South Australian Current Acts South Australian Current Acts9—Removal of clamps or release of impounded vehicle and fees
(1) When the
clamping or impounding period for a motor vehicle ends—
(a) a
person entitled to custody of the motor vehicle must, after the end of the
period and during ordinary business hours, apply for removal of the clamps or
release of the motor vehicle; and
(b) on
the making of such an application and subject to this section, the
relevant authority must release the motor vehicle, as soon as is reasonably
practicable, into the custody of that person.
(2) The clamping or
impounding fees applying in relation to a motor vehicle are payable to the
Commissioner and, unless the Commissioner determines that 1 or more of the
following circumstances apply, must be paid before the motor vehicle is
released under subsection (1):
(a)
grounds did not exist under section 5 to clamp or impound the
motor vehicle;
(b) the
motor vehicle was, at the time of the offence in respect of which the
motor vehicle was clamped or impounded, stolen or otherwise unlawfully in the
possession of the person or was being used by the person in circumstances
prescribed by regulation under section 8(2)(a);
(c) the
offence in respect of which the motor vehicle was clamped or impounded,
occurred without the knowledge or consent of any person who was an owner of
the motor vehicle at the time of the offence;
(d) it
is appropriate in the circumstances of the particular case to release the
motor vehicle without payment of the clamping or impounding fees at the time
of release because—
(i)
the imposition of the fee or the continued clamping or
impounding of the motor vehicle would cause severe financial hardship to a
person other than the alleged offender or a person who was knowingly involved
in, or who aided or abetted, the commission of the offence; or
(ii)
other grounds exist that warrant the release of the
motor vehicle without payment of the fees.
(3) The Commissioner
may make a determination under subsection (2) on the Commissioner's own
initiative or on application and, if an application for a determination is
made, the Commissioner must make a decision on the application as soon as is
reasonably practicable.
(4) If the
Commissioner has not made a decision on an application for a determination
under subsection (2) within 8 days after it is received, the
Commissioner is to be taken to have refused the application.
(5) A person who has
paid clamping or impounding fees for a motor vehicle clamped or impounded
under this Part in relation to a prescribed offence is, on application by the
person, entitled to a refund of the amount paid if—
(a) a
court has found the alleged offender not guilty of the prescribed offence (and
the alleged offender has not been found guilty of another prescribed offence
arising out of the same course of conduct); or
(b) the
charge of the prescribed offence has been withdrawn (and no charge of another
prescribed offence arising out of the same course of conduct has been laid);
or
(c)
proceedings for the prescribed offence have been otherwise discontinued (and
no other criminal proceedings for a prescribed offence arising out of the same
course of conduct have been commenced).
(6) If a court finds a
person guilty of a prescribed offence in respect of which a motor vehicle has
been clamped or impounded under this Part, or guilty of another
prescribed offence arising out of the same course of conduct, the person is,
on being found guilty—
(a)
liable to pay to the Commissioner all outstanding clamping or impounding fees
payable in relation to the clamping or impounding of the motor vehicle
(including where the motor vehicle has been released without payment of fees
under subsection (2)) and those fees are recoverable by the Commissioner
as a debt; and
(b)
liable to pay to any other person the amount that the other person has paid to
the Commissioner in clamping or impounding fees in relation to the clamping or
impounding of the motor vehicle and that amount is recoverable by the other
person from the offender as a debt.
(7) Despite any other
provision of this section, no clamping or impounding fees are payable in
respect of a motor vehicle impounded under this Part if, on application by an
owner of the vehicle made to the Commissioner, a relevant authority causes the
motor vehicle to be destroyed.
(8) An application
under subsection (7) in respect of a motor vehicle must—
(a) be
made within 7 business days of the impounding of the motor vehicle; and
(b) be
in a manner and form determined by the Commissioner; and
(c) be
accompanied by the prescribed fee.
(9) The Commissioner
must not approve an application under subsection (7) unless—
(a) a
registered owner of the motor vehicle who is not an applicant; and
(b) any
person registered under the Personal Property Securities Act 2009 of the
Commonwealth as a secured party in relation to a security interest for which
the motor vehicle is collateral,
has each agreed to the destruction of the motor vehicle.
(10) On approval of an
application under subsection (7), a relevant authority must, as soon as
reasonably practicable—
(a)
surrender the number plates issued for the motor vehicle to the Registrar of
Motor Vehicles; and
(b)
cause the motor vehicle to be destroyed,
and, despite any other Act or law, any interests in the motor vehicle existing
prior to the destruction are, on its destruction, extinguished.
(11) Nothing in this
section—
(a)
prevents the relevant authority from removing clamps from a motor vehicle or
releasing a motor vehicle before the end of the clamping or impounding period
for administrative reasons; or
(b)
obliges the relevant authority to remove clamps from a motor vehicle or
release a motor vehicle outside of ordinary business hours; or
(c)
obliges the relevant authority to remove clamps from a motor vehicle or
release a motor vehicle into the custody of a person if the relevant authority
is not satisfied that the person who applied for removal or release is
entitled to custody of the motor vehicle.