Australia, Supreme Court of New South Wales, 6 April 2023, [2023] NSWSC 347
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Civil Court
- Criminal Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
Penalty notices were issued on the Plaintiffs in relation to attendances at public gatherings on the basis that they had, without reasonable excuse, failed to comply with COVID-19 directions in relation to stay at home directions. The Plaintiffs argued that the penalty notices were unclear as to how they had “unlawfully gathered” nor did they correctly identify an element of the offence. The main right involved was the right to good public administration. The remedy sought was a declaration the penalties were invalid. The outcome obtained was a declaration that the purported penalty notices were not penalty notices within the meaning of s20 of the Fines Act 1996 (NSW).
Facts of the case
There were two Plaintiffs who were issued separate penalty notices for two separate incidents. The notices alleged that both were participating in activities contrary to a “Ministerial direction regarding public gathering….without lawful excuse”. The notice referred to an “Offence Code” but neither the offence creating the provision or the name of the relevant Act was included in the Notice. Both Plaintiffs individually applied for an internal review on the basis that the notice failed to include any detail of the offence they allegedly committed. However, both applications for internal review were rejected. The claims for relief included a Declaration that the penalty notices issued were invalid, that any money received in payment of the notice be refunded and an order for costs. The Defendants sought that the applications be dismissed with costs. However, at the commencement of the hearing, the Defendant’s position changed and they conceded that the Penalty Notices did not adequately outline the offence alleged to have occurred and the Court could not (from reading the Notices) “… sufficiently discerned from each of the notices what is the offence said to have been committed”. The issue then became whether or not the Court should produce reasons for its decisions. The Plaintiffs argued it was in the public interest that reasons be published given there had been 32,648 notices issued which were worth approximately $33 million in revenue to the State Government. The Defendants argued that such reasons should not be published as the finding of invalidity related to these specific notices and a unique set of circumstances. The defendants effectively submitted that to do so (ie publish reasons) would open the door to thousands of potential claims for invalidity of notices. The Court determined to publish the reasons on a public interest basis. The relief sought by the Plaintiffs was awarded by consent (not by Court Order) and no order for costs was made.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
At the time of the hearing, the Defendants substantively conceded to the Plaintiffs’ position that the penalty did not adequately outline the offence alleged to have occurred and the Court could not (from reading the Notices) “… sufficiently discern from each of the notices what is the offence said to have been committed”. Therefore the notices did not comply with section 20 of the Fines Act 1996 (NSW) as they did not contain sufficient details of the offence committed, the relevant Act or the relevant provision of the Act. The issues in dispute which remained was the admissibility of evidence regarding the number of penalty notices issued by the State and whether or not the Court should publish the reasons for its decision. Upon the declaration that the notices were invalid, the Court went on to confirm that the Plaintiffs were also entitled to a “degree of certainty” given their efforts to have the notices declared invalid by way of an internal review process and the late concession of the Defendants as to the validity of the notices. The reasons would also serve to “vindicate the Plaintiffs’ claims against the Defendants” and also serve to inform the public of the consequences of a finding that the notices are invalid.
Conclusions of the deciding body
The Court upheld the claims of the Plaintiffs that the penalty notices were invalid and that any monies paid should be refunded. No order for costs was made by consent between the parties.
