Kosciolek v Commissioner of Police

1. [1]

   On 13 September 2021 at Thegoa Lagoon, a locality on the outskirts of Wentworth in far western New South Wales, the plaintiff was issued with a penalty notice, No 4942543440, under Pt 3 of the Fines Act 1996 (NSW). The offence alleged was described in the notice as follows:

2. [2]

   By her amended summons filed on 15 August 2023 the plaintiff claims against the Commissioner of Police and the Commissioner of Fines Administration the following declarations:

Identification of the residual issue in the proceedings

1. [3]

   When the proceedings were commenced they were concerned with an essentially procedural question, namely, the sufficiency of the description of the offence alleged in the penalty notice issued to the plaintiff. The offence intended to be alleged was that the plaintiff had failed to comply with a public health order made by the Minister for Health and Medical Research, pursuant to which movements within New South Wales were restricted for the purpose of protecting the community against transmission of the Covid-19 virus. The plaintiff’s case has never been concerned with any issue or doubt about the validity of the relevant order or related orders made during the Covid-19 public health crisis. Nor has the plaintiff raised any issue or doubt about the legislative framework under which public health orders were made by the Minister and non-compliance with those orders attracted penal consequences. Further, there has never been an issue to be determined in the proceedings as to whether the plaintiff failed to comply with an order that prohibited her from leaving the Greater Sydney area without a permit. The plaintiff appears to have acknowledged the physical elements of the alleged offence, while the defendants accept that this offence could only have been committed at a point close to where she left Greater Sydney and that it was erroneous to have alleged in the notice that she committed it at Thegoa Lagoon, more than 1000 kms to the west.

2. [4]

   After the plaintiff commenced the proceedings, the defendants conceded that the penalty notice issued to her is invalid because its description of the place at which the offence was committed was deficient in the respect just mentioned. On that ground the notice has been withdrawn and the fine paid under it has been refunded. The plaintiff insists that the defendants should concede inadequacy of the notice in a different, or additional, respect; namely, that it fails to nominate the statutory provision under which the plaintiff’s alleged conduct constituted an offence. From that procedural posture, the central issue in these proceedings has become still narrower. The principal matter to be decided is whether the Court has and should exercise the power to make a declaration about the invalidity of the notice, specifying in the Court’s reasons the ground of invalidity, in circumstances where all parties agree it is invalid and has been effectively withdrawn, with the fine refunded, so that it can no longer affect the plaintiff adversely.

3. [5]

   On 8 August 2023, shortly after the Commissioner of Fines Administration had withdrawn the notice and repaid the fine, the plaintiff’s solicitor made an announcement to the media that included the following:

4. [6]

   It can be inferred, from evidence extraneous to the notice and by reference to legislation and statutory instruments, that the issuing officer intended to allege in the notice that the plaintiff had breached s 10 of the Public Health Act 2010 (NSW). That section is in the following terms, so far as relevant:

5. [7]

   Sections 7, 8 and 9 of the Public Health Act empower the Minister to make orders to reduce or remove a risk to public health if the Minister considers on reasonable grounds that such a risk has arisen. The three sections, respectively, concern a variety of circumstances in which a risk to public health may arise. The relevant part of s 7 is as follows:

6. [8]

   On 20 August 2021, in exercise of the power under s 7, the Minister made Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021. From when it was first Gazetted and continuing through September 2021 the order included the following direction in cl 5.4 (extracted so far as relevant to the present case)

7. [9]

   According to evidence tendered at the hearing of the summons, in particular the plaintiff’s communications to Revenue NSW prior to the proceedings and her affidavit affirmed 3 July 2023, she was living in Sydney in early September 2021, with no fixed address. The plaintiff decided to relocate to Adelaide to reside with friends. She left Sydney on 7 September 2021 by road, driving a van that she owned. The plaintiff did not have a permit issued by Service NSW as required by cl 5.4(2) of the Public Health Order. On 13 September 2021 the plaintiff was camping in her van at Thegoa Lagoon, waiting for South Australian authorities to grant her permission to cross the border into that state.

8. [10]

   It is not apparent from the Public Health Act or from the Public Health Regulation 2012 that any particular medium of publication of a ministerial order under s 7 is to be deemed effective notice to any member of the public, for the purposes of s 10(b) of the Act. As a matter of fact, it would readily be inferred that the plaintiff had notice that the order of 20 August 2021 prohibited departure from Greater Sydney without a permit. The Court may take judicial notice of the widespread publicity that that direction received when it was made and while it remained in force.

9. [11]

   In the plaintiff’s original summons filed on 13 July 2023 she sought declarations 3 and 4, concerning enforcement of the penalty notice and her claimed entitlement to a refund of part of the fine that had been recovered from her bank account under a garnishee order. On 4 August 2023 the second defendant repaid to the plaintiff so much of the fine as had been debited from her bank account. Consequently, the plaintiff withdrew her claim for declarations 3 and 4 when she filed her amended summons on 15 August 2023.

10. [12]

    The amended summons claimed interest on the money that had been garnisheed and subsequently refunded. By letter of 25 August 2023 the second defendant offered interest at a reasonable rate on the repaid amount for the period during which the second defendant had held it. On the final hearing of the amended summons on 22 November 2022 the plaintiff did not press her claim for interest, which the defendants have agreed to pay.

11. [13]

    On 28 August 2023 the defendants filed a response to the amended summons, in which they stated their grounds for opposing declaration 1 as follows:

12. [14]

    By their response the defendants oppose declaration 2 on the grounds that they:

13. [15]

    The plaintiff does not accept that the defendants’ capitulation regarding invalidity of the penalty notice and repayment of the fine is a sufficient resolution of the dispute. She submits that the Court should proceed to make declarations as to those matters and should give reasons for doing so, which should be different from the reason for invalidity assigned in the particulars to par 1a of the defendants’ response. The plaintiff submits that the history of her representations to the defendants, together with the context of many other penalty notices issued for breach of public health orders during the Covid-19 outbreak, justifies the making of declarations, with judicial reasons, notwithstanding the defendants’ concessions. The background relied upon by the plaintiff is summarised in the following paragraphs.

Events leading to withdrawal of the notice and repayment of the fine

1. [16]

   By force of s 21(1) of the Fines Act, a penalty notice may be issued by an officer authorised by, and in the circumstances specified in, any statutory provision that provides for the issue of such a notice. At the relevant time s 118 of the Public Health Act permitted the issue of penalty notices in respect of offences prescribed in the Public Health Regulation 2012. Clause 100 and Sch 4 of the Regulation had the effect that a breach of s 10 of the Act by failure to comply with cl 5.4 of the Public Health Order of 20 August 2021 was a penalty notice offence for which a fine of $3,000 could be stipulated in the notice.

2. [17]

   Neither the Fines Act nor any subordinate legislation prescribes a form that a penalty notice must follow. The requirements of a penalty notice are set out in s 20, as follows:

3. [18]

   The penalty notice forms used by police officers in September 2021 comprised a pad with three folios for each serial numbered notice, with carbon copying from each folio to the next. The first folio, part A, had printed in the upper half of the page a series of boxes and underlined spaces in which the issuing officer could insert the date of issue of the notice, the name, address and licence number of the recipient and the time, date and place of the offence. The remaining spaces and boxes for description of the offence had printed titles as highlighted in bold below. The details inserted by the issuing officer on penalty notice No 4942543440 were as follows (in plain text, adjacent to the respective titles):

4. [19]

   The “Offence Code” is taken from a database of “Law Part Codes” maintained by the Judicial Commission of New South Wales for all offences against the laws of the State and for all Commonwealth offences that are dealt with in New South Wales. The statutory provision that creates the offence to which a particular Law Part Code relates can be identified by going to the Judicial Commission website, where an access link to the Lawcodes database is provided, with a search facility. A search for a particular Law Part Code will result in display of the Act, section, regulation and/or other sources that create the offence, together with a short form statement, in general terms, of conduct that gives rise to a breach of the offence provision.

5. [20]

   The lower half of the top folio, part A, contained spaces and boxes for the issuing officer to insert his own details and a narrative description of the offence. Those particulars were not carbon copied through to the third folio, part C, which was issued to the alleged offender. Part A was retained by the issuing officer and forwarded to Revenue NSW, for collection of the fine.

6. [21]

   The second folio, part B, was a complete carbon copy of part A and was retained in the pad as the NSW Police record. The upper half of part C contained a carbon imprint of all the entries in the boxes and spaces on the upper half of part A, as referred to at [18] above. The lower half of part C had boxes for insertion of “Date of Offence”, “Offence Code” and “Amount due”. The part C that was issued to the plaintiff is not in evidence but it would have had those boxes and spaces completed. The offence code would have been 97716, as in the top half of each of parts A and B.

7. [22]

   On 15 September 2021 the plaintiff made an online application to the Commissioner of Fines Administration for review of the penalty notice. Section 24A of the Fines Act provides for such an application. She gave a new address for notices, being a street address in South Australia. Her reasons for seeking review and requesting “lenient treatment” were that she had been unable to keep a business operating in Sydney “due to restrictions”; she could not afford rent by herself; isolation in Sydney had “taken a toll on my mental health”; she had friends in South Australia with whom she could reside but no permanent address in Sydney and there was no one in Sydney who could help her.

8. [23]

   On 28 September 2021 Revenue NSW responded to the plaintiff’s review application by an emailed letter, which included the following:

9. [24]

   On 21 October 2021 a penalty reminder notice was sent to the plaintiff by Revenue NSW, advising that if payment was not received by 21 November 2021 an enforcement fee would be added. On 7 December 2021 an overdue fine notice was sent to the plaintiff, stating that she had incurred an additional $65 enforcement fee and that she was at risk of having the overdue fine withdrawn from her bank account. The notice also informed her that she may be eligible to be credited with payment of the fine by “doing unpaid work, education or treatment through a Work and Development Order”. That was a reference to ss 99A-99K of the Fines Act, pursuant to which the Commissioner of Fines Administration may order that a person who satisfies one or more of certain criteria, which include being homeless and experiencing acute economic hardship, is required to undertake voluntary unpaid work or an educational or vocational course to satisfy all or part of a fine.

10. [25]

    The plaintiff applied for a Work and Development Order in respect of her outstanding fine. On 21 March 2022 such an order was made, requiring the plaintiff to enrol with TAFE NSW in an online or face to face course and to submit assignments. The plaintiff has deposed that she completed six months of an online course in the first half of 2022, for which she was credited with $1,000 towards her fine.

11. [26]

    On 2 November 2022 Revenue NSW issued to the plaintiff notification that $2,105 remained outstanding. She was informed of the option to fulfil a further Work and Development Order but she made no application to pursue that alternative.

12. [27]

    In July 2022 separate proceedings were commenced in this Court by each of three plaintiffs against the Commissioner of Police and the Commissioner of Fines Administration. The plaintiffs sought declarations that penalty notices issued to them, respectively, were invalid by reason of failure to specify the offences alleged to have been committed, as required by s 20 of the Fines Act. The Commissioner of Fines Administration withdrew the penalty notice against one of the plaintiffs upon receipt of his summons. The other two proceedings were listed for joint hearing on 29 November 2022.

13. [28]

    Mr Beame’s penalty notice, issued by post, contained the following particulars of the offence alleged:

14. [29]

    The notice issued to Ms Els particularised the alleged offence as follows:

15. [30]

    On the day before the Beame and Els proceedings were to be heard the defendants notified the plaintiffs’ solicitors that they would consent to declarations that the penalty notices were invalid. The defendants maintained that position at the hearing on 29 November 2022. They also did not oppose consequential declarations concerning repayment of the plaintiffs’ fines, although they submitted that the additional declarations were unnecessary as it was intended to make full refunds. At the conclusion of the hearing Yehia J made, in each case, a declaration that “the purported penalty notice is not a ‘penalty notice’ within the meaning of s 20 of the Fines Act”. It had become apparent from the parties’ oral submissions that although the defendants conceded invalidity they took different positions as to what was required by s 20 to be stated in a penalty notice by way of specifying the offence. Her Honour’s reasons were reserved and were published on 6 April 2023: Beame; Els v Commissioner of Police [2023] NSWSC 347. In that judgment her Honour explained the issue before her at [57], as follows:

16. [31]

    At [75]-[108] Yehia J discussed a number of considerations and authorities bearing upon the interpretation of the word “specified” in s 20. Her Honour made the following general observations about the section:

17. [32]

    Upon those considerations her Honour’s reasons for declaring the penalty notices that had been issued to Mr Beame and Ms Els invalid were as follows:

18. [33]

    Revenue NSW maintains a database of all penalty notices that have been issued, which is searchable within a selected date range using the short description of the offence that appears in each notice. Standardised short form descriptions are used, generally, in penalty notices. For each of the various ways in which s 10 of the Public Health Act may be infringed by non-compliance with one of the many clauses of public health orders issued by the Minister under s 7 during the Covid-19 public health crisis, a separate short form was adopted for use in penalty notices. Distinct Law Part Codes were assigned for different particulars of offending.

19. [34]

    On 29 November 2022, after Yehia J had made declarations in Beame; Els v Commissioner of Police, the Commissioner of Fines Administration announced that he would cancel all penalty notices in which the same short form as in the Beame notice had been used (“Fail to comply with noticed direction in relation to section 7/8/9 – COVID-19 – Individual”), as well as notices bearing the equivalent short form but ending with the notation “— Company”. At some time prior to 9 January 2023 the Commissioner announced that he would cancel all penalty notices in which the same short form as in the Els notice had been used (“Unlawfully participate in outdoor public gathering – area of concern – Individual”) and notices with the same substantive wording but ending “— Company”.

20. [35]

    On 20 March 2023 the Commissioner of Fines Administration made a garnishee order pursuant to s 73 of the Fines Act, being an order attaching debts due to the plaintiff from her bank, ING Direct, for the purpose of satisfying the outstanding balance of her fine. That order was duly served on the bank, as a result of which $2,210, including overdue and enforcement charges, was debited to the plaintiff’s account and transferred to Revenue NSW. The plaintiff became aware of the debit upon checking her bank balance online, on 28 April 2023.

21. [36]

    On 23 May 2023 the plaintiff made a second online application for review of the penalty notice. This time she submitted the following ground, relying upon the decision in Beame; Els v Commissioner of Police:

22. [37]

    On 24 May 2023 Revenue NSW responded to the plaintiff’s review application, rejecting it on the following basis:

23. [38]

    After the plaintiff had commenced these proceedings on 13 July 2023, she was advised by letter of 18 July 2023 from the Executive Director of Revenue NSW as follows:

24. [39]

    Section 24H confers upon the Commissioner an unconstrained power to withdraw a penalty notice of his own motion. The ground in s 24E(2)(d) includes that the recipient of the notice was, by reason of being homeless, unable to control the offending behaviour.

25. [40]

    The above quoted letter of 18 July 2023 was accompanied by another letter of the same date from the Crown Solicitor’s Office, confirming that the amount paid by the plaintiff in respect of the fine would be refunded. The Crown Solicitor’s letter included the following:

26. [41]

    As earlier mentioned, repayment of the fine was duly made on 4 August 2023 and the plaintiff then amended her summons on 15 August 2023 by deleting her claims for declarations 3 and 4 relating to repayment but adding par 2A in which she sought interest. On 25 August 2023 the Crown Solicitor responded with a letter to the plaintiff’s solicitors offering interest and reiterating that the proceedings were no longer useful, as follows:

27. [42]

    On 28 August 2023 the defendants served their response to the amended summons, from which the material parts have been quoted earlier in these reasons. The plaintiff’s solicitors replied in an 11 page letter dated 11 September 2023, reciting the above chronology in detail and advancing arguments to the effect that the penalty notice was invalid, not on the factual basis contended in par 1a of the defendants’ filed response, but on the ground of failure of the notice to nominate the offence-creating provision, with reference to the Court’s reasons in Beame; Els v Commissioner of Police. The plaintiff’s solicitors maintained in their letter of 11 September 2023 that there was utility in continuing the proceedings to obtain declarations 1 and 2.

28. [43]

    The plaintiff’s solicitor has searched the database referred to at [33] above and has ascertained that 96 penalty notices were issued with the same short form description of offence as in the plaintiff’s notice dated 13 September 2021. The database indicates that the total of all fines paid and/or payable under those 96 notices amounts to $288,000. The solicitor has deposed that there were 58 different short form descriptions used in a total of 25,834 penalty notices issued to individuals for offences against s 10 of the Public Health Act, allegedly committed by failing to comply with public health orders issued in response to the Covid 19 public health crisis. It is said that the total amount of fines paid or payable under all such penalty notices is $17,410,340.

The Court’s discretion not to make declarations

1. [44]

   The parties’ submissions centred upon three decisions concerning circumstances in which it may be appropriate for the Court to grant the discretionary remedy of a declaration. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 the Criminal Justice Commission of Queensland had prepared a report containing adverse recommendations about certain persons engaged in the poker machine industry. The Commission furnished the report to the chairman of a Parliamentary Committee, to the Speaker of the Legislative Assembly and to a Minister. It was then tabled in Parliament. The High Court held that in preparing the report the Commission had been under a duty to observe procedural fairness, which had been breached by the failure of the Commission to accord a hearing to the persons whose reputations were affected by the adverse recommendations.

2. [45]

   Mason CJ, Dawson, Toohey and Gaudron JJ held that having regard to the statutory functions of the Commission and the status of its report, neither certiorari nor mandamus was an available remedy on the application of the persons affected. Their Honours determined that there should be a declaration that the Commission had failed to observe the requirements of procedural fairness, upon the following considerations (at 581-582):

3. [46]

   The separate judgment of Brennan J included statements to similar effect, as follows (at 595-597):

4. [47]

   The second of the three cases is Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41. In that case non-citizens within certain categories arriving in Australia would be subject to a departmental decision as to whether they were owed protection obligations. If an affirmative conclusion was drawn in relation to any such individual, a submission would be made to the Minister seeking his or her agreement to exercise a statutory power to allow the person to make a visa application. Otherwise, the person could seek review of the departmental decision by an independent reviewer, whose recommendation could result in a submission to the Minister. The Minister was not under a duty to consider whether to exercise the power to allow a visa application to be made. In those circumstances the High Court held that neither mandamus nor certiorari was an available remedy for established instances of denial of procedural fairness by the independent reviewer.

5. [48]

   The Court held as follows with respect to declaratory relief (some citations omitted:

6. [49]

   The third case is Dunlop v Department of Justice and Attorney-General (Qld) [2020] QSC 160. The plaintiff held a letting agent licence under a Queensland statute. The licence was essential to the conduct of his business as a caretaker and letting agent of apartment buildings. In March 2017 he pleaded guilty in the Magistrates Court to having used a carriage service to menace, harass or cause offence, contrary to s 474.17 of the Criminal Code 1995 (Cth). The circumstances were that he made agitated and excessively frequent phone calls to a local council, complaining that construction work on a site near a complex he was managing was adversely affecting the amenity of the building. More than two years later the Department administering the statute under which the plaintiff held his licence informed him that it was deemed cancelled from the date of his conviction under the Criminal Code. The Department asserted that his conviction was for a “serious offence”, as defined in the licensing statute.

7. [50]

   In the circumstances of the case, the plaintiff’s conviction could only have been for a “serious offence” if it had been punishable by three or more years imprisonment and had involved the use or threatened use of violence. The plaintiff’s solicitor wrote to the Department and pointed out that the transcript of the hearing showed that no violence or threat of violence had been alleged (“the factual point”) and that the charge was dealt with in the Magistrates Court, which only had power to sentence for a maximum term of 12 months (“the legal point”). The Department rejected the solicitor’s submission and the plaintiff therefore brought proceedings in the Supreme Court for a declaration that his conviction was not for a serious offence.

8. [51]

   After the proceedings had been commenced the Department conceded the factual point, on the basis of which it accepted that the plaintiff had not been convicted of a “serious offence”. The Department contended that there was therefore no utility in the proceedings but the plaintiff pressed for a declaration regarding the legal point and confirming that his licence had not been cancelled by the conviction. Henry J held as follows:

9. [52]

   Henry J proceeded to consider the legal point at length and determined it favourably to the plaintiff. His Honour made declarations with respect to both points and a declaration that the plaintiff’s licence was not cancelled as a result of the conviction.

Consideration of the parties’ submissions

1. [53]

   Applying the principles in Ainsworth v Criminal Justice Commission and Plaintiff M61/2010E v Commonwealth of Australia the defendants oppose the making of declarations 1 and 2 on the basis that the plaintiff has no “real interest” in such relief now that the defendants have conceded invalidity of the penalty notice and the second defendant has withdrawn it and refunded the fine. The defendants submit that the declarations claimed will produce “no foreseeable consequence for the parties”.

2. [54]

   Against that the plaintiff submits, firstly, that there is a live dispute between the parties whether the basis, or a basis, of invalidity is that the penalty notice did not nominate the offence-creating provision. The plaintiff has expanded the description of that dispute by referring to the facts that the second defendant maintained the validity of the notice, notwithstanding the declarations made on 29 November 2022 in Beame; Els v Commissioner of Police, through the following stages:

3. [55]

   The plaintiff submits that, because the defendants have not conceded that a ground of invalidity is the absence of any reference in the penalty notice to the offence-creating provision, uncertainty arises as to whether the defendants contend “that the penalty notice has always been invalid, or whether the penalty notice only became invalid when [the second defendant] (recently) formed the view that [the plaintiff] has not committed the offence”.

4. [56]

   I do not accept that those endeavours to expand the scope of the alleged “live dispute” have any significance for the question whether declarations should be made. The difference between the parties is no greater than this: the plaintiff contends that the failure to nominate in the notice the Act and section under which the offence was alleged to have been committed is a ground of invalidity and the defendants take no position on that but say that the notice is, in any event, invalid on a factual basis. Despite the plaintiff’s submissions, I do not find the parties’ difference to be any greater or more complicated than that. Whether it is a difference that gives the plaintiff a “real interest” in obtaining a declaration and whether a declaration that would resolve that difference would have any “foreseeable consequences for the parties” requires further consideration of the submissions.

5. [57]

   The plaintiff next submits that she is entitled to a declaration to vindicate her with respect to unlawful interference with her property rights, referring to the execution of the garnishee order on her bank. I do not see that a declaration would be capable of providing vindication beyond that which has been obtained by the defendants’ admission of invalidity and the repayment of the fine with interest. The plaintiff’s rights and interests have not been affected in any way beyond the accrual and enforcement of her liability to pay the fine under the notice. As the impact on her rights and interests in that respect has been reversed and terminated there is nothing further to vindicate. Ainsworth v Criminal Justice Commission is an example of a case where a plaintiff could obtain material vindication from a declaration, in that case by diminishing the damage to the plaintiff’s reputation that flowed from the Commission’s recommendations to Parliament. Such vindication as lay within the power of the Court was to declare that the recommendations had been made without giving the plaintiff a hearing.

6. [58]

   The plaintiff submits that there is an analogy with Henry J’s decision in Dunlop v Department of Justice and Attorney-General (Qld) in that she has been subjected to “bureaucratic intransigence” by the second defendant’s failure to acknowledge invalidity at the several stages referred to at [54] above. I do not regard “bureaucratic intransigence” as a fair characterisation in this case. Henry J’s use of the term has not given rise to a general principle. The conduct that his Honour so described in that case assumed a significance relevant to the Queensland Supreme Court’s discretion to make a declaration because it had led to the plaintiff being deprived of his means of earning a living. Also his Honour was concerned that the Department’s failure to correct its error, even when the plaintiff’s solicitor had pointed out the indisputable “factual point”, raised the prospect of further such conduct if a declaration were not made. The granting of relief in those circumstances had clearly foreseeable consequences for the parties, in particular, protective consequences for the plaintiff. There is no equivalent here. The penalty notice is at an end.

7. [59]

   The plaintiff submits that the point of difference between the parties, being her unrequited insistence that this particular penalty notice is invalid for want of nomination of the offence creating provision, is “a point of considerable public importance”. I do not accept that. Beame; Els v Commissioner of Police determined the “bare minimum” requirement that the offence-creating provision should have been identified by reference to section and Act and that that requirement was not met in the penalty notices they are considered. The defendants in this proceeding are the same as in the Beame and Els proceedings. They have not appealed Yehia J’s decision. The factual ground upon which the defendants have conceded invalidity of the penalty notice in the present case appears sound. I see no public importance in proceeding to make a declaration of the invalidity that is already properly admitted, merely in order to express reasons about applicability of Yehia J’s reasoning to this notice. I do not accept that the statistics concerning large numbers of other penalty notices issued for infringement of Covid-19 public health orders are capable of establishing public importance. This is not a class action or representative proceeding. It is reasonable to expect that other penalty notices may, similarly, not include reference to the relevant Act and section. The notice issued by post to Mr Beame included additional particulars of his alleged offending: see [28] above. There is no basis upon which I could conclude that making a declaration in this case, with reasons as to the consequence of the offence-creating provision not having been nominated, would resolve issues concerning other penalty notices. Further, there is no evidence before the Court that other recipients of penalty notices wish to contest them, or have applied unsuccessfully for review and may wish to renew their applications.

8. [60]

   The plaintiff submits that the defendants’ undoubted duty to apply the law as ruled upon by this Court (see Indooroopilly Chidren’s Services (QLD) Pty Ltd [2007] FCAFC 16 at [3]-[7]) has been breached by the Commissioner of Fines Administration because he has “persisted in refusing to concede that the reasoning in Beame dictates that [the plaintiff’s] penalty notice is invalid”. In my view there is no such breach, given that the second defendant has conceded invalidity on a different and appropriate ground and that concession has been sufficient for the plaintiff’s rights according to law to have been upheld – by the withdrawal of the notice and repayment of the fine. The duty does not extend to an obligation on the part of the defendants to agree with the plaintiff, or to concede, the applicability of Beame; Els v Commissioner of Police to the present case, where that legal point may fairly be regarded by the defendants as irrelevant and unnecessary to ensuring lawful administration of the Fines Act, for which they are responsible.

Orders

1. [61]

   The following orders will be entered:

   1. (1)

      The amended summons is dismissed.

   2. (2)

      If the parties are unable to agree upon liability for costs, the plaintiff is to deliver to the Associate to Fagan J by 16 February 2024 a proposed form of order and submissions in support.

   3. (3)

      If the plaintiff lodges a proposed costs order pursuant to order (2), the defendants are to deliver to the Associate to Fagan J by 23 February 2024 any proposed alternative form of costs order and submissions.

   4. (4)

      The costs of the proceedings are reserved and any order for costs is to be determined if necessary on the papers.