Updated: Dec 13, 2020
Victoria has some of the toughest penalties for traffic offences in the Country. Mandatory license disqualification periods apply for a variety of traffic offences: drink & drug driving, dangerous driving, and exceeding speeding. All laws pertaining to motor vehicle, impound, immobilisation, and forfeiture are enforced under the Road Safety Act 1986 (Vic) (The Act)
In addition to any possible period for license disqualification, the severity of an offence, or an offender's poor traffic history may result in the impoundment, immobilisation, or even forfeiture of their vehicle.
What circumstances will result in the impoundment of a motor vehicle
In some circumstances, a vehicle will be impounded within a short period of a relevant traffic offence, in other cases, upon a finding of guilt at Court.
The trigger for the application of the various provisions regulating motor vehicle impoundment, immobilisation, and forfeiture under the Act is a 'relevant offence'
The definition of 'relevant offence' include the following offences:
- drive whilst license suspended/disqualified
- dangerous driving
- first drink driving (where blood alcohol concentration is 0.10% or more)
- Improper use of motor vehicle
- excessive speeding (45km/hr or more over the prescribed speed limit)
- subsequent drink or drug driving offences (where both offences occur within a 6-year period)
Refer to the definition of 'relevant offence' under the Act for the complete list.
Where a person commits a relevant offence, the police have the power to impound or immobilise the motor vehicle for the designated period. A 'designated period' is defined under the Act as 30 days. In addition, before release of the motor vehicle from the holding yard, the registered operator must pay the 'designated costs'. Currently and at the time of writing this post (November 2020) once designated costs are paid there would be little change from $1,000.
The vehicle is conveyed to the impound facility either by it being towed, or a notice of surrender may be served on the driver/registered operator. It is an offence, for a driver/registered operator to fail to cooperate with the steps necessary to convey the motor vehicle to the holding yard
Rather than require the vehicle to be taken to a holding yard under the power to Impound a motor vehicle, the vehicle may instead be immobilised for the designated period by "wheel clamps, a steering wheel lock or any other means".
Where a motor vehicle has not been surrendered, the police also have the power to search and seize a motor vehicle (even where on private property) for the purpose of vehicle impoundment or forfeiture (Sections 84F to 84GB of the Act).
Following the impoundment of the motor vehicle, the police are required to serve on the driver/registered operator a Notice of Impoundment.
Section 84Q of the Act requires the police to release the motor vehicle from the impound yard upon the expiration of the designated period (30 days) and the payment of the designated costs, and on the provision of sufficient personal identification establishing the person's entitlement to recover the motor vehicle.
Longer period of impoundment and risk of motor vehicle forfeiture where 2 or more relevant offences committed
A period exceeding 30 days may be sought by the police through a court application, where a person has committed 2 or more relevant offences within 6 years (Section 84S of the Act).
Where the trigger of a 2nd or subsequent relevant offence has been activated, the police may apply for an impound or immobilisation order of up to 3 months, including any period of impoundment or immobilisation during the designated period.
In this scenario a person charged for a second drive suspended/disqualified within 6 years, is liable for a longer period of impoundment; as would a 2nd drink drive offence with a BAC of 0.10 or more.
The power of the police to compel forfeiture of a motor vehicle under Section 84T of the Act, represents the most punitive response to a 2nd (or more) relevant offence within 6 years.
Section 84T provides that the police may apply for a forfeiture order where a person a person has been found "guilty of committing a relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed 2 or more other relevant offences".
Defending Applications for Impoundment, Immobilisation and Forfeiture
During the Designated Period
Section 84O provides that a person whose interests are substantially affected by the impoundment or immobilisation of a motor vehicle may apply to the Magistrates' Court for an order that the motor vehicle be released from the holding yard at any time while the motor vehicle remains impounded (or immobilised), on the grounds of exceptional hardship.
An appeal is commenced by filing an application at a venue of the Magistrates' Court and serving a copy of the application on police, ensuring police have 7 days’ notice of the application and venue at which the application is to be heard. It is a requirement that the appeal state the grounds for exceptional hardship.
Exceptional hardship will not apply to driver of motor vehicle in prescribed circumstances, or may be more difficult to establish
Under Section 84O(3B), a Court must not find that exceptional circumstances are established where the applicant is the driver of the motor vehicle and -
- the driver is disqualified from obtaining a driver license or learner permit; or
- the offender's driver licence or learner permit is suspended -
- for a period longer than the period of impoundment or immobilisation
- driving the impounded or immobilised motor vehicle is essential (not merely convenient) for the offender's employment; and no other transport to his or her place of employment is available to the offender; and the offender after making reasonable enquiries, is unable to arrange for another person to drive the offender to his or her place of employment.
Opposing Court Application by Police for Impoundment, Immobilisation, or Forfeiture
The most severe consequence of committing 3 or more relevant offences under the Act is an application for forfeiture of a motor vehicle brought by the police.
Under section 84T, the police may apply for an order that an offender forfeit his or her car (for sale or disposal) if he or she has been found "guilty of a relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed 2 or more other relevant offences, the relevant court may order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle be forfeited to the Crown"
Section 84Z, pertains to the matters the Court must consider in deciding whether to order forfeiture of the offender's vehicle.
Importantly under Section 84Z, the Court must allow any person to be heard and show cause as to "why an impoundment or immobilisation order or a forfeiture order should not be made. A further safeguard is provided under s. 84A(2) which provides that a Court must not make an Order for impoundment, immobilisation or forfeiture, if the motor vehicle was driven without the knowledge and consent of the registered operator.
As with Section 84O(3)(b) the Court may refuse to Order forfeiture, impoundment, immobilisation, or forfeiture if satisfied of exceptional circumstances, but this refusal is subject to subsections (3A), (3AB), (3B), and (3C). The content of these provisions identical to the requirements set out and discussed above under section 84O(3B). In summary, pending mandatory disqualification, use of motor vehicle which is convenient as opposed to essential, and the ability to continue employment without the use of a motor vehicle will be factors that require a Court not to find exceptional hardship.
The term 'exceptional hardship' is not defined under the Act. However it was the subject of judicial interpretation in Toward v Slater (Ruling)  VCC 1681 (10 October 2014), wherein his Honour Judge Misso observed (at paragraph 23): "The Shorter Oxford Dictionary has a number of definitions of the word “hardship”. The one which I think is of assistance is “the quality of being hard to bear”. One definition of the word “exceptional” is “unusual”. It is a tenet of statutory interpretation that one should not substitute the words of the statutory test by other words because of the risk of creating a different statutory test than was intended by the legislature; however, the definitions I have sought and found give some understanding of what exceptional hardship means. The hardship which Mrs Toward must demonstrate is not just hardship in the sense of being hard to bear, but something qualitatively more to the extent of being exceptional, in the sense of being unusual.” (at paragraph 23)
In the South Australian case of Frohling v. Police (2011) SASR 389, the Court observed that similar threshold in similar legislation (Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007) of 'severe physical or financial hardship' required more than 'ordinary hardship'
Practical considerations when dealing with police applications for impoundment or forfeiture
Given the severity of the consequences of an Order for impoundment or forfeiture under section 84T of the Act, the hearing of the application should be heard separately to the criminal offence (which activated the application).
As with opposing any application brought by the police, preparation is key, and a careful consideration of whether the police have correctly calculated a relevant offence(s) as the precondition to their application, and the consequences that flow from that.
A person facing the adverse consequences of forfeiture or impoundment must carefully prepare their case to ensure their argument that they will incur exceptional hardship will be persuasive. To this end, an offender or interested party will often be required to give oral evidence in support of their case, and in addition provide to the Court relevant financial documents to confirm their income and means generally.
Usually a police application for forfeiture and impoundment will accompany the charge sheets in a brief of evidence. It is critical that legal advice be obtained not only in respect to the traffic offence, but also any associated application for motor vehicle impoundment or forfeiture.
If you are facing traffic offences, and need representation to defend an application for motor vehicle impoundment or forfeiture, call our office on (03) 9668 7600 to arrange a free case assessment.