Summary of options

Infringements and penalty reminder notices

If an infringement is at notice or penalty reminder notice stage, your client has the following options:

1. apply to the enforcement agency for internal review or withdrawal of the fines, including if your client:
   1. was unaware that the infringement notice had been issued;
   2. there was a mistake of law;
   3. there was a mistake of identity (ie where the person did not commit the offence – note that for parking or infringement notices where identity of the person cannot be ascertained for nomination purposes, an unknown user nomination statement should be lodged rather than internal review);
   4. has ‘special circumstances‘ that contributed to the commission of the offence or make it impracticable to pay the infringement penalty; or
   5. the conduct for which the infringement notice was served should be excused having regard to any exceptional circumstances relating to the infringement offence.
2. elect to have the matter referred to open court;
3. apply to the agency for an extension of time or payment plan;
4. apply through an accredited sponsor for a Work and Development Permit (WDP);
5. apply to the Family Violence Scheme (FVS)
6. if your client was not the driver, nominate another driver (noting the timeframes that apply in relation to this option); or
7. pay in full.

Notice of Final Demand

If the infringement is at the notice of final demand stage, your client has the following options:

1. apply to Fines Victoria for an enforcement review if there are sufficient grounds (remember that fines for excessive speeding or drink/drug driving are not eligible for an enforcement review), including if your client:
   1. was unaware that the infringement notice had been issued;
   2. there was a mistake of law;
   3. there was a mistake of identity (ie where the person did not commit the offence);
   4. has ‘special circumstances‘ that resulted in the commission of the offence; or
   5. the conduct for which the infringement notice was served should be excused having regard to any exceptional circumstances relating to the infringement offence.
2. apply to Fines Victoria for an extension of time, payment arrangement or fee waiver;
3. apply through an accredited sponsor for a Work and Development Permit;
4. apply to access the FVS;
5. have the fine resolved through the time served scheme if your client is in prison or was released in the last 6 months; or
6. pay in full.

Note that under the new fines system, enforcement action may be taken once a Notice of Final Demand is issued, including vehicle registration suspension, driver’s licence suspension, attachment of earnings directions, attachment of debts and charges over land.

Enforcement warrants

If your client presents with an enforcement warrant, you should take action immediately due to the risk of enforcement action and the warrant being executed. Note that once a 7 day notice expires, the options for dealing with the fines are extremely limited.

1. Advise your client that:
   1. there is a risk that enforcement action will be taken, including detention, immobilisation and sale of vehicles (e.g. wheel clamping), number plate removal, property seizure and arrest.
   2. if your client receives a seven day notice (i.e. a notice personally served by the Sheriff) they should contact you immediately. If the client takes no action, after expiry of the seven day notice, the warrant will be executed and then:
      1. your client will be arrested and released on a Community Work Permit; or
      2. your client will be arrested and brought before a court to be dealt with under s 165 of the Fines Reform Act (Vic) (FRA), which may result in an imprisonment in lieu order.
2. Take action to deal with the fine as soon as possible, including:
   1. Apply to Fines Victoria for an enforcement review if there are sufficient grounds (remember that fines for excessive speeding or drink/drug driving are not eligible for an enforcement review), including based on special circumstances;
   2. Apply for an extension of time, payment arrangement or fee waiver;
   3. Apply through an accredited sponsor for a WDP;
   4. Apply to access the new FVS;
   5. Have the fine resolved through the time served scheme if your client is in prison or was released in the last 6 months; or
   6. Pay in full.

Seven day notices

If a client has personally been served with a 7 day notice by a Sheriff’s Officer, they must take action before the expiration (not execution) of that 7 day notice.

The same options are relevant as for Notices of Final Demand and enforcement warrants but it is urgent. Once seven days have passed since the client was served with the notice, they will have no options available to deal with the fines except to be arrested and either released on a Community Work Permit or arrested and bailed to appear in court under s 165 of the FRA, which may result in an imprisonment in lieu order.

Subject to instructions, you should take immediate steps to address your client’s infringements (for example, by lodging a special circumstances application).

Driving offences where the client wasn’t the driver

If your client has infringements for driving offences and instructs that they can establish that they were not driving the car at the time of the offence, strict timeframes apply to nominate another driver (for some offences this is 28 days). You should make sure that your client is advised of the applicable timeframes and that the necessary steps are taken within these timeframes.

If a Notice of Final Demand has been made, please be aware that your client cannot nominate another driver.

If your client is unable to nominate the other party because your client was in a violent relationship with the nominated person, your client should apply to the FVS.

Excessive speeding or driving under the influence of drugs or alcohol

Options for dealing with these infringements are limited:

1. Apply for payment arrangement with Fines Victoria;
2. Apply to have the related fees waived (s 9 of FRA), which can significantly reduce the amount owed;
3. Apply for a WDP.

Note that for these infringements, you cannot apply for internal review or enforcement review, nor can you apply under the FVS. If family violence is a relevant consideration (ie, an infringement for excessive speeding or DUI was received and the client cannot nominate due to family violence, the client may need to elect to go to court).

Court fines

In relation to fines imposed by the Court under the Sentencing Act 1991 (Vic) (SA) (i.e. open court fines), your client has the following options:

1. Apply to Fines Victoria for a payment arrangement where available;
2. Apply to the Magistrates’ Court for a payment arrangement or variation or cancellation of an existing payment order;
3. Apply for conversion of the fine to a Community Work Order (conversion order);
4. If the fines were imposed ex parte and the client has a valid reason for non-appearance, then apply for a re-hearing;
5. Resolving the fines through the time served scheme if your client is in prison;
6. Appeal the decision to the County Court or the Supreme Court; or
7. Pay in full.

Note that it is not possible to apply for revocation of fines imposed by a court as a sentencing disposition under the SA.

If no payment arrangement was ordered by the Magistrate at the time the fine was imposed, then your client will need to apply to the Magistrates’ Court in relation to a payment arrangement where:

• a court fine was issued before 2018, and
• your client has defaulted on payment; and
• an enforcement action has been taken (e.g. a warrant to arrest has been issued).

If no payment arrangement was ordered by the Magistrate at the time the fine was imposed, your client will need to apply to Fines Victoria for a payment arrangement for:

• a court fine issued before 2018 where no enforcement action has been taken but the fine has been registered with Fines Victoria; or
• for a court fine issued after 2018.

Warrants to imprison

When your client presents with warrants to imprison for default of a payment or instalment order made by the Court, it means that your client can be sent directly to prison without further hearing. There are two main ways that a person can become subject to an imprisonment in lieu order:

• A Magistrate has sentenced your client under s 165 of the FRA after your client was arrested through the execution of an enforcement warrant and brought to appear before the Magistrates’ Court; or
• A Magistrate has sentenced your client in an open court hearing under the SA (typically s 69).

When your client presents with a warrant to imprison, advise the client as a priority that these matters are serious, there are limited legal options and there is a risk that they could be imprisoned without being brought back before the court. You should determine how the warrant was made and then immediately advise your client about their options.