Beame; Els v Commissioner of Police & Ors

Harofam Pty Ltd v Scherman (2013) 42 VR 372; [2013] VSCA 104 Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 Australian Competition and Consumer Commission v Ford Motor Company of Australia Ltd (2018) 360 ALR 124; [2018] FCA 703 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; [2011] HCA 19 Joukhador v Commissioner of Police [2018] NSWSC 872 Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 LPG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd (2020) 63 VR 271; [2020] VSC 689 Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70 New South Wales v Corbett (2007) 230 CLR 606; [2009] HCA 32 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Plaintiff M61/2010E v Commonwealth of Australia (Offshore Processing Case) (2010) 243 CLR 319; [2010] HCA 41 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7 Re Bill Express Ltd (in liq) (2010) 238 FLR 329; [2010] VSC 101 Re Bolton; Ex parte Bean (1987) 162 CLR 514 Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 Ryde City Council v Pedras [2009] NSWCCA 248 Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Tickner v Chapman (1995) 57 FCR 451 Transtar Linehaul Pty Ltd v Deputy Commissioner of Taxation (2011) 196 FCR 271; [2011] FCA 856 Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Category: Principal judgment Parties: Brenden Beame (First Plaintiff) Teal Els (Second Plaintiff) Rohan Pank (Third Plaintiff) Commissioner of Police (First Defendant) Commissioner of Fines Administration (Second Defendant) Representation: Counsel: K Richardson SC and T Smartt (Plaintiffs) D Kell SC and J Caldwell (Defendants)

Solicitors: Redfern Legal Centre (Plaintiffs) Crown Solicitor's Office (Defendants) File Number(s): 2022/00206180; 2022/00206198; 2022/00206206

Judgment

1. On 14 July 2022, Brenden Beame (the first plaintiff) filed a summons seeking final declaratory relief, pursuant to s 69 of the Supreme Court Act 1970 (NSW) as follows (the Beame proceedings): (2) a declaration that the purported penalty notice numbered 4066651600 (the Beame penalty notice) is not a "penalty notice" within the meaning of s 20 of the Fines Act 1996 (NSW) and is invalid; (3) a declaration that the Commissioner of Fines Administration may not validly make a penalty notice enforcement order within the meaning of Division 4 of Part 3 of the Fines Act that is referable to the Beame penalty notice; (3) a declaration that the monies received from Brenden Beame referable to the Beame penalty notice exceeded the amount payable to the Commissioner of Fines Administration under the Fines Act; (4) a declaration that the Commissioner of Fines Administration must, pursuant to s 122C of the Fines Act, refund the monies received from Brenden Beame referable to the Beame penalty notice; and (6) costs.
2. Similarly, on 14 July 2022, Teal Els (the second plaintiff) filed a summons seeking final declaratory relief, pursuant to s 69 of the Supreme Court Act as follows (the Els proceedings): (2) a declaration that the purported penalty notice numbered 4067060068 (the Els penalty notice) is not a "penalty notice" within the meaning of s 20 of the Fines Act and is invalid; (3) a declaration that the Commissioner of Fines Administration may not validly make a penalty notice enforcement order within the meaning of Division 4 of Part 3 of the Fines Act that is referable to the Els penalty notice; (4) a declaration that the monies received from Teal Els referable to the Els penalty notice exceeded the amount payable to the Commissioner of Fines Administration under the Fines Act; (5) a declaration that the Commissioner of Fines Administration must, pursuant to s 122C of the Fines Act, refund the monies received from Teal Els referable to the Els penalty notice; and (6) costs.
3. On 14 July 2022, Rohan Pank (the third plaintiff) also filed a summons seeking declaratory relief, pursuant to s 69 of the Supreme Court Act, in a form effectively identical to the Beame and Els proceedings (the Pank proceedings). In circumstances where the summons in the three sets of proceedings were materially identical and raised common questions, an order was made, pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be consolidated and heard together.

The Beame Penalty Notice

1. The Beame penalty notice was issued by post on 6 August 2021. It recorded the penalty amount as $1000, specified the location, date, and time of the offence, and described the offence as "Fail to comply with noticed direction in relation to section 7/8/9 - COVID-19 - Individual". In addition, the penalty notice referred to the "Offence code" as "95638" (which relates to an offence contrary to s 10 of the Public Health Act 2010 (NSW) for failing to comply with a direction given by the Minister under ss 7,8 or 9 of the Public Health Act). The offence-creating provision, namely s 10 of the Public Health Act, was not included on the notice. There was no reference to the Public Health Act by name.
2. The bottom of the penalty notice read: "THAT BRENDAN [sic] 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."

Application for Internal Review

1. Mr Beame lodged an application for internal review of the penalty notice with Revenue New South Wales on 8 December 2021. In that application, he stated: "My penalty notice doesn't say what offence I committed. 'Fail to comply with noticed direction in relation to section 7/8/9 - COVID-19 - Individual' isn't an offence. The penalty notice doesn't say what the offence is that I'm accused of, I don't know what makes up the offence and I don't know what noticed direction I'm meant not to have followed. So, I say the penalty notice was issued 'contrary to law' and should be withdrawn."
2. That application was rejected on 24 December 2021, and Mr Beame was informed that the penalty still applied.
3. Earlier, on 25 August 2021, Mr Beame set up a payment plan with Revenue New South Wales and proceeded to pay a sum of $20 per fortnight towards the penalty. As of 28 June 2022, Mr Beame had paid $440 of the $1124 purportedly owed.

The Els Penalty Notice

1. On 1 September 2021, Ms Els was issued with a penalty notice for participating in an outdoor public gathering of more than two persons in an "area of concern" in a reserve on Tonbridge Street, Ramsgate on 28 August 2021.
2. The penalty notice records a fine of $3000 and specifies the date and time of the offence. It described the offence as "unlawfully participate in outdoor public gathering - area of concern - individual".
3. In addition, the penalty notice listed the "Offence code" as "97722", which refers to an offence contrary to s 10 of the Public Health Act for failing to comply with a particular direction, namely, "a direction given by [a] Minister in [a] s 7 order for participating in [an] outdoor gathering in an area of concern". The offence-creating provision was not included on the notice. Once again, there was no reference to the Public Health Act by name.

Application for Internal Review

1. Ms Els made two applications for internal review to Revenue New South Wales on 11 September 2021 and 15 February 2022 respectively.
2. In the first application for review, Ms Els outlined her reasons for being in the park when she was approached by police and concluded as follows: "I am hoping that with this information you now have you could see that I wasn't unlawfully participating in an outdoor public gathering but instead trying to be safe while still supervising my son exercise with some other kids so his father could be the 1 person in our household shopping."
3. In the second application, Ms Els stated: "I have read the penalty notice and still do not understand the offence I have committed. I think it is unfair and unjust that I was fined and I do not know what the fine is for or how I unlawfully gathered. I think the fine was issued 'contrary to law' and should be cancelled."
4. Both applications were rejected, and Ms Els was informed that the penalty still applied.
5. On 26 April 2022, Ms Els set up a payment plan with Revenue New South Wales and proceeded to pay a sum of $118 per fortnight towards the penalty. As of 29 June 2022, Ms Els had paid $472 towards the total of $3065 purportedly owed.

Outstanding Objections to Evidence

1. The plaintiffs read two affidavits of Ms Samantha Lee, affirmed on 28 November 2021 and 2 December 2021 respectively. Ms Lee is a Senior Solicitor at Redfern Legal Centre, and the plaintiffs' instructing solicitor in these proceedings. The defendants took objection to paragraphs 9-31 inclusive of Ms Lee's first affidavit, on the basis of relevance.
2. Paragraphs 9-11 of Ms Lee's first affidavit set out the descriptions of the offences that appear in the subject notices. The balance of the paragraphs sets out the procedure by which Ms Lee accessed the statistics displayed on the Revenue New South Wales website regarding the number and total value of penalty notices with similar offence descriptors to those on the subject notices issued to Mr Beame and Ms Els.
3. Ms Richardson SC, on behalf of the plaintiffs, submitted that the evidence was relevant to a fact in issue in the proceedings, namely, whether there is a public interest in the Court giving reasons for the substantive declaratory relief, in circumstances where a number of individuals have received penalty notices in the same, or similar, form as those received by Mr Beame and Ms Els.
4. Section 55 of the Evidence Act 1995 (NSW) sets out the test for whether evidence is relevant in a proceeding: "55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence."
5. It is a well-established principle of the common law that relevant evidence requires "only a logical connection between evidence and a fact in issue": see Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [81].
6. I am satisfied that the material is relevant and, therefore, admissible. The material relates to statistics maintained by Revenue New South Wales about the number of penalty notices that have been issued for particular offence codes. For example, 163 people, including Ms Els, were issued with a penalty notice relating to an offence of "unlawfully participating in outdoor public gathering" and were fined $3000 each. Another 580 people have received "very similar" notices, about which issues of invalidity could arise

Defendants' Initial Position

1. In written submissions, filed on 24 October 2022, the defendants argued that each summons should be dismissed with costs.
2. With respect to the substantive relief sought, it was submitted that s 20 of the Fines Act, in its current form, does not require that a penalty notice provides enough information to enable the recipient to identify the alleged offending behaviour, or specify the legislative provision alleged to have been breached.
3. In the case of Mr Beame and Ms Els, it was submitted that the respective penalty notices issued were valid in that they provided information "to the effect that" the plaintiffs committed an offence contrary to s 10 of the Public Health Act and contained a "short description that described the offence in general terms". Consequently, it was contended that the Court could be satisfied that the notices provided sufficient detail in accordance with the requirements of s 20 of the Fines Act, and that such a finding would not produce "irrational or unjust consequences".

Defendants' Position at Hearing

1. On 28 November 2022, the Court received notification by email that the defendants' position, upon further consideration, had changed. They would no longer defend the substantive relief sought by Mr Beame and Ms Els in their respective summonses.
2. Mr Kell SC, on behalf of the defendants, accepted at hearing that the expressions used in the Beame penalty notice and the Els penalty notice describe the offences in "general terms" and, therefore, do not sufficiently meet the requirement in s 20 of the Fines Act that the relevant penalty notice offence be "specified in the notice". Put another way, he submitted that the Court ought conclude that it cannot be "sufficiently discerned from each of the notices what is the offence said to have been committed".
3. The defendants consented to the declaratory relief in prayer 2 of the summons commencing the Beame proceedings and in prayer 2 of the summons commencing the Els proceedings. It became apparent during the hearing that although the defendants conceded that the penalty notices issued to the plaintiffs were not valid, in that they did not satisfy the requirements of s 20 of the Fines Act, what was required, at a minimum, to "specify" the offence properly remained in dispute.
4. The defendants acknowledged that the making of the substantive declaration would mean that the Commissioner of Fines Administration was not vested with the power to make a penalty notice enforcement order validly, pursuant to Part 3 Division 4 of the Fines Act. The making of such a declaration, as outlined in prayer 3 of each summons, was said to be of "no utility".
5. The defendants also argued that the consequential relief sought in prayers 3-5 "flow[s] naturally" from the making of the substantive declaration. The Commissioner of Fines Administration had already indicated that the moneies received from the plaintiffs would be refunded. Accordingly, the making of the consequential declarations was said to be futile.

Should the Consequential Declarations be Made?

1. It may readily be accepted that where a penalty notice is invalid, there is no power to make a penalty notice enforcement order which, by s 40 of the Fines Act, is "an order made by the Commissioner [of Fines Administration] for the enforcement of the amount payable under a penalty notice". Furthermore, in this case, the Commissioner of Fines Administration has confirmed, through counsel, that all amounts paid by the plaintiffs will be refunded to them. It does not necessarily follow, however, that the Court should not make the consequential declarations.
2. It is accepted by the defendants that the Court has a discretion to make the consequential declarations. It is not a question of power, but whether it would be appropriate for the Court to make the declarations in circumstances where the Commissioner of Fines Administration has undertaken not to make any future penalty notice enforcement orders referable to the subject notices and to refund all amounts received from the plaintiffs referable to the penalty notices.
3. Where the subject notices have been declared invalid, the plaintiffs are plainly entitled to the consequential orders. They are also entitled to a degree of certainty given their previous efforts through the internal review process and the history of the proceedings, whereby it was only on the eve of the hearing that the defendants conceded that the subject notices were invalid.
4. In Australian Competition and Consumer Commission v Ford Motor Company of Australia Ltd (2018) 360 ALR 124; [2018] FCA 703, it was conceded that Ford had engaged in unconscionable conduct in responding to complaints about "PowerShift transmission" cars. Middleton J set out his reasoning as to why it could not be said that, despite Ford's concession, a declaration would have "no foreseeable consequences" for the parties. His Honour stated, at [32(3)], that a declaration would specifically: "(a) record the Court's disapproval of the contravening conduct; (b) vindicate the ACCC's claim that Ford Australia contravened the ACL; (c) assist the ACCC to carry out the duties conferred upon it by the CCA, including the ACL; (d) inform the public of the harm arising from Ford Australia's contravening conduct; and deter other corporations from contravening the ACL: see Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 142-140 at[6] (Nicholson J)."

Defendants' Submissions

1. Mr Kell SC, on behalf of the defendants, submitted that given the consent to the substantive relief, it is neither "necessary nor appropriate" for the Court to give reasons. It was argued that the finding of invalidity is specific to the subject notices and the facts of these particular cases, such that the provision of reasons would inevitably lead to a consideration of hypothetical scenarios that would have "unintended consequences" in other cases where the factual basis of the penalty notices differs from those before the Court.

Plaintiffs' Submissions

1. Ms Richardson SC, on behalf of the plaintiffs, submitted that it is incumbent upon the Court to provide full reasons as to why the subject notices are invalid. Several points were advanced in support of that contention. Firstly, to justify the making of any declarations, the Court would have to be convinced that they are appropriate. Although the defendants conceded that the subject notices are invalid, there remains a dispute between the parties about the specification requirement in s 20 of the Fines Act.
2. Secondly, reasons would provide the plaintiffs with certainty and clarity. This is particularly so in circumstances where the plaintiffs each sought internal reviews that were rejected.
3. Thirdly, it was said to be in the public interest for the Court to give reasons. Ms Richardson SC relied upon the material in Ms Lee's first affidavit (that I determined was relevant and admissible), which included statistics from the Revenue New South Wales website indicating that a vast number of people have received penalty notices with the same, or very similar, wording as those issued to Ms Els and Mr Beame. It was submitted that: "… it is in the interests of justice not only in terms of vindication my clients' rights but for your Honour to give reasons as to exactly why these penalty notices are invalid so that it will be clear to the Commissioner for Fines who has, he has now accepted, issued invalid notices as to exactly why they're invalid, so that the Commissioner will be guided going forward about how not to issue an invalid notice and also that other persons will be able to read your Honour's judgment and know whether their notice is in the same category as Ms Els and Mr Beame and they're entitled to a refund."
4. In further support of this point, the plaintiffs pointed to the practical impact that the provision of reasons would have on recipients of an invalid penalty notice. It was argued that it is important that a person: "is able to read the reasons and rapidly work out that they're in the same position or not and also so that it's purposively clear to the Commissioner that he will be bound by this judgment in respect if a person approaches him in relation to another fine that is also invalid for the reasons your Honour gives in these proceedings".

Consideration

1. Although the defendants conceded that each of the subject notices fails to comply with the requirements of s 20 of the Fines Act, the basis for that concession did not engage with the arguments that were advanced on behalf of the plaintiffs.
2. Notwithstanding the defendants' concession, it is still necessary for this Court to determine whether the Court's power for judicial review is invoked. The Court must therefore assess the parties' respective arguments and articulate the reasons underpinning the finding that the subject notices are invalid. That task necessarily involves a consideration of what is meant by the terms of s 20 of the Fines Act, particularly the words "… committed the penalty notice offence specified in the notice".
3. As indicated above, 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. In the absence of reasons, the uncertainty regarding this issue would remain and it would be difficult for the parties, and the general public, to understand the basis upon which the notices were declared invalid. This difficulty is demonstrated by the following exchanges with the defendants' counsel during the hearing: [2] "HER HONOUR: Thank you. Mr Kell, can I, just before I take a very short adjournment, just raise this with you: I understand that the position of the defendants is that in respect of the substantive relief sought, there is now consent; my understanding from what you have already put is that whilst the other orders are not opposed, they're not necessary; and do I understand the position is that the defendants contend that it's not necessary to give reasons, do you go that far? KELL: Yes, your Honour. It's a matter for the Court. HER HONOUR: I understand that. I'm just asking what the position of the defendants is. So the position of the defendants is we consent to the substantive relief sought and to the order for costs; we don't oppose the consequential orders; and the defendants' position is that given consent to the substantive relief sought that it's not necessary for the Court to give reasons. Have I understood that correctly? KELL: That's correct, yes, given the context, yes. … HER HONOUR: … One thing I am not sure of is whether the defendants' position now is that as a bare minimum the offence creating provision must be supplied in the notice? …KELL: The first is, in our submission, it is not necessary for a penalty notice to identify the offence creating provision in order to satisfy the specification requirement in s 20 of the Fines Act".

Did the Subject Notices Comply with s 20 of the Fines Act?

1. Ms Richardson SC, for the plaintiffs and Mr Kell SC, for the defendants, made submissions in respect of the specification requirement in s 20 of the Fines Act. Although I will only briefly summarise them in these reasons, I acknowledge the significant assistance provided to me by way of the parties' comprehensive written and oral submissions.

Plaintiffs' Submissions

1. As noted earlier, the plaintiffs' overarching position was that the subject notices are invalid as they failed to meet the specification requirement in s 20 of the Fines Act. In particular, the plaintiffs submitted that the offence descriptions in the subject notices ("fail to comply with noticed direction in relation to section 7/8/9" and "unlawfully participate in outdoor public gathering") did not specify the "penalty notice offences" to the requisite standard according either to the plaintiff's construction of s 20 (requiring "unambiguous clarity", ordinarily by reference to the offence-creating provision) or the defendant's construction (requiring "a short description identifying the substance of the offence").
2. On the construction point, the plaintiffs made comprehensive submissions with respect to how a penalty notice offence should be described in order to meet the level of specificity required by s 20(a) of the Fines Act. The plaintiffs argued that a notice that contains the "Law Part Code" and the associated descriptor, without further information, is not sufficient. A "Law Part Code" is found in "Lawcodes", which is a database of codes maintained by the Judicial Commission of New South Wales "for all New South Wales offences and Commonwealth offences dealt with in New South Wales". The provision of the code would need to be accompanied by special knowledge of how to navigate that database in order to "return a description of the offence".
3. Instead, the plaintiffs argued that the penalty notice must contain the offence-creating provision (i.e., s 10 of the Public Health Act, encompassing both the title of the Act and the specific provision) as a bare minimum requirement. Setting out the facts relevant to the notice was said not to be sufficient, as s 20 requires the identification of the offence, not the facts that constitute the offence.
4. It was also accepted that the description required in order properly to specify a penalty notice offence will vary with the relevant offence. Some may require more information than others. As a bare minimum, the name of the Act, and the provision, relevant to the offence must be identified in the penalty notice.

Defendants' Submissions

1. The defendants contended that s 20 of the Fines Act did not create a regime that required penalty notices to detail the offence-creating provision in order to satisfy the specification requirement. In other words, a valid penalty notice does not necessarily need to refer to the offence-creating provision in every circumstance.
2. Mr Kell SC submitted that a penalty notice can satisfy s 20 of the Fines Act if it includes a "short description identifying the substance of the offence", that is, stating, or describing the offence in "general terms". The defendants also relied upon the words "to the effect that" as contained in the chapeau to s 20, to submit that a short description identifying the substance of the offence is sufficient.
3. Against the plaintiffs' submission that a factual summary or description of the offence would not suffice for the purposes of s 20, the defendants maintained their position that it is unnecessary for a penalty notice to set out the facts underpinning the offence in any event. In support of this contention, the defendants relied upon s 12 of the Criminal Procedure Act 1986 (NSW) (CPA), which provides that a summary offence or an indictable offence that may be dealt with summarily is taken to be "sufficiently stated or described if it is stated or described by the use of a shorthand expression that describes the offence in general terms".

Consideration

1. As noted at earlier in these reasons, s 20 of the Fines Act relevantly provides that: "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."
2. In s 3 of the Fines Act, a "penalty notice offence" is defined to mean "an offence under a statutory provision for which a penalty notice may be issued".
3. Section 20(a) of the Fines Act requires that a penalty notice offence be "specified" in the notice. A number of superior courts, including intermediate appellate courts, have held "with an unusual degree of consistency in different contexts": see Deputy Commissioner of Taxation v Gillis (2003) 59 NSWLR 153; [2004] NSWCA 340 at [27] (Hodgson JA), 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": see Gantry Acquisition Corporation v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569 (Burchett J) (Gantry); Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 at 554 (Malcolm CJ, Seaman and Ipp JJ agreeing); Tickner v Chapman (1995) 57 FCR 451 at 480-481 (Burchett J); Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at [13] (Black CJ); Re Bill Express Ltd (in liq) (2010) 238 FLR 329; [2010] VSC 101 at [29]-[33] (Davies J) (Bill Express); Harofam Pty Ltd v Scherman (2013) 42 VR 372; [2013] VSCA 104 at [14] (Nettle AP, Neave JA and Garde AJA); Chief Examiner v Brown (a pseudonym) (2013) 44 VR 741; [2013] VSCA 167 at [124] (Tate JA; Harper JA and Garde AJA agreeing); Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [167] (Smith AJ); LPG Laverton Property No 5 Pty Ltd v Australian Vinyls Corporation Pty Ltd (2020) 63 VR 271; [2020] VSC 689 at [72] (Garde J); Beckingham v Browne [2021] VSCA 362 at [52] (Maxwell P) (Beckingham).
4. Burchett J in Gantry at 569E stated: "The word chosen by the legislature for use in cl20(2) of s 750 is 'specify', a word which signifies precision. Even such a word must yield to context, since no word has a meaning which remains rigidly fixed, however it is used. A word is not a locked box with static contents; it is more like a living cell, changing as it responds to the environment, which is its context. But no change wrought by the contextual currents enveloping the word 'specify' in cl 20 can so transform it that it fails to signify a requirement of clarity and precision. On the contrary, the context of the clause suggests that unambiguous precision was exactly what the draftsman was striving to require. In the previous subclause, which is expressly said not to be limited by the succeeding one, the word was 'particulars'. Judicial attempts to expound the meaning of the word 'specify' have repeatedly fixed upon unambiguous clarity as being connoted by it."

Statutory context

1. Having regard to the orthodox approach to statutory construction, involving recourse to context and purpose, a number of sections in the Fines Act provide further guidance as to the level of specification of a penalty notice offence required in a penalty notice, in accordance with s 20.
2. Section 22A of the Fines Act states: "22A Effect of payment under penalty notice (1) If the full amount specified in a penalty notice for an alleged offence is paid in accordance with the notice, no person is liable to any further proceedings for the alleged offence. (2) Payment under a penalty notice is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (3) This section does not affect any disciplinary or other proceedings, or liability, to which a person is expressly subject under another Act in relation to the payment of an amount under a penalty notice."
3. Section 22A(2) incentivises "payment under a penalty notice", as such payment is not to be regarded as an admission of civil liability and does not affect or prejudice, any civil claim, action or proceeding arising out of the penalty notice offence, which may not be the case if the offence proceeds to court. If an election is made to have the matter determined by a court pursuant to s 23A then, relevantly, s 23A(3)(a) provides that s 22A(1) ceases to apply in relation to the recipient of the notice. Accordingly, another practical incentive that would encourage a person in receipt of a penalty notice to pay the fine pursuant to s 22A - and discourage them from electing to have the matter determined by a court pursuant to s 23A - is that if they pay the fine under the notice, it will not appear on their criminal history.
4. The fact there are concrete incentives that arise under s 22A for a person in receipt of a penalty notice to pay the fine promptly (without taking the other pathways available) means that it is imperative under the scheme provided for in the Fines Act that the penalty notice offence is set out clearly in the notice itself.
5. Section 23(3) of the Fines Act states that "[t]he amount specified in a penalty notice cannot exceed the maximum amount of the penalty that could be imposed by a court for the offence to which the penalty notice relates". This provision, on its face, would require a penalty notice to specify the relevant legislative provision breached, in order for a recipient to determine if the amount levied is in compliance with s 23(3).

"To the effect that"

1. The phrase "to the effect that" appears in the chapeau to s 20 of the Fines Act. The phrase is used in a multi-faceted provision which requires that a number of matters be "specified", namely, the penalty notice offence; the person to whom the fine may be paid to avoid having the matter determined by a court; the numerical amount of the fine; and the time within which the fine must be paid.
2. In Transtar Linehaul Pty Ltd v Deputy Commissioner of Taxation (2011) 196 FCR 271; [2011] FCA 856 at [85], Roberston J stated that the expression "to the effect that" directs attention to the substance of the relevant requirement rather than to its form. In Deputy Commissioner of Taxation v Armstrong Scalisi Holdings Pty Ltd (2019) 343 FLR 374; [2019] NSWSC 129, Ward CJ at Eq (as her Honour then was) stated at [266]: "In common parlance, something is 'to the effect' of something else if it is, in substance, the same as (though not necessarily identical to that other thing). Commonly, when referring to something written or said, it is a phrase used to paraphrase or summarise the relevant content of what was written or said (such as the common formulation in affidavits that 'words to the following effect' were said, which makes clear that what follows is not necessarily a verbatim account".
3. The defendants rely upon these authorities to contend that the inclusion of the phrase "to the effect that" in s 20 supports the view that a short description identifying the substance of the penalty notice offence is sufficient to satisfy the requirement of specification in s 20, such that the offence-creating provision need not be expressly identified.
4. The phrase "to the effect that" must be read together with the requirement in s 20(a) of the Fines Act that the penalty notice offence be "specified" in the notice. There appears to be no authority which has directly considered the construction of s 20 of the Fines Act. The question was raised, but not determined, in Ryde City Council v Pedras [2009] NSWCCA 248 (Pedras), at which time s 20 was expressed in different terms to its present form, although it did refer in sub-section (1) to a penalty notice being "to the effect that the person to whom it is directed has committed a specified offence". In that case, the defendant was issued with a penalty notice for an offence contrary to s 13(2) of the Companion Animals Act 1998 (NSW) and elected to have the matter dealt with by the Local Court. The defendant was convicted of the offence and successfully appealed to the District Court, with the judge, on the application of the Council, then stating a number of purported questions of law to the Court of Criminal Appeal.

What is the Effect of s 12 of the Criminal Procedure Act?

1. In support of their overarching contention that a "short description identifying the substance of the offence" is sufficient to satisfy the requirement of specification in s 20 of the Fines Act, the defendants rely upon s 12 of the CPA, as noted earlier in these reasons.
2. Section 12 of the CPA provides that: "12 Short description of certain offences (1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. (2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document. (3) Nothing in this section affects any other method of stating or describing an offence. (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document."
3. Section 12 of the CPA is a facultative provision that is directed at statutory provisions that require an offence to be "stated" or "described", as opposed to "specified". These are distinct concepts under the CPA. The word "specify" has a different ordinary meaning to "describe" or "state". It requires "unambiguous clarity": see Gantry at 569.
4. I am not persuaded that s 12 of the CPA supports the defendants' contention that a short description identifying the substance of the offence is sufficient to satisfy the requirement of specification in s 20. The immediate context of that provision in the CPA reveals a distinction between "specifying" a matter and "sufficiently describing" it. The Court was directed to several examples of this distinction by the plaintiffs.
5. To take one example, cl 9(1) of Schedule 3 to the CPA, states that, for an indictment in certain kinds of dishonesty offences, "[i]t is sufficient to describe the property as a 'certain amount of money' or a 'certain valuable security', without specifying any particular kind of money or security". Another example is provided in s 40(1) of the CPA, which allows a court to adjourn criminal proceedings "generally, or to a specified day". In respect of the latter, adjourning a matter until "sometime next year" would not be sufficient. The Fines Act also distinguishes between specifying and describing a matter (see, for example, s 75(5)).

Why were the Two Notices in this Case Invalid?

1. 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.
2. 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.
3. 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 (PHA). That section provides that: "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, or (b) in the case of a corporation - 500 penalty units and, in the case of a continuing offence, a further 250 penalty units for each day the offence continues."
4. The offence in s 10 ("offence not to comply with Ministerial direction") includes the following elements: 1. a Ministerial direction under s 7, 8 or 9 of the PHA; 2. a person being subject to the direction; 3. that person having notice of the direction; and 4. failing to comply with the direction; 5. in the absence of a reasonable excuse for non-compliance.
5. The Els penalty notice not only failed to identify the offence-creating provision; it did not correctly identify a single element of the offence.
6. In the Beame penalty notice, the offence is also apparently pursuant to s 10 of the PHA. 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 PHA.
7. 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.

Endnotes

1. Transcript 29/11/22 at 9:26-28.
2. Transcript 29/11/22 at pp 22-23.
3. Plaintiffs' submissions in reply at [15]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2023