Recall and cancel warrants


There are two main legal avenues to ensure clients avoid imprisonment for unpaid fines. If an order was made under s 165(3)(e) of the Fines Reform Act 2014 (Vic) (FRA), a client can apply for a rehearing under s 167 of the FRA. However, if an order was made under s 165(1)(c), the rehearing provisions in the FRA don’t apply and a client can apply to have the warrant recalled and cancelled under s 58 of the Magistrates’ Court Act 1989 (Vic) (MCA).

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

There continues to be some uncertainty amongst Magistrates about whether, after cancelling a warrant under s 58 of MCA, they can re-open the original order under s 165 of FRA (to, for example, discharge the infringements under s 165(1)(a) of FRA) or whether their jurisdiction is limited to simply reinstating the existing payment arrangement.

For many of Homeless Law’s clients, re-instatement of the payment arrangement may not be an appropriate outcome because they are financially unable to keep up with the repayments.

Recall and cancellation of imprisonment warrants

In the matter of Forbes Application (Criminal) [2012] VMC 23 Magistrate Holzer held that Magistrates have the power to recall and cancel a warrant even after the warrant has been executed or partially executed pursuant to s 58 of the MCA.

As mentioned above, under s 58 of the of the Magistrates’ Court Act, a warrant issued by a registrar, Magistrate or bail justice may be recalled and cancelled by:that registrar, Magistrate or bail justice; or if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued or, (except in the case of warrant issued under s 106 of FRA, any other registrar; or any Magistrate.

In Forbes the Court stated that:

The best interpretation of the power to recall and cancel a warrant is, I think, based on the propositions that:

(i) the power is able to be exercised from time to time since no contrary intention is found in the section;

(ii) the principles of natural justice require a court to give an offender the opportunity of making representations before a judicial order is made against him or her;

(iii) automatic imprisonment of vulnerable offenders for non-payment of fines or non-compliance with other orders for payments of money should be resisted unless as a last resort (see Justice Emerton in Taha at [56]-[57] and the leading judgment of Lord Roskill in Re Wilson at 759;

(iv) the Infringements Act was not intended to imprison people who cannot understand the instalment order or control their affairs in a way which enables them to comply with the order;

(v) the Court has power to control its own processes to prevent injustice, despite any statutory limitations on jurisdiction;

(vi) the Court’s implied power to prevent an abuse of process;

(vii) Sections 32(1) and 21 of the Charter of Rights and Responsibilities Act 2006 supports such an interpretation;

(viii) such power exists whether the warrant is executed or not, as it does not become discharged or spent; and

(ix) Section 69 of the Sentencing Act 1991 is no longer contained within the same Division as Section 61, but now contained in a separate Division of Part 3B.

Based on the above propositions he found that: ‘I have power to consider the making of an order recalling and cancelling the warrant in question. There is no prohibition for the Court in issuing a fresh warrant for the same purpose as the recalled warrant s 58(1A) of MCA), and any fines, fees or costs again becoming enforceable (by analogy through s 58(4) of MCA).

Further, Magistrate Holzer stated that the discretion set out in s 58(1) of the MCA is unfettered and outlined a number of factors that may be relevant to the exercise of discretion in that case. They include:

The amount of the default;
The period of the default;
The reason for the default;

Any steps taken by the offender to address the default and the timing of any such steps; and
Any hardship or injustice that would result from the enforcement of the warrants.

In that case, the applicant had been diagnosed as having a borderline personality disorder, post traumatic stress disorder, and a substance disorder. She had been subject to a long-standing abusive relationship. After an imprisonment in default of an instalment order had been made, she had made two payments but was 12 days late for her third payment.The Court Registrar did not accept the third payment because a warrant had already been issued for her imprisonment under s 68(b) of the MCA. As there had only been one default in payment of $40 which was sought to be rectified promptly and the applicant was willing to comply with the payment plan, Magistrate Holzer ordered that the warrant to imprison be recalled and cancelled and that the instalment order be reinstated.

We note, however, that for many of Homeless Law’s clients, re-instatement of the payment plan may not be an appropriate outcome because they are financially unable to keep up with the repayments.

Application to have the original order varied or set aside

Subject to your client’s instructions, in addition to applying for the imprisonment warrant to be cancelled, you should make submissions requesting that the matter is re-opened (or that the original order is varied or set aside) and that a new order is made under s 165 of the FRA (for example, that the outstanding amounts are discharged or substantially reduced under s 165(1) of the FRA. Often it will be the case that the client was unrepresented at the initial hearing when the order was made and that their circumstances were not properly brought to the attention of the Court.

As noted above, there is uncertainty amongst Magistrates about whether, after cancelling a warrant under s 58 of MCA, they can re-open the original order under s 165 of FRA (to, for example, discharge the infringements under s 165(1)(a) of the FRA or whether their jurisdiction is limited to simply reinstating the existing payment arrangement).

A summary of the Supreme Court of Victoria Court of Appeal decision in Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37 (Taha) is in Hearing and sentencing under section 165.

While the main impact of Taha was that it created an obligation on Magistrates to make reasonable inquiries (including about a person’s special circumstances) when sentencing a person under s 160 of the then Infringements Act 2006 (Vic) (the predecessor to s 165 of the FRA), it is arguable that Taha also impacts on applications being made to recall and cancel a warrant under s 58 of the MCA. It is arguable that Taha can be relied on to support the submission that, after cancelling a warrant under s 58 of the MCA a Magistrate can re-open an order under s 165 of the FRA.

This may be done by relying on the decision in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 to assert that, because the decision was affected by jurisdictional error (i.e. the necessary inquiries about the person’s circumstances and lesser sentences under section 165 of the FRA were not made), there was no decision at all and, therefore, the decision is not being revisited, but rather made for the first time. Section 165 of the FRA, which was introduced post-Taha, has amended the statutory duty of inquiry, and Magistrates are now required under s 165(4) of the FRA to satisfy themselves that the client either has no capacity to pay or has a reasonable excuse for non-payment and under s 165(5) of the FRA that no other order under s 165 would be appropriate in all the circumstances before making and order for imprisonment under ss 165(1)(c) or 165(3)(e) of the FRA.

These arguments could be presented to the Court as part of the application for cancellation of the warrant and submissions about why the underlying order should be set aside or varied. These submissions should be supported with evidence regarding the client’s circumstances at the time of the offending, at the time of the initial hearing, during period of the default on the payment plan and presently.

See Application for rehearing about making submissions under s 165 of the FRA (in the event that the order is re-opened).

The process of making an application for the warrant to be cancelled and the order re-opened

This section provides a practical guide for handling a matter involving a warrant to imprison based on an order made under s 165 of the FRA  It is not an exhaustive guide (you still need to consider the other options available to your client), but it aims to give practical context to the key steps in these matters.

1. Provide initial advice

An example of the initial advice you might provide to the client (obviously subject to the client’s circumstances and instructions) is:

  • There are some limited options available, and one is to apply to the Magistrates’ Court to have the warrant recalled and cancelled. There might be scope to have the sentence amended, but this depends on many factors and will need to be considered in more detail.
  • The consequences of the client not acting on this matter will be that they are arrested and taken straight into custody for the imprisonment in lieu period on the warrant.
  • If the sheriff does contact them before they have a chance to see a lawyer, they must inform the sheriff that they are receiving legal assistance and ask the sheriff to call Homeless Law immediately for clarification.

 Suggested Steps

Subject to the client’s instructions, the lawyers should consider taking the following steps:

  • Contact the relevant Magistrates’ Court where the imprisonment in lieu order was made for a copy of the order and a copy of the formal sentencing extract of the s 165 hearing in order to determine whether the client was sentenced under ss 165(1)(c) or 165(3)(e) of the FRA;
  • If the client was sentenced under s 165(3)(e), they should apply for a rehearing under s 167;
  • Obtain copies of supporting documentation (including letters from the client’s health professionals and other support workers);
  • If the sheriff has already been in contact with the client, contacting the sheriff immediately and informing them that we will be assisting the client to apply to the Magistrates’ Court to have the warrant recalled and cancelled and asking whether there is scope to hold off from executing the warrant;
  • Advising the client of the limited options and legal uncertainty of these matters and the risk of imprisonment; and
  • Making an application to the Magistrates’ Court to have the warrant recalled and cancelled under s 58 of the MCA.

Making the application

Making an application to cancel the warrant under s 58 of the MCA is the often the best option to address warrants to imprison where a client cannot apply for a rehearing under s 167 of the FRA. There are, however, other limited options that may be available, including judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and these should also be considered.

The steps to apply to have a warrant recalled and cancelled under s 58 of the MCA are:

  • Prepare general application form to the Magistrates’ Court to have:
    1. The warrant recalled and cancelled under s 58 of the MCA; and
    2. The original orders varied or set aside and, in their place, an order made:
          • that the client’s fines be discharged pursuant to s 165 of the FRA (we note that some Magistrates have indicated that they do not have power to do this and will simply re-instate the existing payment order after cancelling the warrant); or
          • such other order in substitution as the court deems fit.

The application should be accompanied with an affidavit deposed by the client setting out the circumstances in which the infringements were incurred, including whether the client experienced special circumstances or other exceptional circumstances, information about when the order for imprisonment in lieu was made (including whether the client was represented at the hearing and understood the proceedings), information about why the client defaulted on the payment plan and information about the client’s current financial and other hardship (including any caring obligations or rehabilitation efforts). Supporting documentation should be annexed to the affidavit (for example, letters from the client’s GP, psychologist, drug and alcohol counsellor, other support workers or character referees).

The process for making this application is, as we understand it, is to:

  • Prepare the application and affidavit;
  • Arrange a time with the client (and, if relevant, counsel) to attend the Magistrates’ Court where the imprisonment order was made;
  • Contact the registry at the Magistrates’ Court to explain that you will be attending to apply for an imprisonment warrant to be cancelled and confirm the time is appropriate;
  • Attend court with the client (and, if relevant, counsel); and
  • After filing the application and affidavit and having the matter listed, appear in front of the Magistrate to make oral submissions.

If you need any assistance with recalling or cancelling warrants, the lawyer can contact our criminal lawyer for guidance. In some cases it may be appropriate for the criminal lawyer to settle the submissions and appear at the Magistrates’ Court. See Homeless Law’s Criminal Law Service for more information.

Not a lawyer?

Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.