to outline how the business model of some of the dodgy operators functioned. Some private car park operators — and I emphasise some but not all — have taken to placing payment notices on windscreens of cars alleged to have breached the terms and conditions of the car park. This may not seem much of a problem, except that the payment notices look very similar to infringement notices. They are not infringement notices; they are actually claims for liquidated damages.
Some operators are seeking up to $100 in liquidated damages, which I am sure everyone in this place will agree is a hefty price to pay for a 15-minute overstay in a suburban car park. This is where the business model is dodgy. If the owner of the vehicle pays the payment notice, then the operator has made a fair whack of money for 5 minutes work. If the vehicle owner does not pay the claim for the liquidated damages, the car park operator will apply to the Magistrates Court for a preliminary discovery order requiring VicRoads to disclose the vehicle owner’s name and address. When the name and address is supplied, the harassment starts. The car park operator will then send a series of letters of demand that have additional late fees and further liquidated damages. If that does not work, the putative debt is then onsold to a debt collector, who commences a whole new round of harassment.
One of the worst things about this whole process is that the Supreme Court and the Victorian Civil and Administrative Tribunal (VCAT) have found that the liquidated damages are unenforceable. Some might use the word ‘scam’, but I will use the words of tribunal member Wilson of VCAT in the case of Vico v. Care Park Pty Ltd when finding that the plaintiff did not have to pay $88 of liquidated damages in a case last year. Member Wilson said that Care Park’s claim for the loss was ‘overstated’. The member went on to say the amount was ‘wholly unexplained’ with ‘no forensic veracity’ and ‘no legal or factual providence’. In other words, they tried to shake down as much from a ticket as they could. The liquidated damages bore no relation to the actual losses suffered by the operator; they were more in the nature of a penalty. A private operator has no power to levy a penalty.
If this were just one or two cases like those we saw on Today Tonight every now and then, maybe it would not be so much of a concern. But that is not the case. Some operators are lodging single applications for over a thousand vehicles. Sometimes cases are being lodged for breaches of terms and conditions as trivial as the ticket being placed on the wrong side of the dashboard. Sometimes customers have not received letters of demand for over two years after an alleged breach. And even worse, there have been cases of incorrect vehicle registration information being provided to VicRoads. This has resulted in owners of vehicles not even involved in an alleged breach receiving letters of demand from car park operators.
There are people I know and people other members know who have been in those situations. No fair-minded person thinks that any of these things are fair. They are especially not fair when they are on such an industrial scale. On average, car park operators are requesting the details of over 50 000 vehicles a year.
We all know that financial stress is amongst the worst stress a person can face. Financial stress combined with legal stress is even worse, and that is what some of these car park operators are creating — very stressful situations for Victorian consumers up to 50 000 times a year — for a fee that has no basis in law. That is just not good enough. There is enough stress in modern life without dealing with shakedown rackets.
Labor promised to do something about the situation before the last election, and as I said, this bill is about delivering on that promise.
This bill disrupts the business model I have just outlined. It will amend the Road Safety Act 1986 to restrict the ability of private car park operators to obtain the names and addresses of vehicle owners from VicRoads’ registration database. It abrogates the right of a person to obtain a preliminary discovery order from a court for the purposes of recovering private car park fees, which is a good thing. The business model of overstating liquidated damages and then undertaking preliminary discovery is an abuse of the court’s processes, and this bill will put a stop to this procedural abuse.
The bill will give confidence to Victorians that their private details will not be handed out by statutory authorities. As Mr Gerard Brody, the CEO of Consumer Action Victoria, said:
It’s a breach of trust and we congratulate the Andrews government for stamping this out at long last.
This reform will put a stop to an unfair business model that has stung hundreds of thousands of Victorians.
It is expected that this bill will shift the business practices of some private car park operators from pay and display. Pay and display is the entry way to the harassment business model and not to alternative revenue protection solutions, such as the installation of boom gates.
It is important to note that there are safeguards in this bill for long-term commercial operators. Preliminary discovery for the purposes of recovering private car park fees under a written contract signed by both parties will be exempt from the restrictions I outlined earlier. The purpose of this exemption is to enable private car park operators to commence legal proceedings in relation to breaches of long-term commercial parking agreements. Proceedings in these cases may involve legitimate claims for significant sums of money and are not the target of this bill. This bill is about disrupting a corrupt business model. It should be noted that New South Wales introduced similar legislation in 2012 with a great deal of success, and I fully anticipate that this legislation will be successful in Victoria as well.
This bill delivers on an election promise made by the government and is aimed at stamping out predatory behaviour by unscrupulous private car park operators and preventing abuse of our court systems. The bill will also protect Victorians’ privacy by enhancing consumer rights while not inhibiting the legal rights of legitimate commercial car park operators. This is a sensible, simple and overdue reform. I commend the bill to the house.