40Application to court

40 Application to court

(1)  [Section 40 Subsection (1) amended by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] A person who is taken to have been convicted by reason of section 20(1)(c) may apply to a court to have the conviction set aside or to have the total penalty varied.

(2)  Within 5 days of an application under subsection (1) being filed by an enforcement debtor, the court is to notify the Director of the application.

(3)  The issuing authority may consent to an application under subsection (1) to set aside the conviction.

(4)  The court may set aside the conviction if satisfied that –

(a) the offender has provided valid and relevant reasons why he or she did not elect to have the matter heard by a court within the time allowed by the infringement notice; and

(b) the offender has established a prima facie defence to the offences that are the subject of the infringement notice.

(5)  If the court sets aside a conviction –

(a) for the purposes of any time limit imposed by another Act on the taking of action in respect of the offence, the date when any limitation period for taking action commences is taken to be the date when the conviction was set aside; and

(b) the infringement notice is taken to have been withdrawn and any enforcement order, administrative sanction or civil sanction relating only to that infringement notice is revoked; and

(c) the issuing authority may commence proceedings to have the matter heard by a court; and

(d) the court is to notify the Director that the conviction has been set aside.

(6)  [Section 40 Subsection (6) substituted by No. 6 of 2008, Sched. 1, Applied:28 Apr 2008] The court may allow an application to vary a penalty if satisfied that the offender has provided valid and relevant reasons why –