Detention, immobilisation or sale of motor vehicle

If your client has received an enforcement warrant, Part 11 of the Fines Reform Act 2014 (Vic) (FRA) allows the sheriff or a police officer to detain or immobilise any motor vehicle which has been registered to your client. This applies regardless of whether a seven day notice has been served (see ss 126(1) and 127 of the FRA).

Similarly, Part 12 enables the sheriff or a police officer to remove a motor vehicle’s number plates, thus increasing the probability that the client will be intercepted by police and have an enforcement warrant executed against them. This action can also be taken whether or not a seven day notice has been served (see ss 139(1) and 140 of the FRA).

These actions may occur when a police officer intercepts the car being driven, or if the car is found parked, whether or not on private property.

Powers of the sheriff or police

The police member or a sheriff’s officer may do anything necessary to detain or immobilise the car, including clamping the wheels or removing it to a place of impoundment, regardless of whether the motor vehicle is attended or not (see s 127(1) of the FRA). Further, in order to detain, immobilise or seize your client’s car, the police officer or sheriff has the power to:

• Require your client to stop driving the vehicle; or
• Enter the motor vehicle, using reasonable force if necessary, for the purpose of moving the vehicle; or
• Direct the driver, or anyone in possession of the keys, to give them to a police member or sheriff; or
• Cause any locking device or other feature preventing the police officer or sheriff to detain immobilise or seize the vehicle to be removed, dismantled or neutralised; and
• Enter any place that is occupied by your client (whether or not with the consent of your client) or any other place with the consent of the owner or occupier or any public place (see s 128(1) of the FRA); or
• Do anything else reasonably necessary to detain, immobilise or seize a motor vehicle (see s 128(2) of the FRA.

The sheriff and or police may also use their power to tow under s 129 of the FRA, and tow your client’s vehicle to a compound for safe storage.

If a vehicle is detained or immobilised while unattended, the sheriff or police officer must attach a notice to the vehicle that includes the contact details of the sheriff and explains that the vehicle has been detained or immobilised because the registered operator has been issued with an infringement warrant (see s 130(1) of the FRA).

Note that s 136 of the FRA states that s 42 of the Supreme Court Act 1986 (Vic) (SCA) does not apply, meaning that your client cannot prevent their vehicle from being detained, immobilised or sold, even if it can be shown that the vehicle is their primary mode of transport and is valued at $7,900 or less (as of 1 July 2018) (See s 42(1) of the SCA, s 116(2)(ca) of the Bankruptcy Act 1966 (Cth) and rr 6.03B(3) and (4) of the Bankruptcy Regulations 1996 (Cth)).

Further note: if the sheriff has seized property under a vehicle seizure and sale notice, then your client can no longer apply for a Work and Development Permit, or make an FVS application or make an enforcement review application (see ss 10B, 10O and 32(4) of the FRA).

Removal of number plates

In addition to the above sanctions, the FRA introduced Part 12 which enables the sheriff or a police officer to remove a motor vehicle’s number plates under s 140 of the FRA. This sanction has the effect of increasing the visibility of the existence of your client’s infringement warrants and will increase the probability that your client will be intercepted by police and have an enforcement warrant executed against them. It is also a standalone offence under r 50 of the Road Safety (Vehicles) Regulations 2009 (Vic) to drive a motor vehicle without a number plate.

Removal of number plates also can also result in police ordering VicRoads to suspend your client’s registration pursuant to ss 142(b) and 143 of the FRA.

Release of the vehicle

The sheriff or police officer must release a vehicle if, within 7 days, any of the following occurs (see s 131(1) of the FRA):

• Payment in full of the outstanding amounts under the infringement warrant as well as costs of detention, immobilisation or impoundment (as applicable);
• The registered operator becomes subject to a payment order;
• An attachment of earnings order or an attachment of debts order is made in relation to the registered operator;
• An application for enforcement review results in enforcement cancellation;
• Seizure of property sufficient to satisfy the amount outstanding has occurred;
• The person is arrested;
• The warrants have been recalled and cancelled;
• The Sheriff, in their discretion, considers that it is otherwise appropriate.

Following release of the vehicle, the registered operator is liable for the costs of any detention, immobilisation or seizure pursuant to s 131(2) of the FRA.

The vehicle or item in the vehicle may also be returned, if the sheriff is of the opinion that the costs of the sale and amount outstanding under the infringement warrant is greater than the monetary value of the vehicle or the vehicle is of negligible monetary value (s 134 of the FRA).

It is extremely important to advise your client to take immediate action if their car has been detained, immobilised, towed or seized. Subject to the instructions of your client, it would be advisable to negotiate with the sheriff and make a case as to why their discretion should be exercised to release the vehicle pursuant to s 131(1)(h) of the FRA. Particularly if your client’s fines relate to family violence or if they are financially vulnerable or have a particular need for their vehicle (medical or otherwise), or if they are homeless and are currently sleeping in their motor vehicle. The sheriff or police may also be more willing to exercise this discretion if an oral undertaking is given that the client will without delay apply for enforcement review, apply under the FVS, or for a WDP or for a payment arrangement.

Warrant not yet been executed

If the seven-day notice has not expired, the warrant has not yet been executed, no attachment of earnings or debts directions have been made, no land charge is recorded or no property has been seized under a vehicle seizure and sale notice (below), then your client can take one of the following courses of action:

1. 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 may try to delay based on this request. It is important that you do not disclose your client’s current address in these conversations.
2. Apply for an enforcement review under s 32 of the FRA for the cancellation of the enforcement of the infringement fine and withdrawal of the infringement fine if there are sufficient grounds (including on the basis of enforcement review for special circumstances or because your client was not the driver of the vehicle at the time of the offence).
3. Make a FVS application.
4. Apply for a payment arrangement.
5. Apply for a Work and Development Permit.
6. Pay in full.

Sale of vehicle or items left in the vehicle

If no action is taken by the end of the 7 days, then the sheriff may seize the vehicle or any item left in the vehicle and, after serving a notice of seizure and intention of sale and publishing a notice of intention to sell in a newspaper circulating generally in the State, sell the vehicle or items left in the vehicle (s 132 of the FRA).

Any third party buyer who buys in good faith without notice of any defect or want of title acquires good title (s 137 of the FRA).

Moneys from such a sale may be applied to the amount outstanding under the warrant (after the costs of impounding and selling the vehicle have been paid) and any amount remaining may be given to the registered operator (s 135 of the FRA).

Third party may recover vehicle

If a third party was entitled to the vehicle (or item in the vehicle) that has been detained, immobilised or seized and has satisfactory evidence of his or her entitlement, then the sheriff must release the vehicle or item (s 133 of the FRA).