Supreme Court Challenge Could See All Remaining COVID Fines Declared Invalid

A fresh case filed in the Supreme Court of New South Wales could result in the remaining 29,017 fines issued for alleged failures to comply with public health orders ostensibly to protect against the spread of COVID-19 declared invalid.

The story so far

In July 2022, Redfern Legal Centre filed proceedings against Revenue NSW in the Supreme Court challenging the validity of COVID fines issued to three people on the basis they were defective as they failed to comply with the Fines Act 1996 by not specifying the particulars of the allegations; in other words, by not sufficiently setting out the details of the alleged COVID breaches.

Revenue NSW agreed to withdraw one of those fines but the other two proceeded to hearing, with the court ultimately ruling in a judgment of 29 November 2022 that the fines were indeed invalid due to insufficient particularisation.

This resulted in the revocation of 33,121 of the 62,138 fines issued since public health orders were first passed in respect of COVID-19.

Despite pressure to withdraw the remaining fines, Revenue NSW stood firm and refused to do so.

The fresh case 

With six months of lobbying thereafter apparently falling on the deaf ears of the NSW government, Redfern Legal Centre launched a fresh Supreme Court challenge last week which could see the remaining 29,017 fines being ruled similarly defective.

The case is brought on behalf of a 37-year old woman who was living in her van in NSW in September 2021 when she commenced driving to South Australia after being offered accommodation in that state.

She drove as far as Wentworth, a small town on the NSW / Victoria border, and waited there for permission to cross when a local resident reported her presence to police.

The woman was then issued with a $3000 fine for travelling in contravention of the public health order that was in place at the time, with the stated particulars being ‘leaving greater Sydney for prescribed purposes without a permit’.

The crux of the challenge is that the particularisation is deficient given the requirements of the Fines Act 1996 and the fine should be declared invalid on that basis.

What are the requirements under the Fines Act 1996?

Section 20 of the Fines Act 1996 provides as follows:

‘20 What is a penalty notice?

A penalty notice is a notice issued under a statutory provision to the effect that–

(a) the person to whom the notice is issued has committed the penalty notice offence specified in the notice, and

(b) if the person does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount for the offence specified in the notice.’

In her judgment of 29 November 2022, Justice Dina Yehia noted that the provision requires the particularisation of penalty notices (fines) to be clear and unambiguous.

Her Honour stated:

“84. In respect of s 20 of the Fines Act, the statutory context and purpose favours an interpretation whereby the penalty notice offence must be clearly and unambiguously specified in the notice itself. Providing information that gives the recipient a clue or an indication from which they might be able to deduce or infer (using material outside the notice) the penalty notice offence is not sufficient”, her Honour found, adding later in the judgement:

“102.   … The use of the word “specified” in s 20 of the Fines Act imports a level of clarity and unambiguity that may not be achieved by a short description identifying the substance of the offence. Indeed, this is precisely what happened in the present cases. A short description was included on each of the subject notices, a description which, in each case, is conceded to fall short of complying with section 20 of the Fines Act.”

COVID fines fall foul of the law

According to senior accountability solicitor at Redfern Legal Centre, Samantha Lee, COVID-fines have systematically fallen short of this legal requirement.

Ms Lee told the media:

“We are filing this case because the fine system in NSW needs to be fair and abide by the rule of law.”

She, like thousands of others, hopes the New South Wales government will finally see sense and withdraw the remaining fines.