Maddocks Prosecution Report | August 2014

Please download the attached PDF to view this month's prosecution report.

Enforcement of fines and costs in enforcement proceedings

Following a number of recent queries from our clients, we would like to take the opportunity to clarify the circumstances where a council is entitled to enforce fines and costs owing pursuant to orders made in enforcement proceedings.

According to the Sentencing Act 1991 (Sentencing Act), the right to enforce a 'fine' arising from criminal proceedings only accrues to the 'sentencing court' or the 'proper officer' of the relevant court. As such, a council does not have authority to enforce a fine. Typically, such fines are enforced by the Sheriff's Office, on the referral of the matter from the court where the fine was imposed.

A fine is defined in the Sentencing Act as including 'costs'. Accordingly, where an order for costs is made in a criminal proceeding against an offender who has been found guilty, such costs are enforceable by the sentencing court or proper officer in accordance with the Sentencing Act. Therefore, a council will not be entitled to enforce a costs order which is made in connection with a finding of guilt.

However, where an order for costs is made by the Victorian Civil and Administrative Tribunal, and the amount remains unpaid, it is open to a council to enforce that costs order as a civil debt. There are a number of ways in which a civil debt can be enforced and the appropriate enforcement tool will depend on the specific financial circumstances of the debtor.