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If your client has been served with a Notice of Final Demand, they may apply to the Director of Fines Victoria for a review of the decision of the enforcement agency to serve the infringement notice and enforce that notice under s 32 of the Fines Reform Act 2014 (Vic) (FRA).
The most common basis for enforcement review for Homeless Law clients is on the basis of ‘special circumstances’. Under s 3A of the Infringements Act 2006 (Vic) (IA), ‘special circumstances’ is defined as:
The definition of ‘special circumstances’ is discussed in further detail under Special circumstances, exceptional circumstances and supporting documentation.
An application for enforcement review on the basis of special circumstances may be made by a person acting on the applicant’s behalf, such as a lawyer, case worker, parent or guardian, medical practitioner, financial counsellor or psychiatrist.
The application does not need to be accompanied by a statutory declaration. An application form can be downloaded from Fines Victoria.
The critical part of a special circumstances application is to satisfy the definition of ‘special circumstances’ under s 3A of the IA, in particular articulating the causal connection between the person’s condition and how that contributed to that person’s reduced capacity to understand and/or control the conduct that constitutes an offence.
As such, Homeless Law lawyers should write a letter accompanying the application form which explains that:
The below template letter provides an example of how this causal connection between a person’s condition and the offending conduct can be explained when applying for enforcement review on the basis of special circumstances.
If the special circumstances application relies on the long term circumstances category (s 3A(e) of the IA) Homeless Law lawyers should write an accompanying letter which explains that:
Other information that may be included in the cover letter accompanying the application for enforcement review includes:
It is also extremely important to provide support letters or reports for the application (see supporting documentation).
Before making the application, make sure you give the client clear advice regarding key considerations such as the risks of going to court. Once the advice has been given to the client, you should ensure you have obtained their express instructions to lodge the application.
Note that if an internal review based on special circumstances is successful, no demerit points are accrued.
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