‘This is not a fine’: Can a private company enforce a parking fine?

A Reddit user has raised the question of whether they are legally required to pay a parking fine they received from a private car park. 

In a post on the r/Melbourne sub-Reddit, a user posted a parking fine they received from Traffic Monitoring Services (TMS), which enforces the parking rules at Woolworths Brunswick.

The "non-compliance breach notice" states that the user has overstayed the 90-minute parking limit on the 4th of April, 2024.

RELATED: ‘The Hunger Games of parking’: The shopping centres with the highest rate of car park collisions 

The legality of the fine becomes hazy when the user posts the fine print on the back of the breach notice, which says: "This is not a fine. The operator is claiming the amount due as liquidated damages as a result of you breaching the parking terms". 

Further warnings are made by stating, "If you do not pay by the date indicated, the vehicle may be towed in the future and will remain impounded until the notice has been paid. In addition, recovery or court proceedings may be taken against you".

But is this all legal and within the rights of a private company, or are they empty threats that cannot be acted upon?

Since this is a 'fine' issued by a private company, they cannot enforce the same level of punishment you would from a government-issued parking fine. 

Consumer Affairs Victoria states: "When parking in a private car park that has appropriate signage, you enter a contract with the operator".

"Private car park operators cannot issue parking fines or infringements – these are only issued by an authorised government body. Operators may issue 'breach of contract' notices requesting payment for an alleged failure to observe the displayed terms and conditions of use. This notice is generally a claim for 'liquidated damages'."

In basic terms, this is not a fine; it's a breach of contract, which is a civil matter. The parking services may send a debt collector and issue you a civil court case, but the chances of the parking lot spending money to collect a small amount of money are slim but not zero.

Thanks to important privacy bills passed in each state, these companies do not have easy access to your personal information like the government can receive from your registration.

Consumer Action Law Centre has stated: "Up until the 26th of August 2015, if you did nothing and did not write and provide your personal contact details to the company, the company would have needed to apply to the Magistrates Court to obtain your details from Vic Roads. As of the 26th of August 2015, these companies are restricted from obtaining your details from Vic Roads in this way".

"In our experience, it is unlikely that a private car parking company will sue you in Victoria for one-off parking fines, despite their threats to do so. However, we have been contacted by consumers who have been sued for racking up hundreds or thousands of dollars worth of fines."

It's not just Victoria that has changed its rules to make it harder for private companies to grab your information. Most Australian states have regulations that either make it difficult or costly for a private company to access your information via your registration besides Tasmania, Western Australia and South Australia.

South Australia and Western Australia can also apply via the council to have government inspectors enforce their parking rules.

The best thing you can do is gather intel from the terms and conditions posted on the car park signs to look for discrepancies.

"If you want to get on the front foot, you can issue proceedings in the Victorian Civil and Administrative Tribunal (VCAT) [or whatever your state Civil and Administrative Tribunal is]. We have received reports from numerous consumers who have refused to pay and sued private car parking companies in VCAT. The companies involved waive the 'fine' rather than risk a hearing," says Consumer Action Law Centre.

It should be remembered that in states that protect your information, getting a letter in the mail from the company is usually a good indicator that the private company has escalated your case and certainly should not be ignored.

It's also an excellent idea not to park in the same car park with the same car if you choose to ignore the fine. Private companies are well within their rights to tow, clamp, and/or impound your vehicle if you have breached the car park's contractual agreement. However, they cannot legally go to your house and take your car.

It's also an excellent idea to not give them any other means of contact if you plan to not pay the notice. Downing Centre Court makes note that these private companies will use any details provided as an easy way to have a means of contact for you.

"Many of the so-called ‘fines’ have a section where you can write to the company and contest them. Some people fall into the trap and send the completed ticket back, thereby giving the company their name and address. Companies can then use this information as both an admission that you were the driver at the time and to send further notices, or even in some cases to take the case to the local court and hope that you settle before the case gets to a hearing."

Not paying the 'breach notice' will not affect your credit rating or your licence since it is not a fine.

Drive has contacted Traffic Monitoring Services (TMS) for comment and will update this story with a response.