The judgment in the second NSW Supreme Court COVID fines test case filed by Redfern Legal Centre (RLC) on behalf of their client Ms. Kosciolek has been handed down: Kosciolek v Commissioner of Police [2024] NSWSC 15.
The judgment has implications for the 29,000 other COVID fines issued during the pandemic, many of which have already been paid or partially paid and have not been withdrawn.
The plaintiff (Ms. Kosciolek) was issued a $3,000 fine for leaving Greater Sydney without a permit. The plaintiff was homeless at the time and wanted to travel to South Australia, where she had been offered accommodation.
In this most recent COVID fines case, Justice Fagan, who presided over the case, confirmed that the “bare minimum” test set out by Justice Yehia in Beame and Els still stands and is to be applied when assessing the validity of COVID fines: Beame; Els v Commissioner of Police & Ors [2023] NSWSC 347.
The "bare minimum" test demands that, to be valid, a penalty notice must clearly state the relevant Act and provision related to the offence, enabling individuals to understand what offence they are accused of committing.
Samantha Lee, Redfern Legal Centre police accountability lawyer, states, “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.”
In relation to COVID fines, the specific offence was apparently intended to be s 10 of the Public Health Act, but the Act was not stated on the penalty notice. None of the COVID fine notices contained a reference to s 10 of the Public Health Act.
Although RLC sought a court declaration regarding the invalidity of Ms. Kosciolek's fine, the court did not grant it because Revenue NSW had already withdrawn the fine, refunded the money paid with interest, and admitted the fine was invalid (on a different ground).
Kate Richardson SC, counsel for Ms. Kosciolek, argued that the court should use its discretion to grant the declaration on public interest grounds; however, his Honour did not accept this submission, finding there was no need to grant a declaration.
RLC considers that the judgment supports the conclusion that the remaining COVID fines are invalid and urges Revenue NSW to withdraw and repay the 29,000 remaining fines.
This morning at Budget Estimates, the Commissioner of Fines Administration Scott Johnston confirmed that Revenue NSW will not withdraw and repay the remaining 29,000 fines and will continue to “review and treat every matter on a case-by-case basis.”
RLC continues to offer free legal advice to those who have paid or partially paid COVID fines.
