Oral examination, attachment orders and charges over property
Summons for Oral Examination
Pursuant to s 62 of the Fines Reform Act 2014 (Vic) (FRA) the Director of Fines Victoria may apply to the Magistrates Court for a summons to be issued requiring a person to attend an oral examination before the Magistrates’ Court if the Director has made a production of information direction and the fine defaulter has failed to comply with that direction. A summons for oral examination must be served personally on a person (s 179(2)(b) of the FRA). Note a Magistrate may also make an order that the summons be served by way of substituted service under s 180(1) of the FRA.
If your client fails to appear before the Magistrates’ Court as required, then the Magistrates’ Court may issue a warrant to arrest the person (see s 64(1) of the FRA). If your client is arrested, then the sheriff or police member has the discretion to release them if the person undertakes to attend the oral examination at the time and place specified in the arrest warrant under s 64(3) of the FRA. If this does not occur, then the person will be dealt with under the arrest provisions under s 65(1) of the Magistrates’ Court Act 1989 (Vic).
Attachment of earnings or debt directions
When can an attachment of earnings or debts direction be made?
Under Part 7 of the FRA the Director may make an attachment of earnings direction or an attachment of debts direction if:
the amount outstanding under the enforcement warrant is not less than $1000 (see rr 5 and 6 of the Fines Reform Regulations 2017(Vic) (FRR));
a notice of final demand has been served and has not been complied with;
the fine has been registered or a collection and enforcement order has been registered; and
the client has not applied for a payment arrangement or enforcement review.
This means that an attachment of earnings or debt direction can be made before an enforcement warrant is issued, so long as a notice of final demand has been served on your client which has not been paid (see the definition of a ‘fine defaulter’ under s 3(1) FRA). Once an attachment of earnings direction or attachment of debts has been made, your client can no longer apply for enforcement review, a Work and Development Permit or make an FVS application (see ss 10B(2), 10O and 32(4) of the FRA).
Your client may dispute the attachment of earnings direction within 14 days after service of the notice of attachment of earnings direction by making an application to vary or cancel the direction under s 68 of the FRA and r 18 of the FRR. The direction will be varied or cancelled if your client can demonstrate to the satisfaction of the Director that it would cause the fine defaulter to suffer financial hardship or result in the fine defaulter’s earnings falling below 75% of the maximum fortnightly basic rate of Newstart Allowance payable on 1 January in that year to a person who is partnered, has turned 21 years of age and is without dependent children (see ss 643 and 1068 of the Social Security Act 1991 (Cth) and 126.96.36.199 of the Social Security Guide).
An attachment of debts direction may only be made if the amount outstanding is greater than $100 and that amount is in an authorised deposit-taking institution (ADI) or a co-operative (see ss 78 and 79 of the FRA and r 5 of the FRR). The Director cannot make an attachment of debts direction unless the garnishee (the ADI or co-operative) is within Victoria (see s 78 of the FRA). Your client can apply to the Director to vary, cancel or suspend the direction under s 84 of the FRA.
Who can make an application of earnings or debts direction?
An attachment of earnings or debts direction may be made by the Director or on the application of your client. An attachment of earnings or debts direction may also be varied, discharged or suspended by the Director of Fines Victoria on the Director’s own motion or on the application of your client (see ss 70 and 84 of the FRA).
What happens if a person fails to comply with the direction?
If the employer or debtor fails to comply with the direction, they are guilty of an offence and can face 60 penalty units, unless they took all reasonable steps to comply with the direction (ss 72 and 85 of the FRA). It is also an offence for an employer to terminate or alter a person’s employment to the prejudice of the employee on the ground that the employer has to comply with an attachment of earnings direction in relation to that person (s 73 the FRA). This may be in addition to other remedies available to the employee under the Fair Work Act 2009 (Cth).
Enforcement warrant suspended if attachment of earnings direction made
If the Director makes an attachment of earnings direction, any enforcement action against the fine defaulter in respect of whom the attachment of earnings direction is made is suspended (s 77 of the FRA).
Charges over, and sale of, real property
Charges over real property are a last resort. However, the Director may apply to the Registrar of Titles for a charge to be placed over land that the person who owes money under an infringement warrant owns or co-owns. A land charge may only be applied for:
if the outstanding amount under the enforcement warrant is greater than $2,000; and
a notice of intention to charge the land has been served on your client; and
your client has not paid the registered fine or taken action within 7 days of the notice being served (ss 95 and 96 of the FRA and r 20 of the FRR).
Note your client cannot apply for an enforcement review, a Work and Development Permit or make an FVS application once a land charge has been recorded (see ss 10B, 10O and 32(4) of the FRA).
The Director must apply to the Registrar of Titles for the removal of the recording of a land charge over land to which the land charge applies if:
the outstanding amount is paid;
your client passes away,
the land charge should ‘otherwise be removed‘, or
the Director believe that in all the circumstances it is no longer appropriate for the land charge to remain on the land (see s 98(1) of the FRA).
If the land charge has been recorded for at least 28 days, the Director may serve a notice of intention to sell charged land on your client. The notice must be served personally and prescribe that your client has 14 days to make payment of any outstanding registered fine owed at the date of the notice before the Director applies to the Supreme Court for a land sale order (see s 101 of the FRA).
If the land is sold, then the proceeds of the sale must be applied to pay in the following order:
the costs of the sale; then
any costs incurred by the Director; then
the payment of any money due or owing on an existing mortgage or charge; then
the payment of the registered fine; and then
if there is any amount remaining, any person whose interest in the land was subject to the charge (s 105 of the FRA).