Streater v Commissioner of Fines Administration

INTRODUCTION

1. Sections 48, 49 and 50 of the Fines Act 1996 ("the Act") are in the following terms: Division 5 - Annulment of penalty notice enforcement orders 48 Applications for annulment of orders (1) An application may be made by or on behalf of any person for the annulment of a penalty notice enforcement order made against the person under Division 4. (2) (Repealed) (3) An application for annulment is to be made in writing to the Commissioner. (4) (Repealed) (5) A person may not, except with the leave of the Commissioner, make more than one application in relation to the same matter. (6) The regulations may make provision for or with respect to applications under this section (including application fees). 49 Determination of applications by Commissioner (1) When dealing with an application for annulment, the Commissioner: (a) must annul the penalty notice enforcement order if the Commissioner is satisfied that: (i) the person was not aware that a penalty notice had been issued until the enforcement order was served, but only if the application was made within a reasonable time after that service, or (ii) 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 (iii) the penalty reminder notice was, or both the penalty notice and the penalty reminder notice, in relation to a particular offence were, returned as being undelivered to its sender after being sent to the person at the person's recently reported address (within the meaning of section 126A) and notice of the enforcement order was served on the person at a different address, and (b) may annul the penalty notice enforcement order if: (i) the Commissioner is satisfied that a question or doubt has arisen as to the person's liability for the penalty or other amount concerned, but only if the person had no previous opportunity to obtain a review of that liability, or (ii) having regard to the circumstances of the case, the Commissioner is satisfied that there is other just cause why the application should be granted. (2) The Commissioner must not annul a penalty notice enforcement order under subsection (1) (b) (ii) if doing so is not permitted under, or would circumvent the restrictions in, subsection (1) (a) or (b) (i). (3) If the Commissioner annuls a penalty notice enforcement order under subsection (1) (a), the Commissioner must refer the matter to the Local Court unless: (a) the person concerned does not dispute the person's liability to pay the amount payable under the penalty notice, and (b) that amount was paid to the Commissioner at the time of making the application for the annulment of the order. (3A) For the avoidance of doubt, payment of the full amount under a penalty notice under subsection (3) results in there being no further liability for further proceedings for the offence to which the notice relates. (3B) If the Commissioner annuls a penalty notice enforcement order under subsection (1) (b), the Commissioner must refer the matter to the Local Court. Section 51 provides that the Local Court is to hear and determine the alleged offence as if no penalty notice enforcement order had been made. (4) Applications for annulment are to be dealt with by the Commissioner in the absence of the parties, unless the Commissioner otherwise determines. (5) The Commissioner must give notice of the determination of an application for annulment to all parties interested or concerned. (6) The regulations may make provision for or with respect to the practice and procedure of the Commissioner when dealing with applications for annulment. (7) The Commissioner may, but is not required to, refund any application fee for an application for an annulment that is successful. (8) For the avoidance of doubt, the Commissioner may grant an application for annulment (and annul the penalty notice enforcement order) on the ground that the person was not aware that a penalty notice had been issued until the enforcement order was served even if section 126A (1) permitted the issue and service of a penalty reminder notice in relation to a particular offence referred to in the enforcement order or section 126A (2) permitted the making of the penalty notice enforcement order (or both). 49A Review of penalty notice before annulment … 50 Appeal against refusal of application by Commissioner (1) If the Commissioner refuses an application for annulment, the applicant may, not later than 28 days after notice is given of the refusal, lodge an application in writing with a registrar of the Local Court to have the original application determined by the Local Court. (2) The relevant registrar of the Local Court must, as soon as possible, give written notification to the applicant and the parties of the date, time and place on or at which the application is to be determined. (3) An application under this section may be determined by the Local Court in accordance with this Division and the Local Court may make any decision about the application that the Commissioner may have made. (4) The Local Court may proceed to determine an application despite any omission or error in the notice referred to in subsection (2) or its non-service if: (a) the Local Court is satisfied that the applicant and the parties interested and concerned had knowledge of the date, time and place on or at which the application was to be determined and were not prejudiced by the omission, error or non-service, or (b) the Local Court is satisfied that the applicant is avoiding service of the notice or cannot, after reasonable search and inquiry, be found. (5) The regulations may make provision for or with respect to applications under this section (including application fees).