BARVENNON.COM
21st April 2006
AUSTRALIAN DIARY
Objective
analysis. That's what's done here.
-
AUSTRALIAN JUSTICE -
This is the ongoing story of my battle for justice against a
parking infringement notice issued by Waverley Council. Following
is an edited version of my defense.
THE FACTS
The instructions at the entrance to the
Westfield, Bondi Junction parking station read "park only
in the marked spaces". There is no other relevant requirement,
although there is a note that Waverley Council Officers will be
enforcing under section
650 of the Local Government Act 1993.
I parked in a marked space in Westfield.
The original parking infringement notice indicated that I was not
parked in a “marked parking space”
I wrote a letter (word file) to Council,
explaining that I was parked in a marked space, and asked that the
charge be dismissed, failing that, requested to
have the matter heard before a magistrate. I mentioned
that there was an ambiguous sign near the marked space.
By return mail I was charged under
650(4)(a) of the Local Government Act 1993 for not parking in a marked
space, and the original charge was expanded to include a
breach of
650(1), (parking contrary to a “no parking” notice.)
I appeared in Waverley Court, pleaded "NOT GUILTY" and the matter was
referred to the Downing Center.
I subpoenaed documents from Westfield. (the relevant agreements between
Westfield &
Council, who painted and installed lines & notices, and when).
On the date for the return of the subpoenas, Waverley withdrew, citing
that their witness (the parking compliance officer) was not available
for "family reasons". I
found that to be a bit strange, because the date for the hearing had
not yet been set. Perhaps their witness had a terminally ill
family member who needed care 24/365? This is also the second
time that a council has withdrawn after I have gone to trouble &
expense of preparing a defense.
During my defense I had to travel from Barvennon to Sydney, and
consequently have run up costs exceeding $1,500. The magistrate
told me that
money was not recoverable. I have had past experiences with
unfounded parking infringement notices, and was planning to ask for
exemplary damages of $10,000, which I planned to give to the Neville
Fire Brigade and St
Vinnies and the Op Shop in Blayney.
It is of interest that most parking matters that go to a magistrate's
court are dismissed. This game of threats is a financial burden
on the taxpayers,
but not on Local Government, who use the threat of court action to
exhort money from the innocent. I feel that
exemplary damages might change the equation & encourage Local
Government to
take more notice of the explanations that people write in about their
parking infringements.
I am hoping to take this matter further.
DISCOURSE
In my mind, the painted lines and the posted sign
on level P6 at Westfield, Bondi Junction, gave contradictory
messages. The sign has a "no parking" symbol and the
words "no parking", but no indication as to how the sign
is to apply (no arrows or writing etc). It most nearly
approximates an “Area” no parking sign,
meaning perhaps do not park anywhere on level P6? The
car space sized marked lines are a fairly clear indication that cars
are permitted to park in the marked space.
I believe that a person should be
entitled to choose without penalty which of two contradictory rules to
obey. The marked lines were the least restrictive and least
confusing
of two contradictory rules.
I did some research. The “No Parking”
signs in the parking station do not comply with the requirements for
“No Parking” signs as defined in section 168
& 316
and schedules [2]
[3]
of the Australian Road Rules.
Section 650(1)
of the LGA reads "The driver of a vehicle parked in a free parking area
otherwise
than as permitted by a notice or sign erected by the council is guilty
of an
offense." Section 650(4)
of the LGA reads " If
spaces in which a vehicle may be parked in a free parking area
are marked by the council (for example, by means of painted lines or by
studs,
pads or plates), a person must not cause a vehicle to be parked in a
free
parking area:"
The Parking station is not a “Free Parking Area” as defined in the dictionary
and in section 650(6)
of the Local Government Act 1993 No. 30. Westfield parking
station charges it's customers according to the length of stay.
It is not free.
The "No Parking" notices were not erected by council. The notices
have a
manufacturer's logo, something that no Waverley council sign has.
The Lines were painted long before council took over enforcement.
The Parking station is not a “Free Parking Area” as defined
in the
dictionary and in section 650(6) of the Local Government Act 1993 No.
30.
Section 650(7) of LGA provides for the Director-General to
establish guidelines. Those guidelines [1]
[2]
appear to make it clear that council can only make an agreement to
police a free parking area. They also make it clear that council
is responsible for signage.
In my (admittedly) limited understanding of the law, that
means that no part of section 650 of the LGA 1993 can apply. If
that is the case, not only should the case be dismissed, but Waverley
should not have been in the parking station. All of those
people who
have paid parking fines are, at the very least, entitled to have those
fines refunded.
EXEMPLARY DAMAGES
In general, I am quite careful not to park illegally. This is
evidenced by the fact that this is the first infringement notice I have
had for some years.
Despite my care not to infringe parking restrictions, I am sometimes
given an infringement notice.
This is not the first time that I have made a plea of not guilty and
been found not guilty when I took a NSW Council to court with a “not
guilty” plea. On one of the more recent occasions I received a
“reminder” letter from council. To my best recollection, I
was not parked anywhere near the alleged location, and (as I pointed
out in a letter of objection) the car they had booked was not even my
car.
Nevertheless, that explanation was dismissed by council, I had to go to
court and prove that it was not my car. I was found not guilty.
There are many other cases in the last few years where I wrote in (what
I thought to be) a
perfectly reasonable explanation to the council, which dismissed
my explanation, and then recited the same explanation to a magistrate,
who in every recent case judged that
my explanation was reasonable.
It is noticeable that NSW Councils have, in the few years since being
granted part of the revenue obtained from parking infringement notices,
begun to act in an increasingly avaricious manner. It is my
experience that, before that revenue stream was granted to councils, a
reasonable explanation with evidence was, in most instances, accepted.
There are many reports in the press detailing the huge revenue growth
being collected by councils from parking infringements. In last
Sunday’s April 16th “Sunday Telegraph” there was a report (p15) that
detailed this growth in revenue. Waverley Council (which was the
second largest parking penalties collector in NSW after Sydney) had
doubled it’s revenue from $3.99 million in 2004 to $7.9 million in
2005. This was during a period when parking fines statewide rose
60% in the two years to 2003-2005. Those figures indicate that
Waverley was
raising parking revenue at a rate that is four times the average for
NSW.
In the matter before the court, I sent council a letter, with a
photograph taken at the time showing my car standing in a “marked
space”. (That was the only charge on the original
ticket.) Council did read my letter because the charge
was expanded to include “standing contrary to a notice.” Perhaps
they thought that I might be found not be guilty of not standing in a
marked space, but they might get me for standing contrary to that bodgy
notice.
It summary, it appears that many NSW councils, and Waverley Council in
particular, have adopted the shotgun approach. They ignore any
explanation written in by the infringee, knowing that nearly all
of those who "write in" an explanation will not take the matter
to court. This is because most people have real jobs, and for the
amount concerned it is cheaper to pay a fine than to risk the bosses
displeasure & lose pay seeking justice.
The calculus of Waverley Council’s approach are clear. Using the
shotgun approach, nearly all of those who object still pay, and the
cost of prosecuting the few who do not pay is covered many times over.
They are like a greedy Pooh Bear in the honeypot.
I would like to see somebody change the calculus of council’s approach
by granting victims the right to costs and exemplary damages. If
it needs an act of parliament to remove the regulation that prevents
wrongfully charged individuals to collect costs & damages from
Council, then perhaps that is what must be done. If a small
penalty does
not persuade NSW Local Government Authorities to revert to considering
the merits of each explanatory letter, then perhaps a higher penalty on
a following occasion might serve.
I want a way to teach Pooh Bear to watch out for the bees.