Infringements

Infringements

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Detention, immobilisation or sale of motor vehicle

Important changes from 1 July 2017

From 1 July 2017, the Infringements Act 2006 (Vic) will be changed as part of Victoria’s fines reform process, including new ‘social justice initiatives’ that will affect people experiencing vulnerability. Please be aware of these reforms in relation to any infringements and fines assistance that you are providing to your clients.

Justice Connect Homeless Law pro bono lawyers should read our further materials about the changes here (password needed), before doing any fines work after 1 July 2017. Please speak to your supervising lawyer, team leader or Homeless Law staff for more information.

If your client has received an infringement warrant, Part 7 of the Infringements Act allows the sheriff or a police officer to detain or immobilise any motor vehicle which has been registered to your client, regardless of whether a seven day notice has been served (section 95).  This may occur when a police officer intercepts the car being driven, or the car is found parked. 

Powers of the Sheriff or police

The police member or a sheriff’s officer may do anything necessary to detain or immobilise the car, including clamping the wheels or removing it to a place of impoundment, regardless of whether the motor vehicle is attended or not (section 96).  Further, in order to detain, immobilise or seize your client's car, the police officer or sheriff has the power to:

  • Require your client to stop driving the vehicle;
  • Enter the motor vehicle, using reasonable force if necessary, for the purpose of moving the vehicle;
  • Direct the driver, or anyone in possession of the keys, to give them to a police member or sheriff;
  • Cause any locking device or other feature preventing the police officer or sheriff to detain immobilise or seize the vehicle to be removed, dismantled or neutralised; and
  • Enter any place that is occupied by your client (whether or not with the consent of your client) or any other place with the consent of the owner or occupier or any public place (section 97).

If a vehicle is detained or immobilised while unattended, the sheriff or police officer must attach a notice to the vehicle that includes the contact details of the sheriff and explains that the vehicle has been detained or immobilised because the registered operator has been issued with an infringement warrant (section 99).  

Note that section 105 of the Infringements Act states section 42 of the Supreme Court Act does not apply meaning that your client cannot prevent their vehicle from being detained, immobilised or sold, even if it can be shown that the vehicle is their primary mode of transport and is valued at $7,600 or less (as of 1 July 2015).

Release of the vehicle

The sheriff or police officer must release a vehicle if, within 7 days, any of the following occurs:

  • Payment in full of the outstanding amounts under the infringement warrant as well as costs of detention, immobilisation or impoundment (as applicable);
  • The registered operator becomes subject to a payment order;
  • An attachment of earnings order or an attachment of debts order is made in relation to the registered operator;
  • An application for revocation of the enforcement order is granted;
  • An application against a refusal to revoke an enforcement order is granted;
  • Seizure of property sufficient to satisfy the amount outstanding has occurred;
  • The person is arrested;
  • The warrants have been recalled and cancelled by the Infringements Registrar; or
  • The Sheriff, in his or her discretion, considers that it is otherwise appropriate (section 100).

Following release of the vehicle, the registered operator is liable for the costs of any detention, immobilisation or seizure.

The vehicle or item in the vehicle may also be returned if the sheriff is of the opinion that the costs of the sale and amount outstanding under the infringement warrant is greater than the monetary value of the vehicle or the vehicle is of negligible monetary vehicle (section 103). 

It is extremely important to advise your client to take immediate action if his or her car has been detained, immobilised or seized.  Subject to the instructions of your client, it would be advisable to negotiate with the sheriff and make a case as to why their discretion should be exercised to release the vehicle, particularly if your client is financially vulnerable and has a particular need for his or her vehicle.  If the warrant has not yet been executed, your client should also take, subject to instructions and circumstances, one of the following options:

  1. Contact the sheriff: Subject to the client's instructions, it is worthwhile contacting the sheriff to inform them that you are assisting the client to prepare a special circumstances application and to ask for enforcement to be put on hold and a note of this to be made on their system. The sheriff will not usually guarantee that they will not execute the warrant but they will usually try to delay based on this request.  It is important that you do not disclose your client's current address in these conversations. 
  2. Apply for revocation (or cancellation) of the enforcement orders if there are sufficient grounds (including on the basis of special circumstances or because your client was not the driver of the vehicle at the time of the offence.
  3. Apply for a payment plan or an extension.
  4. Pay in full.

Sale of vehicle or item left in the vehicle

If no action is taken by the end of the 7 days, then the sheriff may seize the vehicle or any item left in the vehicle and, after serving a notice of seizure and intention of sale and publishing a notice of intention to sell in a newspaper circulating generally in the State, sell the vehicle or item left in the vehicle (section 101).  Any third party buyer who buys in good faith without notice of any defect or want of title acquires good title (section 106).

Moneys from such a sale may be applied to the amount outstanding under the warrant (after the costs of impounding and selling the vehicle have been paid) and any amount remaining may be given to the registered operator (section 104).

Third party may recover vehicle

 

If a third party was entitled to the vehicle (or item in the vehicle) that has been detained, immobilised or seized and has satisfactory evidence of his or her entitlement, then the sheriff must release the vehicle or item (section 102).