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Wednesday, 27 July 2011

Infringements Court and special circumstances

It is always important to act in a timely manner with infringement notices. The legislation creates an assembly line of processes, and once a deadline has been missed it's difficult (but not impossible) to return to an earlier stage.

Once issued, a recipient typically has 28 days to challenge an infringement notice, or 42 days if served by mail: s 14 Infringements Act. If the notice isn't challenged or paid it will likely be lodged and become an enforcement order.

Under s 65 a person issued with an infringement notice that has become an enforcement order can apply to the Magistrates' Court for revocation of that order. This can only occur before they have been arrested, had their property seized or had an attachment of earnings order made. (By then it is too late).

An applicant must first make application to the registrar of the Infringements Court: s 64. If refused (as many are) a person may then appeal that decision under s 68. The registrar must refer the matter to the Magistrates' Court if the request is made within 28 days of notification of the registrar's refusal. The registrar may refer the matter if application is made between 28 days and 3 months of notification. After 3 months, there can be no appeal: s 68(3).

The grounds on which a Court may order revocation are undefined. The case of Fraser v Spencer-Gardner (1990) 12 MVR 215 is sometimes cited as authority for the proposition that an application for revocation must be refused unless the applicant has a valid defence. That's not the case. There is no obstacle to a magistrate granting revocation even if the court is satisfied of an applicant's guilt. The appropriate test is probably one of prejudice to the parties or, slightly more accurately, the balance of convenience.

Once a revocation is granted it is as if a matter is before the court as a charge. The accused can elect to plead guilty to it, or contest it.

Care needs to be taken by an applicant who seeks to rely on special circumstances in their application for revocation. Section 3 of the Infringements Act 2006 states,

special circumstances, in relation to a person means-

(a) a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness results in the person being unable-
(i) to understand that conduct constitutes an offence; or

(ii) to control conduct that constitutes an offence; or

(b) a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981 where the serious addiction results in the person being unable-

(i) to understand that conduct constitutes an offence; or

(ii) to control conduct which constitutes an offence; or

(c) homelessness determined in accordance with the prescribed criteria (if any) where the homelessness results in the person being unable to control conduct which constitutes an offence.

Interpreted literally, these criteria (apart from homelessness, which is defined in the Regulations) are up around the mental impairment mark, a high threshold to meet - and impossible without detailed reports. In practice, it should be readily apparent whether an applicant is experiencing problems that will make it difficult for them to pay their fines.

Further information about infringement proceedings can be found here.

3 comments:

Scott said...

Good Morning Dr Manhattan, the gulf between what is written and what is interpeted by the courts is vast. The majority of these applications are made to the court without the prosecution being a party to the proceedings and the court will wipe all fines from vicpol infringements or council matters but cannot wipe any copurt imposed fine on the mere raising of mental health or drug addiction. Ie It is nowhere near the burden of mental impairment, the court seems to rely on the fact on the person ability to pay in combination with their drug/mental health status.

Dr Manhattan said...

Thanks for the comment, Scott.

I certainly agree with you that the letter of the law isn't always applied in the courtroom and I freely admit that I don't have any personal experience of this process.

Having said that, I've spoken to (and occasionally assisted) a number of people before and after they have been before the Infringements Court (or the PERIN Court as it was known until recently). They describe a process that was fairly rigorous and relied heavily on being able to prove what they were saying. I've been left with the impression that having debts wiped clean is the rare exception rather than the rule.

Is it perhaps a case of YMMV (Your Mileage May Vary) depending on the merits of the case?

Anonymous said...

I have just received 57 Notices of Revocation Refusal from the Registrar.
All offences were committed by my estranged 42 year old son who I believe to be mentally ill. In any event, I provided the Registrar with a stat dec. and passport stamps in support of my case that I was living in the Northern Hemisphere at all relevant times (June 2010 to Nov. 30, 2012).

I gifted the relevant car to my son while I was living OS, but neglected to register a transfer of ownership. I have since done that.
I now live in Sydney on an aged pension. I have provided the Infingements Court with my son's birthdate but stated (as is the fact) that I do not know where he lives. What can I do now please?