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Apply for judicial review under order 56

Important changes from 1 July 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.

It is possible for an infringement offender to seek judicial review of a Magistrate's decision under section 160 of the Infringements Act.  This was the mechanism used in Taha v Magistrates' Court at Broadmeadows; Brookes v Magistrates' Court of Victoria [2011] VSC 611.  In the absence of a right of appeal, Victoria Legal Aid applied for judicial review of the Magistrates' sentencing decisions.

Given that there is now a right to rehearing enshrined in the Infringements Act, an application for judicial review will only be relevant in exceptional circumstances where there is a clear jurisdictional error, such as a Magistrate refusing a rehearing application where there was clear evidence that the infringement offender’s circumstances were not put before Court or were not taken into account at the original section 160 hearing.

In Victoria, an application for review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) must be commenced within 60 days after the date that grounds for the grant of the relief or remedy claimed arose. This time limit may only be extended in 'special circumstances' (Rule 56.02(3)).

It is also important to note that if an infringement offender is unsuccessful in an application for judicial review, a costs order is likely to be made against them.  The client needs to be advised of this risk and asked to enter into a conditional costs agreement.

To make an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), you need to file at the Supreme Court registrar and serve on all parties:

  • An originating motion;
  • A summons;
  • An affidavit in support; and
  • A proper basis certificate.

Given the complexity of judicial review matters and the potential cost consequences, please contact Homeless Law staff lawyers before advising a client about a judicial review application.  In some cases, it may be appropriate to request the assistance of pro bono counsel to advise on the merits of the application and, if appropriate, to provide representation.  Contact Homeless Law staff lawyers if you are considering this option and we may be able to link you with counsel through the Victorian Bar Pro Bono Scheme.