How landmark Supreme Court judgment could invalidate all NSW Covid-19 fines

A Supreme Court judgment could invalidate all Covid-19 fines after a state’s revenue department backed down on thousands of penalty notices.

Thousands more Covid-19 fines could be made invalid after the reasons for a court judgment were published.

All Covid-19 fines dished out by Revenue NSW could be made invalid following a landmark decision published by the Supreme Court.

Last November the NSW Supreme Court found two specific Covid-19 fines – issued for failing to comply with public health directions – were invalid.

The decision resulted in 33,121 fines being withdrawn.

A NSW Supreme Court judgment could invalidate all Covid-19 fines issued by Revenue NSW, following the withdrawal of over 33,000 penalty notices. Picture: NCA NewsWire / John Gass

Redfern Legal Centre (RLC), which filed the test case in July 2022, said the newly published reasons for the judgment called the remaining 29,017 fines into “disrepute” and urged the government to withdraw them.

“This case is not about Covid-19 or about public health orders,” RLC solicitor Samantha Lee said.

“It is about ensuring the rule of law is adhered to even in a time of crisis.”

In the court’s decision, published on Thursday, Supreme Court Justice Dina Yehia SC said the short descriptions identifying the penalty notice on both fines was “clearly insufficient”.

Two plaintiffs were fined $1000 and $3000 respectively but both raised questions about what they had been accused of doing, as the notices were too vague.

“The penalty notice offence must be clearly and unambiguously specified in the notice itself,” Justice Yehia stated.

The original Supreme Court judgment, made in November last year but only published on Thursday, found two specific Covid-19 fines were not valid because they did not comply with the Fines Act 1999 (NSW). Picture: NCA NewsWire / Dylan Robinson

“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.”

The judgment stated had the fines been made out properly, both plaintiffs would have been able to look up the relevant section and find out what offence they had allegedly committed.

Justice Yehia asked: “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?”

Both plaintiffs had their fines withdrawn as a result of the initial judgment.

RLC had argued the two specific fines were invalid under section 20 of the Fines Act 1996 (NSW) because they lacked sufficient detail about the alleged offence.

Ms Lee said the subsequent reasons for the judgment calls the remaining NSW fines which had similar vague-sounding offence descriptions into “disrepute”.

“The government must now do the right thing and withdraw all Covid-19 fines that were issued, including withdrawing those offences for which individuals elected to take to court, any Work and Development Orders and reimburse fines already paid,” she said.