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Oral examination, attachment orders and charges over property

Important changes from 31 December 2017

From 1 July 2017, the Infringements Act 2006 (Vic) was changed as part of Victoria's fines reform process, including new ‘social justice initiatives' that affect people experiencing vulnerability. On 31 December 2017, the Fines Reform Act 2014 (Vic) commenced, creating Fines Victoria. This resulted in significant further changes to the infringements system and substantially shorter timeframes for dealing with infringements and fines.

Please be aware of these reforms in relation to any infringements assistance that you are providing to your clients.

We are in the process of updating Homeless Law in Practice. 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.

Summons for Oral Examination

Section 120 of the Infringements Act permits the Infringements Registrar to issue a summons requiring a person to attend an oral examination if the Infringements Registrar does not have sufficient information to make a payment order, an attachment of earnings order or an attachment of debts order. A summons for oral examination must be served personally on a person (section 162(2)(b)).

If your client receives a summons for oral examination, your client will be required to provide to the Infringements Registrar on or before the day of oral examination a written statement containing details setting out their financial circumstances (see section 22 of the Infringements Regulations for exact requirements).

If your client fails to appear before the Infringements Registrar or does not comply with the summons, your client may be arrested (section 121). If your client is arrested, then the sheriff or police member has the discretion to release them if the person undertakes to attend the oral examination at the time and place specified in the arrest warrant. If this does not occur, then the person will be dealt with under the arrest provisions of the Magistrates' Court Act 1989 (Vic).

Attachment of earnings or debt orders

When can an attachment of earnings or debts order be made?

Under Part 10 of the Infringements Act the Infringements Registrar may make an attachment of earnings order or an attachment of debts order if:

  • the amount outstanding under the infringement warrant is not less than $1000 (Regulation 23 of the Infringements (General) Regulations 2006);
  • a seven day notice has been served; and
  • the person has failed to pay the fine or make an application for a payment order or revocation of enforcement order by the expiry of the seven days.

Further, an attachment of earnings order can only be made if the registrar has sufficient details of the person's financial circumstances (section 123).  As such, the Infringements Registrar may issue a summons for oral examination before making an order or may request details from the person's employer (section 125).

If your client's only income is a Centrelink benefit, the court cannot make an attachment of earnings order unless your client agrees to it.  Accordingly these orders are not often made against Homeless Law clients.

An attachment of debt order may only be made if a debt is due or accruing to your client from the garnishee (the person ordered by your client to pay your client money) and the garnishee is in Victoria (section 129).  A garnishee may apply to the Infringements Registrar within 14 days of service of the attachment of debt order to dispute liability and have liability determined (section 131). 

Who can make an application of earnings or debt order?

An attachment of earnings or debt order may be made on an Infringement Registrar's own motion or on the application of the sheriff, an enforcement agency or your client.  An attachment of earnings or debt order may also be varied, discharged or suspended by the Infringements Registrar on the Infringements Registrar's own motion, or on application of the sheriff or enforcement agency or your client (section 126 or 132 of the Infringements Act and section 25 or 28 of Infringement Regulations).

What happens if a person fails to comply with the order?

If the employer or debtor fails to comply with the order, he or she is guilty of an offence and can face 60 penalty units or 6 months imprisonment or both, unless he or she took all reasonable steps to comply with the order (sections 127 or 133). It is also an offence for an employer to terminate or alter a person's employment to the prejudice of the employee on the ground that the employer has to comply with an attachment of earnings order in relation to that person (section 128).

Infringement warrant stayed

If an attachment of earnings order is made, an infringement warrant may be stayed by the Infringements Registrar (section 128B or 133B).

Charges over, and sale of, real property

Charges over real property are a last resort. However, the court may order a charge to be placed over land that the person who owes money under an infringement warrant owns or co-owns. Such an order may be made on application of the sheriff, but only if seizure of personal property is not a reasonably practicable means of satisfying the warrant, or if other enforcement action pursuant to an infringement warrant or under Part 8 of the Infringements Act (suspension of driver's licence or registration) has not been successful or is impossible or inappropriate, and the amount owed is not less than the $10,000 (sections 134 and 135). 

Upon an application by the sheriff, a court may remove a charge if the amount outstanding has been paid, the person has died, the charge has expired or otherwise should be removed or in all the circumstances it is no longer appropriate for the charge to remain on the land (sections 138 and 139). If the charge remains on the land for more than three months and the amount owed under the warrant is still outstanding and the sheriff has attempted but has failed to recover the amount owing, then the sheriff may apply for, and the court may make, an order permitting the sale of the property (section 143) after having notified the owner or owners of the land of their intention to do so (section 144). 

If the land is sold, then the proceeds of the sale must be applied to pay in the following order:

  • the costs of the sale; then
  • any costs incurred by the sheriff; then
  • the outstanding amount on the warrant; and then
  • if there is any amount remaining, any person whose interest in the land was subject to the charge (section 146).