COVID-19 fine withdrawn in test case that could see thousands more torn up

One of the plaintiffs in a NSW Supreme Court case that has the potential to invalidate tens of thousands of COVID-19 fines has had his $1000 infringement withdrawn.

Rohan Pank, 30, sued the NSW Police Commissioner and the Commissioner of Fines Administration this week after they refused to cancel a fine he was given for sitting in a park in August 2021 while Sydney was in lockdown.

Pank was within one kilometre of his home, and police who approached him said the fine was given because he was not actively exercising. Later that month, NSW Health would clarify that “sitting for relaxation” was considered to be outdoor recreation.

He sought two reviews of the fine, which were both rejected. Shortly after the court case was filed and served on Thursday, the fine was withdrawn.

Samantha Lee, Redfern Legal Centre’s senior solicitor in police accountability, said no explanation had been given to her client.

“The timing suggests the litigation prompted a further review, which saw the law finally applied correctly in Pank’s case, but we have no further information and no reasons were given,” she said.

“It’s a shame it’s taken Supreme Court proceedings to achieve this, and shows how the existing internal review processes have struggled to correctly interpret the law in certain cases. There are 45,000 more unpaid fines out there, a significant number of which may be invalid.”

The case will continue with two remaining plaintiffs, one of whom received a $1000 fine and one a $3000 fine.

They will argue that their fines are not valid because the penalty notices do not provide enough detail, as required under the Fines Act. This lack of detail makes it difficult to challenge the fines in court because it does not point to a specific offence.

If successful, the case has the potential to apply to tens of thousands of other COVID-19 fines issued across the state, many of which are now up to the enforcement stage.

Two rejection letters previously sent to Pank, seen by the Herald, offer differing explanations for why his fine was not cancelled in the first place.

In the first letter, in September 2021, the agency said its “investigations conclude the penalty still applies”. It said a police officer “advised you were in breach” of the public health order and noted a person “must not, without reasonable excuse, be away from their place of residence”.

“We acknowledge your comments, however leniency is inappropriate as it is considered serious due to the need to protect the health of the NSW public,” the rejection said.

In a second review in May 2022, Revenue NSW said Pank lived in Newtown, in the Inner West local government area, but Sydney Park was located “in the City of Sydney LGA and therefore not permitted under the Public Health Orders for exercise”.

“We are satisfied the fine was issued correctly,” the rejection said, again noting that leniency was inappropriate.

At the time, public health orders allowed people to take part in exercise or outdoor recreation in groups of two if they were within 10 kilometres of their home, regardless of if that crossed into another local government area.

Comment was sought from Revenue NSW about why Pank’s fine was withdrawn, and whether the fines for the other two plaintiffs would be similarly withdrawn.

A spokesperson said on Saturday that the agency “does not comment on individual cases”.

“Revenue NSW continues to collaborate with other government agencies, issuing authorities, advocates, community organisations and legal sector agencies through a cross agency working group to ensure recovery of fines is fair and equitable,” the spokesperson said.

“Customers who have received a fine can request a review of their fine at any time.

“Help is available and Revenue NSW is here to support customers who are having difficulty paying their fines. Customers are encouraged to call Revenue on 1300 138 118 to discuss their individual situation and the most suitable option for resolution. ”

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