Zey v State of New South Wales

NSW opposes Ms Zey’s application and seeks to have it dismissed with costs.

Ms Zey relies upon a second affidavit by her sworn 12 May 2026, which subsumes and develops upon her first affidavit sworn 29 April 2026. She also relies upon her original complaint made to the Commission against NSW in relation to the Department of Communities and Justice, District Court, dated 30 May 2025; and her amendment of that complaint to the Commission by which she added the Court of Appeal on 23 March 2026. Her evidence also included a letter tendered during the course of the hearing, as addressed below.

NSW relies upon the affidavit of Mr Kapil Bazil sworn 21 May 2026, the District Court decision by Levy SC ADCJ in Eedra Zey v State of New South Wales [2024] NSWDC 135, and the Court of Appeal decision by Griffiths AJA, Eedra Zey v State of New South Wales [2026] NSWCA 18. Mr Bazil deposes to the history of the proceeding brought before the District Court and now the Court of Appeal.

NSW submits, as a preliminary matter, that there is a real question as to whether s 46PP of the Act is consistent with the Constitution to the extent that it purports to empower this Court to grant the relief that Ms Zey seeks, because of the effect that relief would have on a State of the Commonwealth participating in litigation before the Court of Appeal. NSW contends that were there to be such an inconsistency, s 15A of the Acts Interpretation Act 1901 (Cth) may authorise reading s 46PP(1) down to the extent necessary to avoid that inconsistency.

In light of the complexity of this Constitutional issue and the limited time before the Court of Appeal hearing on Thursday, NSW is prepared to, in the first instance, address the application on the assumption that there is no such impediment to the granting of the relief sought. Accordingly, NSW’s submissions oppose the grant of relief on the merits.

If I was minded to grant the relief Ms Zey seeks on that preliminary basis, the Constitutional issue would then arise. Accordingly, I would have to comply with the requirements of s 78B of the Judiciary Act 1903 (Cth), which requires the proceeding to halt until all nine Attorneys-General of the Commonwealth, the States and the Territories have been served with a notice describing the Constitutional issue, and given sufficient time to decide whether or not to intervene.

Section 46PP provides as follows:

It is well-established that s 46PP does not require the usual tests or equitable principles, including whether there is a prima facie case or serious question to be tried, and that the balance of convenience favours the granting of the injunction, to be met to the same level or rigour as is required to grant an ordinary interlocutory injunction. Regard must be had to the apparent purpose of the power, which is to maintain the status quo and thereby preserve the effectiveness of the powers of the President of the Commission (as often exercised by delegates) under ss 46PF, 46PI and 46PJ of the Act to, respectively, inquire into a complaint, obtain information relevant to that inquiry and conciliate a complaint: see Chadwick v State of New South Wales [2022] FCA 1498 at [26] (Wigney J); see also Abraham v Housing Authority [2022] FCA 1145 (Jackson J); Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 (Colvin J); and Smith v A High School [2025] FCA 1432 (Perram J). Both Abraham and Millar were considered by Wigney J in Chadwick.

Wigney J in Chadwick made the following further observations, with which I respectfully agree and endorse, and do not regard as being inconsistent with either Abraham or Millar:

NSW contends that the interests of justice do not favour granting the relief sought by Ms Zey because of a lack of merit in her underlying complaint of discrimination, the seriousness of the relief being sought by way of interference in the conduct of the Court of Appeal proceeding, and her ability to advance the issues she has with the Court of Appeal on Thursday. Ms Zey did say that she would not be able to appear before the Court of Appeal on Thursday, but it is not clear to me why that is so.

As to the merits of Ms Zey’s complaint, NSW submits:

NSW also submits, accurately in my view, that Ms Zey’s evidence indicated that she suffered from PTSD, but that this evidence, which I note includes reports from doctors and allied health professionals, did not establish that this prevented her from being able to participate fairly before the Court of Appeal. In saying this, NSW did not dispute, for the purposes of this hearing, that Ms Zey suffered from PTSD, or that this constituted a disability. The narrower point was that there was insufficient evidence to show that her condition prevented fair participation in the proceeding before the Court of Appeal. NSW further submits that there was insufficient evidence of what it was that Ms Zey wanted the Court of Appeal to do by way of reasonable adjustments to accommodate her disability, and insufficient evidence of what the Court of Appeal had done or failed to do that fell short of what was required by way of reasonable adjustments.

Ms Zey made it clear that she understood the point being made by NSW was an assertion that the evidence as to her condition lacked a nexus with her inability to participate in the Court of Appeal proceeding. She sought to rely upon the bare fact that the complaint (as amended) had been accepted by the Commission. She characterised that fact as reflecting a prima facie finding as to the merit of her complaint. I indicated to Ms Zey that, considering the relevant authorities (to which I refer above), I was not prepared to treat the bare fact that a complaint had been made and not rejected by the Commission as sufficient for present purposes. Ms Zey was evidently aware of one of the seminal decisions on s 46PP, being that of Jackson J in Abraham, to which she referred several times, a case which suggested that an applicant for a s 46PP injunction did not have to demonstrate that a complaint was probably going to succeed. I accept that Ms Zey did not have to meet that high a threshold, but adhere to my agreement with the additional passages from Chadwick at [27]-[28], reproduced above.

Ms Zey then went to various documents annexed to her affidavit, which raised concerns about reasonable adjustments in the context of her proceeding in the District Court and the Court of Appeal. The highwater mark of those documents was the reproduction of the text of a letter that she deposed to sending on 7 April 2026 (the 7 April 2026 letter) to:

The text of the 7 April 2026 letter is too lengthy to be reproduced in these reasons in its entirety. It reveals generalised complaints that not enough was being done by the Court of Appeal to provide her with what she considered to be reasonable adjustments, but does not clearly identify what particular reasonable adjustments were sought. There are repeated references to proposed reasonable adjustments, but no identification of what she had actually and specifically proposed be done. The closest that evidence comes to identifying what Ms Zey sought is the following extract from the text of the 7 April 2026 letter:

A further letter apparently sent to the Court of Appeal and to NSW on 14 April 2026 was in similar terms.

During the course of the hearing of the application, Ms Zey also tendered a letter to her from the Assistant Manager Client Services of the Supreme Court, dated 14 April 2026 (the 14 April 2026 letter). She asserts that she did not receive, or at least read, that letter until a week ago, on 18 May 2026, an assertion that was not contested by NSW. The 14 April 2026 letter was admitted into evidence without objection. It is expressly a response to the 7 April 2026 letter, referred to immediately above, as well as other communications. It is more convenient to reproduce than summarise its content, as follows:

It is clear from the 14 April 2026 letter that Client Services, evidently on behalf of the Court of Appeal, was genuinely trying to understand precisely what it was that Ms Zey wanted by way of reasonable adjustment.

Over the course of the hearing, the core requests that Ms Zey identified as having been communicated to the Court of Appeal, contained in the 7 April 2026 letter extracted above, included that contact with the Court should primarily be by telephone, and that she be able to attend hearings in person in Sydney with reasonable adjustments including access to real-time text transcription, with confirmation of these arrangements provided at least 28 days in advance. Ms Zey also referred in submissions to her wanting the hearing currently listed in the Court of Appeal on 28 May 2026 to be relisted for some other time that she could attend.

Ms Zey’s affidavit further attached various correspondence from her clinical and forensic psychologist. The high point of this evidence was a psychologist report dated 28 April 2026 which indicated that Ms Zey’s participation in Court proceedings would be supported by the provision of a support person, a quiet space or room, and additional time and slower proceedings, as well as documents being provided in advance in an appropriate format and in plain English. There was no evidence that she had conveyed that psychologist report or those proposed adjustments to the Court of Appeal. I did not allow her to reopen her evidentiary case to adduce oral evidence from herself as to what she said she had offered to the Court of Appeal in this regard mostly by reason of the unfairness to NSW in being required to meet new and hitherto undisclosed evidence on the run.

Additionally, the reference to “equal participation” in the part of the 7 April 2026 letter reproduced above seems to be her insisting on being able to appear by telephone, and that if she appeared by telephone, NSW be forced to appear by telephone as well, a proposition apparently rejected by Griffiths AJA in an interlocutory aspect of the Court of Appeal proceeding. I note that Griffiths AJA also referred in his judgment to correspondence from Ms Zey to the Court of Appeal requesting that her attendance in person at that interlocutory hearing be facilitated by the provision of overnight accommodation, and other adjustments to allow for “regulation and recovery (including the effects of prescribed medication) so that [she] could travel safely; the presence of a support person; and practical transport and parking arrangements”: Eedra Zey v State of New South Wales [2026] NSWCA 18 at [11]. Ms Zey did not refer me to that section of his Honour’s judgment, or any evidence of the relevant correspondence. Accordingly, it is unclear whether the adjustments identified by his Honour in that paragraph continue to accurately reflect what she seeks from the Court of Appeal. It does not seem that that is the case, given that the only request referred to in that paragraph which was raised before me was the provision of a support person (which was not specified in her 7 April 2026 letter to the Court).

Once it became apparent that I was concerned about the sparsity of evidence adduced by Ms Zey of information being provided by her to Client Services, or anyone else at the Court of Appeal, as to what reasonable adjustments she actually sought, or of any refusal by the Court of Appeal to provide any such adjustments, she sought to pivot her case towards an assertion that there had been a refusal to engage with her about her needs, and that itself constituted a lack of reasonable adjustments. That complaint seemed to be directed both to NSW and to the Court of Appeal. In support of that materially different case, she sought to play recordings of telephone conversations and adduce evidence of email correspondence she said she had had with staff at the Court of Appeal. The latter were apparently not presented in their original form, but rather as extracts of such emails compiled in a Word document, which she only had with her at Court in electronic form. I refused to allow Ms Zey to change her case in this way, and to adduce such evidence, which had not been served. I note however that I seriously doubt that any of that evidence could possibly have made any difference to the outcome of this application.

At this point, I should add that I found Ms Zey to be intelligent, highly articulate and quick to understand the matters being discussed, including some complex issues and arguments. That said, I am not a heath professional, and I am not in any position to know, without specific medical evidence of a kind that was not before me, what particular difficulties her medical condition could pose for participation in court proceedings.

I am not satisfied on the evidence that was before me today that the complaint that Ms Zey has made to the Commission, as amended, has any real possibility of success in relation to the Court of Appeal. That is for two main reasons. First, I am not satisfied on the evidence before me that there is any nexus between her medical condition of PTSD and her incapacity to participate fairly in the proceeding before the Court of Appeal, especially given how well she was able to present her case before me. Secondly, I am not satisfied that there was any failure to provide reasonable adjustments, as opposed to giving her whatever she wanted, to the extent that was properly identified in the first place. Although I did not allow her evidentiary case to be reopened at the hearing, including to facilitate her changing her case to assert a failure to engage with her in relation to what she was seeking, I think it highly unlikely that this could have overcome the plain effect of the 14 April 2026 letter from the Court of Appeal by which an identification of what she wanted was expressly sought.

As to the seriousness of the relief being sought by way of interference in the conduct of court proceeding, NSW submits that it is a major step for a court to control or interfere with the case management processes of other courts. This submission is supported by long-standing High Court authority about the barriers to appeals on questions of practice and procedure in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170, per Gibbs CJ, Aickin, Wilson and Brennan JJ at 177.

NSW characterises Ms Zey’s application as asking this Court to take steps that would have the effect of controlling or interfering with the processes of another Superior Court. That is because, although directed to the State, the orders she seeks would have the effect that if Ms Zey chooses not to attend the Court of Appeal hearing, in particular this Thursday, and asserts that this was due to the absence of reasonable adjustments for disability, NSW would not be able to obtain or rely upon what she characterises as “procedural advantage” from that position. That would preclude, it seems, NSW’s entirely appropriate attendance at the hearing next Thursday, and ability to seek an outcome adverse to her interests by reason of her non-appearance. Presumably that could include seeking an ex parte hearing of her application for leave to appeal, or the dismissal of that application, and also seeking costs. Viewed in that way, the constraint Ms Zey seeks on NSW’s engagement with the Court of Appeal proceeding would function as a fetter on the Court of Appeal’s capacity to hear and decide its own proceeding.

Ms Zey’s response was to focus on what she described as the extraordinary power that is contained in s 46PP of the Act. In substance, she argued that if this Court had the power, it should exercise it in her favour. She did not engage with the extraordinary outcome that this would entail of this Court ordering a party to a proceeding in a state court to behave in a particular way. This does happen in anti-suit injunction cases, but that is an entirely different situation, which involves this Court exercising jurisdiction over a substantive matter to the exclusion of another court, domestic or overseas. Such cases involve preventing a party from running the case in another court at all, by reason of it being pursued in the injuncting court, as opposed to regulating the party’s conduct when it does run the proceeding.

Even if I had found that there was sufficient merit in Ms Zey’s complaint to engage the power in s 46PP of the Act, and even if I had been able to determine that there was no constitutional problem in doing so (which seems to me to be a bold position to reach), I would not, in the exercise of discretion, have made orders controlling NSW in relation to its conduct of the proceeding in the Court of Appeal. This is not just a matter of comity, although that does arise. It is a matter of propriety. I consider that this would be an improper thing to do. In my view, it is a matter for the Court of Appeal as to how litigants before it conduct themselves. That view extends to the third order that Ms Zey seeks. That is especially so in light of the 14 April 2026 letter, apparently sent on behalf of the Court of Appeal, which shows a real attempt to engage with Ms Zey regarding her needs.

The urgent application before the start of a proceeding dated 29 April 2026 must be dismissed.

Section 46PSA of the Act provides a default position that an applicant in proceedings under s 46PO should not be ordered to pay a respondent’s costs, except if the Court is satisfied that the proceeding was brought vexatiously or without reasonable cause, or that the applicant’s unreasonable act or omission caused the other party to incur the costs. However, these proceedings are brought under s 46PP, and accordingly there is no statutory barrier to costs being ordered.

NSW seeks a costs order in its favour. While Ms Zey did not remain in the courtroom until the conclusion of the oral delivery of judgment, and declined to return to the courtroom after that delivery was complete despite that offer being made, she did address the question of costs in her written submissions as follows (paragraph numbering removed):

In circumstances in which the legislature has decided to preclude costs orders being made ordinarily in proceedings brought under s 46PO, not enacted any such provision for costs for applications made under s 46PP, made express provision for no undertaking as to damages being required as a condition for the grant of an interim injunction under s 46PP(1), and it has been found that the threshold for obtaining such injunctive relief is lower than for obtaining injunctions more generally, I am unable to attribute to the legislature any intention to depart from the usual rule as to costs. That usual rule is that costs follow the event. The concept of access to justice does not preclude adverse costs consequences where a party fails to meet even low thresholds for the relief sought. I conclude on what is presently before me that that it is fair and appropriate to apply the usual rule in this case, and as such, make an order that Ms Zey should pay NSW’s costs.

However, Ms Zey left the courtroom as I was delivering this judgment orally, evidently because she was upset. I will therefore make a further order allowing her to seek a different costs order, to be determined on the papers. NSW did not oppose that course.

After delivering the preceding paragraphs of this judgment orally, subject to limited revisions before publication, I considered it appropriate to provide the following post-script.

Soon after the commencement of the hearing, Ms Zey indicated that she had not read the documents filed in this proceeding by NSW (being an affidavit and written submissions), although she was aware that they had been forwarded to her by an email sent to her by a person in the NSW Registry of this Court. I expressed concern about continuing the hearing in those circumstances, and suggested adjourning to provide her with an opportunity to review those materials, before resuming the hearing. However, Ms Zey indicated that she preferred to proceed with the hearing without such an adjournment. She agreed to a course whereby NSW made submissions on a number of topics. She asked to respond to each topic after it had been addressed by NSW, which is what took place.