Summary of options for dealing with section 165 imprisonment warrants
A vast amount of imprisonment matters that Homeless Law runs involve situations where an imprisonment in lieu order has been made under ss 165(1)(c), 165(3)(e) and 165A(2)(b) of the Fines Reform Act 2014 (Vic) (FRA). More information in Hearing and sentencing under section 165.
Some options that may be available to clients who have been issued with warrants to imprison which are to:
Negotiate with the sheriff to hold off enforcement to allow the client to get the money together or consider other options;
Negotiate with the registrar at the Melbourne Magistrates’ Court to recall the warrant and re-start a payment plan, however, we have had only occasional success with this option;
In practice, the three main legal avenues Homeless Law use for addressing warrants to imprison under s 165 are:
Applying for a rehearing;
Applying vary the instalment order; or
Applying to have the warrant recalled and cancelled.
It is important to note that your client does not have the option to appeal the judgment made by a Magistrate at a s 165 hearing to the County Court or Supreme Court on the merits since there is no right to appeal contained in the FRA and because ss 254(1) and 272(1) of the Criminal Procedure Act 2009 (Vic) do not apply to an order under s 165 of the FRA because it is not a criminal proceeding (see Fernando v Port Phillip City Council & Ors [2011] VSC 592 [30]-[39]).
Instead as occurred in Fernando the decision of the Court would need to be judicially reviewed under Order 56 of the Supreme Court (General Civil Procedure) Rules. Judicial review can be complex and typically should be supported by an opinion from counsel. Speak with Homeless Law staff and your supervising lawyers before taking such action.