Earlier this year, three plaintiffs, Rohan Pank, Brenden Beame and and Teal Els, filed challenges in the Supreme Court of New South Wales against fines issued to them for allegedly failing to comply with a public health order.
The challenges were based on the fact the fines were not sufficiently particularised; in other words, the conduct alleged was not specific enough to meet the requirements of the Fines Act 1996 as they merely recorded:
“Fail to comply with noticed direction in relation section 7/8/9 – COVID-19 – individual”, or
“Fail to comply with noticed direction in relation section 7/8/9 – COVID-19 – company”.
The actions were filed after Revenue NSW refused to withdraw the fines after a review.
Court finds in favour of plaintiffs
On Thursday, 29 November 2022 when the matter was set to come before the court, Revenue NSW withdrew the penalty notice issued to Mr Pank after conceding it was unlawful due to the insufficiency of the particularisation.
The penalty notices issued to Mr Beame and Ms Els came before the court for determination later that day, at which time the judge agreed with the submissions of the plaintiffs’ lawyers and declared both fines to be invalid.
After court, the plaintiffs’ solicitor, Sam Lee of Redfern Legal Centre, stated:
“This case has set a precedent that all of those fines are invalid and should never have been issued”.
“What has happened today is pure justice, and really it is a case for the people.”
33,000 fines withdrawn
Following the landmark decision, Revenue NSW released a statement conceding that as the Commissioner of Fines Administration was unable to review just over 33,000 of the 62,000 Covid fines issued during 2020 and 2021, those fines would be withdrawn.
“A total of 33,121 fines will be withdrawn, which is around half of the total number of 62,138 COVID-19 related fines issued,” the statement reads.
“The remaining 29,017 COVID-19 fines will still be required to be paid if not already resolved. They are not affected by this decision,” it continues.
“This decision does not mean the offences were not committed”.
This meant the State of New South Wales would lose an estimated $30 million in revenue it sought to unlawfully extort from the public.
Remaining fines
The decision was met with a mixed response.
While the concession that 33,000 fines would be withdrawn was welcomed, there was confusion as to why the remaining 29,000 would continue to be enforced.
There is speculation that Revenue NSW formed the view that the penalty notices for the remaining fines are sufficiently particularlised to meet the requirements of Part 3 of the Fines Act 1996 (NSW).
But this is far from clear, and there has been skepticism over any assertion that a notoriously inefficient bureaucracy could reach such a conclusion on so many individual penalty notices in such a short period of time.
Indeed, immediately after the publication of Revenue NSW’s statement on the day of court, the plaintiffs’ barrister, Katherine Richardson SC, asserted, “In all likelihood, every single one of those… [remaining 29,000] fines is invalid as well”.
Pressure to withdraw remaining fines
On 30 November 2022, the President of the Law Society of New South Wales, Joanne van der Plaat, noted that the body had previously brought to the attention of Revenue NSW that the penalty notice requirements of the Fines Act were systematically being ignored in the issuance of COVID fines, and that the fines were therefore invalid.
In relation to the decision to withdraw just over half of the fines, Ms van der Plaat stated:
“This decision leaves unresolved the status of more than 29,000 fines that may impose a disproportionate burden of penalties on vulnerable and disadvantaged people”.
“We encourage Revenue NSW to review all remaining Covid-19 related fines, especially any imposed on children.”
The call to withdraw the remaining penalty notices has been echoed by a number of other organisations, including media outlets, and on Friday, the Premier of New South Wales, Dominic Perrottet said he would be looking into the matter.
It is hoped by many the premier will reach the conclusion that the fines are indeed unlawful and recommend that Revenue NSW withdraw them accordingly.