QLD Vehicle towed from carpark

Discussion in 'Australian Consumer Law Forum' started by Anthony1973, 24 January 2019.

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  1. Anthony1973

    Anthony1973 Member

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    My vehicle was towed from a carpark which I pay a month fee to park in. I recently changed the registration plate in the vehicle and made several attempts to phone the company to update the rego. These calls were unanswered and I left two messages providing the Rego number and my contact details. I received no further contact from the parking company and assumed everything was good. Parking Co acknowledge my attempted calls however states they have no record of voice msg. Yesterday my vehicle was towed and the parking company told me a notice was left on my vehicle 11 Jan. I did not receive this notice (perhaps it's blown off or unknown person removed it) otherwise I would have acted on it.
    I'm now considering pursuing matter through QCAT.
    My questions are:
    1- is a notice left on my vehicle considered served if I did not physically receive the notice?
    2- are my voice messages considered notifying parking Co of updates Rego?
     
  2. Rob Legat - SBPL

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    You'll need to look to the terms of your contract to see what you've agreed to with the car park operator.
     
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  3. Scruff

    Scruff Well-Known Member

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    Whether or not you can convince the tribunal that you left messages is going to be very important here. So I'm going to focus on how I think you can do that.

    But first, the basic answers to your two questions:
    1. The notice is not a legal document, therefore it doesn't have to be "served" so to speak. So leaving it on the car is fine.
    2. Your phone records will be sufficient evidence that you left messages - if you know how to go about it. But first, you need your phone records...
    If you rang from a mobile, then all the info you need should be on your bill(s). Depending on your provider, this may also be the case if you rang from a landline, but if not, most operators provide a way to obtain this info via an online account. (I'm with TPG and I can access the full details for all outgoing calls online.) If you can't access this info yourself, then call your operator and ask them to look up and send you all information for calls to the company's number during the relevant period. Don't write it down from info given over the phone - ask your provider to send it on a company letterhead by post or email, preferablty in PDF format.

    You specifically must have the Date and Time, Number Called and Call Duration for each call where a message was left - this is critical.

    The question now is, how does one effectively use that information as evidence when we're talking about messages being left? Surprisingly, it's really not that hard. Nearly all message services have a very short time limit - usually 1 minute or less. If you rang and spoke to someone, then it would take longer than that to explain why you're calling, provide the necessary details and then stay on the line to verify that everything has been updated correctly.

    But your situation is even better than that. You state that the company "acknowledge my attempted calls however states they have no record of voice msg". This is significant and ultimately, it screws the company big time. It means that:
    1. neither you or company are claiming that any conversation took place during these calls, and
    2. if the company changes their mind and claims that you did in fact speak to them, then they bury themselves because they didn't update the vehicle details.
    So you don't have to provide any evidence of messages actually being left, you only have to show that calls were made that exceeded a certain duration - and that duration is the time from when the phone starts to ring to the time you are prompted to leave a message. Subsequently, the calls in question are most likely going to be between 15 and 60 seconds longer than that time. So here's what to do...

    Once you have your phone records, call the company outside business hours and time how long it takes from the time it starts ringing, to the time you are prompted to leave a message - and bu that, I mean thwhen you hear the tone, beep, or whatever. Write the measured time down as accurately as possible to the second - we'll call this the "time to answer". (Do this again the night before the hearing, just to confirm that they haven't changed anything.)

    You should now be able to confirm that the duration of the calls in question exceed the time to answer by enough to show that a message was left - again, probably around 15 to 60 seconds.

    When you attend the hearing, submit the phone records and the time to answer as evidence that messages were left. Explain that the evidence shows that the calls exceed the time to answer but are not long enough to show that a conversation took place. Make sure you point out that neither party claims that any conversation took place during these calls anyway. Submit that based on the "balance of probablilities" (and use those exact words), the evidence is "more than sufficient" (again use those exact words) to show that messages were left. If the company disputes this, then submit that since neither party claims that any conversation took place, the onus is on the company to explain the duration of the calls and how they could exceed the time to answer if no messages were left.

    If there's any dispute over the time to answer, ask the tribunal member to call the number themselves and time it, explaining exactly how you did it. Propose to the member that if the company answers the phone, then after explaining who they are and why they are calling, the member should
    1. inform the company that they are going to call back approximately 15 seconds after hanging up,
    2. instruct the company not to answer the phone for the next 60 seconds, and
    3. wait 15 seconds or so, then call back and time the call exactly as you did.
    If for any reason this doesn't happen (the company successfully objects or the member simply doesn't want to or can't do it), then submit that since the time to answer as submitted by you has not been successfully challenged, there are no grounds for the evidence already submitted not being accepted as being accurate. Again state that the onus is on the company to refute the evidence already submitted.

    Another thing you need to prepare for is a possible defence argument that the calls were unrelated. In this instance I see two standout arguments, those being that the calls related to either billing, or alleged damage to the vehicle. Both of these are easily refuted if the vehicle is in good condition (and I assume it is given you are paying to park it securely). So bring the following with you to the hearing just in case you need it:
    1. billing, bank statements or other documents for the last 3-6 months that show that there are no issues with billing, and
    2. photos of the vehicle taken from each corner to show that there is no damage (4 photos in total).
    That should be enough to negate any argument about what the calls were about if the need arises. I don't see any other reason as to why you would call them.

    The key to all of this, is that you are dealing with a civil tribunal. That means that the burden of proof is "balance of probabilies" and not "beyond reasonable doubt" and that means, that don't have "prove" anything - you only have to show that something is "more likely to have happened than not". In this case, that "something" is the messages you left over the phone.
     
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    #3 Scruff, 24 January 2019
    Last edited: 24 January 2019
  4. Scruff

    Scruff Well-Known Member

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    A little bit of "fat finger syndrome" in the middle there - sorry about that. The ridiculous 10 minute limit for editing expired before I spotted it. :eek::mad:

    "and bu that, I mean thwhen you hear the tone" should be

    "and by that, I mean when you hear the tone"
     
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  5. Mike Love

    Mike Love Well-Known Member

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    Or just buy a call recording app for your phone - in Victoria legal to record calls without consent - not sure about Qld though.
     
  6. Scruff

    Scruff Well-Known Member

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    Yep - easy to see that I'm in the minority of people who despise mobile phones altogether and doesn't own one! Life without a mobile is Serenity - excellent movie too! :D

    I had no problem with them back when they were designed for making and receiving phone calls, but now I hate the {insert your own word here} things. I can't stand the sight of them - but the {insert your own word here} things are everywhere you look! :mad:
     
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    #6 Scruff, 4 February 2019
    Last edited: 4 February 2019
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