By Paul Gregoire and Ugur Nedim
NSW police issued Angelika Kosciolek with a $3,000 fine at Thegoa Lagoon, which is on the outskirts of the town of Wentworth in far western NSW.
The 13 September 2021 penalty notice was issued in relation to the offence described as “Leave Greater Sydney for Prescribed Purposes Without Permit”.
This was the time of the COVID pandemic lockdowns, and most remember the outcry over the absurdity of circumstance and lack reasonable discretion that NSW police officers applied when issuing fines under the Public Health Act 2010 (NSW) for the offence of failing to comply with a public health order for being out in public.
But thanks to a case run by Redfern Legal Centre, all the fines marked “fail to comply with noticed direction in relation section 7/8/9” and another such reason were found invalid, and 33,000 of the 62,000 COVID fines issued were revoked, and those paid were then refunded by the state of NSW.
Handed down in April 2023, the ruling refuted the legitimacy of two actual imposed COVID fines and following that, Revenue NSW could not doublecheck the validity of all other fines issued in response to these same reasons were valid, according to the Fines Act 1996 (NSW), so they were cancelled.
And NSW Justice Des Fagan of the NSW Supreme Court ruled on 31 January this year that although the fine belonging to Kosciolek, an RLC client, had been cancelled and refunded prehearing, he wouldn’t issue a declaration, which could have implications regarding all remaining COVID fines.
Recent COVID fine proceedings
In his 31 January findings, Justice Fagan set out that Kosciolek didn’t raise issue with the health order, which she’d broken, or the legislative framework it was issued under, rather she initially raised a “procedural question”, which involved “the sufficiency of the description of the offence”.
Kosciolek neither denied breaking the law by being over 1,000 kilometres west of Greater Sydney, as she wasn’t allowed to leave without a permit.
Yet, she contended that it was wrong to name Thegoa Lagoon on the notice as the offence of leaving could only be committed close to the region’s border.
After the plaintiff launched the case, the defendants – the NSW police commissioner and the NSW fines administration commissioner – admitted there was an issue with the way the fine had been imposed, so it was withdrawn, and the payment refunded.
RLC then stated in August that its client would continue to fight for “justice for others” and Kosciolek sought a declaration on the invalidity of her fine, which should be accompanied by broad, fresh judicial reasons that were framed in light of the 2023 findings which resulted in mass refunding.
Such a declaration, it was expected, would have implications for the remaining 29,000 draconian COVID fines. However, when the matter was put to his Honour last November, he didn’t consider any “substantive matter of principle or justice” involved warranted the issuing of such a declaration.
Dodging an expensive bullet
Justice Fagan explained that in force from 20 August until the end of September 2021, Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 had been issued under the terms of section 7 of the Public Health Act 2010 (NSW).
Section 5.4 of the order required a person leaving Greater Sydney to “relocate to a new residence outside” not leave without a permit. And Kosciolek was homeless and heading to Adelaide, as she’d been offered a home, when she was fined for having no permit while waiting to cross into SA.
Following the cancelling of her fine, the plaintiff then sought a declaration stipulating that it was not an actual penalty notice as per section 20 of the Fines Act 1996 (NSW), as it did not “specify an offence within the meaning of that section”. This was similar to declarations issued in the first case.
Section 20 of the Fines Act requires that “the person to whom the notice is issued has committed the penalty notice offence specified in the notice”.
The reason Kosciolek asserted that her fine was problematic is the offence of “Leave Greater Sydney for Prescribed Purposes Without Permit” couldn’t be committed in Thegoa Lagoon as was stipulated upon the fine, as, she asserted, one can only commit that crime close to the region’s border.
In his findings, Justice Fagan noted the April 2023 finding that penalty notices issued to Mr Beame and Ms Els were found invalid by Justice Dina Yehia as the fines failed to specify offence within the meaning of section 20, as in both cases the different detailing of offences failed to specify one.
Following the Yehia ruling, Kosciolek contacted Revenue NSW and requested her fine be reviewed, as the penalty notice didn’t properly specify the offence. But the agency replied that it determined not to cancel any fines issued under “Leave Greater Sydney” as it was a sufficient descriptor.
And after she commenced court proceedings, Revenue NSW contacted the plaintiff and advised her that it had revoked her fine on hardship grounds, as she was homeless at the time of fining, and it further made certain that the fine was not being refunded on any grounds of invalidity of notice.
Keeping those coffers full
RLC has ascertained that 96 other COVID penalty notices were issued with the same offence description as Kosciolek’s on the same day of its issuance, and besides this offence, the reasons given for close to 26,000 other fines still standing appear with 58 other forms of offence descriptors.
Those fines refunded in the past amounted to around $30 million. Those fines still standing come to over $17 million.
The defendants rejected the claim for a declaration “on the basis that the plaintiff has no ‘real interest’ in such relief now that the defendants conceded invalidity of the penalty notice” and as the fine is refunded, such issuance would produce “no foreseeable consequence” for her.
RLC put it to the court that the defendants had not conceded the specific way in which the penalty notice was found invalid, so it’s unsure whether Kosciolek’s fine was always invalid, or it had been triggered by the 2023 Beame and Els determination, which meant the claim was a “live dispute”.
If the unnamed issue of validity relating to Kosciolek’s fine was the descriptor, Justice Fagan found this held, but if it was voided due to Act and section not being noted, which Justice Yehia found was required and Kosciolek’s notice didn’t have, this could have bearing on many more standing fines.
“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,” Justice Fagan set out.
“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,” his Honour added in concluding his findings.
And on 31 January, Justice Fagan ordered that the amended reasons for Kosciolek coming before the court be dismissed.
Refunding warranted
However, in a statement last week, the Redfern Legal Centre contested the Supreme Courts findings, as it notes that Justice Fagan upheld the “bare minimum” test, which considers a penalty notice must stipulate Act and relevant provision to be valid, in line with Justice Yehia’s April 2023 ruling.
Redfern Legal Centre further asserts that the finding in relation to Kosciolek’s fine supports the conclusion that all the remaining 29,000 COVID penalty notices should likely be revoked, and the community legal centre is calling on Revenue NSW to refund all remaining fines.
“It has been confirmed by another Supreme Court justice what Justice Yehia held in 2022 – which led to the invalidation of 33,000 fines – if a COVID fine fails to state the specific offence, the fine is invalid,” said Redfern Legal Centre police accountability lawyer Samantha Lee.
