One of the most common types of matters to come before the Magistrates’ Court relates to infringements and fines.
These infringements can arise due to speeding fines, red light camera offences, parking fines and (overwhelmingly) unpaid tolls (Eastlink and Citylink). Most recently, the Victorian Ombudsman released a report confirming that the activities of private debt collection companies on behalf of Councils is and always has been illegal. Accordingly, millions of dollars have to be repaid to those who have unsuccessfully appealed parking tickets to private companies. This is just one example of how the law in this area is constantly changing.
The Infringements Act 2006 (VIC) regulates the Infringements system, including the procedure and available options to people faced with an infringements notice.
Much confusion arises in relation to these types of offences, and we are here to help no matter what your circumstance.
Some of the common queries we deal with relate to clients who have accumulated a large number of infringements, wish to dispute a particular infringement or fine, or wish to apply for revocation. The infringements procedure can be complicated and difficult to understand, and we seek to provide clarity to our clients in concisely explaining available options to them. Ultimately, it will depend on the type of infringement you have received and the stage in infringement process it has reached (i.e. is it the first notice or are you at a warrant stage). Overwhelmingly, by receiving competent legal advice and representation, you can significantly reduce the total cost of the fines.
Life can be overwhelming and we understand that most people want to put their heads in the sand when they see the Victoria Police or Court envelopes arrive in their letterbox. However, often there is a straightforward way to reduce the total amount of tolls (and accordingly the amount you have to pay) and to streamline the process so that you can manage any outstanding toll debts and enter into a payment plan that is manageable and affordable. Please do not hesitate to contact our office to make an appointment to discuss your matter.
Companies -v- the individual
The options available to individual drivers differ from those options available to companies, where company vehicles have been detected committing traffic offences. There are payment plan options that the individual can access that a company cannot. Similarly, because a company that operates several vehicles may not be able to nominate a driver of a company vehicle who accumulated an infringement, such as a speeding fine or red light camera fine, there are particular penalties that can attach to companies in these circumstances by virtue of the fact that companies cannot accumulate demerit points.
In our view companies MUST keep a record of their drivers, the dates and times that they are driving a vehicle, the vehicle registration plate of the vehicle being driven and, a copy of the drivers licence of the driver. By having these details, the company can nominate a driver personally responsible for a traffic infringement, saving the company a considerable degree of hassle and expense. We have had cases come through our office where a particularly reckless employee driver has accumulated an incredible number of infringements whilst driving a company vehicle. However, because the company did not keep records of exactly when this employee was driving, nor did they take a photocopy of their driver’s licence, they were unable to nominate that person. The company may have dismissed the employee, but they were still left with the significant fines to pay, whilst the employee’s bank balance, licence and demerit points (in particular) were unaffected. It is always sensible to keep diligent records of employee drivers if for no other reason than it acts as a deterrent against disobeying the road rules whilst operating a company vehicle.
Individuals on the other hand may have their driver’s licences affected by the accumulation of infringements, may be personally prosecuted for infringements, risk having their belongings seized by the Sheriff and, in extreme cases, be imprisoned in lieu of payment! This is particularly so if you have accumulated a large number of toll infringements.
I have received an infringement notice- what are my options?
Infringement Notices are issued by the Victoria Police in its capacity as an Enforcement Agency, most particularly through the Traffic Camera Offie. Infringement Notices can be issued in relation to speeding fines, red camera fines, other miscellaneous road traffic fines and also in relation to Tollway offences (see below for information specific to toll matters). It is worth noting that Official Warnings can be given in lieu of an Infringement Notice if you are alleged to have exceeded the speed limit by 10 kilometres or less. Whether you are eligible for a Warning depends on a number of factors, so visit the relevant website for more information.
Even if you have just been served with an Infringement Notice, you can apply to have the matter heard in Court. This is usually worthwhile if you have received a significant number of Infringement Notices and you wish to have the overall amount reduced and a payment plan implemented. Remember that the longer you wait in the infringement process to settle the matter, the more costs will be incurred.
The legislative framework in Victoria provides a number of avenues when dealing with an Infringement Notice. If you have missed the deadline for paying a penalty, there are ways in which to apply for a review of the infringement, negotiate a payment plan, to apply for a revocation, or to dispute the issuing of the infringement and proceed before the Magistrates’ Court. Importantly, you may have ‘special circumstances’ or ‘exceptional circumstances’ which will impact on your ability to pay an infringement, and could result in 2/3 or even the entirety of the infringements being struck out. It is vital that you seek legal advice to determine whether this applies to your personal situation.
For further information on available options, see the Victorian Government website.
It is important that if you have received an Infringement notice, you act upon resolving the issue as quickly as possible. The available outcomes vary at the different stages of the process, which is why you should obtain the appropriate advice at the earliest possible stage in the proceedings so that we can provide you with the best advice.
Tolls, tolls, tolls…
The toll infringement system in Victoria creates incredible challenges for the criminal justice system and produces by far the most infringements to come before the Court. From the outset, without becoming too political, it has not escaped our notice that Toll companies are afforded a publicly funded, harsh and powerful debt collection system. By virtue of the legislation passed in relation to tollways, private toll companies can make billions in profits and then utilise the Victoria Police and the Sheriff’s Office to debt collect for them. So not only does the public pay for the tollway, we pay for these companies to debt collect through the Courts without paying any legal or Court fees. What other private company can boast the same privilege?
It is also apparent that incredible fees are generated from toll infringements: “administration fees”, “penalty fees”, “court fees”. These convert a toll that was perhaps $12-13 into an infringement that can increase to $150-250!
In these circumstances, it is understandable that it becomes all too much for those in the community who (admittedly) have not paid to use the tollway, but then are served with thousands and sometimes tens of thousands of dollars in “infringements”. A ten minute trip on the Eastlink all of a sudden costs you more than a return trip to Noosa!
However, there are options available to you to appeal an infringement, apply for revocation of an enforcement order or to have the matter heard in Court before a Registrar or Magistrate.
Toll Invoice / Overdue Notice /Final Notice
If you are alleged to have driven on the tollway without an active toll account (either by way of an e-tag or licence plate recognition account), the first thing you will receive is a toll invoice. On the back of the first page, you will see that it lists the date the toll was incurred, the vehicle licence plate and the total due. On the front page, you will see that there is an invoice number, which is the reference number at this stage of the process. If you don’t pay you initial Toll Invoice, you will be sent an Overdue Notice, that will charge a further amount (usually $4-10 on top of the initial Toll). If you don’t pay the Overdue Notice, you will usually be sent a Final Notice.
Most people don’t know this but both Citylink and Eastlink operate under their own legislation:
Why is this relevant? Both Acts contain provisions in relation to toll offences, what evidentiary burden is placed on the tollway to prove that you in fact drove on it and defences available to a person served with a Toll Invoice or Overdue Toll Invoice. For example, section 204(4) of the Eastlink Project Act 2004 provides that it is a defence to an offence of driving an unregistered vehicle on the tollway if the drivelled believed on reasonable grounds, at the time of the offence, that the vehicle was registered and subject to a tollway billing arrangement. Depending on your particular case, you may want to check these Acts to see whether they provide a defence. You can then contact the Tollway directly and raise it with them, if you object to the Toll Notice, and you may avoid it being referred to the Victoria Police Traffic Camera Office.
Infringement Notice from the Victoria Police
Once the Tollway has exhausted its notices, it refers the matter to the Victoria Police, which acts as its ‘Enforcement Agency’. On the front of the Notice there is an obligation number. This is a different number than the invoice number that was included on the original Toll Invoices.
[NOTE: At various stages in the infringement process, different reference numbers are assigned to the various Notices and Orders. This makes it terribly confusing. The same toll can generate a different invoice number, infringement notice number, obligation number, court case number. This means that you need to try and consolidate all of the documentation that relate to the same tolls so that you know which invoice, notices etc were incurred in relation to which trip.]
Once you have received an Infringement Notice from the Victoria Police, the matter is conducted pursuant to the Infringements Act 2006 and any options that you may have had under the Toll legislation are inapplicable, unless you are arguing a defence available under the Act which has been rejected by the Tollway.The Infringement process through the Courts in toll matters is identical to the process for other types of infringements, so refer to the top of this page for further information.
What is a penalty unit?
If you have ever read a section of legislation related to an offence, you will often see that the offence may be punished by a period of imprisonment and/or a fine of X number of penalty units. So, what is a penalty unit? A penalty unit is an amount of money decided by the Department of Treasury and Finance every financial year. Until 1 July 2015, one penalty unit is the equivalent of $147.61. As of 1 July 2015, the Department will announce its indexation of a penalty unit for the following financial year. For further clarification, go to the Department’s website.