What options does your client have if a warrant has been issued but not executed?
It is important that you advise your client of the risks of enforcement if your client is issued with a warrant. If your client has been issued with a seven day notice, it is extremely important that you advise your client to take immediate action to avoid the warrant being executed prior to the expiry of the seven-day period including through one of the options outlined below.
If the warrant has not yet been executed, your client will have similar options as at the enforcement order stage, namely:
Contact the sheriff. Subject to the client’s instructions, it is worthwhile contacting the sheriff to inform them that you are assisting the client to prepare an enforcement review application and to ask for enforcement to be put on hold and a note of this to be made on their system. The sheriff will not usually guarantee that they will not execute the warrant but they will usually try to delay based on this request. It is important that you do not disclose your client’s current address in these conversations.
Apply for an enforcement review under s 32(1) of the FRA for cancellation of enforcement of the infringement fine and withdrawal of the infringement fine. This can be done if there are sufficient grounds including:
On the basis of special circumstances.
Exceptional circumstances apply.
The decision to issue the infringement was contrary to law or involved mistaken identity.
There is also a ‘person’ unaware ground however this will typically just result in the notice being reissued and will start the enforcement processes a fresh (see s 32(1)(d) and 38(2)(c) of the FRA).
Apply for a payment arrangement or an extension.
Make a Family Violence Scheme application.
Find a Work and Development sponsor and request that they sponsor a client’s Work and Development Permit.
Pay in full.
If your client has received a seven day notice, you should lodge an application for an enforcement review, a FVS application, a payment arrangement or arrange for a Work and Development Permit with the supporting material that is available (for example, a short letter from a GP setting out the client’s circumstances) as soon as possible within the seven day period.
You should not wait until you have comprehensive material as your client has very limited options after the expiry of the seven-day notice and even a brief application under the Family Violence or Work and Development Schemes or an application for enforcement review will result in a hold on execution whilst more evidence is requested.
In Homeless Law’s experience, the Director of Fines Victoria will request more information before considering the application for enforcement review, rather than reject the application outright. However, this should be balanced against the fact that an enforcement review application can only be made once in respect of any one infringement offence, except for applications made on the basis of special circumstances which can be made twice (see ss 33(1) and (2) of the FRA).
Pursuant to s 121(3) of the FRA an enforcement warrant cannot be executed against a fine defaulter if the fine defaulter has either:
made the first payment under a payment arrangement;
has not rejected a proposed payment arrangement under s 45(5)of the FRA;
has applied for a payment arrangement which has not been determined;
has applied for an enforcement review which has not been determined;
applied for a Work and Development permit (see s 10B(5) of the FRA); or
Once a warrant has been executed, your client will have very limited options. Significantly, your client will no longer be able to apply for an enforcement review, a payment arrangement, make a FVS application or apply for a Work and Development Permit on expiry of the seven-day notice period (see ss 32(4)(a), 10O(a), 42(3)(b) and 10B(2)(a)).