The practice of private company Adelaide City Fines in issuing parking tickets calculated to give the impression of being “fines” issued by an official body has been found to constitute misleading and deceptive conduct in breach of the Trade Practices Act in proceedings brought by the Corporation of the City of Adelaide.
The decision of Mansfield J in Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd [2009] FCA 132 considered a series of six different parking tickets or notices issued by ACF over a period from 2003 to 2007, finding that each conveyed inter alia representations to the effect that the notices were issued or authorised by the Council and were issued for the recovery of a fine or other penalty imposed by law. Those representations were false, and hence misleading and deceptive, because ACF was not so authorised and any claim ACF may have had in relation to the alleged parking infringements was only for an alleged contractual debt.The original ACF notice bore a number of striking similarities to the official expiation notices issued by the Council for parking infringements and while the style of the subsequent ACF parking notices was modified over time in response to communications from the Council, they were nevertheless found to convey the same representations to the relevant public. As noted by Mansfield J:
where, as here …, ACF … initially set about presenting the first ACF Notice to closely resemble the first Expiation Notice, I consider the subsequent minor variations to the ACF Notices demonstrate a desire by ACF … as much as possible to retain the perception or representation that its notices were issued by or with the authority of or in association with the Council, and are for recovery of a fine or other penalty imposed by law, and that ACF was authorised by law to recover a fine or other penalty imposed by law
This clearly reinforces the proposition that while intention to mislead or deceive is not a necessary element of s 52, proof of such an intention has a very strong evidentiary value.
There was also significant evidence put forward by the Council, which showed that a number of recipients of the ACF notices had contacted the Council in relation to those notices or contacted ACF assuming them to be the Council. This evidence, found to go beyond mere confusion, was relied upon by the Court to hold that a significant class of reasonable recipients of the ACF notices would take from those notices the representations alleged by the Council.