Infringements

Infringements

Cancel Loading...

Application for revocation of an enforcement order

Sufficient grounds for revocation

The Infringements Registrar must revoke (or cancel) an enforcement order if it is satisfied that there are "sufficient grounds for revocation" (section 66).  What constitutes "sufficient grounds for revocation" is not defined under the Infringements Act but it is understood to mean where the person did not commit the offence or had a valid reason for committing the offence or had mitigating circumstances.  This includes where:

  • the person had "special circumstances" at the time of the offence that resulted in the person being unable to understand or control the conduct that constituted the offence; or
  • the person was not the driver of the vehicle at the time of the offence.

An application for revocation can be made either by your client or, in the case of special circumstances, by a third party such as a lawyer on behalf of your client (section 65). 

An enforcement agency can apply to the court for revocation (cancellation) of the enforcement order (section 65).  Where the enforcement agency requests revocation of the enforcement order, the Infringements Court must grant the request (section 66(1)).  The Infringements Registrar may also decide to revoke the infringement on his or her own motion (section 64). 

A person can make two applications for revocation in respect of the same enforcement order (section 65(4)).  This is particularly important where a client has made an unsuccessful application prior to seeking legal assistance.  It is also relevant if you make an application for revocation on behalf of your client that is rejected and you later obtain stronger evidence to support the application.

If your client has made two applications in respect of the same enforcement order, the person must obtain the leave of the court before filing a third or subsequent application (section 65(4)). 

How to make an application for revocation

An application for revocation under section 65 of the Infringements Act must be in the form of a written statement setting out the grounds on which the revocation is sought.  An application form is available here.

If your client is applying on the grounds of special circumstances, the application can be made by a third party.  If the application is on other grounds, the application must be made by the person named in the enforcement order (but you can still assist your client with the application). 

Your client will need to be able to provide clear evidence that he or she did not commit the offence or had a valid reason for committing the offence or had mitigating circumstances.  If your client is applying on the grounds of special circumstances or because he or she was not the driver, click on the links for specific information that your application should include.

Applications for revocation under section 65 of the Infringements Act must be sent to:

Infringements Registrar
Infringements Court
PO Box 14487
Melbourne City Mail Centre VIC 8001

When is the option to apply for revocation not available?

Warrant has been executed

An application for revocation under section 65 of the Infringements Act can be made at any time until an infringement warrant has been executed.  This means that an application for revocation can still be made if a warrant has been issued and a seven day notice has been served but before:

  • property has been seized (except for seizures made during a seven day notice period pursuant to section 89);
  • a notice of sale has been served pursuant to section 101(2);
  • an attachment of earnings order or an attachment of debts order has been made (pursuant to Part 10);
  • an order under section 136 that land is subject to a charge has been made; and
  • a person has been arrested (section 64).

Once these enforcement actions have taken place, your client will have limited options: see here for more details.

An application for revocation can, however, still be made if a seven day notice has been served or the person's driver's licence or vehicle registration has been suspended or their vehicle's wheels have been clamped.  If one of these things has happened it is important to act urgently - there is seven days to lodge the application for revocation and your client's options will be severely limited if the warrant is executed.

Drink-driving, drug-driving or excessive speed infringements

If your client has drink-driving, drug-driving or excessive speed infringements, your client is not eligible to apply for revocation of an enforcement order.  While it is still possible for an enforcement agency to make an application for revocation (section 63A), this rarely happens. 

If your client has drink-driving, drug-driving or excessive speed infringements, your client is still eligible to apply for a payment order, extension of time or waiver/reduction of prescribed fees. 

What happens if the Infringements Registrar is satisfied that there are sufficient grounds for revocation?

If the Infringements Registrar is satisfied that there are sufficient grounds for revocation, the Infringements Registrar must revoke the enforcement order under section 66 of the Infringements Act.   The Infringements Registrar must notify the enforcement agency, the client and the person who made the application on behalf of the client (eg. the HPLC lawyer) that the enforcement order has been revoked and the underlying infringement offence has been referred to court for hearing and determination.

Except in the case of driving offences where the Infringements Registrar is satisfied that the applicant was not the driver and has nominated another driver (section 66(4)(b)),the Infringements Registrar does not hold the power to withdraw or dismiss an infringement notice and must notify the enforcement agency and the applicant that the enforcement order has been revoked and referred to court. 

The enforcement agency may, within 21 days of being notified of the revocation, request the Infringements Registrar not to refer the matter to the court (section 69). If this occurs, the infringement notice will be withdrawn and the matter will effectively come to an end.  If the enforcement agency does not make such a request, the matter will be listed for hearing in the Magistrates' Court.  If the application for revocation was made on the basis of special circumstances, the matter will be listed in the Special Circumstances List. See 'going to court' for more information on this process.

What happens if the Infringements Registrar is not satisfied that there are sufficient grounds for revocation?

If the Infringements Registrar is not satisfied that there are sufficient grounds for revocation, the Infringements Registrar must notify the applicant in writing that the enforcement order has not been revoked because there are insufficient grounds (section 66(3)). 

If the Infringements Registrar decides that there are not sufficient grounds to revoke the enforcement order but that there are sufficient grounds to vary the prescribed costs or the prescribed fees on any infringement warrant, the Infringements Registrar must vary the costs or the fees and notify the applicant.  The person then has 28 days to pay the infringement penalty together with the costs or fees as varied (section 67(2)).

If a person receives a notice under sections 66(3) or 67(2) (respectively that the enforcement order is not revoked because of insufficient grounds or that there are insufficient grounds to revoke, but that the prescribed costs or fees have been varied), your client may apply in writing within 28 days to have the application for revocation referred to open court for hearing and determination (section 68) and the Infringements Registrar must make this referral.  If the application is made more than 28 days after the date of the notice but within three months, then the Infringements Registrar has the discretion to refer the matter to open court.  An application under section 68 cannot be made later than three months after the notice is received.

If your client instructs you to make such an application, you should ensure that you have a record of sending this letter to the Infringements Registrar so that you can prove that the request was made in time.  Once you receive a hearing date, you should send a short letter to the relevant enforcement agencies notifying them of the hearing date and that you will be requesting that, if the Magistrate grants the revocation of the enforcement orders, you will be requesting that the underlying infringements are also dealt with at this hearing (otherwise, there is a risk that they will say that they were not on notice, do not have the file and are unable to proceed on the day). 

For more information about what might happen at an open court hearing, see here.

Alternatively, if a client has previously made an application for revocation, but you understand that new supporting material is now available or stronger arguments could be made, you can consider making a second application for revocation under s 65(4) of the Infringements Act.  If the second application is rejected, the options for having the matter referred to open court under section 68 will still apply.