Annulment Of Fines And Penalties
Many people who receive a traffic ticket or other infringement notice simply accept responsibility and pay the fine or penalty amount. Sometimes people will want to contest the matter in court. In other cases people do not receive the correspondence, it gets lost or something else intervenes to prevent them from finalising the penalty notice in time. If an infringement is not finalised in time, then Revenue NSW, (formerly known as the State Debt Recovery Office or SDRO) may take enforcement action and issue an enforcement order.
What is an Enforcement Order and When is it Made?
Police and transit officers on trains or other modes of public transportation may issue penalty notices, commonly referred to as infringements, fines or tickets. A penalty notice may be issued on the spot. It can also be sent to the responsible person’s postal address.
The penalty notice will have a due date for payment, normally 28 days from the date of the offence. If the fine is not paid by that date, a penalty reminder notice may be sent. If the fine is not paid by the due date on the penalty reminder notice, usually a further 28 days, then action can be taken to recover the unpaid amount.
If the fine remains unpaid after a reminder notice then the Commissioner of Fines and Administration can issue an Enforcement Order. An Enforcement Order is an order stating that the offence is proven and the penalty notice amount is owing. If an Enforcement Order is issued then $65 will be added to the original penalty for each enforcement action that Revenue NSW takes.
What are the Consequences?
If you do not pay the penalty notice (plus any applicable enforcement action penalties) Transport for NSW (TfNSW) has the right to:
- suspend your NSW Driver Licence due to unpaid fines;
- suspend your road toll accounts;
- impose additional costs or fees;
- issue a garnishee order; or
- suspend your driver’s licence for accrual of demerit points or breach of a good behaviour licence.
In some cases you can apply to annul the enforcement order to avoid the above consequences.
What Can I Do if an Enforcement Order has been Made?
If an enforcement order has been made, you can:
- pay the fine;
- seek further time to pay;
- seek a review of the infringement; or
- make an application to the Commissioner for Revenue NSW to Annul (declare invalid) the enforcement order.
How do I make an Application to Annul an Enforcement Order?
To get an Enforcement Order annulled you first need to apply to the Commissioner of Fines and Administration. This can be done through the Revenue NSW website or with the help of a lawyer. You will need to pay a non-refundable fee of $50 but in certain circumstances the fee can be waived.
Once the application is made the Commissioner will either accept or reject the application to have an enforcement order annulled. If the application is rejected, this decision can be appealed to the Local Court.
The Revenue NSW website contains a questionnaire which must be completed to file an application. Some enforcement order annulment applications are complicated. Not all circumstances will fit within Revenue NSW’s website’s accepted circumstances. You can seek help from Revenue NSW customer service, Law Access or a private lawyer.
Answers given on the online form can be relied on in court so you should obtain legal advice prior to making an application for the annulment of an enforcement order.
How do I have the Matter Heard in Court?
An application to annul an enforcement order can only be heard in court if the Commissioner has refused to annul the order. Once the Commissioner has refused the annulment application, then an application can be made to the Local Court. The application to the Local Court is an appeal against the decision of the Commissioner refusing to annul the enforcement order, and requires the court to be satisfied that the enforcement order ought to be annulled.
The application must be made in writing and using the prescribed forms. Ideally, affidavit or other sworn evidence providing the basis for the application should also be prepared.
When will an Enforcement Order be annulled?
An enforcement order is likely to be annulled where:
- the person was not aware that a penalty notice had been issued until the enforcement order was served and the application was made within a reasonable time of that service; or
- the person was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the penalty notice, but only if the application was made within a reasonable time after the person ceased being so hindered; or
- the penalty reminder notice and/or the penalty notice were returned to sender and the notice of the enforcement order was served on the person at a different address.
The legislation also allows a discretional annulment of the enforcement order where:
- the Commissioner (or court) is satisfied that a question or doubt has arisen as to the person’s liability for the penalty or other amount concerned and the person had no previous opportunity to obtain a review of that liability, or
- considering the circumstances of the case, the Commissioner (or court) is satisfied that there is just cause why the application should be granted.
If you require advice in any legal matter, please contact Armstrong Legal.