Kosciolek v Commissioner of Police

[2024] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:

Kosciolek v Commissioner of Police [2024] NSWSC 15

Hearing dates:

22 November 2023

Date of orders:

31 January 2024

Decision date:

31 January 2024

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

The summons is dismissed.

Costs reserved, to be determined on the papers if unable to be agreed.

Catchwords:

ADMINISTRATIVE LAW — judicial review — penalty notice for breach of COVID-19 public health order — whether the description on penalty notice specified the offence as required by s 20 of the Fines Act 1996 (NSW) — obligation of Commissioner of Taxation to administer law as interpreted by the Court — whether the Court should make a declaration and give reasons where notice admitted to be invalid and withdrawn — whether any public interest warranting a declaration and Court’s reasons for invalidity

Legislation Cited:

Fines Act 1996 (NSW)

Public Health Act 2010 (NSW)

Cases Cited:

Beame; Els v Commissioner of Police [2023] NSWSC 347

Dunlop v Department of Justice and Attorney-General (Qld) [2020] QSC 160

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Indooroopilly Chidren’s Services (QLD) Pty Ltd [2007] FCAFC 16 at [3]-[7]

Category:

Principal judgment

Parties:

Angelika Kosciolek (plaintiff)
Commissioner of Police (first defendant)
Commissioner of Fines Administration (second defendant)

Representation:

Counsel:
K Richardson SC with T Smartt (plaintiff)
S Robertson SC with E Jones (defendants)

Solicitors:
Redfern Legal Centre (plaintiff)
Crown Solicitor for NSW (first and second defendants)

File Number(s):

2023/223071

JUDGMENT

1. On 13 September 2021 at Thegoa Lagoon, a locality on the outskirts of Wentworth in far western New South Wales, the plaintiff was issued with a penalty notice, No 4942543440, under Pt 3 of the Fines Act 1996 (NSW). The offence alleged was described in the notice as follows:

Leave Greater Sydney for Prescribed Purposes Without Permit.

The fine payable to finalise the notice was notified at $3,000.

2. By her amended summons filed on 15 August 2023 the plaintiff claims against the Commissioner of Police and the Commissioner of Fines Administration the following declarations:

1   A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) or the inherent jurisdiction of the Court that the purported penalty notice numbered 4942543440 is not a “penalty notice” within the meaning of s 20 of the Fines Act 1996 (NSW).

2   A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) or the inherent jurisdiction of the Court that the Commissioner of Fines Administration’s act of causing money to be garnished from [the plaintiff’s] bank account was unauthorised, invalid and contrary to law.

At the hearing on 22 November 2023 the only other relief sought was an order that the defendants pay the plaintiff’s costs of the proceedings.

Identification of the residual issue in the proceedings

3. When the proceedings were commenced they were concerned with an essentially procedural question, namely, the sufficiency of the description of the offence alleged in the penalty notice issued to the plaintiff. The offence intended to be alleged was that the plaintiff had failed to comply with a public health order made by the Minister for Health and Medical Research, pursuant to which movements within New South Wales were restricted for the purpose of protecting the community against transmission of the Covid-19 virus. The plaintiff’s case has never been concerned with any issue or doubt about the validity of the relevant order or related orders made during the Covid-19 public health crisis. Nor has the plaintiff raised any issue or doubt about the legislative framework under which public health orders were made by the Minister and non-compliance with those orders attracted penal consequences. Further, there has never been an issue to be determined in the proceedings as to whether the plaintiff failed to comply with an order that prohibited her from leaving the Greater Sydney area without a permit. The plaintiff appears to have acknowledged the physical elements of the alleged offence, while the defendants accept that this offence could only have been committed at a point close to where she left Greater Sydney and that it was erroneous to have alleged in the notice that she committed it at Thegoa Lagoon, more than 1000 kms to the west.

4. After the plaintiff commenced the proceedings, the defendants conceded that the penalty notice issued to her is invalid because its description of the place at which the offence was committed was deficient in the respect just mentioned. On that ground the notice has been withdrawn and the fine paid under it has been refunded. The plaintiff insists that the defendants should concede inadequacy of the notice in a different, or additional, respect; namely, that it fails to nominate the statutory provision under which the plaintiff’s alleged conduct constituted an offence. From that procedural posture, the central issue in these proceedings has become still narrower. The principal matter to be decided is whether the Court has and should exercise the power to make a declaration about the invalidity of the notice, specifying in the Court’s reasons the ground of invalidity, in circumstances where all parties agree it is invalid and has been effectively withdrawn, with the fine refunded, so that it can no longer affect the plaintiff adversely.

5. On 8 August 2023, shortly after the Commissioner of Fines Administration had withdrawn the notice and repaid the fine, the plaintiff’s solicitor made an announcement to the media that included the following:

[The plaintiff] wants justice for others. For her, this case is more than about one fine, it is about all COVID fines.

That sentiment may have caused the plaintiff to carry the proceedings on to the final hearing on 22 November 2023. However, following the defendants’ concession of invalidity and refund of the fine the residual difference between the parties does not appear to involve any substantive matter of principle or justice that would be capable of having a bearing upon “all COVID fines”. I understand the plaintiff’s solicitor to have intended by that term to refer to all fines imposed for non-compliance with public health orders that were made for the purpose of minimising the spread of the Covid 19 virus during the public health crisis of 2020-2022.

No issue to be decided concerning commission of an offence

6. It can be inferred, from evidence extraneous to the notice and by reference to legislation and statutory instruments, that the issuing officer intended to allege in the notice that the plaintiff had breached s 10 of the Public Health Act 2010 (NSW). That section is in the following terms, so far as relevant:

10 Offence not to comply with Ministerial direction

A person who—

(a) is subject to a direction under section 7, 8 or 9, and

(b) has notice of the direction,

must not, without reasonable excuse, fail to comply with the direction.

Maximum penalty—

(a) in the case of an individual—100 penalty units, or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues …

7. Sections 7, 8 and 9 of the Public Health Act empower the Minister to make orders to reduce or remove a risk to public health if the Minister considers on reasonable grounds that such a risk has arisen. The three sections, respectively, concern a variety of circumstances in which a risk to public health may arise. The relevant part of s 7 is as follows:

7 Power to deal with public health risks generally

(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2) In those circumstances, the Minister—

(a) may take such action, and

(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

8. On 20 August 2021, in exercise of the power under s 7, the Minister made Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021. From when it was first Gazetted and continuing through September 2021 the order included the following direction in cl 5.4 (extracted so far as relevant to the present case)

5.4 Permits for persons leaving Greater Sydney

(1) This clause applies to a person who resides in Greater Sydney if the person—

(a) is leaving Greater Sydney—

(i) to relocate to a new place of residence outside Greater Sydney …

…

(2) The person must not leave Greater Sydney without a permit issued by Service NSW.

9. According to evidence tendered at the hearing of the summons, in particular the plaintiff’s communications to Revenue NSW prior to the proceedings and her affidavit affirmed 3 July 2023, she was living in Sydney in early September 2021, with no fixed address. The plaintiff decided to relocate to Adelaide to reside with friends. She left Sydney on 7 September 2021 by road, driving a van that she owned. The plaintiff did not have a permit issued by Service NSW as required by cl 5.4(2) of the Public Health Order. On 13 September 2021 the plaintiff was camping in her van at Thegoa Lagoon, waiting for South Australian authorities to grant her permission to cross the border into that state.

10. It is not apparent from the Public Health Act or from the Public Health Regulation 2012 that any particular medium of publication of a ministerial order under s 7 is to be deemed effective notice to any member of the public, for the purposes of s 10(b) of the Act. As a matter of fact, it would readily be inferred that the plaintiff had notice that the order of 20 August 2021 prohibited departure from Greater Sydney without a permit. The Court may take judicial notice of the widespread publicity that that direction received when it was made and while it remained in force.

Refund of fine, concession of invalidity of notice, residual issue

11. In the plaintiff’s original summons filed on 13 July 2023 she sought declarations 3 and 4, concerning enforcement of the penalty notice and her claimed entitlement to a refund of part of the fine that had been recovered from her bank account under a garnishee order. On 4 August 2023 the second defendant repaid to the plaintiff so much of the fine as had been debited from her bank account. Consequently, the plaintiff withdrew her claim for declarations 3 and 4 when she filed her amended summons on 15 August 2023.

12. The amended summons claimed interest on the money that had been garnisheed and subsequently refunded. By letter of 25 August 2023 the second defendant offered interest at a reasonable rate on the repaid amount for the period during which the second defendant had held it. On the final hearing of the amended summons on 22 November 2022 the plaintiff did not press her claim for interest, which the defendants have agreed to pay.

13. On 28 August 2023 the defendants filed a response to the amended summons, in which they stated their grounds for opposing declaration 1 as follows:

1a   [The defendants] admit that the notice issued to the plaintiff (associated with penalty number 4942543440) was not a penalty notice for the purposes of s 20 of the Fines Act 1996 (NSW) because it did not specify an offence within the meaning of that section.

Particulars

The purported penalty notice alleges that, at 15:00 hrs on Monday, 13 September 2021 at Thegoa Lagoon, Wentworth, the plaintiff committed the offence of “Leave Greater Sydney for Prescribed Purposes Without Permit”. That allegation did not constitute the specification of an offence for the purposes of s 20 of the Fines Act because the offence of “Leave Greater Sydney for Prescribed Purposes Without Permit” cannot be committed in Thegoa Lagoon, Wentworth (that place not being immediately outside Greater Sydney).

1b   [The defendants] say that the declaration sought should not be made and is of no utility in circumstances where:

i   the notice was withdrawn on 18 July 2023;

ii   neither the plaintiff nor the defendants contend that the notice was valid or has operative effect; and

iii   thus, there is no issue between the parties in relation to the subject matter of the proposed declaration.

(Emphasis added).

14. By their response the defendants oppose declaration 2 on the grounds that they:

2a   admit that, in the premises of sub-paragraph 1(a) above, the second defendant was not authorised by s 73 of the Fines Act to make a garnishee order in connection with the penalty notice;

2b   say that the amount received by the second defendant as a consequence of purporting to make a garnishee order in connection with the penalty notice was repaid to the plaintiff on about 4 August 2023; and

2c   say that the declaration sought should not be made and is of no utility in circumstances where there is no issue between the parties in relation of the subject matter of the proposed declaration.

15. The plaintiff does not accept that the defendants’ capitulation regarding invalidity of the penalty notice and repayment of the fine is a sufficient resolution of the dispute. She submits that the Court should proceed to make declarations as to those matters and should give reasons for doing so, which should be different from the reason for invalidity assigned in the particulars to par 1a of the defendants’ response. The plaintiff submits that the history of her representations to the defendants, together with the context of many other penalty notices issued for breach of public health orders during the Covid-19 outbreak, justifies the making of declarations, with judicial reasons, notwithstanding the defendants’ concessions. The background relied upon by the plaintiff is summarised in the following paragraphs.

Events leading to withdrawal of the notice and repayment of the fine

The terms of the penalty notice

16. By force of s 21(1) of the Fines Act, a penalty notice may be issued by an officer authorised by, and in the circumstances specified in, any statutory provision that provides for the issue of such a notice. At the relevant time s 118 of the Public Health Act permitted the issue of penalty notices in respect of offences prescribed in the Public Health Regulation 2012. Clause 100 and Sch 4 of the Regulation had the effect that a breach of s 10 of the Act by failure to comply with cl 5.4 of the Public Health Order of 20 August 2021 was a penalty notice offence for which a fine of $3,000 could be stipulated in the notice.

17. Neither the Fines Act nor any subordinate legislation prescribes a form that a penalty notice must follow. The requirements of a penalty notice are set out in s 20, 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.

(Emphasis added).

18. The penalty notice forms used by police officers in September 2021 comprised a pad with three folios for each serial numbered notice, with carbon copying from each folio to the next. The first folio, part A, had printed in the upper half of the page a series of boxes and underlined spaces in which the issuing officer could insert the date of issue of the notice, the name, address and licence number of the recipient and the time, date and place of the offence. The remaining spaces and boxes for description of the offence had printed titles as highlighted in bold below. The details inserted by the issuing officer on penalty notice No 4942543440 were as follows (in plain text, adjacent to the respective titles):

… the following offence was committed in relation to … Leave Greater Sydney for Prescribed Purposes Without Permit

Offence Code 97716

Regulation Code KAA

Penalty Amount $3,000

Short title of offence Leave Greater Sydney for Prescribed Purposes Without Permit

19. The “Offence Code” is taken from a database of “Law Part Codes” maintained by the Judicial Commission of New South Wales for all offences against the laws of the State and for all Commonwealth offences that are dealt with in New South Wales. The statutory provision that creates the offence to which a particular Law Part Code relates can be identified by going to the Judicial Commission website, where an access link to the Lawcodes database is provided, with a search facility. A search for a particular Law Part Code will result in display of the Act, section, regulation and/or other sources that create the offence, together with a short form statement, in general terms, of conduct that gives rise to a breach of the offence provision.

20. The lower half of the top folio, part A, contained spaces and boxes for the issuing officer to insert his own details and a narrative description of the offence. Those particulars were not carbon copied through to the third folio, part C, which was issued to the alleged offender. Part A was retained by the issuing officer and forwarded to Revenue NSW, for collection of the fine.

21. The second folio, part B, was a complete carbon copy of part A and was retained in the pad as the NSW Police record. The upper half of part C contained a carbon imprint of all the entries in the boxes and spaces on the upper half of part A, as referred to at [18] above. The lower half of part C had boxes for insertion of “Date of Offence”, “Offence Code” and “Amount due”. The part C that was issued to the plaintiff is not in evidence but it would have had those boxes and spaces completed. The offence code would have been 97716, as in the top half of each of parts A and B.

Plaintiff’s first application for review of penalty notice – 15 September 2021

22. On 15 September 2021 the plaintiff made an online application to the Commissioner of Fines Administration for review of the penalty notice. Section 24A of the Fines Act provides for such an application. She gave a new address for notices, being a street address in South Australia. Her reasons for seeking review and requesting “lenient treatment” were that she had been unable to keep a business operating in Sydney “due to restrictions”; she could not afford rent by herself; isolation in Sydney had “taken a toll on my mental health”; she had friends in South Australia with whom she could reside but no permanent address in Sydney and there was no one in Sydney who could help her.

23. On 28 September 2021 Revenue NSW responded to the plaintiff’s review application by an emailed letter, which included the following:

We acknowledge the circumstances raised; however leniency is inappropriate as it is considered serious due to the need to protect the health of the NSW public. As the NSW Police officer advised you were in breach of the Public Health Covid 19 Temporary Movement and Gathering Restrictions Order 2021

The letter then quoted cl 5.4 of the applicable public health order, referred to above, and stated that the $3,000 fine would have to be paid.

24. On 21 October 2021 a penalty reminder notice was sent to the plaintiff by Revenue NSW, advising that if payment was not received by 21 November 2021 an enforcement fee would be added. On 7 December 2021 an overdue fine notice was sent to the plaintiff, stating that she had incurred an additional $65 enforcement fee and that she was at risk of having the overdue fine withdrawn from her bank account. The notice also informed her that she may be eligible to be credited with payment of the fine by “doing unpaid work, education or treatment through a Work and Development Order”. That was a reference to ss 99A-99K of the Fines Act, pursuant to which the Commissioner of Fines Administration may order that a person who satisfies one or more of certain criteria, which include being homeless and experiencing acute economic hardship, is required to undertake voluntary unpaid work or an educational or vocational course to satisfy all or part of a fine.

24. The plaintiff applied for a Work and Development Order in respect of her outstanding fine. On 21 March 2022 such an order was made, requiring the plaintiff to enrol with TAFE NSW in an online or face to face course and to submit assignments. The plaintiff has deposed that she completed six months of an online course in the first half of 2022, for which she was credited with $1,000 towards her fine.

25. On 2 November 2022 Revenue NSW issued to the plaintiff notification that $2,105 remained outstanding. She was informed of the option to fulfil a further Work and Development Order but she made no application to pursue that alternative.

Beame; Els v Commissioner of Police [2023] NSWSC 347

27. In July 2022 separate proceedings were commenced in this Court by each of three plaintiffs against the Commissioner of Police and the Commissioner of Fines Administration. The plaintiffs sought declarations that penalty notices issued to them, respectively, were invalid by reason of failure to specify the offences alleged to have been committed, as required by s 20 of the Fines Act. The Commissioner of Fines Administration withdrew the penalty notice against one of the plaintiffs upon receipt of his summons. The other two proceedings were listed for joint hearing on 29 November 2022.

28. Mr Beame’s penalty notice, issued by post, contained the following particulars of the offence alleged:

Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual.

Offence code 95638.

That Brendan Beame a person subject to a ministerial direction regarding public gathering, did at 1300 on Monday the 2nd of August, at Bronte Beach in the State of New South Wales, having notice of the direction, without reasonable excuse fail to comply with the direction by gathering for a picnic with 5 other persons from 4 separate households in a public place without lawful excuse.

29. The notice issued to Ms Els particularised the alleged offence as follows:

Unlawfully participate in outdoor public gathering – area of concern – individual.

Offence Code 97722.

30. On the day before the Beame and Els proceedings were to be heard the defendants notified the plaintiffs’ solicitors that they would consent to declarations that the penalty notices were invalid. The defendants maintained that position at the hearing on 29 November 2022. They also did not oppose consequential declarations concerning repayment of the plaintiffs’ fines, although they submitted that the additional declarations were unnecessary as it was intended to make full refunds. At the conclusion of the hearing Yehia J made, in each case, a declaration that “the purported penalty notice is not a ‘penalty notice’ within the meaning of s 20 of the Fines Act”. It had become apparent from the parties’ oral submissions that although the defendants conceded invalidity they took different positions as to what was required by s 20 to be stated in a penalty notice by way of specifying the offence. Her Honour’s reasons were reserved and were published on 6 April 2023: Beame; Els v Commissioner of Police [2023] NSWSC 347. In that judgment her Honour explained the issue before her at [57], as follows:

[57]   [Although] the parties agree that the subject notices are invalid on the basis that “it cannot be discerned from each of the notices what is the offence said to have been committed” by Mr Beame and Ms Els, they do not agree on the level of specification required to comply with s 20 generally. Specifically, there was a dispute as to whether a penalty notice is required by s 20 of the Fines Act to identify the relevant penalty notice offence-creating provision.

31. At [75]-[108] Yehia J discussed a number of considerations and authorities bearing upon the interpretation of the word “specified” in s 20. Her Honour made the following general observations about the section:

[75]   A number of superior courts, including intermediate appellate courts, have held “with an unusual degree of consistency in different contexts” … that the ordinary meaning of “specified” in legal (including statutory) instruments requires that a particular thing or subject matter, such as an offence, be described with “unambiguous clarity”, be “unambiguously identified”, or be “made clear”. (Citations omitted).

[84]   …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.

32. Upon those considerations her Honour’s reasons for declaring the penalty notices that had been issued to Mr Beame and Ms Els invalid were as follows:

[109]   The Els penalty notice describes the penalty notice offence as “unlawfully participate in outdoor public gathering - area of concern - Individual”. The Beame penalty notice describes the penalty notice offence as “Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual”. The defendants concede, in each case, that the description is so vague that it renders the notice invalid.

[110]   In each case, the short description identifying the substance of the penalty notice offence was clearly insufficient and did not comply with s 20 of the Fines Act.

[111]   The description in the Els penalty notice does not correctly identify any of the elements prescribed by the offence-creating provision, namely s 10 of the Public Health Act …

…

[113]   The Els penalty notice not only failed to identify the offence-creating provision; it did not correctly identify a single element of the offence.

[114]   In the Beame penalty notice, the offence is also apparently pursuant to s 10 of the Public Health Act. The offence-creating provision is not identified, nor are the relevant elements of the offence identified correctly. Insofar as the notice refers to “a direction in relation to s 7/8/9 - COVID-19”, it does not refer to the Public Health Act.

[115]   It is clear from the words of s 10 that the offence created therein has no apparent relationship to what is described in the subject notices.

[116]   The relevant Law Part Code is included in each notice. However, the Law Part Code is simply a number maintained on an external database. It does not identify on the face of the notice, with unambiguous clarity, what the offence is. It is not a number from which the offence can be readily or expediently inferred or deduced (unless, perhaps, the recipient had access to the Lawcodes database). The Law Part Code says nothing about the elements of the offence and leaves one asking how the plaintiffs would know what offence they had committed on the face of the subject notices.

[117]   In the proceedings before me, the defendants did not seek to rely upon evidence beyond the notices themselves. The defendants did not, for example, rely upon any conversations between the plaintiffs and police officers or on any interactions between the plaintiffs and police captured in body-worn camera footage.

[118]   How then were the plaintiffs to know what offence they had committed or to make an informed decision as to whether to pay the fine or elect to have the matter determined by a court? Had the offence-creating provision been identified, the requirements of s 20 of the Fines Act, that the penalty notice offence be specified in the notice, would have been satisfied. This was a bare minimum requirement, particularly where a “penalty notice offence” is defined in s 3 of the Fines Act as one arising “under a statutory provision”. It would have enabled the plaintiffs to look up the section and find out what offence they had allegedly committed, that is, it would have provided the unambiguous clarity required by the use of the word “specified” in s 20.

[119]   It may be that in a particular case more information should be included in order to “specify” a penalty notice offence under s 20(a). However, I am not of the view that I need to determine this issue at present. In the proceedings before me, the short description identifying the offence was, in each case, insufficient to meet the requirements of s 20 of the Fines Act. As a minimum requirement, the offence-creating provision should have been included on the penalty notice in order to comply with s 20.

Cancellation of all penalty notices worded as in the Beame and Els notices

33. Revenue NSW maintains a database of all penalty notices that have been issued, which is searchable within a selected date range using the short description of the offence that appears in each notice. Standardised short form descriptions are used, generally, in penalty notices. For each of the various ways in which s 10 of the Public Health Act may be infringed by non-compliance with one of the many clauses of public health orders issued by the Minister under s 7 during the Covid-19 public health crisis, a separate short form was adopted for use in penalty notices. Distinct Law Part Codes were assigned for different particulars of offending.

34. On 29 November 2022, after Yehia J had made declarations in Beame; Els v Commissioner of Police, the Commissioner of Fines Administration announced that he would cancel all penalty notices in which the same short form as in the Beame notice had been used (“Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual”), as well as notices bearing the equivalent short form but ending with the notation “— Company”. At some time prior to 9 January 2023 the Commissioner announced that he would cancel all penalty notices in which the same short form as in the Els notice had been used (“Unlawfully participate in outdoor public gathering – area of concern – Individual”) and notices with the same substantive wording but ending “— Company”.

Garnishee order – 20 March 2023

35. On 20 March 2023 the Commissioner of Fines Administration made a garnishee order pursuant to s 73 of the Fines Act, being an order attaching debts due to the plaintiff from her bank, ING Direct, for the purpose of satisfying the outstanding balance of her fine. That order was duly served on the bank, as a result of which $2,210, including overdue and enforcement charges, was debited to the plaintiff’s account and transferred to Revenue NSW. The plaintiff became aware of the debit upon checking her bank balance online, on 28 April 2023.

Plaintiff’s second application for review – 23 May 2023

36. On 23 May 2023 the plaintiff made a second online application for review of the penalty notice. This time she submitted the following ground, relying upon the decision in Beame; Els v Commissioner of Police:

The penalty notice didn’t make it clear what offence I was meant to have committed. The Supreme Court has held that it is necessary for a penalty notice to do so or it is invalid. So this penalty notice was issued contrary to law, should be cancelled and I would like the money I paid refunded in full.

37. On 24 May 2023 Revenue NSW responded to the plaintiff’s review application, rejecting it on the following basis:

The Commissioner of Fines Administration decided to withdraw 4 categories of fines as a result of the Supreme Court’s decision which found that some offence descriptions lacked specificity which made them invalid under the Fines Act.

As at the date of this response, a decision has been made that the remaining offence descriptions including “Leave Greater Sydney for prescribed purposes without permit-individual” are sufficiently specific and the Commissioner is not withdrawing any further fines on this basis.

Commissioner’s withdrawal of penalty notice on hardship grounds

38. After the plaintiff had commenced these proceedings on 13 July 2023, she was advised by letter of 18 July 2023 from the Executive Director of Revenue NSW as follows:

I am instructed that the Commissioner has of his own motion reviewed the Penalty Notice under section 24H of the Fines Act 1996.

Having regard to the circumstances of the offence where you are homeless and the grounds set out in s 24E(2)(d), the Commissioner has decided to withdraw the Penalty Notice. For the avoidance of doubt, this decision was not made on any ground relating to the validity of the Penalty Notice.

As a consequence of the withdrawal of the Penalty Notice, the penalty reminder notice and penalty notice enforcement order made in relation to the Penalty Notice are also taken to be withdrawn under s 24G. The amount recovered from you by way of a garnishee order will also be repaid.

39. Section 24H confers upon the Commissioner an unconstrained power to withdraw a penalty notice of his own motion. The ground in s 24E(2)(d) includes that the recipient of the notice was, by reason of being homeless, unable to control the offending behaviour.

Correspondence concerning utility of these proceedings

40. The above quoted letter of 18 July 2023 was accompanied by another letter of the same date from the Crown Solicitor’s Office, confirming that the amount paid by the plaintiff in respect of the fine would be refunded. The Crown Solicitor’s letter included the following:

It appears to the defendants that, as a result of the matters identified above, the relief sought in the Supreme Court is inutile and the proceedings should be discontinued.

41. As earlier mentioned, repayment of the fine was duly made on 4 August 2023 and the plaintiff then amended her summons on 15 August 2023 by deleting her claims for declarations 3 and 4 relating to repayment but adding par 2A in which she sought interest. On 25 August 2023 the Crown Solicitor responded with a letter to the plaintiff’s solicitors offering interest and reiterating that the proceedings were no longer useful, as follows:

As I indicated in my previous letter, as a result of the prompt withdrawal of the penalty notice, the defendants consider that the relief sought by your client’s summons as filed is inutile and the proceedings should be discontinued.

42. On 28 August 2023 the defendants served their response to the amended summons, from which the material parts have been quoted earlier in these reasons. The plaintiff’s solicitors replied in an 11 page letter dated 11 September 2023, reciting the above chronology in detail and advancing arguments to the effect that the penalty notice was invalid, not on the factual basis contended in par 1a of the defendants’ filed response, but on the ground of failure of the notice to nominate the offence-creating provision, with reference to the Court’s reasons in Beame; Els v Commissioner of Police. The plaintiff’s solicitors maintained in their letter of 11 September 2023 that there was utility in continuing the proceedings to obtain declarations 1 and 2.

Other penalty notices issued with similar offences description

43. The plaintiff’s solicitor has searched the database referred to at [33] above and has ascertained that 96 penalty notices were issued with the same short form description of offence as in the plaintiff’s notice dated 13 September 2021. The database indicates that the total of all fines paid and/or payable under those 96 notices amounts to $288,000. The solicitor has deposed that there were 58 different short form descriptions used in a total of 25,834 penalty notices issued to individuals for offences against s 10 of the Public Health Act, allegedly committed by failing to comply with public health orders issued in response to the Covid 19 public health crisis. It is said that the total amount of fines paid or payable under all such penalty notices is $17,410,340.

The Court’s discretion not to make declarations

44. The parties’ submissions centred upon three decisions concerning circumstances in which it may be appropriate for the Court to grant the discretionary remedy of a declaration. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 the Criminal Justice Commission of Queensland had prepared a report containing adverse recommendations about certain persons engaged in the poker machine industry. The Commission furnished the report to the chairman of a Parliamentary Committee, to the Speaker of the Legislative Assembly and to a Minister. It was then tabled in Parliament. The High Court held that in preparing the report the Commission had been under a duty to observe procedural fairness, which had been breached by the failure of the Commission to accord a hearing to the persons whose reputations were affected by the adverse recommendations.

45. Mason CJ, Dawson, Toohey and Gaudron JJ held that having regard to the statutory functions of the Commission and the status of its report, neither certiorari nor mandamus was an available remedy on the application of the persons affected. Their Honours determined that there should be a declaration that the Commission had failed to observe the requirements of procedural fairness, upon the following considerations (at 581-582):

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The person seeking relief must have "a real interest" Forster (1972) 127 CLR, per Gibbs J at p 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438, per Lord Dunedin at p 448. and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen" University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, per Gibbs J. at p 10 or if "the Court's declaration will produce no foreseeable consequences for the parties" Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, per Mason J at p 188; see also per Aickin J at p 189; 18 ALR 55 at pp 69, 71 respectively.

The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under s 2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done. (Emphasis added).

46. The separate judgment of Brennan J included statements to similar effect, as follows (at 595-597):

The respondent submits that no declaration should be made because, as Lawton LJ said in Maxwell v Dept of Trade (1974) QB 523, at p 542. in reference to a report by inspectors of a company:

“The courts cannot declare null and void events which have happened. What they can do is to declare that the making of a report shall have no legal consequences, as was done in [Kanda v Govt of Malaya [1962] UKPC 2; (1962) AC 322]. The report in this case itself neither produced, nor could directly produce, any legal consequences."

In that case, Denning LJ, while refusing to restrict the court's declaratory jurisdiction, observed [at p 536] that "the case must be very rare in which it would be right to make such a bare declaration in the air".

The making of a declaration and the terms in which, if made, it should be framed are in the court's discretion. As the Privy Council said in Ibeneweka v Egbuna (1964) 1 WLR 219, at p 225:

"After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration."

The circumstances that call for the making of a declaration are not present if there be no real controversy to be determined: Re Tooth & Co Ltd [1978] FCA 9; (1978) 31 FLR 314, at p 331. The characteristics of a controversy fit for determination by judicial declaration were stated by Viscount Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ld: (1921) 2 AC 438, at p 448.

"The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought."

Those elements appear in the present case.

In Chief Constable v Evans [1982] UKHL 10; (1982) 1 WLR 1155; (1982) 3 All ER 141 where a Chief Constable had given a police officer the option of resigning or having his services terminated and the Chief Constable had failed to give the officer an opportunity to deal with the allegations made against him, the House of Lords made a declaration to protect the interests of the officer who had resigned so far as those interests were susceptible of protection by declaration. Lord Brightman observed at p 1172; p 153. that -

"it would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory."

I respectfully agree. Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person's reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity's duty to observe the rules of natural justice. The declaration cannot assert that the report was in fact erroneous for the court is not concerned with the merits of the report. As Lord Hailsham of St Marylebone said in Chief Constable v Evans at p 1161; p 144.

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

The Commission did not accord fair treatment to the appellants and it is right so to declare.

47. The second of the three cases is Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41. In that case non-citizens within certain categories arriving in Australia would be subject to a departmental decision as to whether they were owed protection obligations. If an affirmative conclusion was drawn in relation to any such individual, a submission would be made to the Minister seeking his or her agreement to exercise a statutory power to allow the person to make a visa application. Otherwise, the person could seek review of the departmental decision by an independent reviewer, whose recommendation could result in a submission to the Minister. The Minister was not under a duty to consider whether to exercise the power to allow a visa application to be made. In those circumstances the High Court held that neither mandamus nor certiorari was an available remedy for established instances of denial of procedural fairness by the independent reviewer.

48. The Court held as follows with respect to declaratory relief (some citations omitted:

[101]   Although the plaintiffs' claims for certiorari and mandamus should be rejected, a declaration should be made in each case that the processes undertaken to arrive at the reviewer's recommendation were flawed in the respects that have been identified. In many cases, the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made. Why should a declaration be made in these matters?

[102]   The power to grant declaratory relief is a power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise". As pointed out in Ainsworth v Criminal Justice Commission, it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.

[103] In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a "real interest" in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.

[104]   Accordingly, each plaintiff should have a declaration moulded in terms similar to the declaration made by this Court in Ainsworth.

49. The third case is Dunlop v Department of Justice and Attorney-General (Qld) [2020] QSC 160. The plaintiff held a letting agent licence under a Queensland statute. The licence was essential to the conduct of his business as a caretaker and letting agent of apartment buildings. In March 2017 he pleaded guilty in the Magistrates Court to having used a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Criminal Code 1995 (Cth). The circumstances were that he made agitated and excessively frequent phone calls to a local council, complaining that construction work on a site near a complex he was managing was adversely affecting the amenity of the building. More than two years later the Department administering the statute under which the plaintiff held his licence informed him that it was deemed cancelled from the date of his conviction under the Criminal Code. The Department asserted that his conviction was for a “serious offence”, as defined in the licensing statute.

50. In the circumstances of the case, the plaintiff’s conviction could only have been for a “serious offence” if it had been punishable by three or more years imprisonment and had involved the use or threatened use of violence. The plaintiff’s solicitor wrote to the Department and pointed out that the transcript of the hearing showed that no violence or threat of violence had been alleged (“the factual point”) and that the charge was dealt with in the Magistrates Court, which only had power to sentence for a maximum term of 12 months (“the legal point”). The Department rejected the solicitor’s submission and the plaintiff therefore brought proceedings in the Supreme Court for a declaration that his conviction was not for a serious offence.

51. After the proceedings had been commenced the Department conceded the factual point, on the basis of which it accepted that the plaintiff had not been convicted of a “serious offence”. The Department contended that there was therefore no utility in the proceedings but the plaintiff pressed for a declaration regarding the legal point and confirming that his licence had not been cancelled by the conviction. Henry J held as follows:

[11]   It is trite that there must be some utility warranting the making of a declaration [Ainsworth v Criminal Justice Commission]. It does not follow that a capitulation by a respondent prior to the hearing of an application for declaratory relief will necessarily deprive a prospective declaration of its utility. In Hacienda Apartments Pty Ltd v Vago (unreported, Supreme Court of New South Wales, Equity Division, Young J, 19 May 1985) Young J relevantly observed one rule gleaned from the cases on declaratory relief was:

“[I]f a dispute is live at the date of its commencement but has become spent, but the point is of some public importance, the court will still consider the matter and grant declarations.”

[12]   As earlier mentioned, the legal point in this matter is attended by some complexity. It is of public importance that it be resolved because the livelihoods of licensees could be drastically jeopardised by erroneous bureaucratic applications of s 77 Property Occupations Act. There would therefore be utility in making a declaration on the legal point regardless of the concession by the Department’s lawyers of the factual point.

[13]   In any event, I would not regard the position taken in this application as meaning the dispute underlying it is spent. Whatever may turn out to be the correct position regarding the legal point, the applicant was clearly the victim of an error on the factual point. It was an error which Mr Dunlop’s solicitor cogently explained to the Department, yet the Department persisted in it. That background of bureaucratic intransigence on a matter of critical importance to a citizen’s livelihood, in the face of correct information from Mr Dunlop’s legal representative, provides good reason why a declaration would provide more reliable protection than the belated acknowledgement by the Department’s legal representative. Its utility would be to guard against a recurrence of such bureaucratic intransigence on the same point once away from the scrutiny of the court.

52. Henry J proceeded to consider the legal point at length and determined it favourably to the plaintiff. His Honour made declarations with respect to both points and a declaration that the plaintiff’s licence was not cancelled as a result of the conviction.

Consideration of the parties’ submissions

53. Applying the principles in Ainsworth v Criminal Justice Commission and Plaintiff M61/2010E v Commonwealth of Australia the defendants oppose the making of declarations 1 and 2 on the basis that the plaintiff has no “real interest” in such relief now that the defendants have conceded invalidity of the penalty notice and the second defendant has withdrawn it and refunded the fine. The defendants submit that the declarations claimed will produce “no foreseeable consequence for the parties”.

54. Against that the plaintiff submits, firstly, that there is a live dispute between the parties whether the basis, or a basis, of invalidity is that the penalty notice did not nominate the offence-creating provision. The plaintiff has expanded the description of that dispute by referring to the facts that the second defendant maintained the validity of the notice, notwithstanding the declarations made on 29 November 2022 in Beame; Els v Commissioner of Police, through the following stages:

On 20 March 2023, when the garnishee order was made.

On 23 May 2023, when the second defendant rejected the plaintiff’s second review application, which had been lodged on the express basis that the offence-creating provision was not disclosed on the notice.

On 18 July 2023, when the second defendant withdrew the penalty notice on the basis of hardship to the plaintiff, with express disclaimer of invalidity.

On 18 August 2023, when the defendants’ response to the summons was filed, acknowledging invalidity only on the ground of factual error in the description of the offence.

55. The plaintiff submits that, because the defendants have not conceded that a ground of invalidity is the absence of any reference in the penalty notice to the offence-creating provision, uncertainty arises as to whether the defendants contend “that the penalty notice has always been invalid, or whether the penalty notice only became invalid when [the second defendant] (recently) formed the view that [the plaintiff] has not committed the offence”.

56. I do not accept that those endeavours to expand the scope of the alleged “live dispute” have any significance for the question whether declarations should be made. The difference between the parties is no greater than this: the plaintiff contends that the failure to nominate in the notice the Act and section under which the offence was alleged to have been committed is a ground of invalidity and the defendants take no position on that but say that the notice is, in any event, invalid on a factual basis. Despite the plaintiff’s submissions, I do not find the parties’ difference to be any greater or more complicated than that. Whether it is a difference that gives the plaintiff a “real interest” in obtaining a declaration and whether a declaration that would resolve that difference would have any “foreseeable consequences for the parties” requires further consideration of the submissions.

57. The plaintiff next submits that she is entitled to a declaration to vindicate her with respect to unlawful interference with her property rights, referring to the execution of the garnishee order on her bank. I do not see that a declaration would be capable of providing vindication beyond that which has been obtained by the defendants’ admission of invalidity and the repayment of the fine with interest. The plaintiff’s rights and interests have not been affected in any way beyond the accrual and enforcement of her liability to pay the fine under the notice. As the impact on her rights and interests in that respect has been reversed and terminated there is nothing further to vindicate. Ainsworth v Criminal Justice Commission is an example of a case where a plaintiff could obtain material vindication from a declaration, in that case by diminishing the damage to the plaintiff’s reputation that flowed from the Commission’s recommendations to Parliament. Such vindication as lay within the power of the Court was to declare that the recommendations had been made without giving the plaintiff a hearing.

58. The plaintiff submits that there is an analogy with Henry J’s decision in Dunlop v Department of Justice and Attorney-General (Qld) in that she has been subjected to “bureaucratic intransigence” by the second defendant’s failure to acknowledge invalidity at the several stages referred to at [54] above. I do not regard “bureaucratic intransigence” as a fair characterisation in this case. Henry J’s use of the term has not given rise to a general principle. The conduct that his Honour so described in that case assumed a significance relevant to the Queensland Supreme Court’s discretion to make a declaration because it had led to the plaintiff being deprived of his means of earning a living. Also his Honour was concerned that the Department’s failure to correct its error, even when the plaintiff’s solicitor had pointed out the indisputable “factual point”, raised the prospect of further such conduct if a declaration were not made. The granting of relief in those circumstances had clearly foreseeable consequences for the parties, in particular, protective consequences for the plaintiff. There is no equivalent here. The penalty notice is at an end.

59. The plaintiff submits that the point of difference between the parties, being her unrequited insistence that this particular penalty notice is invalid for want of nomination of the offence creating provision, is “a point of considerable public importance”. I do not accept that. Beame; Els v Commissioner of Police determined the “bare minimum” requirement that the offence-creating provision should have been identified by reference to section and Act and that that requirement was not met in the penalty notices they are considered. The defendants in this proceeding are the same as in the Beame and Els proceedings. They have not appealed Yehia J’s decision. The factual ground upon which the defendants have conceded invalidity of the penalty notice in the present case appears sound. I see no public importance in proceeding to make a declaration of the invalidity that is already properly admitted, merely in order to express reasons about applicability of Yehia J’s reasoning to this notice. I do not accept that the statistics concerning large numbers of other penalty notices issued for infringement of Covid-19 public health orders are capable of establishing public importance. This is not a class action or representative proceeding. It is reasonable to expect that other penalty notices may, similarly, not include reference to the relevant Act and section. The notice issued by post to Mr Beame included additional particulars of his alleged offending: see [28] above. There is no basis upon which I could conclude that making a declaration in this case, with reasons as to the consequence of the offence-creating provision not having been nominated, would resolve issues concerning other penalty notices. Further, there is no evidence before the Court that other recipients of penalty notices wish to contest them, or have applied unsuccessfully for review and may wish to renew their applications.

60. The plaintiff submits that the defendants’ undoubted duty to apply the law as ruled upon by this Court (see Indooroopilly Chidren’s Services (QLD) Pty Ltd [2007] FCAFC 16 at [3]-[7]) has been breached by the Commissioner of Fines Administration because he has “persisted in refusing to concede that the reasoning in Beame dictates that [the plaintiff’s] penalty notice is invalid”. In my view there is no such breach, given that the second defendant has conceded invalidity on a different and appropriate ground and that concession has been sufficient for the plaintiff’s rights according to law to have been upheld – by the withdrawal of the notice and repayment of the fine. The duty does not extend to an obligation on the part of the defendants to agree with the plaintiff, or to concede, the applicability of Beame; Els v Commissioner of Police to the present case, where that legal point may fairly be regarded by the defendants as irrelevant and unnecessary to ensuring lawful administration of the Fines Act, for which they are responsible.

Orders

61. The following orders will be entered:

1. The amended summons is dismissed.

2. If the parties are unable to agree upon liability for costs, the plaintiff is to deliver to the Associate to Fagan J by 16 February 2024 a proposed form of order and submissions in support.

3. If the plaintiff lodges a proposed costs order pursuant to order (2), the defendants are to deliver to the Associate to Fagan J by 23 February 2024 any proposed alternative form of costs order and submissions.

4. The costs of the proceedings are reserved and any order for costs is to be determined if necessary on the papers.

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Decision last updated: 31 January 2024