Why all USyd library fines are unenforceable

Andrew Bell has so much invested in this article

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There are currently many thousands of dollars owed to University libraries from students. When these fines are above a certain threshold, students can be prevented from graduating, accessing University services or re-enrolling. Here is why they are all legally unenforceable.[1]

Before we get into the details, it’s important to note that these fines can be substantial. Thomas Joyner, an upstanding student at this University, currently owes $720 in outstanding fines. “A $720 fine for one first year assignment is absolutely ludicrous, and prevents me from borrowing a book ever again. If the aim of the fine was to inhibit my studies, it has succeeded,” he said.

So here’s why they’re unenforceable.

Basically, a library fine is just a payment for a breach of contract. The library agrees to let the student use the book and the student agrees to return it in time. For meatier commercial contracts, corporations may go to court to figure out how much they’ve lost as a result of a breach of contract. That approach doesn’t really make sense on the small-scale of a library fine, so the library pre-nominates how much you have to pay.

How much you have to pay is calculated by estimating the financial loss that would likely flow from the breach of contract. While this makes sense, the law imposes a limit when estimating losses. The figure cannot constitute a “penalty” or be “punitive”.

So at what point does compensating for loss clock over into “penalty” territory? The key to identifying penalties is that they’re extravagantly disproportionate to the financial loss that would likely flow from the breach of contract. Strictly, the library receives no financial loss when their books are returned late – certainly nothing comparable to $10/day (or $10/hour for two hour books).

ANZ was taken to the High Court recently, and (partially) lost on the basis that their fees were punitive. ANZ claimed the fees, such as an overdraft fee, recouped the cost of administration and enforcement. The library might make a similar argument, but their costs probably only add up to a few cents per day – nothing close to $10 a day.

It’s also important that you can breach the contract ‘trivially’ and still get hit with the full fee. Therefore, if you’re a second late with a two-hour book from Fisher, you get hit with the entirety of the $10 fee.

The library might have a stronger argument in England, where the library’s goal to facilitating the circulation of books would work in their favour. But that hasn’t had much purchase in Australia, where financial loss is the most important factor.

In fairness, the library doesn’t enforce overdue fines unless the books are recalled. But the fact that another student wants to use the books will never cause the library financial loss.

In the end it’s probably not worth it to take the library to court. The law is complex and the cost would subsume the fees many times over. But with so many students in debt – maybe it’s worth a class action?

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[1] Probably. I’d write a disclaimer that this isn’t legal advice, but then again if you go to court on the basis of an Honi article without any independent advice you really deserve to lose.