Regulators have a range of enforcement options available to them, including the issuance of infringement notices. Indeed, for many regulatory offences, the initial action taken by a regulator is to issue an infringement notice.

A regulator must ensure that, when issuing an infringement notice, the contents of that infringement notice are compliant with the requirements of the Infringements Act 2006 and the Fines Reform Act 2017.

Section 13(b)(i) of the Infringements Act 2006 provides that an infringement notice must contain an option for the person to elect to have the infringement offence heard and determined in court.

The right to have a matter heard and determined in court is provided for in section 16 of the Infringements Act, which relevantly provides that:

(1) Unless subsection (1A) applies, a person served with an infringement notice may elect to have the matter of the infringement offence heard and determined in the Court at any time before the outstanding amount of the infringement penalty, together with any penalty reminder notice fee, are registered with the Director under the Fines Reform Act.

(1A) A person served with an infringement notice in respect of a non-registrable infringement offence may elect to have the matter of the infringement offence heard and determined in the Court at any time before the expiry of the period for commencing a proceeding in relation to the offence to which the infringement notice relates.

Registration for the purposes of section 16(1) of the Infringements Act refers to a fine being registered with the Director of Fines Victoria (previously the Infringements Court), which is a new procedure introduced by the Fines Reform Act 2017. The Fines Reform Act introduced the Office of Fines Victoria, which is empowered to take enforcement action for an unpaid infringement penalty on behalf of the issuing agency. For the purposes of section 16(1A) of the Infringements Act, a “non-registrable infringement offence” is defined as an infringement offence that has been prescribed as ineligible for “registration” or an offence against a local law, other than a parking infringement.

Often, it is only when an infringement notice remains unpaid that the matter proceeds to court. In Re Greco [2018] VSC 175, the Supreme Court of Victoria affirmed the merits of an infringement notice are not open to challenge in court unless a person has made an election to have the matter heard in court in accordance with the options for dealing with an infringement notice which are set out in the infringement notice.

Facts of Re Greco

In Re Greco, the plaintiff had been served with 61 infringement notices, each of which he was required to pay within the time period specified on the respective infringement notices. The infringement notices were issued for a range of driving offences. Infringement notices had been issued by two different municipal councils, Victoria Police and the Traffic Camera Office. The infringement notices were not paid within the specified period and enforcement orders were made by the Infringements Court requiring the payment of the infringement notices with prescribed costs.

It was common ground between the parties that the infringement notices had not been paid by Mr Greco. Moreover, it was conceded by Mr Greco that he had received the infringement notices and had not elected to have the matters heard in court in accordance with section 16 of the Infringements Act. It was also agreed between the parties the infringement notices had been issued in compliance with the requirements under the Infringements Act regarding the information which they needed to contain.

Proceedings in the Infringements Court

Mr Greco made a written application to the Infringements Registrar to have the enforcement orders revoked because “it is blatantly clear that lawful proceedings have not been followed. Therefore all matters must be struck out!”

The application was refused by the Infringements Court on the basis that the Registrar was not satisfied there were sufficient grounds for revocation.

Mr Greco then sought to have the matter referred to the Magistrates’ Court as he was entitled to do under section 68 of the Infringements Act 2006.

Proceedings in the Magistrates’ Court

At the Magistrates’ Court hearing before Judicial Registrar Bartlett, Mr Greco conceded that he had received the infringement notice and had not sought to challenge the infringement by electing to have the matter proceed to court. He argued he had corresponded and communicated with each issuing agency regarding the infringement notices. He stated he had advised the agencies that he was not the driver in relation to the infringement offences, and that he would provide particulars in support of this at a future date.

Judicial Registrar Bartlett held that procedural fairness had been accorded but that Mr Greco had failed to nominate an alternate driver within a specified period.

Mr Greco then sought a review of the hearing and the determination of Judicial Registrar Bartlett. This application was considered and determined by Magistrate King. Magistrate King affirmed the decision of Judicial Registrar Bartlett. In affirming the decision of Judicial Registrar Bartlett, Magistrate King said “in so far as the argument relates to him being denied procedural fairness by being unable to have his day in court regarding the original offences giving rise to infringement notices, it was put to the Judicial Registrar and was unchallenged that the notices had been properly served… Mr Greco had the opportunity to seek to have the matter dealt with in court. Infringement notices clearly state that option. It was not that Mr Greco was denied procedural fairness; it was simply that by neglect he elected not to pursue it.”[1] (cited at).

Supreme Court proceedings

Mr Greco sought leave to appeal the decision of Magistrate King. He sought an extension of time to bring Supreme Court proceedings. Justice Keogh refused to grant the extension of time but he also considered how he would have decided the merits of the application if the extension of time had been granted.

The Victorian Supreme Court upheld the decision of the Magistrate and said there was no lack of procedural fairness by Mr Greco not being heard on the merits of the infringement notices. He had simply failed to raise these issues in the correct forum.

In short, as the infringement notice provides for an accused to either have an internal review or to have the matter referred to court, the accused cannot do nothing and then insist the court perform a merits review function at the stage at which a regulator has been forced to commence enforcement proceedings by virtue of inaction and non-payment.

Justice Keogh stated at paragraph [38]:

It should be remembered that the real thrust of the arguments for revocation of the enforcement orders made by Mr Greco to Judicial Registrar Bartlett and Magistrate King was that he had been denied the opportunity to contest the infringement offences in court. In that context, after having regard to the material Mr Greco placed before him and to the hearing before Judicial Registrar Bartlett, Magistrate King concluded Mr Greco had not been denied the opportunity to have the infringement offences heard in court, but by neglect had elected not to pursue that opportunity… Magistrate King’s reasons are consistent with him concluding that corresponding with the enforcement agencies was not a satisfactory reason to explain the failure to make an election pursuant to s 16 of the Act, and did not justify revocation of the enforcement orders’.

Significance of Re Greco for regulators with power to issue infringement notices

Regulators should take some comfort from Re Greco that, when seeking to enforce an unpaid infringement penalty, whether through Fines Victoria or through a criminal prosecution, the merits of that infringement notice are not open for debate.

The decision in Re Greco provides that a person who wishes to challenge the merits of an infringement notice bears responsibility for bringing that matter before the court. The court has set a clear precedent that inaction will not be rewarded by enabling the merits of the infringement notice to be challenged in court where a person has had the opportunity to elect to have the matters heard in court but has not taken that opportunity. This decision minimises the risk faced by regulators in bringing enforcement action regarding unpaid infringement notices.