[2008] HCA 8
Chief Examiner v Brown (a pseudonym) (2013) 44 VR 741
[2013] VSCA 167
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Deputy Commissioner of Taxation v Gillis (2003) 59 NSWLR 153
[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
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 8
Chief Examiner v Brown (a pseudonym) (2013) 44 VR 741[2013] VSCA 167
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Deputy Commissioner of Taxation v Gillis (2003) 59 NSWLR 153[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
[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
Judgment (23 paragraphs)
[1]
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)
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.
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.
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.
[4]
The Beame Penalty Notice
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.
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."
[5]
Application for Internal Review
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."
That application was rejected on 24 December 2021, and Mr Beame was informed that the penalty still applied.
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.
[6]
The Els Penalty Notice
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.
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".
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.
[7]
Application for Internal Review
Ms Els made two applications for internal review to Revenue New South Wales on 11 September 2021 and 15 February 2022 respectively.
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."
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."
Both applications were rejected, and Ms Els was informed that the penalty still applied.
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.
[8]
Outstanding Objections to Evidence
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.
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.
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.
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."
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].
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
[9]
Defendants' Initial Position
In written submissions, filed on 24 October 2022, the defendants argued that each summons should be dismissed with costs.
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.
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".
[10]
Defendants' Position at Hearing
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.
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".
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.
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".
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.
[11]
Should the Consequential Declarations be Made?
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.
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.
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.
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)."
[12]
Defendants' Submissions
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.
[13]
Plaintiffs' Submissions
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.
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.
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."
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".
[14]
Consideration
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.
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".
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".
[15]
Did the Subject Notices Comply with s 20 of the Fines Act?
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.
[16]
Plaintiffs' Submissions
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").
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".
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.
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.
[17]
Defendants' Submissions
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.
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.
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".
[18]
Consideration
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."
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".
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).
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."
[19]
Statutory context
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.
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."
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.
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.
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).
[20]
"To the effect that"
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.
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".
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.
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.
[21]
What is the Effect of s 12 of the Criminal Procedure Act?
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.
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."
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.
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.
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)).
[22]
Why were the Two Notices in this Case Invalid?
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.
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.
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."
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.
The Els penalty notice not only failed to identify the offence-creating provision; it did not correctly identify a single element of the offence.
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.
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.
[23]
Endnotes
Transcript 29/11/22 at 9:26-28.
Transcript 29/11/22 at pp 22-23.
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
Upon receipt of the third plaintiff's summons, the Commissioner of Fines Administration withdrew the purported penalty notice issued to Mr Pank. The only issue remaining in respect of the third plaintiff, therefore, is the issue of costs. On 29 November 2022, I made an order that the defendants pay the third plaintiff's costs as agreed or assessed.
It follows that the following reasons for judgment relate only to the two penalty notices (the subject notices) which issued to the first and second plaintiffs.
The defendants' original position was to resist all declaratory relief as sought by the first and second plaintiffs. In support of that position, written submissions were filed on 24 October 2022.
Just prior to the hearing, which was listed on 29 November 2022, the defendants conceded that the subject notices were invalid in that they did not comply with the requirements of s 20 of the Fines Act, which reads as follows:
"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 the 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."
The defendants did not oppose the substantive relief sought by the first and second plaintiff (prayer 2 of each summons). However, the defendants, while not formally opposing the making of the consequential declarations (prayers 3-5 of each summons), questioned the necessity and appropriateness of granting that relief. The defendants accepted that the Court does have the power to make the consequential declarations.
Furthermore, the defendants submitted that in these circumstances, where there is consent to the substantive relief and non-opposition to the consequential relief, the Court does not need to provide full reasons prescribing the preconditions to the validity of the subject notices under s 20 of the Fines Act. In support of that contention, the defendant submitted that "difficult questions relating to the content of the specification requirement may arise in other factual circumstances where there are differently worded notices and potentially different circumstances". [1]
In light of the defendants' concession, on 29 November 2022 I made the following declarations in each case:
1. The purported penalty notice is not a "penalty notice" within the meaning of s 20 of the Fines Act.
2. Pursuant to s 122C of the Fines Act, the Commissioner of Fines Administration must refund $436.00 to Mr Beame and $826.00 to Ms Els.
Judgment was reserved in respect of the balance of the summonses, concerning the question of whether all consequential declarations should be made and whether reasons should be provided. What follows are my reasons with respect to the declarations made on 29 November 2022, and the outstanding issues.
Those outstanding issues are as follows:
1. Whether the consequential declarations (prayers 3-5) should be made?
2. Whether, in light of the defendants' consent to the substantive relief (prayer 2), full reasons should be provided?
3. If the answer to that question is yes, why were the subject notices invalid and what was required to be included in each notice for it to comply with s 20 of the Fines Act?
The material, on its face, reveals that 32,648 notices, in the same form as that received by Mr Beame, have been issued, totalling approximately $33 million in fines.
The material is relevant to an issue that has arisen in the proceedings, namely, whether there is a public interest in this Court providing full reasons as to why the subject penalty notices are invalid.
His Honour further stated, at [32(5)]-[33], that:
"There is also a 'considerable public interest' in corporations observing the requirements of the ACL, which warrants the grant of declaratory relief when the ACL is breached: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 359-360 [103] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The proposed declaration was thus appropriate, in that it contains sufficient indication of how and why the relevant conduct is a contravention of the ACL: see BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 at 465 [35]; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at 91 [90]."
In Plaintiff M61/2010E v Commonwealth of Australia (Offshore Processing Case) (2010) 243 CLR 319; [2010] HCA 41, the High Court unanimously reiterated the significant public interest in granting declaratory relief, despite the plaintiffs' claims for certiorari and mandamus being rejected in that case, with the consequence that in the ordinary course, "no declaration of right should be made". The Court stated, at [103], that:
"In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a 'real interest' in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers."
Taking these statements into account, I am satisfied that the consequential declarations in prayer 3 and 5 of each summons should be made for the following reasons:
1. Firstly, notwithstanding what might naturally flow from the substantive declaration that the subject notices are invalid, each plaintiff is entitled to certainty which can only be provided by way of declaratory relief.
2. Secondly, to vindicate the plaintiffs' claims against the defendants.
3. Thirdly, to inform the public as to the consequences that flow from a finding that the subject notices are invalid.
I do not find it necessary to make the consequential declaration that the monies received from each plaintiff referable to the subject notices exceeded the amount payable to the Commissioner of Fines Administration (prayer 4 in each summons) I am not persuaded that such a declaration is required for the purposes of certainty or vindication of the plaintiff's claims. Nor do I consider it necessary for the purposes of informing the public as to the consequences that flow from a finding that the notices are invalid.
Providing reasons for judgment has long been recognised as a central pillar of the judicial function: see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667; [1986] HCA 7 (Osmond); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-279 (Soulemezis); Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 19; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 170-171; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 476-477; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89] (AK); Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [58] (Wainohu).
In Osmond at 667, Gibbs CJ (with whom Wilson, Brennan, Deane and Dawson JJ agreed), said that although there was no "inflexible rule of universal application" that reasons should be given for judicial decisions, the requirement to give reasons is "an incident of the judicial process".
In Soulemezis, McHugh JA (as he then was) articulated the purposes underlying the duty to give reasons for a judicial decision at 279, as follows:
"The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision …Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability …
Thirdly, under the common law system of adjudication, courts not only resolve disputes - they formulate rules for application in future cases … Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future."
More recently, in Wainohu, the High Court emphasised the importance of providing reasons to facilitate the principle of open justice. At [58], French CJ and Kiefel J (as her Honour then was) stated:
"The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion."
The content and detail of the judicial duty to provide reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision: see AK at [89]; Wainohu at [56].
In the present case, it is necessary to provide certainty in relation to the basis for the invalidity of the subject notices. A declaration that the subject notices do not comply with s 20 of the Fines Act says nothing as to the reasons underpinning that declaration. Why are the notices invalid? How did the notices fail to comply with s 20? In what way is the plaintiff's claim vindicated? How does the public (in addition to the parties) understand the decision of this Court?
In my opinion, providing full reasons for the grant of the substantive relief on 29 November 2022, and granting any consequential relief, is necessary, having regard to the following factors:
1. Firstly, the plaintiffs, having been forced to bring the proceedings only after the unsuccessful internal review processes, are entitled to understand the reasons why the subject notices are invalid.
2. Secondly, the substantive issue in the proceedings (although now conceded by the defendants) involves a question as to whether a statutory penalty provision has been complied with by a government body. The defendants do not accept the grounds relied on by the plaintiffs in contending that the notices are invalid. It is therefore incumbent on this Court, in finding that the notices do not comply with s 20 of the Fines Act, to articulate the reasons for that determination clearly. I must be satisfied that the Court's power to make the declarations has been properly invoked and is enlivened. In order to reach that level of satisfaction, I must engage with the arguments that have been advanced and do so in a transparent way. In this context, transparency requires the provision of reasons for judgment.
3. Thirdly, all too often it is said that there is a disconnect between what judges do and the general public's understanding of decisions made by judges. The courts have increasingly endeavoured to bridge that gap by giving reasons, publishing judgments and even publishing social media posts summarising decisions. This is a case that involves the validity of two "COVID-19 penalty notices". The community experienced some of the most difficult and challenging times in living memory during the COVID-19 lockdowns. Peoples' movements and interactions were restricted in substantial ways. The statistics in Ms Lee's first affidavit, relied upon by the plaintiffs, demonstrate the wide-reaching impact of the enforcement of those restrictions. In these circumstances, I am comfortably of the view that the public is entitled to understand why these notices have been declared invalid. The fact that the defendants conceded that issue in this case does not obviate the need for reasons. There is a considerable public interest not only in knowing the result of this case but also the reasoning underpinning it.
4. Fourthly, although I am dealing with the discrete facts relating to the subject notices (as opposed to hypothetical notices or penalty notices generally), these reasons may provide some clarity to the Commissioner of Fines Administration about the minimum content of the requirement, established by s 20 of the Fines Act, that the penalty notice offence be "specified" in a penalty notice.
The mechanics of the internal review scheme under Division 2A of Part 3 of the Fines Act is a further contextual consideration to assist in the construction of s 20. As per s 24A, "[a]n application for review must include the grounds on which the review is sought". For the internal review scheme to function in a workable manner, a penalty notice must identify the alleged offence with clarity to allow a recipient to initiate the review process by making an application that complies with s 24A and then to rely on the asserted grounds of review.
Further, the clearly punitive character of the penalty notice scheme under the Fines Act sets into motion a series of steps that could result in the eventual seizure of a person's property without compensation and a requirement to perform community service: see ss 57, 58, 59, 65, 71, 72, 73, 74, 75 and 78 of the Fines Act. The issuance of a penalty notice is a precondition to that process, which can interfere with property rights and personal liberty, which have been held to be fundamental at common law: see Re Bolton; Ex parte Bean (1987) 162 CLR 514; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70 at [87] - [88] (Black CJ, Sundberg and Weinberg JJ); clear and unambiguous words must be used to give effect to an intent by the State to expropriate or extinguish those rights: see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; [2011] HCA 19 at [37] (French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ).
In respect of s 20 of the Fines Act, the statutory context and purpose favours an interpretation whereby the penalty notice offence must be clearly and unambiguously specified in the notice itself. 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. In Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14 (Smethurst), Kiefel CJ, Bell and Keane JJ held at [42], in the context of a search warrant issued under s 3E of the Crimes Act 1914 (Cth) (being a context that, in any event, requires lesser detail to describe "the offence to which the warrant relates" than the statutory context at issue in these proceedings):
"As Hely J said in Williams v Keelty, the requirement that the offence to which the warrant relates be stated in the warrant is not satisfied by the provision of information falling short of such a statement but which might enable a person reading the warrant to deduce or infer what offence is intended."
Their Honours articulated the level of specificity required, stating at [30]:
"What is sufficient to be conveyed about the offence in question in a given case may vary with the nature of the offence. Some offences may be shortly described … On the other hand, when a statute provides for the commission of a somewhat indeterminate number of offences, a general reference to a section may not be sufficient. No verbal formula is possible, rather in each case it is necessary to apply the principle that the warrant should describe the nature of the offence so as to indicate the bounds of the search, and to assess the sufficiency of what is provided from the point of view of those reading it."
In Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301 (Williams), another case involving a search warrant under s 3E of the Crimes Act 1914 (Cth), Hely J had set out the following analysis at [140]:
"ASIC submits, taking para (a) of the third condition by way of example, that 'an offence against s 184(1)' is to be understood by inference as a reference to an offence against s 184 of the Corporations Law. The statutory requirement is that the offence to which the warrant relates be stated in the warrant. That requirement is not satisfied by the provision of information falling short of such a statement, but which might enable a person reading the warrant to deduce or infer what offence is intended. The statement 'an offence against s 184(1)' is simply meaningless".
So too are the Law Part Codes and accompanying verbal descriptors that appear on the subject notices.
The express terms of s 20 require that the penalty notice offence be specified in the notice. There is no basis in the statutory text, context, or purpose for supposing that information beyond what is contained in the actual notice could meet a statutory requirement that a penalty notice offence be "specified in the notice". What is required is that the relevant information, namely, the penalty notice offence, appears on the "face of" the notice itself: see Smethurst at [27] (Kiefel CJ, Bell and Keane JJ), [115] (Gageler J agreeing), [142] (Nettle J agreeing).
The effect of the phrase "to the effect that" on the construction of the specification requirement in s 20 was not decided by the Court in Pedras. given that the question as to the validity of the penalty notice did not arise. In any event, the relevant provision in Pedras did not require that the offence be "specified" in the notice; it only required that the"person" to whom payment could be made be "specified": see s 92(2) of the Companion Animals Act 1988.
The defendants' reliance on Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 also does not advance their argument. That matter proceeded by way of Court Attendance Notice (CAN). The appellant there contended that the CAN was invalid on the ground that the penalty notice which had been issued in respect of the penalty notice offence, which was itself the subject of the CAN, was duplicitous and infected the CAN with that duplicity. I note that the CAN in Heatscape did set out the offence-creating provision, namely s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW).
The phrase "to the effect that" does not alter the requirement that the penalty notice offence must be "specified", that is, contained in the notice with unambiguous clarity. The plaintiffs' argument has considerable force. The function of the words "to the effect that" in s 20 is to make clear that the penalty notice may inform the recipient about the other matters set out in s 20 without slavishly having to use the exact language or syntax of s 20. That is, as long as the matters required to be "specified" are so specified, the notice may otherwise use language that achieves the substance of imparting the information set out in s 20. [3] However, it does not detract from the requirement that the penalty notice offence be "specified" with "unambiguous clarity" within the notice.
The penalty notice can contain words "to the effect that" the recipient has committed the penalty notice offence and that if they do not wish to have the matter determined by a court, they may pay the fine within the time and to the person specified in the notice. However, the penalty notice offence must be specified in the notice, in the same way that the timeframe, the amount and the person to whom payment should be made must be specified in the notice.
The use of the words "stated" and "described" in s 12 of the CPA can be contrasted with the use of the word "specified" in s 20 of the Fines Act. The Fines Act uses the word "specified" in a careful and deliberate way to govern interactions between the recipients of a penalty notice and the police, Revenue New South Wales or the Commissioner of Fines Administration in multiple provisions. For example, s 27(1) of the Fines Act states
"(1) A penalty reminder notice must inform the person on whom it is served -
(a) that the person has until the due date specified in the notice to pay the full amount (or, if one or more part payments of that full amount have been paid, the remaining amount) for the offence specified in the notice, and
(a1) of the steps to be taken for seeking a review of the decision to issue the penalty notice, and
(b) of enforcement action that may be taken under this Act if the full amount is not paid by the due date, and
(c) of additional enforcement costs that become payable under this Act if enforcement action is taken."
In that context, to allow for the words 'specific' and 'described' to be used interchangeably would lead to impractical outcomes undermining the purpose of the statute, by precluding the efficient enforcement of fines. In coming to this conclusion, as a matter of statutory construction, I proceed on the presumption that different words used within an Act have different meanings: Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 at [124]. The use of the word "specified" in s 20 of the Fines Act imports a level of clarity and unambiguity that may not be achieved by a short description identifying the substance of the offence. Indeed, this is precisely what happened in the present cases. A short description was included on each of the subject notices, a description which, in each case, is conceded to fall short of complying with section 20 of the Fines Act.
Two of the three cases relied upon by the defendants in support of the proposition that such a description is sufficient were cases where the offence-creating provision had in fact been expressly set out. In Joukhador v Commissioner of Police [2018] NSWSC 872, concerning search warrants issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the "searchable offences" was described as "Fraud, s 192E, Crimes Act".
In Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83, which concerned a CAN that was required to "briefly state the particulars of the alleged offence", the relevant description was "Crimes Act 1900, Section 59(1)/ Assault Occasioning Actual Bodily Harm/ Between 8:00am and 5:30 pm on 24/03/2005 at Potts Point/ did assault [sic] Ann Teese thereby occasioning actual bodily harm to her".
In New South Wales v Corbett (2007) 230 CLR 606; [2009] HCA 32, the correct offence-creating provision was not included. That case concerned s 5(1)(b) of the Search Warrants Act 1985 (NSW), which provided that an application for a search warrant may be made where there were reasonable grounds for believing that there was a thing connected with "a particular firearms offence" in or on any premises. An application for a search warrant had described the suspected offence as "Possession of Firearm, Firearms Act No 25/1989 Section 5(a)" in circumstances where that Act had been repealed and replaced with an equivalent provision in the Firearms Act 1996 (NSW). Callinan and Crennan JJ, with whom Gleeson CJ and Gummow J agreed, stated (at [106]-[107]):
"Here, the application stated an intelligible offence, namely 'possession of firearm', an offence which had been well-known in New South Wales for decades … It was the nature of the offence which was critical, not the reference to the section of repealed legislation which had been replaced with cognate legislation. The nature of the offence had to be stated sufficiently to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize.
Here there could be no mistake about the object of the search or about the boundaries of the search warrant …The reference to the repealed Act in the application form was mere surplusage, which did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Accordingly, the applicant complied with the statutory requirements of the warrant is not invalidated by the description of the offence in the application form."
There are a number of reasons to distinguish Corbett from the present case. Firstly, it was a case dealing with a search warrant, and the relevant provision of the Search Warrants Act contained no requirement that the "firearms offence" be "specified", as opposed to s 20 of the Fines Act.
Secondly, Callinan and Crennan JJ, in Corbett, observed that the purpose of a search warrant is "easily distinguishable from the purpose of a charge, indictment, conviction, judgment or order" and reasoned that the degree of specificity required in relation to a warrant is less than in those alternate contexts, such that "the statement of the offence in a warrant need not be made with the precision of an indictment": at [97], [99]-[100].
Thirdly, as noted above, Corbett was a case where the relevant statutory requirement was that the applying officer had "reasonable grounds for believing that " a particular firearms offence had been committed. The description of "the nature of the firearms offence", on the application for the warrant, was "to enable the issuing justice to understand the object of the search and to appreciate the boundaries of the authorisation to enter, search and seize": [106]. While describing the "nature" of the firearms offence was sufficient in Corbett to indicate to the issuing justice that the police officers were looking for guns on the premises, that rationale has little relevance to a penalty notice that must specify the penalty notice offence.
The relevant Law Part Code is included in each notice. However, the Law Part Code is simply a number maintained on an external database. It does not identify on the face of the notice, with unambiguous clarity, what the offence is. It is not a number from which the offence can be readily or expediently inferred or deduced (unless, perhaps, the recipient had access to the Lawcodes database). The Law Part Code says nothing about the elements of the offence and leaves one asking how the plaintiffs would know what offence they had committed on the face of the subject notices.
In the proceedings before me, the defendants did not seek to rely upon evidence beyond the notices themselves. The defendants did not, for example, rely upon any conversations between the plaintiffs and police officers or on any interactions between the plaintiffs and police captured in body-worn camera footage.
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? Had the offence-creating provision been identified, the requirements of s 20 of the Fines Act, that the penalty notice offence be specified in the notice, would have been satisfied. This was a bare minimum requirement, particularly where a "penalty notice offence" is defined in s 3 of the Fines Act as one arising "under a statutory provision". It would have enabled the plaintiffs to look up the section and find out what offence they had allegedly committed, that is, it would have provided the unambiguous clarity required by the use of the word "specified" in s 20.
It may be that in a particular case more information should be included in order to "specify" a penalty notice offence under s 20(a). However, I am not of the view that I need to determine this issue at present. In the proceedings before me, the short description identifying the offence was, in each case, insufficient to meet the requirements of s 20 of the Fines Act. As a minimum requirement, the offence-creating provision should have been included on the penalty notice in order to comply with s 20.
Accordingly, I make the following orders:
1. In the case of Teal Els:
1. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or in the inherent jurisdiction of the Court, the purported penalty notice numbered 406060068 is not a penalty notice within the meaning of s 20 of the Fines Act 1996 (NSW) and is invalid.
2. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or the inherent jurisdiction of the Court, the Commissioner of Fines Administration must refund Ms Teal Els the sum of $826 pursuant to s 122C of the Fines Act.
3. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or the inherent jurisdiction of the Court, 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 purported penalty notice.
1. In the case of Brenden Beame:
1. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or the inherent jurisdiction of the Court, the purported penalty notice numbered 4066651600 is not a penalty notice within the meaning of s 20 of the Fines Act 1996 (NSW) and is invalid.
2. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or the inherent jurisdiction of the Court, the Commissioner of fines Administration must refund Brenden Beame the sum of $436 pursuant to s 122C of the Fines Act.
3. The Court declares that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), or the inherent jurisdiction of the Court, 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 purported penalty notice.
1. By consent, no order as to costs.