Have you ever returned from Ancestral on Ric Road after a getting a peach green tea with pearls to find your beloved Hyundai I30 clamped? And when you call the number left on your dash, a bogan bloke rocks up in a Ute, says it’ll be $150 to remove it, and you better pay up quickly or my mate will tow you at double the cost? Well, my flatmate has. She pointed out the inadequate signage, that she was dining 20 metres away, and that $150 is a heck of a lot for a student to pay for an innocent mistake. Alas, the cowboy clamper had struck.
Suffice to say, this story pissed me off. So, I decided to do some digging. I thought I would present my findings here so that the good students of UC can remain free from cowboy clampers and towers.
I started by looking at Community Law’s guidelines regarding your rights when dealing with tow-truck operators. It turns out the right to tow and clamp rests on an archaic common law remedy that I’m sure none of us have ever heard of called “distress damage feasant” (we’ll call it DDF).
This remedy allows a landowner to seize or detain any property which is unlawfully upon their land and has done or is doing damage there. So, for the same reason your neighbour is not obliged to return your backyard cricket ball that broke his window, you can be clamped for parking on private property.
When DDF was developed, the issue was man and beast, rather than man and machine. Specifically, horse damage feasant. In the courts, people asserted their right to detain or remove horse and rider from their property. Thankfully, freedom of horse-parking was upheld. As Lord Kenyon Chief Justice famously said “Ifin’ any ol’ feller could rustle a hoss as he had a hankerin to, whell’n a cowpoke is ridin’ on ‘im, thair’d be darn chaos”.
Bizarrely, this 250-year-old quote was scaled up in horse-power to parking when a legendary kiwi bloke, Murray, took on a towing company (law students check out Jamison’s Tow & Salvage Ltd v Murray on Lexis, it’s a great read). When they tried to tow Murray’s car, he sat in the driver’s seat and applied the foot and hand brakes. The towing company then detached the brakes and towed it with an expletive-touting Murray still inside. Fortunately for Murray, a man inside a machine was deemed akin to a man atop a horse. The court said that the towing company could not tow because the car was in Murray’s possession and control at the time.
So, if someone attempts to tow your car after you’ve offered to drive away, hop inside. If they tow you anyway and damage your car, take them to the Disputes Tribunal.
Well, that’s towing.
But let us return to the uncourteous clamps in question. The law on these things is even more unclear. The only thing everyone seems to agree on is that they hate the bloody things. Even Wilsons Parking has lobbied for them to be banned. As Dr Jarrod Gilbert (Director of Criminal Justice and Senior Lecturer at the UC) put it on Twitter: “What sort of a fuckwit would you have to be to clamp someone’s car [in an empty carpark]”. Thumbs up Dr Gilbert, I couldn’t agree more.
This year, the Land Transport (Wheel Clamping) Amendment Bill was passed. In debate, politicians from across the spectrum were united briefly, beautifully, and uncharacteristically, in their dislike of cowboy clamping. Cowboy clamping is the practice of going around whacking clamps on improperly parked cars and demanding sums in excess of $200 to remove. Cowboy clampers sometimes use intimidation tactics and often threaten to tow if payment is not made immediately. They police carparks on behalf of businesses, commonly targeting impoverished areas. They frequently use inadequate signage, and have been caught clamping people after less than a minute of parking.
They. Are. Bastards.
So, what can you do? One approach, as suggested by my Uncle Russell, is to take a cordless, battery powered angle grinder and show them that DIY is, truly, in our DNA. As a former Mitre 10 employee, I can recommend the Black & Decker 18 volt, featuring a side handle for greater comfort and control. However, I’d reserve this for a select few situations to avoid being hit with section 11 of the Summary Offences Act: Wilful damage.
Another entrepreneuring kiwi bloke, Brendan Spratt, had a go at this approach. He removed a wheel clamp from his vehicle, and was charged with wilful damage. After a trial in the District Court, the charges were dismissed because prosecution could not establish that the appropriate signage was present.
An alternative, slightly less fun approach is to know your rights. The maximum fee that can be charged for the removal of a clamp is $100. Once that fee is paid, the clamp must be removed as soon as is reasonably practicable. The clamper also has to be reasonably available to accept payment and remove the clamp. Failure to comply with this leaves an individual clamper liable to a fine of up to $3000, or $15,000 for a company.
Further, if the clamper is not reasonably available to remove the clamp, you may revert to approach #1. You are absolved from both criminal and civil liability if you cause as little damage to the clamp as is reasonably possible, though they may still go after you in the Disputes Tribunal.
In closing, it is important to note that this applies to private clampers, not the council. And I’m not advising you to take on UC Security. They are, for the most part, pretty reasonable and you’re probably in the wrong anyway.
By Daniel Kirby