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Licence suspension order for non-payment of a fine or infringement

Licence suspension order for non-payment of a fine or infringement

What is a licence suspension order?

A licence suspension order removes your right to use your driver’s licence for the duration of the order. Such an order may be made by the Fines Enforcement Registry when you have failed to pay as required:

  • any infringement notice, or
  • any fine handed down by a court in a criminal matter.

To find out more about fines and infringements, including what happens if you do not pay them, see Infringement notices and Fines.

What if I drive when I am under a licence suspension order?

It is an offence to drive while your licence is under a licence suspension order. To check if your licence is suspended for non-payment, see the Suspended licence search page on the Attorney-General’s website or contact the Fines Enforcement Registry on 1300 650 235 (Eastern States callers (08) 9235 0235).

What if I am a p-plater and I get a licence suspension order?

If you are p-plater at the time your licence is suspended for failing to pay a fine or infringement, your licence will be cancelled. This means you will have to re-sit your test before you can get your driver's licence back.

Can I apply for an extraordinary driver’s licence?

No, if you are under licence suspension for failing to pay a fine or infringement, you cannot apply for an extraordinary driver’s licence.
 

When can I drive again?

Once a licence suspension order has been imposed on you, you cannot drive again until the order has been removed. If you are a p-plater, you cannot drive again until you have re-sat your test and been re-issued with a licence.

How can I have the suspension removed?

The options available to you for having the order removed are different depending on whether you were issued with an infringement notice or received a fine from a court. If you are unsure whether your licence suspension order resulted from  non-payment of a court fine or an infringement notice, call the Fines Enforcement Registry on 1300 650 235 (Eastern States callers (08) 9235 0235).

Infringement notices

For an infringement, to have the licence suspension order removed your options are:

  • pay the infringement notice
  • apply to the Fines Enforcement Registrar to have the order cancelled
  • elect to go to court to dispute the infringement notice, or
  • apply to the court to have the suspension order set aside.

Pay the infringement notice

If you decide to pay the infringement, the licence suspension order will be lifted at the time of payment. Payment must be made to the Fines Enforcement Registry and must be for the full amount of the infringement together with any enforcement fees that have been added on.

Apply to the Fines Enforcement Registrar to have the suspension order cancelled 

You may apply to the Registrar of the Fines Enforcement Registry to cancel your licence suspension order for non-payment of an infringement if you can show good reasons why it should be cancelled.

Alternatively, you can apply for time to pay your infringement. If the Registrar grants your application, your licence suspension order will be cancelled. You can apply for time to pay where the licence suspension will stop you from being able to:

  • get urgent medical treatment for an illness or disability suffered by you or a member of your family, or
  • earn an income with which to pay the infringement.

Go to court to dispute the infringement notice

If you want to go to court to dispute the infringement notice, then you should make this election within 28 days of receiving the infringement notice. This election is given to the Registrar of the Fines Enforcement Registry who will arrange for you to be served with a prosecution notice and a court hearing notice. You will then have to attend court on the date provided. 

You cannot elect to have the infringement dealt with in court if you have already entered into a time to pay agreement with the Fines Enforcement Registry.

Apply to the court to have the suspension order set aside (removed)

You can apply to the court to have the licence suspension order set aside if an infringement notice was sent to you but you did not receive any of the following:
  • the infringement notice
  • a final demand for payment
  • an order to pay or elect
  • a notice of intention to suspend licence, or
  • a notice confirming licence suspension.

During the application, you will have to give evidence on oath or by affirmation confirming the points listed above.

Even if the court grants your application and the order is set aside, you will still have to pay the original infringement.

If your licence was suspended for failing to pay more than one infringement, you will need to apply to have each suspension set aside.

Your application is under s 101 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). The required application form (Form 3) can be obtained from the Magistrates Court website or the Magistrates Court Registry and must be submitted at the Registry together with payment of the required fee. The Registry will be able to assist you with the completion of the form but will not be able to give you any legal advice.

After you have submitted the form, the Registry will list your application to be heard by the court on a particular day. At the hearing of the application, you can represent yourself or choose to be represented by a private lawyer. A Legal Aid WA duty lawyer cannot represent you at the hearing. 

Fines from court

For a fine, to have the licence suspension order removed your options are:

  • pay the fine
  • apply to the Fines Enforcement Registrar to have the order cancelled
  • apply to the court to have the order set aside (removed), or
  • in the case of a fine that was imposed in your absence, apply for a re-hearing of the matter in court.

The following information explains these options in more detail.

Pay the fine

If you decide to pay the fine, the licence suspension order will be lifted at the time of payment. Payment must be made to the Fines Enforcement Registry and must be for the full amount registered.

Apply to the Fines Enforcement Registrar to have the suspension order cancelled

The Registrar may cancel your licence suspension order for non-payment of a fine if you can show good reasons for the cancellation.

The Registrar will automatically cancel a licence suspension order imposed for non-payment of a fine where a work and development order is made, or where a warrant of execution or warrant of commitment is issued. For more information about the options for enforcing payment of a fine, see Fines.

Apply to the court to have the licence suspension order set aside (removed)

You can apply to the court to have the licence suspension removed if a court imposed a fine on you but you:

  • did not receive a summons or court hearing notice to attend court in respect of the particular charge
  • were not present in court when the fine was imposed
  • did not receive a notice of intention to suspend, and
  • did not receive the notice confirming licence suspension.

To make the application, you must appear in court to give evidence on oath or by affirmation confirming the points listed above.

Even if the court grants your application and the order is set aside, you will still have to pay the original fine.

If your licence was suspended for failing to pay more than one fine, you will need to apply to have each suspension set aside.

Your application is under s 101A of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). The required application form (Form 4) can be obtained from the Magistrates Court website or the Magistrates Court Registry and must be submitted at the Registry together with payment of the required fee. The Registry will be able to assist you with the completion of the form but will not be able to give you any legal advice.

After you have submitted the form, the Registry will list your application to be heard by the court on a particular day. At the hearing of the application, you can represent yourself or choose to be represented by a private lawyer. A Legal Aid WA duty lawyer cannot represent you at the hearing.

Apply for a re-hearing of the original charge for which you were fined

You may apply for a re-hearing if you were not in court when your matter was dealt with and you:

  • did not receive notice of the court date
  • did not receive notice of the court date in enough time to enable you to appear on the court date, or
  • did receive notice of the court date within enough time to attend, but did not appear for a good reason.

The application for a re-hearing is under s 71(2) of the Criminal Procedure Act 2004 (WA).  If the application is made within 21 days of the fine being imposed, a decision can be made by a registrar of the court without the need for a hearing. If this application is unsuccessful or the application is made after 21 days, a decision will be made after a full hearing before a magistrate.

The application is made by lodging a Form 7 together with an affidavit, with the Registry of the court that imposed the fine on you.  This form may be obtained from the Magistrates Court Registry or downloaded from the Criminal Matters page of the Magistrates Court website. The Registry will be able to assist you with the completion of the form but will not be able to give you any legal advice.

Should I apply for a re-hearing?

The purpose of a re-hearing is to give you another chance to appear before the court to defend the charge that originally led to you being fined. This means that you should only apply for a re-hearing if:

  • you were not in court when the charge was heard, and
  • if you had been in court, you would have pleaded not guilty because you have a defence to the charge, or
  • you were not in court when the charge was heard, and
  • although you would have pleaded guilty, you have exceptional reasons that mean the court may not have imposed the fine on you as a penalty for the offence.

You should not apply for a re-hearing if you do not have a defence, or you would have received the same fine whether or not you were present in court. You should get legal advice before you apply for a re-hearing.

Can I apply for a re-hearing even if I have applied to have my licence suspension set aside?

Yes, any application you may have made to have your licence suspension order set aside, does not affect your right to apply for a re-hearing of the original charge.

What if my application for a re-hearing is granted?

If your application for a re-hearing of the original charge is granted, then the fine will be removed and you will no longer have to pay it. Further, the licence suspension order that was imposed as result of your failure to pay that fine will be removed. 
 
The re-hearing of the charge will then determine whether or not you are guilty of the offence. If you are found guilty, the appropriate penalty will then be considered.

Where can I get more information about applying for a re-hearing?

On the Magistrates Court of WA website under Criminal Matters, see Fact Sheet 44 - Application to set aside a court decision, which contains some additional information about applying for a re-hearing.

Driving when you do not know you are under suspension

It may be that you are charged with an offence of driving under suspension, but you did not know that your licence had been suspended for non-payment of a fine or infringement. In this case, your options include:

  • Apply to the Fines Enforcement Registrar or the court to have the licence suspension order removed. To do this you should follow the processes outlined above for either a fine or an infringement notice, whichever applies in your case.
  • If the licence suspension is for non-payment of a court fine, apply to the court for a re-hearing in court of the original charge for which you received the fine. To do this you should follow the process outlined above for a re-hearing.
  • Raise a defence to the charge of driving under suspension of an honest and reasonable mistake of fact. See below: What is an honest and reasonable mistake of fact?

What if I manage to get the licence suspension order set aside?

If you are successful in your application to have your licence suspension order set aside by the Registrar or the court, the charge of driving under suspension may be withdrawn by the police. The police do not have to withdraw the charge and if they do not, you should consider whether you can plead not guilty and raise a defence of honest and reasonable mistake of fact.

What if I am successful in applying for a re-hearing of the original charge?

If you are successful in applying for a re-hearing of the charge that caused you to get a fine and then a licence suspension order for failing to pay that fine, your licence suspension order will be cancelled. As a result of this, you can ask the police to withdraw the charge of driving under suspension. The police do not have to withdraw the charge and if they do not, you may need to consider whether you can plead not guilty and raise a defence of honest and reasonable mistake of fact.

What is an honest and reasonable mistake of fact?

If you are not successful with either of the above options, or you are successful but the police will not withdraw the charge of driving under suspension, your only other option may be to plead not guilty to the offence of driving under suspension and raise a defence of honest and reasonable mistake of fact.

An honest and reasonable mistake of fact is a defence to a criminal charge. If you have a defence such as this, it means you can plead not guilty to the charge and go to a trial, where the court will hear evidence and decide if you are guilty or not guilty.

In the case of a charge of driving under suspension, you may have a defence of honest and reasonable mistake of fact if:

  • you drove while honestly believing that your licence was not suspended, and
  • it was reasonable for you to believe this.

If you think you may have this defence, you should get legal advice to confirm your position before you enter your plea. You may be able to get legal advice from a Legal Aid WA duty lawyer in the Magistrates Court on the morning of court, or from a private lawyer before your appearance.

If you do have a defence, you can choose to plead not guilty and go to a trial. A Legal Aid WA duty lawyer cannot represent you at your trial. If you wish to be represented, you will need to engage a private lawyer. You should arrange this well before your trial date.

Click here for more information about the Duty Lawyer Service.

Click here for more information about Pleading not guilty in the Magistrates Court.

 

Last reviewed: 20/01/2016

Last modified: 20/01/2016 10:13 AM