Apply for a rehearing – warrants

If the client was sentenced under s 165(3)(e) of the Fines Reform Act 2014 (Vic) (FRA), they can apply to have the matter reheard under s 167 of the FRA on the basis that:

  1. At the time of hearing, the person (a) had a mental or intellectual impairment, disorder, disease or illness; or (b) without limiting (a) the person had special circumstances applied to the person, which were not taken into account or was not before the Magistrates’ Court at the time of the s 165 hearing; or
  2. At the time of the s 165 hearing, evidence was not taken into account or before the Magistrates’ Court so as to make the decision to imprison the person in default excessive, disproportionate and unduly harsh.

If the client was sentenced under s 165(3)(e) of the FRA, a client can apply to have the warrant recalled and cancelled under s 58 of the Magistrates’ Court Act 1989 (Vic).

These applications for rehearing involve presentation of detailed affidavit material from the client, including supporting material provided by treating professionals, support workers or character referees.

Any warrant to imprison issued under s 165A(2)(a) of the FRA must be recalled and cancelled on the filing of an application for rehearing (s 167(5)(a) of the FRA). Similarly, any instalment order under s 165A(1) of the FRA will be stayed on filing an application for rehearing (s 167(6)(a) of the FRA).

If the Court is satisfied on the balance of probabilities that a ground in s 167(3) of the FRA has been established, the Court may cancel the order and exercise any power available under s 165 of the FRA (s 168 of the FRA).

If the application is struck out or refused, the warrant to imprison may be reissued (s 168(2)(b) of the FRA).

If the client fails to appear at the time fixed for the rehearing of the matter and the rehearing is struck out, they may re-apply if they first obtain the leave of the court (ss 167(4) and 168(4) of the FRA).

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