A New South Wales supreme court judge considering a challenge to a $3,000 Covid fine imposed on a homeless woman has suggested the state’s fines body was “not following the law” as declared in a previous ruling that saw more than 33,000 Covid penalties scrapped.
A year ago, a decision by justice Dina Yehia prompted the state government to withdraw tens of thousands of fines after they were found to have been issued unlawfully because they did not provide enough detail about the offence.
That initial supreme court ruling prompted unsuccessful calls for another 29,000 fines to be withdrawn and for NSW police to cease pursuing disputed fines through the courts.
On Wednesday, justice Desmond Fagan heard the case of a homeless woman who was fined $3,000 during the pandemic for leaving Sydney without a permit.
After being challenged in court this year, the government withdrew her fine on the grounds it was invalid in part due to a lack of detail. Government lawyers have argued that the case did not come under the ruling because it was not the same category of fine that was ruled on in the previous case.
Fagan suggested in court he may not need to make a ruling since the fine had already been revoked and it “wouldn’t add anything for me to decide all over again”.
But the judge said he believed the ruling should apply to the case.
“It seems to me, just on a preliminary view reading of the papers and waiting for his [the government lawyer’s] argument, it seems to me that justice Yehia’s decision does apply and that the notice is invalid on that basis,” Fagan said on Wednesday.
“What we’re really concerned with is why I need to decide that in circumstances where the notice has been withdrawn on some different basis.”
He added: “[Yehia] determined it and the commissioner is currently not applying it in what appears to be a reasonably clear case.
“The [fines] commissioner … is not following the law as declared by the judge in proceedings to which he was a party and to which he has not appealed.”
The Redfern Legal Centre pursued the case in an effort to have a judge rule that her fine should have been invalidated on the same basis as Yehia’s ruling, which would lay the groundwork for others to be dismissed.
Fagan told the court he had sympathy for the woman but questioned whether there was a need for him to make a determination given the money had been repaid by Revenue NSW.
“They issued a notice, it was invalid. It has subsequently been accepted that it was invalid. There is no relief sought in relation to that,” the judge said.
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In a statement at the time of the 2022 ruling, a spokesperson for Revenue NSW said the decision “does not mean the offences were not committed”, but acknowledged that “all sanctions” related to the fines would cease.
Kate Richardson SC, acting for the woman, suggested there would, however, be “foreseeable consequences … which is the vindication of my client’s rights”.
“There’s also conceivable consequences for the commissioner in terms of the public importance of a statement of the court.”
Scott Robertson SC, acting for the state, said the penalty had already been declared invalid and there was no need for a further determination.
He argued a ruling “wouldn’t necessarily have a direct impact” on other cases.
Fagan is expected to make a decision in early 2024.
Revenue NSW was contacted for comment.
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