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[2026] NSWCA 134
respondent. Time for filing the leave summons was extended to 31 October 2025. Leave to appeal was refused with costs. The State was directed to file submissions and/or evidence supporting a gross-sum costs...
Ms Zey was given extra time to bring her leave application, but the Court of Appeal did not allow an appeal to proceed. It considered her complaints about the stay, the towing of her vehicle, police entry, and the statutory basis for police action. The Court concluded that none justified leave under the applicable threshold. The stay of enforcement of the District Court costs order ended, and the Court set a timetable for submissions about a further gross-sum costs application.
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2,600 words · generated 07/10/2026
Eedra Zey’s District Court case arose from two occasions in September 2019 when her vehicle was positioned across access to construction works at Belmont High School. Police arranged for the vehicle to be towed on 17 September. On 21 September, officers attended Ms Zey’s property to speak with her about the vehicle and its obstruction of access. She asked them to leave. The State admitted that the officers remained on the property for about three to three and a half minutes after that request, amounting to trespass to land ([10]-[15], [67]).
18 cited instruments linked from this judgment.
Ms Zey sued the State, alleging, among other matters, trespass to goods, trespass to land, assault, false imprisonment, misfeasance in public office, breach of privacy and breach of Art 17 of the International Covenant on Civil and Political Rights ([13]-[15]). The District Court hearing began on 26 February 2024. After attending the first four days, Ms Zey did not attend the resumed hearing dates, despite arrangements including AVL access. The trial judge refused her application to stay the proceedings and later determined the claims on their merits ([17]-[32], [56]-[61]).
The District Court awarded Ms Zey $1 for the admitted trespass to land and dismissed her other claims. It later ordered her to pay the State’s costs on an indemnity basis in a discounted gross sum of $320,000, inclusive of interest and GST ([33], [76]). Ms Zey sought leave to appeal those decisions. Her summons was filed on 13 October 2025, outside the time allowed. She therefore needed both an extension of time and leave to appeal ([3]).
The Court of Appeal extended the time for filing the summons to 31 October 2025, but refused leave to appeal with costs. It also directed the parties to file material concerning a further application for gross-sum costs and formally discharged the stay of enforcement that the primary judge had made in November 2025 ([183]).
The Court separated the extension-of-time question from the leave question. On time, it said Ms Zey should receive “some latitude” because she appeared not to have had legal representation for most of the period. It granted the extension irrespective of the merits, and did not need to assess the medical evidence in detail to decide that question ([84]).
The leave question had a higher threshold. The Court stated that leave is appropriate only where a proposed appeal involves a question of principle, public importance or an injustice that is reasonably clear, going beyond what is merely arguable. It also cited the principle that leave will not be granted where an appeal is doomed to fail ([85]). The District Court principal judgment was for $1, far below the $100,000 monetary threshold identified in the reasons. The Court treated the modest monetary stakes as relevant to proportionality and the public interest in early finality, but did not treat the threshold as the only consideration ([3], [119]).
On the stay decision, the Court applied appellate restraint to an interlocutory decision about practice and procedure. The primary judge had considered the medical certificate, the available medical material, Ms Zey’s non-attendance at arranged psychiatric examinations, and his own observations of her in court. The Court of Appeal noted that the primary judge had accepted that a PTSD diagnosis was before him, but considered that he could take account of the absence of reliable material explaining its factual and diagnostic basis and its effect on Ms Zey’s ability to continue the case ([92]-[93], [107]-[109]).
The Court also rejected the contention that the proceedings went to judgment without Ms Zey knowing they were continuing. It relied on the communications about relisted hearing dates and on the fact that she had been informed of the stay decision, which made clear that the case was proceeding. It concluded that the primary judge had not denied procedural fairness ([110]-[111]).
The proposed ground about the 21 September trespass-to-goods claim raised a real omission: the State conceded that the primary judge had not expressly determined that pleaded claim. The Court nevertheless concluded that leave would serve no useful purpose. It considered the primary judge’s reasoning about the 17 September towing claim equally applicable to the later towing, and found no reasonable prospect of successfully challenging the first claim’s determination. It also considered that the likely damages would not justify leave ([113]-[119]).
On the statutory-power arguments, the Court applied the proposition that an action is not invalid merely because the person exercising a power held a mistaken view about its source, or because the source is identified later, if a legally available source of power existed at the relevant time ([128]). The Court noted that cl 39(2)(b) of the Road Transport (General) Regulation 2013 (NSW) had been pleaded in the Amended Defence. It found no denial of procedural fairness in the primary judge considering that provision ([152]-[153]). Its conclusion was about whether these proposed grounds warranted leave; it did not resolve every possible question about the application of LEPRA or every condition in the regulation.
For the implied-licence issue, the Court treated the existence and scope of a licence to enter as involving factual findings and legal conclusions. It referred to the established description of an implied licence to approach a dwelling to communicate with its occupier and to the possibility that an occupier may preclude or revoke such a licence ([137]-[139]). The Court found the challenge no more than arguable and considered the very small damages already awarded relevant to whether leave was warranted ([144]).
The judgment did not announce a general change to the law. It applied existing appellate principles to a leave application arising from a particular factual and procedural history. Its stated leave test drew on earlier NSW Court of Appeal authorities, including Cheng, Carolan, Clarke and PPK Willoughby. The test requires more than a merely arguable point where the statutory monetary threshold is not met ([85], [119]).
For discretionary procedural decisions, the Court applied House v The King and the restraint described in Mohareb. It also distinguished the High Court’s decision in GLJ, explaining that the present question concerned a temporary stay, not the standard applicable to a permanent stay ([92]-[93]). The judgment therefore confirms the approach it applied to this interlocutory stay application, rather than purporting to replace the general framework.
On mental health evidence, the Court stated that a diagnosis does not by itself compel an adjournment. Its reasoning turned on the material available to the primary judge, including the detail in the medical certificate, evidence about participation, and observations made during the hearing ([107]-[109]). The judgment does not establish that a particular kind or amount of medical evidence will always be necessary. It addresses the sufficiency of the material and reasoning in this case.
For implied licences, the Court relied on Halliday v Nevill and Roy v O’Neill. It recounted that an implied licence may ordinarily permit a member of the public to use an unobstructed path or driveway to seek lawful communication, and that the occupier may preclude or revoke the licence by express or implied conduct ([137]-[139]). The decision’s treatment of the specific signs, barriers and property layout was not a general finding that such features can never prevent entry. It concluded that the particular challenge did not justify leave.
For statutory power, the Court relied on Licha v Joseph, which it said had recently been applied in Allchin. The proposition it applied was that a mistaken or belatedly identified source does not invalidate action if the power ultimately relied on was available at the relevant time ([128], [153]). That proposition did not eliminate the need for a lawful source of power. The Court’s reasoning depended on its acceptance that cl 39 was available and on the procedural context, including that the provision had been pleaded.
The judgment also made an important procedural observation: a judge is not relieved of the need to deal with a pleaded claim simply because a party has filed no submissions, unless there is a basis for concluding that the claim is not pressed ([127]). It then held that the omission in this case did not warrant leave because the proposed ground lacked practical utility ([118]). Those two points should be read together: the Court recognised the omission, but determined that it did not meet the threshold for an appeal.
At [84], the Court said that Ms Zey should receive “some latitude” because she appeared to have been without legal representation for much of the relevant period. In plain English, the Court allowed more time to bring the application even though it did not consider the merits sufficient to allow an appeal.
At [85], the Court set out the leave test: an appeal must raise a question of principle, public importance or a reasonably clear injustice that goes beyond mere arguability. This explains why identifying an alleged error is not enough by itself. The error must also meet the standard for granting leave.
At [108], the Court said that “the fact of a diagnosis of a mental health condition does not of itself compel an adjournment”. In context, this means that a court deciding whether proceedings can fairly continue may assess the evidence about the condition and its effect, rather than treating diagnosis alone as determinative. The Court also recognised the primary judge’s ability to consider his observations of Ms Zey in court ([107]-[109]).
At [127], the Court stated that the absence of submissions does not permit a judge to leave a pleaded claim undecided, unless there is a basis for concluding that it is not pressed. In plain English, a party’s failure to argue a claim may matter, but it does not automatically erase the need to determine it.
At [128], the Court stated that a mistaken or belatedly recognised source of power does not invalidate an action if the source ultimately relied on was available at the relevant time. The point is about the legal availability of the power, not simply what an officer thought the source was. The Court later concluded that considering cl 39 did not deny procedural fairness because that provision had been pleaded ([152]-[153]).
At [144], the Court explained that the implied-licence issue involved factual findings and legal conclusions, and that the challenge did not warrant leave. This illustrates that the Court was deciding whether the proposed appeal met the leave threshold, not conducting a new trial of the underlying facts.
The judgment is most directly relevant to applications for leave to appeal where the first-instance decision is below the applicable monetary threshold and the applicant alleges that errors nevertheless raise a question of principle, public importance or clear injustice. It shows that the applicant’s framing of an issue as important does not by itself satisfy the threshold. The Court examined whether the proposed grounds had utility and whether any alleged error could realistically affect the result ([85]-[89], [118]-[119]).
It is also relevant where an applicant seeks an extension of time after a lengthy delay and points to a period without legal representation. Here, the Court granted the extension on that basis, without treating the merits as a bar to extending time ([80]-[84]). That result is specific to the Court’s assessment of the circumstances described in the judgment.
The stay analysis may be relevant to an interlocutory application based on a litigant’s mental health and ability to participate. The judgment indicates that the court may consider the medical material, the practical effect of the condition, the litigant’s observed participation, previous procedural arrangements and the public interest in resolving the case ([107]-[110]). It does not establish that every litigant with PTSD can fairly proceed, nor that every medical certificate will be inadequate.
The statutory-source discussion may matter where a party argues that a government officer acted under the wrong legal label, but a different source of power is later relied on. The Court’s stated proposition requires that the relied-on source was available at the relevant time. The case also involved a defence that had been pleaded, a feature that formed part of the Court’s rejection of the procedural-fairness argument ([128], [152]-[153]).
Finally, the judgment addresses an appeal alleging that a pleaded claim was not decided. The Court acknowledged that the claim was not expressly determined, but assessed whether an appeal would have practical utility and whether the likely result could change ([113]-[119], [127]). The decision should not be read as approving omission of pleaded claims; it declined leave in light of its view of the related reasoning and the appeal threshold.
The supplied judgment is dated 15 July 2026 and contains no account of later courts treating Zey v State of New South Wales itself. No later treatment of this decision can therefore be identified from the supplied text.
The judgment does refer to earlier authorities. It says that Licha v Joseph had recently been applied in Allchin v Hunter Water Corporation in relation to the proposition about a mistaken or later-identified source of power ([128], [153]). It also discusses Mehajer v R when addressing a trial judge’s ability to rely on observations of a litigant and the proposition that a mental health diagnosis does not itself require an adjournment ([108]). These are authorities the Court used in deciding Ms Zey’s application, not later treatment of the present judgment.
The Court mentioned Allchin as a possible point of comparison if the primary judge had dismissed the case solely because Ms Zey did not attend. It immediately distinguished the actual procedural course: the primary judge proceeded to determine the claims on their merits ([116]). The judgment does not state that Allchin governed the present outcome.
The Court refused leave, so it did not conduct a full appeal to determine every substantive issue raised by Ms Zey. The reasons do not finally resolve the precise application of LEPRA ss 201-202 to the vehicle removal and property entry, or each asserted condition under cls 39-42 of the Road Transport (General) Regulation 2013 (NSW). The Court treated those complaints as linked to the challenge to the statutory source of power and concluded that they did not justify leave in this application ([120]-[128], [147]-[153]).
The judgment also does not provide a general answer to how evidence of disability, trauma or functional impairment must be assessed in other proceedings. It records why the Court considered the material before the primary judge insufficient to show appealable error in this case, while acknowledging that the diagnosis was before that judge ([107]-[110]). Different evidence or procedural circumstances were not before the Court.
The omitted trespass-to-goods claim remains significant as a point of procedural reasoning. The State conceded the claim was not expressly determined, and the Court stated that the absence of submissions alone does not excuse that omission unless the claim can be treated as not pressed ([113]-[117], [127]). The Court nevertheless refused leave because it saw no utility in an appeal, given its assessment of the parallel claim and the likely damages ([118]).
The Court discharged the enforcement stay and set a process for a further gross-sum costs application, but it did not determine that application in this judgment. The State was to file supporting submissions and/or evidence, followed by Ms Zey’s response. The outcome of that later costs process is not stated in the supplied judgment ([181]-[183]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Zey v State of New South Wales [2026] NSWCA 134
Hearing dates: 28 May 2026
Date of orders: 15 July 2026
Decision date: 15 July 2026
Before: Ward P; Mitchelmore JA
Decision: 1. Extend the time for the filing of the summons seeking leave to appeal to 31 October 2025.
2. Refuse leave to appeal with costs.
3. Direct the respondent to file and serve within 14 days any written submissions and/or evidence in support of a gross sum costs order with a view to determining any such application on the papers.
4. Direct Ms Zey to file and serve any written submissions and/or evidence in response (together with any basis for opposition, if she does not consent thereto, to the application being dealt with on the papers) within a further 28 days.
5. Note that the stay of enforcement of the costs order in the District Court proceedings has now expired in accordance with its terms but for the avoidance of doubt, is here formally discharged.
Catchwords: APPEALS — Application for leave to appeal — application filed out of time — claims for trespass to land and goods — application to stay first instance proceedings refused — claim for trespass to land established — nominal damages awarded — claims otherwise refused — indemnity costs ordered on gross sum basis — monetary threshold for appeal not met — no question of general principle — extension of time to file application granted — leave refused
Legislation Cited: Australian Human Rights Commission Act 1986 (Cth), s 46PP
Civil Procedure Act 2005 (NSW), ss 56, 60, 61, 62, 67, 98, 183
Disability Discrimination Act 1992 (Cth)
District Court Act 1973 (NSW), s 127
Inclosed Lands Protection Act 1901 (NSW), s 3
International Covenant on Civil and Political Rights, Art 17
Law Enforcement (Powers and Responsibilities Act) 2002 (NSW), ss 201, 202, 210A, 210B, Pts 15, 16
Real Property Act 1900 (NSW)
Road Rules 2014 (NSW)
Road Transport (General) Regulation 2013 (NSW), cll 39, 40, 41(a), 42
Road Transport Act 2013 (NSW), ss 43, 126, 143
Summary Offences Act 1988 (NSW), s 6
Supreme Court Act 1970 (NSW), s 101(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 23.1, 23.2, 23.3, 23.4 29.7
Cases Cited: Allchin v Hunter Water Corporation (2025) 118 NSWLR 479; [2025] NSWCA 253
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1; [2013] HCA 3
Berry v Nicholls [2016] NSWCA 272
Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139
Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69
Cheng v Motor Yacht Sales Australia Pty Ltd (t/as The Boutique Boat Company) (2022) 108 NSWLR 342; [2022] NSWCA 118
Clarke v State of New South Wales [2015] NSWCA 27
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Coffey v Sydney Church of England Grammar School [2024] NSWSC 123
Douglas v Mikhael [2024] NSWCA 89
Eedra Zey v State of New South Wales [2026] NSWCA 18
Forster v Harvey [2006] NSWSC 1112
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Hadid v State of New South Wales [2024] NSWCA 73
Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
Licha v Joseph [2025] NSWCA 192
Maynes v Casey [2011] NSWCA 156
Mehajer v R [2026] NSWCCA 14
Mohareb v State of New South Wales [2023] NSWCA 289
Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65
Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Prothonotary of the Supreme Court of New South Wales v Ibrahim [2023] NSWSC 1275
Robinson v State of New South Wales (2019) 100 NSWLR 782; [2018] NSWCA 231
Robson v Hallett [1967] 2 QB 939
Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45
State of New South Wales v Dennis (2025) 117 NSWLR 404; [2025] NSWCA 118
Williams v The Queen (1978) 140 CLR 591; [1978] HCA 49
Wilson v State of New South Wales [2010] NSWCA 333; (2010) 207 A Crim R 499
Young v Hones (No 2) [2014] NSWCA 338
Zey v State of New South Wales (No 2) [2024] NSWDC 289
Zey v State of New South Wales (No 3) [2024] NSWDC 359
Zey v State of New South Wales [2024] NSWDC 135
Zey v State of New South Wales [2026] FCA 655
Texts Cited: Department of Communities and Justice, Accessible Communications Policy (at Update 14 October 2025)
Judicial Commission of NSW, Equity Before the Law Bench Book
Category: Principal judgment
Parties: Eedra Zey (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
A M Khoury (Applicant)
T Smartt (Respondent)
Solicitors:
Wotton Kearney (Respondent)
File Number(s): 2025/00423763
Publication restriction: Nil
THE COURT: Before the Court, to be dealt with by consent on the papers, is an application by Ms Eedra Zey for leave to appeal from three consecutive decisions of Levy ACDJ in proceedings commenced by her in the District Court of New South Wales against the State of New South Wales (the State) alleging, among other things, trespass to land and goods by reason of actions taken by police officers in 2019.
Those decisions are: first, the dismissal on 26 April 2024 of an application made by Ms Zey for a stay of the (by then part-heard) hearing before the primary judge (the stay judgment) (Zey v State of New South Wales [2024] NSWDC 135); second, the subsequent decision handed down on 17 July 2024, awarding Ms Zey nominal damages of $1 for one instance of (admitted) trespass to land but otherwise dismissing her claims (the principal judgment) (Zey v State of New South Wales (No 2*)* [2024] NSWDC 289); and, third, the decision on 23 August 2024, ordering Ms Zey to pay the State’s costs on an indemnity basis in the assessed discounted gross sum of $320,000 (the costs judgment) (Zey v State of New South Wales (No 3) [2024] NSWDC 359).
The summons seeking leave to appeal was filed on 13 October 2025, well out of time. Therefore, Ms Zey requires an extension of time for the bringing of that leave application. Further, Ms Zey accepts that she requires leave to appeal (as the stay judgment is an interlocutory decision and the principal judgment is for an amount not exceeding the monetary threshold of $100,000 – see District Court Act 1973 (NSW), s 127(2)(a)-(c) (District Court Act)). If the appeal were to be from the costs judgment alone, then it too would require leave. The State submits that an extension of time should be refused because all of Ms Zey’s proposed grounds of appeal lack merit but that, if an extension is granted, leave to appeal should not be granted for the same reasons and by reference to discretionary considerations, including the desirability of the finality of litigation.
On 6 November 2025, after the filing of the application for leave to appeal and at a time when the State was seeking to enforce the costs judgment of 17 July 2024 against her, Ms Zey obtained a stay of the costs order from the primary judge, which was expressed to operate pending further order of this Court.
The leave application was listed for hearing for leave only. In that regard, we note that Ms Zey submitted in her initial written submissions that it was not in the interests of justice to have her leave application heard together with the argument on the appeal itself, due to the doubt she says there is as to her legal capacity and a pending application before the Guardianship Division of NCAT for the appointment of a guardian ad litem. As at the time of the hearing of the leave application, the status of Ms Zey’s application to the New South Wales Civil and Administrative Tribunal (NCAT) was not made clear but, in any event, as will be seen below, Ms Zey was represented by Counsel when the matter came before the Court on 28 May 2026.
The facts leading up to the dispute can be briefly summarised by reference to the findings in the respective judgments.
In September 2019, significant construction works were being undertaken at Belmont High School in New South Wales. Ms Zey lives in a nearby street to that school. Ms Zey and others in her neighbourhood were concerned with the movement of trucks (principal judgment at [115]). Ms Zey engaged in what the primary judge described as “provocative passive aggressive activism” (principal judgment at [1]) or “neighbourhood vigilantism by civil protest” (principal judgment at [5]). The primary judge said that Ms Zey’s conduct of blocking access to the construction site caused a public nuisance and led to the police issuing two parking infringement notices (principal judgment at [1]). (As will be seen, Ms Zey cavils with the reference to a public nuisance on the basis that this was not pleaded or relied upon as justification by the police at the time.)
The two occasions of vehicular obstruction were as follows.
On 17 September 2019, Ms Zey parked her motor vehicle so that it obstructed the gates to the school (principal judgment at [118]). Specifically, the vehicle was left parked across and obstructing a gateway and school access point for ongoing building works located at the northern end of a cul-de-sac in Albert Street, Belmont. Later that day, Senior Constable Craig Thomas arranged for the vehicle to be towed (principal judgment at [120]).
On 21 September 2019, the police received a complaint about Ms Zey’s vehicle blocking the driveaway access to Belmont High School (principal judgment at [122]). The vehicle was again left parked across and obstructing the access point for the building works. Senior Constables Edwards and Townsend attended Ms Zey’s property and attempted (the primary judge found calmly) to persuade Ms Zey to move her vehicle (principal judgment at [127]). They were unsuccessful in that attempt. Ms Zey (who was behind the door of her house) kept telling the police officers to leave and they did so after three to three and a half minutes (principal judgment at [123]-[127]). Senior Constable Edwards (SC Edwards) then arranged for Ms Zey’s car to be towed (principal judgment at [131]-[132]).
We interpose to note that, in her initial written submissions in this Court, Ms Zey says, relating to the events of 21 September, that there is no evidence that she left her vehicle. Ms Zey says that the photograph of her vehicle (principal judgment at [147]) shows that the vehicle was stationary and that the road was closed by prescribed traffic control devices under the Road Rules 2014 (NSW) (Road Rules), which Ms Zey argues rendered the Road Rules inoperative. The State says that there was sufficient evidence to infer that Ms Zey parked her own vehicle so that it was in the position of blocking access to the school; that inference being available from the fact of the vehicle being parked where it was, along with the further facts set out in the principal judgment at [119]-[122].
Ms Zey emailed the State’s solicitor a copy of the sealed summons seeking leave to appeal and a link to the electronic white folder on 3 November 2025 (at [21] of Mr Bazil’s affidavit). Mr Bazil has deposed that the State did not reply within 28 days (i.e., by 1 December 2025) and the State in its submissions sought an extension of time under r 1.12 of the UCPR for the filing of those submissions for the primary reason that Ms Zey’s notice of appeal was significantly late which Mr Bazil has deposed in turn delayed the State’s response (at [22] of Mr Bazil’s affidavit).
The first directions hearing for Ms Zey’s application was listed on 8 December 2025. On 5 December 2025, the Court of Appeal registry emailed AVL and telephone details to Ms Zey following a request for adjustments that had been received. Ms Zey appeared via telephone/AVL on 8 December 2025 and the parties were notified of the leave only hearing. Ms Zey indicated that a motion for pro bono legal assistance would be filed, and the matter was stood over to 15 December 2025. Although AVL and telephone details were again provided prior to that hearing, Ms Zey did not appear and the matter was stood over to 4 February 2026. Ms Zey appeared via AVL/telephone on that occasion. As the pro bono motion was not filed, the matter was again stood over to 18 February 2026.
Ms Zey filed her foreshadowed notice of motion on 12 February 2026. On 18 February 2026, the Registrar (in chambers) directed the parties to file and serve any evidence and written submissions in relation to the notice of motion by 12:00 midday on 20 February 2026. The time for Ms Zey to file and serve submissions on the motion was extended until 23 February 2026. On 27 February 2026, the Chambers of Acting Justice Griffiths emailed AVL and telephone details to Ms Zey (following a request for adjustments). The requested adjustments included the provision of overnight accommodation and practical transport and parking arrangements. On 2 March 2026, Ms Zey did not appear and Griffiths AJA dismissed the notice of motion and refused Ms Zey’s request to make a non-publication order (Eedra Zey v State of New South Wales [2026] NSWCA 18).
There was a further directions hearing on 9 March 2026, on which occasion Ms Zey did not appear, and again on 18 March 2026, when Ms Zey appeared via telephone/AVL and was notified of the timetable for the leave only hearing. Ms Zey indicated her preference for the hearing to occur in Newcastle. Over the opposition of the State, the Registrar indicated that the matter would be heard in Newcastle, acceding to Ms Zey’s request. Ms Zey subsequently withdrew that request but demanded that various arrangements be made to facilitate her attendance at the hearing. In particular, by letters dated 7 and 14 April 2026, Ms Zey set out a number of requirements in relation to the proceedings in this Court, including “in-person attendance in Sydney with reasonable [unspecified] adjustments” and “access to real-time text transcription”. Ms Zey did not appear at a further directions hearing on 11 May 2026.
(1) Such orders as the Court thinks appropriate to ensure that justice is done in the proceedings, thereby invoking the provisions of s 183 of the CP Act, which relevantly provides that the Court, of its own motion, or on an application by a party, may make any order considered appropriate or necessary to ensure that justice is done in the proceedings;
(2) That the proceedings be stayed pending further orders of the Court, thereby invoking the provisions of 67 of the CP Act, which relevantly provides, subject to the rules of the court, that the court may order a stay of proceedings that are before it, either permanently, or for a specified time;
(3) Referral of the [applicant] to the NSW Bar Association for pro bono legal assistance;
(4) Referral of the [applicant] for pro bono legal assistance pursuant to UCPR r 7.36;
(5) That each party pay their own costs of the motion.
Ms Zey relied on two affidavits in support of her notice of motion to stay proceedings. In the first affidavit affirmed 22 April 2024 (Ex J), Ms Zey deposed that she has medically diagnosed mental health issues, which she has drawn to the attention of the State and the Court (at [7]-[8]). Ms Zey claimed that she had contact with the court on the “evening of my meltdown” and that the Court received a medical certificate. Ms Zey also deposed to having made calls during March 2024 for assistance to Community Legal Centres, Psychiatrists, Lifeline, Mental Health Line, Disability Advocacy Services and others (at [15]). Ms Zey deposed that supervening events had “triggered her” and referred to a letter dated 20 April 2024 from her then general practitioner, Dr Rowley.
In her second affidavit affirmed 24 April 2024 (Ex J), Ms Zey referred to the State as “a well-resourced defendant with Model Litigant Obligations” (at [3]). Ms Zey deposed that she has been “denied natural justice by proceedings continuing when [she] was unavailable and had no advocate to act on [her] behalf” (at [10]). Ms Zey complained that she was unable to file her notice of motion and first affidavit with the Newcastle registry and that this was a denial of equity before the law (at [11]-[13]). Ms Zey deposed that, when asked to explain her cognitive difficulties in cross examination on 29 February 2024 (the fourth day of the trial), she “felt threatened by the judge” and described this day as “re-traumatisation” (at [16], [20]). Ms Zey deposed that her experience was not one of a trauma informed court.
On 24 April 2024, Ms Zey filed a form of written submissions in support of her stay motion which covered many topics, including: a claim of denial of natural justice; a claim of inequitable access to justice; an application for a stay of proceedings; a claim that the Court has not properly considered and made allowance for her history of trauma; a claim that she had a “meltdown” after certain intra-trial rulings had operated against her planned objectives in the litigation; some out of court discussions she had concerning legal assistance; the reasonableness of intra-trial orders; and obligations of model litigants (stay judgment at [18]).
As stated above (at [27]), Ms Zey made no appearance at the stay hearing, despite AVL facilities having been made available to her (stay judgment at [10], [15]).
The primary judge found that it was appropriate to adopt a trauma informed approach to the conduct of litigation and in considering Ms Zey’s stated pre-existing PTSD. However, the primary judge noted (stay judgment at [24]) that “the factual and diagnostic basis of that claim (Ms Zey’s PTSD) has not been definitively identified by reliable medical or allied opinion evidence”. The primary judge also noted that, despite Ms Zey’s professed professional relationships with identified medical professionals, “she has chosen not to tender into evidence any appropriately reasoned diagnostic medical opinions on the question of her mental health, including as to the origins and effects of her PTSD on her” (stay judgment at [28]).
In the principal judgment, the primary judge set out the background to Ms Zey’s personal circumstances, including that: Ms Zey had been an activist, “championing causes to test boundaries concerning the rights of individuals in society on a number of issues” (principal judgment at [61]); at the time of the events leading to the trespass dispute, Ms Zey was part of a neighbourhood residents action group called “Bad Rags” (27/02/24; T 103.27, T 184.32); and that the action group had been in discussion with the local Council Ranger regarding neighbourhood objections to the movement of heavily laden trucks on low-load roads, parking issues and barking dogs in the area (27/02/24; T 103.30, T 184.32) (principal judgment at [62]-[63]).
Ms Zey moved into her premises in 2019 and in the months that preceded the events that led to the trespass dispute, she had a history of disputes with building contractors engaged in carrying out works at the nearby high school (principal judgment at [75]). Ms Zey had designed her premises to restrict views into her premises from outside. The primary judge noted that access to Ms Zey’s premises was restricted by barred gated access at multiple points with multiple signs displayed at various points stating, “NO ENTRY” and “PRIVATE” (see Ex A) (principal judgment at [66]-[68]).
The primary judge noted (at [70]) that Ms Zey stated, without supporting medical evidence, that she had a long-standing history of PTSD (27/02/24; T 96.46, T 120.7) and that Ms Zey described past assaults and previous interactions with police as the underlying basis for feeling traumatised by the presence of the police officers at her premises. The primary judge considered that Ms Zey’s evidence of her health issues “should be viewed with caution absent objective corroborative evidence” (principal judgment at [73]).
As to Ms Zey’s credibility as a witness, the primary judge found that Ms Zey was “an avoidant and unsatisfactory witness on critical matters in dispute” (principal judgment at [90]). The primary judge provided reasons for so finding (principal judgment at [91]-[102]). No adverse credit findings were made against SC Edwards, who was called in the defence case (principal judgment at [103]). SC Edwards described the basis for police entry on Ms Zey’s property on 21 September 2019 as being an endeavour to sort out the problem of Ms Zey’s parked vehicle causing obstruction to traffic (principal judgment [84]). Ms Zey did not cross-examine SC Edwards (this was, of course, at a time when Ms Zey had absented herself from the hearing but, had Ms Zey attended later an application to do so could have been made, there being ample opportunity on subsequent days when the matter was listed for resumption of the hearing).
As to the complaint that the police officer, SC Thomas, committed a trespass to Ms Zey’s goods on 17 September 2019, when he arranged for a contractor to tow Ms Zey’s vehicle away from the point of obstruction, the primary judge found that the police officer lawfully removed and repositioned her vehicle pursuant to cl 39 of the Road Transport (General) Regulation 2013 (NSW) (RTGR) (principal judgment at [136]-[141]). The primary judge said that Ms Zey was not deprived of her vehicle in any material way and there was no evidence to demonstrate that the vehicle had been damaged (principal judgment at [144]).
1. The primary judge failed to rule on [Ms Zey’s] pleaded claims:
a. trespass to chattel 21 September 2019;
b. application of LEPRA Part 15 safeguards to the statutory defence pleaded;
c. ‘Inclosed Land’;
d. Fortified premise [sic].
2. By deciding the trespass matter on an unpleaded defence, the primary judge denied [Ms Zey] procedural fairness.
3. The primary judge erred in law by failing to afford procedural fairness to [Ms Zey] by failing to consider or failing to property [sic; presumably properly] engage with evidence and submission by [Ms Zey] in the Stay application including superior court authorities.
Ms Zey’s initial written submissions on the draft notice of appeal make a number of complaints about the principal judgment and the stay judgment which go to matters beyond the proposed grounds of appeal (for example, her complaint that the primary judge revoked the pseudonym order made in relation to her name – see her initial submissions at [25]). Where complaint is made in the submissions about matters not the subject of a proposed ground of appeal, it is not necessary to deal with them in any detail. For example, Ms Zey complains that the primary judge erred in claiming that the pseudonym order was an interim order and erred in the date that it was made (in that context, Ms Zey says that the primary judge cited his making of the order on a “busy list day” in his reasoning for revisiting the order). There is nothing before this Court to suggest that the primary judge erred in the exercise of his discretion to revoke that order, whether or not the primary judge erred in referring to it as an interim order or as to the date it was made. In any event, as noted earlier (at [15]), Griffiths AJA refused Ms Zey’s application for a new order to that effect. The complaint about the primary judge revoking the earlier order thus goes nowhere.
In her reply submissions, Ms Zey principally addresses the State’s submissions in relation to Grounds 1 and 2 (which we consider in due course) and the requirements for leave to be granted.
Ms Zey submits that the delay in filing her application in this Court, was due to lack of capacity and having no legal representation. Ms Zey says that she suffers “from serious, episodic comorbid medical conditions” (for which she is on a disability support pension) and refers to medical evidence to confirm her impairments (see Ms Zey’s affidavit affirmed 13 October 2025 with the white folder for this leave application, in which Ms Zey deposes to the impairments she said she suffered at the time of the stay application in April 2024). Ms Zey says that the State was on notice from 11 September 2024 of her intention to appeal when she “regains capacity and/or obtains a guardian and/or advocate” (see Ex N).
Ms Zey also deposes to a conversation that she had on 29 September 2025 (well after the stay and principal judgments) with the solicitor for the State, Patrick Thompson (at [11]), in which she says Mr Thompson informed her that the respondent has a caveat on her house. Ms Zey deposes that since this conversation she is “in a state of panic” (at [16]).
Ms Zey in her initial submissions stated that, due to ongoing illness, she had applied in NCAT for the appointment of a guardian ad litem. As noted above, the status of that application was not made clear. Ms Zey also deposes to having sought legal assistance through other services to no avail.
Ms Zey says that the State is “a continuing public litigant with dedicated counsel and full access to contemporaneous records” and that it cannot demonstrate material prejudice from delay. Ms Zey says that, if leave is refused, there is a real and imminent risk of irreversible loss of her abode, as the State’s solicitor advised her on 29 September 2025 that he was instructed to force a sale in October 2025 (which clearly has not yet happened as Ms Zey makes no complaint about it). Ms Zey says that that prejudice cannot be cured later.
Given that Ms Zey does not appear to have had the benefit of legal representation for most of the time, it is appropriate that she be afforded some latitude in relation to the filing of the application for leave to appeal irrespective of its merits. Accordingly, an extension of time will be granted. It is therefore not necessary to consider in any detail the medical evidence on which Ms Zey relies as a part explanation for the delay.
A grant of leave to appeal will be appropriate only in matters that involve questions of principle, questions of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Cheng v Motor Yacht Sales Australia Pty Ltd (t/as The Boutique Boat Company) (2022) 108 NSWLR 342; [2022] NSWCA 118 (Cheng) at [14]-[21] per Bell CJ, Ward P and Basten AJA agreeing; Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 at 3 per Kirby P; Clarke v State of New South Wales [2015] NSWCA 27 at [19] per McColl and Ward JJA; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] per Bell P and Simpson AJA). Further, leave to appeal will not be granted where the appeal is doomed to fail (Young v Hones (No 2) [2014] NSWCA 338 at [63] per Bathurst CJ, Ward and Emmett JJA).
At the outset, as to the requirements for leave, insofar as the State submits that the proposed grounds raise no issue of principle or public importance, Ms Zey’s response is that “the proper identification and determination of statutory limits on police entry, removal and interference with goods is a question of principle and public importance, particularly where the State relies on statutory power to defeat trespass claims” (reply submissions at [35]).
In summary, Ms Zey complains that the primary judge “found legality on a basis not pleaded, failed to rule on one interference admitted, applied a post event justification to another without any evidence being led on it, and called a trespass trifling, whilst failing to rule on the pleading of that ‘trifling’ trespass being on statutorily inclosed land or on to a LEPRA defined fortified premises — thus compounding error”.
As to the monetary threshold, Ms Zey accepts that a small monetary amount will ordinarily weigh against leave, and that a police tort claim does not necessarily rise to a matter of public importance merely because police conduct is involved (referring to Hadid v State of New South Wales [2024] NSWCA 73) but she argues that the present application is different. Ms Zey says that the proposed appeal “is not a contest about fast-moving factual findings or witness credit”; it concerns whether the respondent’s pleaded statutory authority for entry onto private property and the seizure of Ms Zey’s vehicle was determined according to law, determined at all, and whether a three and a half year post-event justification should even be considered by the Court.
Further, Ms Zey argues that the amount in issue, particularly where pleaded claims were not determined, “does not exhaust the importance of the question”. Ms Zey cites Robinson v State of New South Wales (2019) 100 NSWLR 782; [2018] NSWCA 231 as demonstrating that the amount in issue is not determinative; and that leave may be warranted where the proposed appeal concerns statutory construction and lawful limits of a statutory police power, even where the damages awarded below are small. We consider these submissions together with proposed ground 1 below.
We address first proposed ground 3, which is the only ground that appears to address Ms Zey’s challenge to the stay judgment. Her submission in this regard is that the failure to grant a stay was a denial of natural justice.
The power to stay proceedings is a discretionary power pursuant to s 67 of the CPA. Intervention with such a decision is ordinarily only warranted on the principles stated in House v T**he King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) (see Mohareb v State of New South Wales [2023] NSWCA 289 (Mohareb) at [12] per Gleeson JA; Stern JA).
Given that the issue here is as to whether a temporary stay should have been granted (due to Ms Zey’s claimed PTSD), the standard of review for a discretionary decision of this nature does not appear to be affected by the decision of the High Court in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 in relation to permanent stays. Further, it is well known that the court “exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure” (see Mohareb at [12]).
In her initial written submissions, Ms Zey contends that the primary judge failed to consider the authority in Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 and ignored Coffey v Sydney Church of England Grammar School [2024] NSWSC 123, which Ms Zey submits requires a stay where a self-represented litigant’s psychological condition prevents fair participation.
Ms Zey submits that at [5] of the stay judgment, where the primary judge explained the most recent document filed by Ms Zey prior to the stay hearing (one in which Ms Zey claimed that in her present state of health, she has “yelled at [her] perfect and beautiful cat … talis qualils” [emphasis in original]), the primary judge’s words were out of context “implying irrationality where the text was a clear disclosure of ill-health” and that this was a misrepresentation of the evidence before the Court.
Ms Zey submits that a claim of insufficient medical evidence cannot stand (cf stay judgment at [24]). Ms Zey says that her PTSD diagnosis from Dr Chris Pollock was in evidence and was accepted without objection; and that the primary judge later claimed this evidence was from a “counsellor” (stay judgment at [18](9)). (We were not directed in the written submissions to any report of Dr Pollock.) Ms Zey also says that, had she not relapsed, her condition would have been relevant only to the damages assessment (the significance of this submission being unclear).
Ms Zey complains that the primary judge mischaracterised her evidence of incapacity and minimised that evidence (when commenting that her “health issues are not unusual among litigants” and that she was “articulate and intelligent” enough to continue without assistance and that his Honour’s “demands to know the origin of her condition introduced extraneous considerations”).
Particularly given the appellate restraint shown to challenges made in respect of interlocutory decisions on matters of practice and procedure, leave should not be granted to raise proposed Ground 3 of the appeal. The primary judge considered the state of the medical evidence put before him, namely, the medical certificate of Ms Zey’s general practitioner (which he, not unreasonably, considered was deficient) and noted that Ms Zey had not attended the scheduled appointments with the psychiatrists. Ms Zey’s explanation as to why that had not occurred (that she had not been effectively served in relation to the first and that she did attend the second appointment, but the doctor did not proceed) was not before the primary judge and there can be no error in his Honour not having taken that into account. Accepting that the fact of a diagnosis of PTSD was before the primary judge and was not challenged by the State, it could not be said that the primary judge erred in considering that the weight to be given to that diagnosis was affected by the lack of reliable medical evidence as to its factual and diagnostic basis.
The primary judge was entitled to take into consideration how a diagnosis of PTSD might impact on the ability of Ms Zey to continue to conduct her own case. In that regard, the primary judge, an experienced trial judge, was entitled to take into account (and indeed to place some weight on) his own observations of Ms Zey during her conduct of the case up to that point (as was the case, for example, in Mehajer v R [2026] NSWCCA 14 (Mehajer) at [214] per Ward P (Price AJA and Fagan J agreeing)). The fact of a diagnosis of a mental health condition does not of itself compel an adjournment of proceedings (again, see Mehajer at [151]).
The primary judge balanced the matters raised by Ms Zey against the interests of the State (and the public interest), in the expeditious disposition of a case that had been ongoing for some time.
As to the submission that Ms Zey mistakenly believed that the case would continue at the next Newcastle sitting or that the matter was stayed, the communications as to the orders made on each occasion that she did not attend court for a re-listing of the hearing contradict the basis for any such belief. There can be no basis for an asserted belief that the matter was already stayed, when Ms Zey herself was making an application for a stay. As for the proposition that the matter went to judgment without her knowing, Ms Zey was informed of the outcome of the stay application. The stay judgment made clear that the matter was proceeding; and Ms Zey would have been notified in the ordinary course when the matter was listed for judgment. There was no denial of procedural fairness.
In all the circumstances, the contention that the primary judge erred in the House v The King sense in failing to grant the stay requested by Ms Zey, is in our opinion doomed to failure and does not warrant a grant of leave.
The first issue that is raised by proposed ground (1)(a), is the primary judge’s failure to determine the pleaded cause of action for trespass to goods arising from the events of 21 September 2019 (see amended statement of claim at [29]-[30]). The State concedes that the primary judge did not deal with this claim (see below). Ms Zey pleaded that the New South Wales Police Force committed trespass to Ms Zey’s goods because SC Edwards authorised a tow company to tow her vehicle and, by the time Ms Zey recovered the vehicle from the tow-yard, it sustained $7,667.86 in damages. Ms Zey contends that this omission was material, as it left her $7,667.86 damage to chattel claim (pleaded at [30] of the amended statement of claim) unresolved.
As noted, the State concedes that the primary judge did not in terms determine this claim but the State argues that this proposed ground does not raise an issue of principle or question of public importance.
The State submits that Ms Zey’s complaint must be seen in the context that Ms Zey refused to participate in the hearing of her claim after the fourth day of the trial, including refusing to file written submissions. The State submits that, in breach of her obligation under s 56(3) of the CPA, Ms Zey gave the primary judge no assistance in understanding her case, leaving him to decipher a discursive statement of claim. (In reply submissions, Ms Zey cavils with the suggestion that the primary judge required her assistance to determine the lawfulness of the removal of her vehicle. Ms Zey emphasises that the onus was on the State to prove lawful authority.)
The State also argues that Ms Zey’s complaint must be seen against the context of the indulgence granted to Ms Zey by the primary judge in determining her claim on the merits, instead of simply dismissing it under r 29.7(4) of the UCPR by reason of her repeated failure to appear. The State argues that in those circumstances, it is disingenuous for Ms Zey to seek to raise this proposed ground. Pausing here, had the primary judge (instead of proceeding with the hearing in Ms Zey’s absence and delivering a judgment on the merits) simply dismissed the tortious claim on the basis of her non-attendance, this may have raised issues of the kind considered in Allchin v Hunter Water Corporation (2025) 118 NSWLR 479; [2025] NSWCA 253 (Allchin). In any event, we do not accept that Ms Zey’s decision to absent herself from the hearing would provide a reason not to grant leave to appeal in relation to this ground.
However, the State goes on to submit that a separate reason for concluding that Ms Zey has not demonstrated the requisite injustice is that her claim was hopeless and thus, if determined, the result would not change the orders made by the primary judge. The State points to the finding that, on 21 September 2019, Ms Zey had parked her vehicle so it was blocking access to the school (principal judgment at [119]-[125]) and says that it was thus a plainly lawful exercise of power under cl 39(1) of the (RTGR) for SC Edwards to arrange for it to be towed and therefore the State had a defence of lawful justification to the claim. The State points out that this is how the primary judge reasoned in relation to Ms Zey’s claim for trespass to goods arising from the earlier towing of her car on 17 September 2019 (principal judgment at [145]). Thus, the State submits that there is no utility in granting leave in relation to Ms Zey’s proposed ground 1 in relation to this issue because it would not lead to any different result.
Given that the reasoning of the primary judge in relation to the claim for trespass to goods on 17 September 2019 is equally applicable to the claim for trespass to goods on the second occasion, and our conclusion that there is no reasonable prospect of an appeal from the finding the primary judge reached in relation to the first claim for trespass to goods, there is no utility in this proposed ground of appeal; nor would the likely damages for this claim, if made good, warrant the grant of appeal.
The monetary threshold is specified for the purpose of limiting appeals to this Court, which functions to recognise the desirability of early finality in the determination of small claims (Berry v Nicholls [2016] NSWCA 272 at [6]). The monetary limit requires that the realistic worth of the claim or claims made exceed $100,000. As held by Bell CJ in Cheng at [21] (in the context of s 101(2) of the Supreme Court Act 1970 (NSW) which imposes the monetary threshold for appeals equivalent to that in s 127(2) of the District Court Act):
Where the value of the matter(s) at issue falls below [the threshold] amount, an applicant for leave must meet the criteria which have been identified … In this context, s 101(2) is also concerned with notions of proportionality; the importance of the issue or the gravity of the error of principle relied upon to justify leave will influence the likelihood of leave being granted. This is the reason for the insistence in the authorities that the points sought to be raised on appeal, if leave is granted, must be more than reasonably arguable.
The second aspect of the proposed ground 1 relates to the complaint by Ms Zey that the primary judge failed to determine her pleaded cause of action alleging non-compliance by the police officers with ss 201 and 202 of LEPRA.
Section 201 sets out the police powers to which Pt 15 of LEPRA applies. Section 202 provides that a police officer who exercises a power to which Pt 15 applies must provide certain information to the subject of the exercise of the power.
The State understands Ms Zey’s complaint to be that the primary judge did not consider whether the State’s defence of lawful justification for her two claims of trespass to goods and one claim of trespass to land was defeated by a failure to comply with s 202 of LEPRA.
Ms Zey submits that this issue is of public importance, namely as to the exercise of police power conferred by regulation, in circumstances where LEPRA safeguards are not excluded by Sch 1. Ms Zey complains that the power relied upon for entry onto Ms Zey’s property and seizure of her vehicle was said to arise under the RTGR, when that provision was neither relied on nor satisfied at the time of seizure (Ms Zey refers to this as “post-event justification”). This complaint is the subject of proposed ground 2 and is dealt with below.
Ms Zey notes that the LEPRA Pt 15 safeguards apply respectively to entry and seizure and that, by LEPRA s 201(3), those safeguards apply when the power is conferred by an Act or Regulation not specified in Sch 1. Ms Zey says that, as RTGR is not so specified, and as the conjunction “or” in s 201(3) is disjunctive and inclusive, exclusion arises only where the Act or Regulation itself is listed. Accordingly, Ms Zey says that the Pt 15 safeguards applied to the officers’ conduct.
Ms Zey argues that the “post-event justification” was misapplied and unsupported by evidence and says that the unanswered pleading of LEPRA Pt 15 safeguards remains central, as clarity on lawful police powers is a matter of public importance*.* Ms Zey refers to State of New South Wales v Dennis (2025) 117 NSWLR 404; [2025] NSWCA 118 and Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 (Coco) as demonstrating that clarification of police powers is required by those who exercise it, as well as by those subject to it. In Coco at 446 per Deane and Dawson JJ it was said that:
It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear.
As to whether Ms Zey has demonstrated the requisite injustice in relation to this complaint, the State again points to the context being that Ms Zey failed to file submissions to assist the primary judge. The State says that Ms Zey simply alleged non-compliance with s 202 of LEPRA through bare assertion in her amended statement of claim and did not develop this assertion orally or in written submissions. The State argues that the primary judge was under no obligation to consider these assertions.
As to that last submission, we note that the fact that no submissions were filed in relation to this (or any other) issue does not permit a judge not to deal with a pleaded claim, at least unless there is a basis on which to conclude that the claim is not pressed.
The third and fourth aspects of proposed ground 1 relate to the issue raised by Ms Zey as to the premises being “inclosed lands” or “fortified premises”. We will deal with these together.
Ms Zey notes that in the amended statement of claim, it was pleaded at [12] that Ms Zey’s premises were a “fortified premises” within LEPRA Pt 16A, s 210A and that no order for a fortification removal under s 210B existed or was relied on. Ms Zey complains that the primary judge did not address that issue, nor did he address whether the premises met the “inclosed lands” definition in the Inclosed Lands Protection Act 1901 (NSW) s 3, pleaded at [11e] of the amended statement of claim. Ms Zey contends that each characterisation bears on the lawfulness of entry and that the failure to determine those matters is an error “and a finding would be a consideration towards an award of damages”.
The State submits that this complaint proceeds on the misconception that these legal characterisations would render it easier to conclude that any implied licence to enter Ms Zey’s property on 21 September 2019 was negated by her conduct. The State maintains that the question of negation of an implied licence is a question of fact and says that it is not assisted by considering whether Ms Zey’s property is “fortified premises” or “inclosed lands” under particular statutory schemes. Thus, the State submits that this proposed ground does not enliven any of the ordinary reasons for granting leave.
Ms Zey complains that the primary judge erred in finding that the police officers’ entry on 21 September 2019 was justified by an implied licence to enter (principal judgment at [154]) via “an open driveway” (principal judgment at [153]).
Ms Zey complains that the “open driveway” finding was against the weight of the evidence and that the only defence pleaded in the Amended Defence (at [13]) was cl 39(2)(b) of the RTGR. Ms Zey points to photographs in the principal judgment showing a large “NO ENTRY” sign, an orange tape barrier and a privacy screen in front of the gate (principal judgment at [68]) and photographs showing a “PRIVATE” and “NO ENTRY” sign on the gate (principal judgment at [66]).
Ms Zey asserts that, at common law, an implied licence extends only to the door normally used for communication with an occupier. Ms Zey argues that by-passing that door and proceeding uninvited 16 metres down a side driveway to a gate not visible from public land, remains trespass absent clear statutory authority.
Pausing here, in Robson v Hallett [1967] 2 QB 939 at 951, Lord Parker CJ said “the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house. This implied licence extends to the driveway of a dwelling house …”.
The determination of the existence and scope of a licence to enter was discussed in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ in Halliday v Nevill (1984) 155 CLR 1; [1984] HCA 80 at 6-8:
The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it … Nor, in such a case, will the implied licence ordinarily be restricted to presence on the open driveway or path for the purpose of going to the entrance of the house.
The finding of the primary judge was that police officers had an implied licence to enter Ms Zey’s land to knock on her door to seek to communicate with her about her vehicle, which had been left parked in a position of nuisance and obstruction (citing Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45 (Roy v O’Neill) at [11], [66]) (principal judgment at [154]). In Roy v O’Neill, Kiefel CJ at [11] considered the rationale underpinning the existence of an implied licence such that commonplace everyday entry into a residential premises does not amount to a trespass (see also at [66]).
The State points out that, as this proposed ground of appeal is directed at the question whether an implied licence has been negated by the conduct of an occupier, it raises only a question of fact. The State notes that whether an implied licence has been negated by the conduct of the occupier is judged from the perspective of a reasonable person in the position of the entrant (referring to Wilson v State of New South Wales [2010] NSWCA 333; (2010) 207 A Crim R 499 at [51] per Hodgson JA; McColl and Young JJA agreeing; and Maynes v Casey [2011] NSWCA 156 at [24]-[29] per Allsop P and Basten JA). Thus, the State submits that the proposed ground does not raise any issue of principle or question of public importance, it being fact specific.
As to whether Ms Zey has demonstrated the requisite injustice, the State again raises Ms Zey’s failure to file submissions in the principal proceedings. In addition, the State says that Ms Zey is incorrect to submit that the primary judge erred in failing to find that an implied licence to enter had been negated. The State notes that the primary judge found that “there was no objective evidence to suggest that any ‘no trespassing’ signs were displayed on [Ms Zey’s] property on 21 September [2019]” (principal judgment at [69]). The State argues that, implicitly, the primary judge found that there were no such signs. The State points out that the other alleged features of Ms Zey’s property that are said to have negated an implied licence are found at [66] and [68] of the principal judgment. The State argues that, viewed as a whole, those signs could not be said to negate an implied licence for police to knock on the door and warn a person that her car might be towed if she did not move it and that the primary judge’s conclusion was correct.
Further, the State argues that, even if the primary judge erred in this regard, it would not make any meaningful difference to the outcome. As adverted to above at [66], the State conceded at trial a short period of trespass to land on 21 September 2019, which occurred when “the implied licence to be on the premises was revoked whilst the police were seeking, without success, to enlist [Ms Zey’s] co-operation to abate public nuisance over which she had control” (principal judgment at [228]). The State says that for that cause of action, in light of the triflingly short period of trespass and the fact that it was caused by Ms Zey’s uncivil course of conduct, the primary judge awarded $1 in damages (principal judgment at [233]; [237]). The State submits that to find that the police also trespassed when they initially entered Ms Zey’s property on 21 September 2019 would result, at best, in the addition of some further nominal figure to the existing $1 of damages.
Ms Zey contends that, by deciding the trespass matter on an unpleaded defence, the primary judge denied her procedural fairness. This relates to the reliance by the State on cl 39 of the RTGR as the source of power for the removal of her vehicle.
Ms Zey points to the only contemporaneous record (COPS E75193067) which states the reason for the tow was because the vehicle had been “parked across driveway” (principal judgment at [120]) and Ms Zey says that the only evidence of legal justification relied on by the State’s witness (presumably, SC Edwards) as to this claim was permission from his superior officer, Acting Inspector Batley by phone (referring to the transcript at T 289.20-26 and the COPS Event E75193067 record stating “spoken to LM DI”). Ms Zey says that that reason is corroborated by a Parking Infringement Notice for the same conduct, which was later dismissed when Ms Zey was found not guilty in criminal proceedings.
Ms Zey says that, after repeated requests for clarification, the LM Chief Inspector stated on 31 October 2019 that the vehicle was removed under Div 1 s 143 of the Road Transport Act 2013 (No 18) (NSW) (Road Transport Act). Ms Zey says that that provision was inapplicable; that it applies only to “prescribed places” under the Road Rules, such as bus lanes, T-lanes and clearways. Ms Zey submits that it was a “post-event justification without statutory basis.” Further, Ms Zey says that even if cl 39 of the RTGR could operate “post-event”, the power was never validly enlivened, as the prescribed preconditions and post-seizure requirements in cll 39(2), 40, 41(a) and 42 were not met.
Ms Zey emphasises in the reply submissions, that a legal basis for removal of her vehicle was first identified in correspondence dated 31 October 2019 from Chief Inspector Darren Cox, which was a different asserted legal justification (s 43 of the Road Transport Act) from the one now relied upon by the State (cl 39 of the RTGR). Ms Zey says that the State’s reliance on cl 39 was a post-event statutory justification first raised in response to litigation and that it should not be accepted as supplying lawful authority for police conduct undertaken years earlier.
Alternatively, if cl 39 is entertained, Ms Zey says that the State had to prove that the power was enlivened and lawfully exercised at the time of entry, removal and interference. Ms Zey says that a statutory power is not established by later invocation of its label; and that the proper identification and application of those statutory limits raises an issue of principle and public importance.
The State points to the reasons set out in the principal judgment at [139] as to why cl 39 of the RTGR was satisfied at the time of removal and repositioning of Ms Zey’s vehicle. Further, the State says that the alternative submission (that the provision was not relied on at the time of seizure) is also misconceived, because a person exercising a statutory (or regulatory) power is not required to have the legal source of the power in mind for the exercise of the power to be valid (referring to (2013) 249 CLR 1; [2013] HCA 3 at [175] per Crennan and Kiefel JJ and the authorities cited therein). Thus, the State argues that this proposed ground does not enliven any of the ordinary reasons for granting leave.
The Amended Defence filed on 2 November 2023, raised cl 39(2)(b) of the RTGR as the lawful justification for the police attendance at Ms Zey’s premises to request her to move her vehicle which was parked unlawfully across a school driveway (at [13(b)], [26(b)], [29(c)]).
As to the complaint that reliance was not placed on cl 39 of the RTGR at the time of the police attendance at Ms Zey’s premises, as noted above, the fact, if it be the case, that the police officers acted under a mistaken belief as to the source of the power to remove the vehicle does not assist Ms Zey if, as we accept is the case, there was a source of power elsewhere to do so (see, in a different context, Licha, applied recently in Allchin). There was no denial of procedural fairness in the primary judge determining the question of the police officer’s authority on the basis of cl 39 of the RTGR. Contrary to the assertions of Ms Zey, there is no issue of principle or public importance here. No grant of leave is warranted.
Ms Zey complains that the primary judge, having made no adverse credit findings about SC Edwards’ evidence (principal judgment at [103]), failed to consider material aspects of that evidence, including: his admission that he could not recall “whether there was any signs or not any signs” (07/03/24; T 287.43; T 287.48); his evidence, when asked by the primary judge about a “No Entry” sign, that “Now, your Honour I wouldn’t enter, but back then I probably would have entered. Just a lot more aware now of what’s required” (07/03/24; T 288.1-6); his evidence, when asked about a “No Trespassing” sign, that he would still have entered “back then, yes” (07/03/24; T 288.13-19); and that the basis of entry was to “resolve the situation quickly and effectively” (07/03/24 T 288.10-11). Ms Zey emphasises that there was no evidence given by SC Edwards as to the legality of the entry or of the vehicle seizure. Ms Zey also points out that she was unable to cross-examine SC Edwards “due to ill-health” (initial submissions at [19]).
The primary judge recorded that the State called SC Edwards “well beyond the obligations of a model litigant, [it] had earlier given an undertaking to [Ms Zey] that it would do so” (principal judgment at [32]). We accept the State’s submission that the evidence that Ms Zey complains the primary judge allegedly failed to consider could not make any difference to the result. For example, the complaint about SC Edwards’ evidence that he could not recall whether or not there were signs on Ms Zey’s property on 21 September 2019, did not matter given the photographic evidence of the signs. Similarly, SC Edwards’ evidence about whether he would have entered Ms Zey’s property had he known about the signs or a particular sign, did not matter since he did enter, and, again, there was photographic evidence of the signs. Insofar as Ms Zey relied on an absence of evidence from SC Edwards about the legality of the entry or the vehicle seizure on 21 September 2019, his opinion on those matters would likely have been inadmissible or otherwise of limited weight to his Honour’s determination.
Insofar as Ms Zey asserts that she was unable to cross-examine “due to ill health”, the State points to the primary judge’s findings about Ms Zey’s conduct and the opportunities afforded to her to put her case (referring to the principal judgment at [21]-[55]).
We agree that, were this to be raised as a proposed ground of appeal, it would not warrant the grant of leave, for the reasons to which the State adverts.
Complaint is next made by Ms Zey that the primary judge repeatedly used the expressions “public nuisance” (see principal judgment at [1], [4], [12], [141], [165], [172], [177], [190], [215], [228]), “nuisance” (see principal judgment at [203], [216], [230], [233]) and “obstruction” (see principal judgment at [141], [144], [154], [169], [174], [203], [216], [230]), emphasising that the “pleaded post-event justification under cl 39” was “unreasonable obstruction to traffic”. Ms Zey says that “public nuisance, or any common-law head” was not pleaded.
Ms Zey submits that the primary judge “applied the wrong test, relied upon unpleaded reasoning and found contrary to the evidence.” Ms Zey says that there is no evidence that she left her vehicle unattended relating to the events of 21 September. Ms Zey says that the vehicle photo (principal judgment at [147]) shows the vehicle stationary and a road closed by prescribed traffic control devices under the Road Rules, which Ms Zey argues rendered the Rules inoperative. Ms Zey says that under s 126 of the Road Transport Act, a prescribed traffic control is presumed to be lawful.
Ms Zey says that had the State pleaded public nuisance, nuisance or generic obstruction, it was open to charge Ms Zey under s 6 of the Summary Offences Act 1988 (NSW) (Summary Offences Act) for “obstructing traffic” and it did not.
Ms Zey argues that the only contemporaneous authority for towing her vehicle was a parking infringement (strict liability) that was “later not proved”. Ms Zey says that, by repeatedly invoking the unpleaded defence of “obstruction” or “public nuisance”, instead of applying the cl 39 RTGR statutory conditions, the primary judge misdirected himself and made “outcome-determinative findings”. Insofar as cl 39(1)(a) required proof that the vehicle was a “danger or unreasonable obstruction to traffic”, Ms Zey says that “it was not satisfied by findings of inconvenience, nuisance, blocked access, or public nuisance in the abstract based solely on a COPS report created by a witness the defendant did not call” (reply submissions at [28]). Ms Zey submits that the obstruction had to be an unreasonable obstruction to “traffic”, being the statutory subject matter of the provision.
Ms Zey further argues that applying mens rea to a parking infringement is unsound in law (referring to the catchwords to the principal judgment and to [1]-[5]) (initial submissions at [22(b)]). (We interpose here to note that there is no reference to mens rea in the principal judgment and that catchwords do not form part of a judgment).
In response to the complaint that the primary judge did not consider the question of lawful justification of the police officers’ conduct in arranging for Ms Zey’s vehicle to be towed by reference to a test of “public nuisance”, the State submitted, and we agree, that his Honour’s use of that term was plainly a form of shorthand, describing the effect of Ms Zey’s conduct in blocking access to the school.
Ms Zey makes a series of complaints at [23] of her initial submissions as to the credibility findings of the primary judge. Ms Zey says that adverse credit findings against her “were broadly applied to admitted facts”. Ms Zey submits that her credibility was irrelevant, noting that the State had “conceded entry, continued presence, and interference (twice) with her chattel in the pleadings”. As such, Ms Zey says that the “onus was on the State to prove lawful authority existed at the time”.
Ms Zey also complains that the primary judge found her to be “quarrelsome”, referring to the Judicial Commission’s caution that: so called “difficult behaviour” in court can be a trauma-related coping mechanism rather than pathology; agitation or “acting out” is a predictable trauma response; and demeanour is a notoriously unreliable indicator of truthfulness.
Relatedly, Ms Zey complains that, at [177], the primary judge justified the police officers’ failure to leave Ms Zey’s premises by attributing to them feelings of bewilderment and frustration. Ms Zey says that there was no such evidence, noting that SC Edwards (the State’s sole witness) was never asked about his feelings. Ms Zey says that the primary judge’s “characterisation was speculative and amounted to a finding of fact unsupported by evidence.” Ms Zey submits that, “[b]y seeking to explain unlawful conduct through assumed emotion, the judge misdirected himself as to both onus and evidentiary principle” (at [24] of the initial submissions).
Ms Zey says that the primary judge’s description of her response to unwanted people in her private space as “bizarre” (principal judgment at [161], [177], [203]), irrational and unreasonable (principal judgment at [171]) is against the weight of evidence. In that regard, Ms Zey invokes what was said by Gaudron and McHugh JJ in Plenty v Dillon at 655, namely that “[i]t is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry”.
The primary judge’s credit findings regarding Ms Zey and SC Edwards were made with the benefit of having seen and heard those two witnesses give evidence. Ms Zey has not demonstrated a basis on which those findings are even arguably affected by error, noting the threshold for challenging such findings. Further, as the State submitted, demonstrating error in these findings would not demand a different outcome from the one obtained at trial.
The State submits that, even if Ms Zey establishes that one or more of her proposed grounds of appeal would ordinarily attract a grant of leave to appeal, the following discretionary considerations tend against a grant of leave in this case.
First, Ms Zey’s refusal to participate in the trial before the primary judge. The State submits that there is some “forensic dexterity” in a person behaving as Ms Zey did, and then complaining that the primary judge erred in the process of deciding her claim. The State argues that this is especially so where various of the “errors” that are the subject of Ms Zey’s complaint are attributable to the difficulty that she created for the primary judge determining her claim. It is submitted that Ms Zey’s conduct should not be rewarded with a grant of leave to appeal.
While there is some force in this State’s complaint, we would not refuse leave (were it otherwise to have been granted) based on Ms Zey’s conduct in absenting herself from the hearing.
Second, the interest in finality of judicial decisions. The State says that it was not until well into the enforcement process that Ms Zey brought her application for leave to appeal and then, based on that application, sought a stay of the costs order from the primary judge. It is submitted that granting Ms Zey leave to appeal would risk encouraging litigants to delay the bringing of any appeals or applications for leave to appeal, and sometime after enforcement processes begin, seek to disturb judicial decisions that should at that point be treated as final.
Again, while acknowledging the public interest in the finality of litigation, had the grant of leave otherwise been warranted, this consideration would not have led us to refuse leave.
If (as it has been) the State is successful in resisting the application for leave to appeal, the State seeks an order vacating the order made by the primary judge on 6 November 2025 to stay the enforcement of various orders in the proceedings below pending further order of the Court of Appeal. The State notes that the power to make such an order derives from the Court’s power to do that which is incidental to the right to seek leave to appeal from a decision to this Court, as well as the inherent power of the Court to do whatever “may be necessary to prevent any injustice occurring with respect to matters which come within its cognisance” (referring to Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 at [43] per McColl JA).
The State submits that, given the difficulties and delays that have attended the litigation to date, it would be desirable, if possible, for the Court to dissolve the primary judge’s stay itself, rather than leaving the parties to seek a dissolution of the stay from the District Court (noting that the primary judge is retired and may not be available).
Ms Zey opposes such relief. Ms Zey reiterates that, if the stay is vacated and enforcement proceeds, Ms Zey faces irretrievable prejudice, including the potential forced sale of her home; and that that prejudice could not be undone if leave were granted and the appeal later succeeded. Ms Zey says that maintaining the stay preserves the effectiveness of the appellate process.
Ms Zey submits that if the stay judgment or principal judgment is affected by legal error, procedural unfairness, or denial of a fair opportunity to participate, Ms Zey says that the cost judgment cannot safely stand. Ms Zey says that the cost judgment directly arose from the same procedural context in which Ms Zey says “known disability-related incapacity and participation barriers were treated as refusal, default, or forensic choice”.
The terms of the stay provide that it is only to operate until further order of this Court. As further orders will now be made (relevantly, the dismissal of the application for leave to appeal), the stay will no longer be in force. However, for the avoidance of doubt, it is appropriate to make an order formally discharging the stay. There is no basis for a continuation of the stay in these circumstances, however adversely this may operate for Ms Zey. Insofar as Ms Zey contemplates further appellate litigation in relation to the position in which she now finds herself, that is a matter for her. Any application for further stay or further relief of that kind should be made in the context of whatever course of action Ms Zey ultimately chooses to take.
Second, the State seeks orders for the parties to file and serve submissions and any evidence in relation to the State’s application that the costs of these proceedings be fixed in a gross sum pursuant to s 98(4) of the CPA. Again, Ms Zey opposes this and says that no gross-sum costs directions should be made before the leave application is determined and before Ms Zey has a practical opportunity to respond. The leave application is now being determined and Ms Zey will have her opportunity to respond to the gross sum costs application when and if made. We see no basis for Ms Zey to resist the making of directions in relation to such an application. Whether it succeeds is another matter. Directions to facilitate the making of the application will be made.
For the above reasons, the Court makes the following orders:
Extend the time for the filing of the summons seeking leave to appeal to 31 October 2025.
Refuse leave to appeal with costs.
Direct the respondent to file and serve within 14 days any written submissions and/or evidence in support of a gross sum costs order with a view to determining any such application on the papers.
Direct Ms Zey to file and serve any written submissions and/or evidence in response (together with any basis for opposition, if she does not consent thereto, to the application being dealt with on the papers) within a further 28 days.
Note that the stay of enforcement of the costs order in the District Court proceedings has now expired in accordance with its terms but for the avoidance of doubt, is here formally discharged.
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Amendment to hearing date on coversheet
Zey
State of New South Wales
Time for filing the leave summons was extended to 31 October 2025. Leave to appeal was refused with costs. The State was directed to file submissions and/or evidence supporting a gross-sum costs order within 14 days, and Ms Zey was given a further 28 days to respond. The stay of enforcement was formally discharged ([183]).
For the reasons set out below, an extension of time for the filing of the summons to 13 October 2025 should be granted but the application for leave to appeal dismissed with costs. On the making of orders on this application, the stay in respect of the costs order in the State’s favour will be discharged in accordance with its terms but, for the avoidance of doubt, we will make an order formally discharging the stay. At the State’s request, we will make directions for the filing of submissions and/or evidence for the State’s foreshadowed application (in the event that the leave application were to be, as it has been, unsuccessful) for a gross sum costs order.
As to the procedural history of the matter, which is of relevance in relation to each of the impugned decisions, Ms Zey commenced proceedings in the District Court in 2022, claiming, relevantly, damages for trespass to goods relating to the towing of her car on 17 September and 21 September 2019 and for trespass to land relating to the police entering her property on 21 September 2019.
By an amended statement of claim filed on 13 August 2023, Ms Zey alleged trespass against the NSW Police Force, including two claims of trespass to her goods and claims of trespass to her land, trespass to her person in the form of non-battery assault, false imprisonment, misfeasance in public office, breach of privacy and breach of Art 17 of the International Co**venant on Civil and Political Rights (ICCPR).
The State denied all aspects of Ms Zey’s claim except for a short period of trespass to her property on 21 September 2019 (principal judgment at [11]). The State conceded that, when Ms Zey asked the police officers to leave her premises, that demand terminated any implied licence those police officers had for entering her property (principal judgment at [13]). The period of admitted trespass was for approximately three to three and a half minutes as noted above.
The case proceeded to hearing in Newcastle (after many interlocutory listings between 2022 and 2024), commencing on 26 February 2024 (stay judgment at [13]-[14]). One of those interlocutory hearings, to which the primary judge referred in the stay judgment at [13]-[14], was on 31 July 2023, when, on the application of Ms Zey and with the consent of the State, an interim order was made allowing Ms Zey to use the litigation pseudonym of Eva Williams on the basis of her claim that she had a longstanding post-traumatic stress disorder (PTSD) condition (principal judgment at [15]). That order was subsequently revoked in the stay judgment on 26 April 2024 (see at [56]-[62]).
As noted, the District Court hearing commenced on 26 February 2024. The hearing continued on 27, 28 and 29 February 2024, at which time Ms Zey had yet to close her case. Ms Zey’s evidence in chief and cross-examination had been completed but Ms Zey had not yet indicated whether she wished to give evidence in re-examination nor whether she would call any further evidence (principal judgment at [23]).
On 29 February 2024, Ms Zey left the court room to attend her general practitioner after her cross-examination had concluded. She did not return the following day. Instead, Ms Zey arranged for her then general practitioner, Dr Erica Rowley, to email a medical certificate directly to the Court on 29 February 2024, that certificate stating that Ms Zey “is unable to attend court tomorrow the 1st of March 2024” (Ex F) (principal judgment at [24]). The primary judge subsequently found that the certificate, which he (correctly) described as “inherently deficient of explanatory detail”, only applied to the inability of Ms Zey to attend the hearing listed on 1 March 2024, rather than all subsequent listings (stay judgment at [41]-[42]).
On 1 March 2024, the hearing was adjourned with orders made for the hearing to be continued in Sydney on 7 March 2024. The venue for the hearing was moved to Sydney because the allocated hearing time on circuit in Newcastle had expired and no other courtrooms were available after 1 March 2024 due to prior rostering arrangements (principal judgment at [28]).
Despite being advised of further hearing dates and AVL arrangements being made available to enable Ms Zey to participate from Newcastle, Ms Zey did not attend the hearing when the matter was re-listed on 7 March 2024, nor did she attend on subsequent re-listings on 15 and 22 March 2024 (stay judgment at [12]-[13], [46]).
On 7 March 2024, the District Court registry tried to contact Ms Zey to no avail. The primary judge said (principal judgment at [31]) that, in order to “salvage what could be salvaged reasonably in terms of court time, the defendant [the State] pressed ahead and called evidence in chief from SC Edwards”. That approach was taken on the understanding that Ms Zey would receive a copy of the transcript of that day’s proceedings. At the conclusion of the evidence, facilitative orders were made for the service on Ms Zey of the transcript and notice of the resumed hearing fixed for 15 March 2024.
On 15 March 2024, as noted above, Ms Zey again did not appear. Her medical records were in part produced by Dr Rowley, in compliance with a subpoena issued by the State on 7 March 2024 (principal judgment at [33], [39]).
In the circumstances of Ms Zey’s absence from hearing dates, the State sought under rr 23.1 and 23.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to have Ms Zey medically examined by two psychiatrists to determine whether Ms Zey had the mental capacity to attend to the requirements of her litigation. The hearing was stood over to 22 March 2024 for further directions and hearing.
Ms Zey did not (and does not dispute that she did not) attend the first appointment scheduled with Dr Doron Samuell on 21 March 2024 (stay judgment at [44], principal judgment at [41]). An order was made on 19 April 2024, pursuant to r 23.4 of the UCPR to have Ms Zey examined by Dr Alexey Sidorov by means of AVL. Ms Zey sought to have that examination conducted by telephone as she was not using email but the primary judge found that Ms Zey then did not attend the appointment (principal judgment at [42]-[43]). The State incurred a non-attendance fee in relation to the appointment with Dr Sidorov. In these proceedings, Ms Zey asserts that she did not receive notice of the first scheduled appointment (see p 10 of Ms Zey’s initial written submissions) and says that she did attend the scheduled appointment with Dr Sidorov and that it was Dr Sidorov who refused to proceed. We note that a recurring issue relates to Ms Zey’s complaint of not receiving notice or service of documents due to her asserted inability to receive email communications.
On 22 March 2024, the hearing was stood over to be resumed on 26 April 2024.
On 22 April 2024, Ms Zey filed a notice of motion seeking, among other things, that the proceedings be stayed pending further orders of the court (stay judgment at [8]) on the basis that she had PTSD (stay judgment at [3]).
On 26 April 2024, the primary judge dismissed the stay application (stay judgment at [88]). The primary judge noted that Ms Zey did not appear on that occasion although AVL facilities were made available to her at Newcastle courthouse (principal judgment at [43]). As to Ms Zey’s non-attendance at the hearing from 1 March 2024 and on the various occasions when it had been re-listed, the primary judge said (at [14] of the stay judgment) that “[t]hose circumstances give rise to the suggestion that [Ms Zey] has either abandoned her case, as is suggested by the defendant, or that she is not capable of attending to the remaining demands of her case to see it through to finality”.
In her initial written submissions, Ms Zey submits that the primary judge’s conclusion that she had abandoned her case (referring to [14] of the stay judgment and [48] of the principal judgment) was made on a false factual premise (namely, as to her non-attendance at the scheduled appointment with Dr Sidorov). We note that the primary judge did not in terms conclude that Ms Zey had abandoned her case. Rather, the primary judge considered that the circumstances suggested that this was one possible conclusion that could be drawn from her conduct. In any event, the primary judge proceeded to consider the claim on its merits (and, as noted above, found in Ms Zey’s favour on one aspect of her claim, albeit only awarding nominal damages).
On 26 April 2024, the primary judge made a series of orders, in effect requiring Ms Zey to notify the State and the court as to how she would be progressing her case, including that Ms Zey notify the State by 3 May 2024 as to whether she would be adducing any further evidence and, if she did not intend to adduce any further evidence, that Ms Zey file and serve her final written submissions by 10 May 2024 (stay judgment at [89]) (Orders 2 and 8).
The matter was listed on 17 May 2024 (Order 10 (stay judgment at [89])), on which occasion Ms Zey again failed to appear (principal judgment at [45]), despite AVL facilities having been made available at Newcastle courthouse. The primary judge noted in the principal judgment that, by this point, Ms Zey had failed to advance the proceedings and, in particular, that she had not filed written submissions (principal judgment at [48]-[49]).
On 7 June 2024, Ms Zey again failed to appear in court (principal judgment at [51]), by which date the time for submissions had closed (principal judgment at [52]). The primary judge said that the purpose of that listing was to inform the parties that written submissions had closed and that delivery of judgment would be delayed pending the resolution of a complaint that Ms Zey had made to the Judicial Commission of NSW (principal judgment at [51]-[52]).
On 17 July 2024, the primary judge delivered the principal judgment. The primary judge observed (at [21] of the principal judgment) that “[r]egrettably, the proceedings have become needlessly protracted, having occupied disproportionate court time, including an extra-ordinary number of interlocutory listings, intra-hearing delays, and applications of varying kinds”. (That characterisation of the proceedings is borne out by the procedural history to that point.)
As noted earlier, the primary judge delivered a verdict in the amount of $1 in favour of Ms Zey in relation to her claim for trespass of land but rejected and dismissed all her other claims. On 23 August 2024, the primary judge made a gross sum costs order in the sum of $320,000 inclusive of interest and GST in the State’s favour.
Mr Kapil Bazil, a solicitor acting for the State, has deposed in an affidavit sworn on 12 December 2025, that Wotton Kearney (the solicitors for the State) sent correspondence to Ms Zey between 23 August 2024 to 3 December 2025, seeking to negotiate in relation to the costs owed to the State. In the interim, the State filed a notice of motion for a Writ for the Levy of Property in respect of the costs judgment. On 9 January 2025, a Writ was issued against Ms Zey. On 24 February 2025, the Writ was registered in the register kept under the Real Property Act 1900 (NSW). On 29 July 2025, a sealed copy of the Judgment Creditor’s Notice was issued by the Newcastle Registry of the District Court (Mr Bazil’s affidavit [10]-[14]).
Ms Zey filed her application for leave to appeal on 13 October 2025 and, as noted above, obtained a stay of the costs order from the primary judge on 6 November 2025 (see Mr Bazil’s affidavit at [8]-[14]).
The Registry put in place arrangements for closed captioned live transcript, at the Court’s cost, for the hearing on 28 May 2026, which was ultimately not utilised as Ms Zey retained a barrister to appear for her on that occasion. Ms Zey’s request for a “safe place” during the hearing was also met.
On 25 May 2026, the Monday before the leave only application was listed for hearing before this Court, Ms Zey attended the Law Courts building in person and was escorted by a court officer to view the area on Level 12 (where the courtroom for the forthcoming hearing was located) and the “safe room” that would be made available to her.
On the same day, Ms Zey brought an urgent application under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) in the Federal Court of Australia, appearing in person and seeking an interim injunction against the State. In broad terms, Ms Zey sought to restrain the State from seeking or relying upon any procedural advantage arising from these Court of Appeal proceedings, or from relying upon Ms Zey’s inability to attend or “alleged non-appearance or inability” to attend or participate in the Court of Appeal proceedings (where that inability was said to arise from the absence of reasonable adjustments for disability); and from taking any step to enforce or obtain practical benefit from orders arising in the Court of Appeal proceedings, where doing so would substantially prejudice the utility or efficacy of the Australian Human Rights Commission (AHRC) complaint and conciliation process in relation to a complaint Ms Zey had made against the District Court and the Court of Appeal. Ms Zey’s complaint alleged disability discrimination under the Disability Discrimination Act 1992 (Cth) (see as articulated in Ms Zey’s written submissions to the Federal Court, reproduced at [2] and [3] in the ex tempore judgment of Bromwich J dismissing that application) (Zey v State of New South Wales [2026] FCA 655).
Bromwich J noted that the orders sought by Ms Zey would have the effect of controlling the State in relation to its conduct of the proceedings in the Court of Appeal (at [31]) and refused the application.
Prior to the hearing of the leave application on 28 May 2026, Ms Zey’s new general practitioner, Dr Simon Tyler, who had been her treating general practitioner since 10 July 2025 (after Dr Rowley in a medical certificate dated 16 January 2025 advised that she was unwilling to complete any further formal paperwork of a legal nature for Ms Zey), forwarded directly to the Court two documents.
First, a letter dated 26 May 2026 (the day after Ms Zey had apparently been able personally to attend the hearing of her injunction application in the Federal Court), which stated that Ms Zey “will be unable to attend court on 28th of May due to exacerbation of her mental health” which Dr Tyler attributed to her significant anxiety and PTSD diagnosis. Dr Tyler listed Ms Zey’s requirements “safely [to] participate” in the hearing, including: a support person on the day of the hearing; a safe space during the hearing; additional time and slower proceedings; and provision of documentation in plain English a minimum of 28 days prior to her hearing date.
Second, an earlier letter dated 15 April 2026 (i.e., over a month before the hearing date on 28 May 2026), which was addressed generally (“to whom it may concern”) regarding the capacity of Ms Zey. Dr Tyler there proffers the opinion that Ms Zey is unable to “sustain participation in complex legal processes without harm done to herself due to the unpredictable nature of her functional state” (referring to Ms Zey’s PTSD and “episodes” where her ability to read, respond or make decisions is impaired). Dr Tyler said that Ms Zey is unable to “travel to Sydney safely due to risk of deteriorating mental health”. (Again, Ms Zey was apparently able to travel to Sydney on 25 May 2026 (for the Federal Court hearing and tour of Level 12 of the Law Courts Building) and, in any event, the Court had been prepared to hold the hearing in Newcastle at Ms Zey’s request.)
As adverted to above, in the stay judgment, the primary judge considered a previous medical certificate from Ms Zey’s then general practitioner, Dr Rowley, as to Ms Zey’s inability to attend court. The primary judge found (at [42] and [52]) that the lack of explanatory detail in the certificate meant that it had little if any probative value (citing Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139, at [220]; Douglas v Mikhael [2024] NSWCA 89, at [61]; Forster v Harvey [2006] NSWSC 1112, at [8]). At [51], the primary judge said that “[d]iminished weight is to be given to medical certificates in those circumstances especially where, as a fait accompli, the opposing side, whose rights are adversely affected by such a certificate, is deprived of the opportunity of testing any opinions expressed therein”.
The morning of the hearing listed for 28 May 2026, the Court was informed by email from a barrister, Mr Khoury, that he had been retained (the evening prior) to appear for Ms Zey in the hearing that day, on a direct access brief. On his appearance, Mr Khoury made an application to vacate the hearing. Ms Zey was in attendance via a telephone link. Mr Khoury put his application for a vacation of the hearing on three bases.
First, Ms Zey was not aware until the previous day that the matter was listed for a hearing. That submission was belied by Ms Zey’s application to the Federal Court on 25 May 2026 (of which Mr Khoury was obviously unaware), as evident from the matters referred to in the Federal Court judgment (see above at [42]). Second, Mr Khoury had only been retained the night before and needed time to review the material and to give advice (including potentially as to amendments to the draft notice of appeal). Third, and seemingly related to the second matter, this Court would benefit from Mr Khoury’s involvement in the matter. As to the last, while the benefit of legal representation is by no means to be underestimated, a number of judges have already commented on Ms Zey’s intelligence and capacity to represent herself (see Levy ACDJ at [67]-[68] (stay judgment); Griffiths AJA at [24] (in the judgment dismissing the 12 February 2025 motion); Bromwich J at [26] (in the Federal Court judgment)) and, in any event, Mr Khoury was not able to confirm that he would in fact be retained or able to appear for Ms Zey at the hearing of the leave only application were the hearing to be adjourned. That, apparently, was to depend on his review of the materials in relation to the proceedings.
Ms Zey intervened over the telephone during the course of Mr Khoury’s submissions a couple of times; relevantly, on the second occasion, seeking an adjournment to consult with her barrister over the telephone, which we granted. Given that, in her initial submissions, Ms Zey had consented to the application for leave being dealt with in the absence of the public and without the attendance of any person, but had noted that “were an appearance [to] be invited, she would like to appear and would require ‘reasonable adjustments’ per the Department of Communities and Justice Disability Inclusion Action Plan to enable this”, the Court suggested that Mr Khoury discuss with Ms Zey the course of the leave application being determined on the papers. On resumption of the hearing, Mr Khoury had instructions to consent to the leave application being determined on the papers (28/06/26; T 9.37), to which the State had consented. Mr Khoury requested, and the Court acceded thereto, an opportunity for Ms Zey to file submissions in reply to the State’s submissions. Ms Zey subsequently sought, and was granted, an extension of time for those reply submissions (after having sent other “submissions” on 31 May 2026 containing, among other things, an apology for the submission by Counsel that she was unaware of the hearing date). Hence, we have referred to the submissions provided prior to 28 May 2026 as the initial submissions and those provided on 12 June 2026 as the reply submissions.
Accordingly, we deal with this leave application on the basis of Ms Zey’s initial written submissions; the State’s written submissions; and Ms Zey’s written submissions in reply to the State’s submissions. Before addressing those submissions and the proposed grounds of appeal, it is convenient to summarise briefly the respective judgments.
The primary judge concluded (at [29]) that those circumstances, and Ms Zey’s unreasonable non-attendances at medical examinations appointed by the defendant had the effect of denying the State the fair and just opportunity of exploring the effects of Ms Zey’s PTSD on her and her capacity to bring the litigation to finality.
In response to Ms Zey’s claim of a denial of natural justice or procedural fairness, the primary judge found that Ms Zey was afforded “considerable procedural leeway for the presentation of her case”, including the opportunity to have her case heard in Newcastle (stay judgment at [32], principal judgment [86]); that Ms Zey was also given the benefit of an order that enabled her to give her evidence in chief in a narrative form and subsequently, at her request, she was given leave to refer to her notes when giving oral evidence (stay judgment at [34]). However, the primary judge did not permit Ms Zey to read her evidence from a prepared statement onto the record. The primary judge noted that, when that limitation was identified by him, Ms Zey sought time out of court to see her general practitioner and that, following that incident, Ms Zey absented herself from the hearing.
As to the certificate provided by Dr Rowley, the primary judge found (stay judgment at [41]), as adverted to above, that the certificate “was inherently deficient of explanatory detail, only applied to an inability of [Ms Zey] to attend the hearing on the following day” and said that it formed an unreliable and unsatisfactory basis for excusing Ms Zey from attending the court to complete the hearing. The primary judge formed the opinion that the certificate lacked probative value because of the lack of explanatory detail in the certificate (at [51]).
The primary judge dismissed Ms Zey’s notice of motion filed on 22 April 2024 and ordered Ms Zey to pay the State’s costs. Pursuant to ss 61 and 62 of the Civil Procedure Act 2005 (NSW) (the CPA) the primary judge made case management orders, as previously noted, aimed at facilitating finalisation of the part-heard proceedings (stay judgment at [89]).
As to the claim that SC Edwards and SC Townsend had trespassed upon Ms Zey’s land on 21 September 2019, the primary judge found that upon Ms Zey’s request for the police officers to leave her property, she had revoked or terminated the implied licence for the police officers to be on her land (principal judgment at [167]) and the police were required to leave without undue delay even if they had entered with a lawful purpose. As noted earlier, the State conceded that there had been a trespass to land for the short time in which the officers remained on the land after they had been asked to leave.
As to the claim of alleged non-battery assault when the police officers were in Ms Zey’s garden on 21 September 2019, the primary judge (while accepting that Ms Zey may have felt that the police officers were unwelcome on her premises, and may have felt affronted and angered by those circumstances) did not accept that Ms Zey felt fear of the police officers, either by their mere presence or actions (principal judgment at [184]). Rather, the primary judge found that Ms Zey was not assaulted by the police officers and was located safely behind her closed and locked glass door, in circumstances where the police officers were not behaving in a threatening manner towards her. As adverted to above, the primary judge found that the police officers had conducted themselves in a calm and reasonable manner.
As to the claim of false imprisonment when the police officers were in her garden on 21 September 2019, the primary judge found that Ms Zey’s claim was unfounded and without substance as she was not deprived of her liberty, nor was she detained (principal judgment [202]-[203]). The primary judge considered Ms Zey’s claims that she was “trapped” by the presence of police officers (27/02/24; T 140.31) with “no means of escape” (27/02/24; T 139.27, T 139.41) to be “melodramatic” claims that “represent a false and exaggerated construction of the events” (principal judgment at [198]). Rather, the primary judge found that the police officers attended Ms Zey’s premises for a lawful purpose and, when Ms Zey refused reasonably to engage with them, her refusal led to SC Edwards seeking to gain her attention by knocking on the glass panel of the door (principal judgment at [201]). The primary judge said that Ms Zey was free to leave her premises if she had chosen to do so.
As to the claim of breach of privacy, the primary judge found that this allegation could not be sustained. Ms Zey did not make any submissions on this claim. However, the State submitted that: first, a tort based on a breach of privacy has not been recognised by the common law; second, Ms Zey’s interests were sufficiently protected by the cause of action of trespass; and third, even if there were an available cause of action involving a tort for breach of privacy, it would be an innominate action on the case (principal judgment at [206]-[210]).
As to the claim for misfeasance in public office, the primary judge found that Ms Zey did not prove the requisite elements to sustain a claim of misfeasance in public office (citing N**orthern Territory v Menge**l (1995) 185 CLR 307, at 370; [1995] HCA 65) (principal judgment at [212]-[219]).
As to Ms Zey’s complaint in the amended statement of claim that the conduct of the police officers on 21 September 2019 breached Art 17 of the ICCPR, the primary judge found in favour of the State that Art 17 had not been incorporated into municipal law and it could not operate as a direct source of individual rights and obligations (principal judgment at [222]-[225]).
As to the assessment of damages for the conceded trespass by police officers at Ms Zey’s premises on 21 September 2019, the primary judge found that the period of trespass was “triflingly short” and occurred when the “implied licence to be on the premises was revoked whilst the police were seeking, without success, to enlist [Ms Zey’s] co-operation to abate a public nuisance over which she had control” (principal judgment at [228]-[229]). The primary judge found that the conceded period of trespass was from three to three and a half minutes. The primary judge assessed Ms Zey’s claim for compensatory damages for trespass to land at $1 (principal judgment at [237]).
The primary judge expressly applied the principle of de minimis non curat lex (the law does not concern itself with trifles) (citing Williams v The Queen (1978) 140 CLR 591 at 602; [1978] HCA 49 at [6] per Murphy J) and rejected the claim for aggravated and exemplary damages (principal judgment at [238]).
At [242] of the principal judgment, the primary judge remarked that Ms Zey’s “aberrant litigation conduct has been unco-operative and time wasting, and this has resulted in significant burdens being placed on public resources. Those matters must be taken into consideration when determining appropriate orders for costs”. The primary judge decided, as a matter of procedural fairness, to hear the parties as to costs.
We turn to the proposed grounds of appeal.
Ms Zey notes that, in Prothonotary of the Supreme Court of NSW v Ibrahim [2023] NSWSC 1275, Yehia J accepted that mental health conditions may impair judgment and decision-making and that the connection between mental health and conduct should not be approached in an unduly technical or restrictive way. Ms Zey says that medical evidence before the court, the Department of Communities and Justice’s published policies including “Accessible Communications Policy” and Section 5 of the Judicial Commission of New South Wales, Equity Before the Law Bench Book, all support a practical assessment of Ms Zey’s functional capacity, “not an assumption drawn from apparent activity”. (Ms Zey also refers to Bell CJ’s 2025 statement on judicial wellbeing, which recognises the importance of mental health in society generally and within the judiciary, and observes that stress and distress have obvious implications for good and competent decision-making. Ms Zey says that the same common-sense proposition applies to litigant participation, in that apparent activity is not the same thing as functional capacity.)
Ms Zey relies on her affidavits affirmed 22 and 24 April 2024 (as adverted to above at [52]-[53]) and submissions filed 24 April 2024. In support of her contention that the refusal of a stay denied her natural justice, Ms Zey relies on contemporaneous records of: her communications to the State expressly raising the need for a tutor; her communications with the Court; and her numerous attempts (made, she says, when capacity permitted) to secure legal representation, without success.
Ms Zey complains that, at [53] of the stay judgment, the primary judge relied on incorrect facts when characterising Ms Zey’s conduct as “aberrant litigation behaviour”. Ms Zey contends that the State, as a model litigant, was obliged to disclose material information in its possession concerning Ms Zey’s medical and personal circumstances and did not do so, which omission Ms Zey contends misled the Court and directly contributed to error in the primary judge’s findings.
In relation to particular findings, Ms Zey submits that: the order in the stay judgment at [88](2) (dismissing her notice of motion) was made under a wrong or incomplete premise or misapprehension of material facts; conduct by her “consistent with Judicial Commission Guidance” was wrongly given a negative connotation (referring to the stay judgment at [28]); and the primary judge, at [29] of the stay judgment, erred in assuming effective service of medical examination appointments. Ms Zey contends that she was not served or was served in a manner unlikely to bring the process to her attention, rendering her attendance at the first medical examination impossible but that she did attend the second appointment. Ms Zey complains that the failure of the State and the registry to inform the primary judge of her attendance at the second appointment compounded the unfairness to her.
Ms Zey further complains that she wrongly believed that the case would continue after the next Newcastle sitting and that the State knew of this error and failed to inform the Court of it. Ms Zey says (at [5]) that contemporaneous evidence supports this but does not point to any specific evidence. Ms Zey further says that she believed that the matter was stayed and that the State, with its model litigant obligations would not oppose this; and that the matter went to judgment without her knowing (at [7]-[8]).
Thus, Ms Zey submits that the stay application miscarried because the primary judge “failed to accommodate documented medical incapacity and superior-court authority of superior courts, permitting adverse credibility findings to distort the factual reality before the Court” (at [34]).
The State, on the other hand, submits that there was no error of a kind to enliven the grant of leave. The State submits that, given the alleged basis for Ms Zey’s stay application, there were two issues for the primary judge to decide: first, whether Ms Zey had established that she had a condition that impacted on her ability to advance her case fairly and, second, the account to be taken of the principles under ss 56 to 60 of the CPA.
As to the first issue, the State submits that Ms Zey failed to demonstrate that any mental condition she had impacted on her ability to advance her case fairly. In this regard, the State points to the fact that the primary judge, who had observed Ms Zey in court representing herself over many days, made a number of findings that demonstrated that she was capable of putting her case. The primary judge described her as “articulate and intelligent”, who “demonstrated calmness in the face of litigation challenges” and was “knowledgably aware of the issues which must be addressed in the case” (stay judgment at [68]). The State notes that the primary judge also observed that Ms Zey was “in a more informed and capable position” than that of most self-represented litigants (stay judgment at [67]). The State submits that nothing Ms Zey has raised excites any doubt as to these findings.
As to the second issue, the State submits that Ms Zey failed to demonstrate that any impact on her ability to put her case justified the staying of the proceedings because, as the primary judge found, the State was entitled to timely determination of the claim (stay judgment at [80]). The State points to the unsatisfactory history of Ms Zey continuing not to appear before the Court on hearing days, and the age of the matter, as making it open to the primary judge to seek to bring the case to a swift end by refusing the application for a stay of proceedings.
Ms Zey in reply submissions argues that the characterisation of her trespass claim as “trifling” by reference to the nominal damages awarded assumes a capacity to dismiss the pleaded issues on the basis of quantum without first determining liability according to law (at [31]). Ms Zey says that liability must be determined before quantum, and the award of nominal damages cannot excuse a failure to determine liability according to the pleadings. Ms Zey notes that trespass to land is actionable per se, and says that the common law recognises no category of “trifling trespass” exempt from determination (citing Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 (Plenty v Dillon)).
Ms Zey says that she seeks correction of the anterior legal error so that each consequential finding may be reconsidered on remittal. Ms Zey says that “the dismissal of the associated torts proceeded on the premise that lawful authority had been established” and, where “that premise was not determined by reference to the statutory defence pleaded, the conclusions built upon it cannot stand independently and require reconsideration”.
In her reply submissions, Ms Zey says that the State’s reliance on the proposition that the legal source of power need not be “in mind” at the time of its exercise does not answer her complaint. Ms Zey says that “passing off what was in an officer’s mind [is] a very different question from whether the statutory conditions were satisfied”. Ms Zey emphasises that the officer in question was not called as a witness and refers to settled authority that coercive entry and seizure require clear statutory justification (citing Coco).
There was sufficient evidence for his Honour to draw the inference that Ms Zey had parked her vehicle so that it was in the position of blocking access, having regard to the location of where it was parked together with the further facts set out in the principal judgment at [119]-[122].
As to Ms Zey’s submission that she was not charged with obstructing traffic under s 6 of the Summary Offences Act, it did not follow from the absence of such a charge that the officers could not have had lawful justification to arrange for her car to be towed under cl 39 of the RTGR. Lawful authority to tow a vehicle under cl 39 is not contingent upon the owner of the vehicle being charged with an offence. We have addressed above Ms Zey’s complaints about reliance on cl 39.
Finally, if an extension of time or leave is refused (as it is here), Ms Zey seeks time to obtain support “to deal with the consequences of refusal, consistent with the practical approach to time and support identified in Ch 5 of the Equality Before the Law Bench Book” (reply submissions at [62]). We have considered this in the order made relating to the time permitted for Ms Zey to reply to the State’s costs submissions.
[1994] HCA 15
[1936] HCA 40
(2025) 118 NSWLR 479
(2013) 249 CLR 1
(2016) 92 NSWLR 406
(2022) 108 NSWLR 342
(1994) 179 CLR 427
(2023) 280 CLR 442
(1984) 155 CLR 1
(1936) 55 CLR 499
(2003) 58 NSWLR 51
(1995) 185 CLR 307
(1991) 171 CLR 635
(2019) 100 NSWLR 782
(2020) 272 CLR 291
(2025) 117 NSWLR 404
(1978) 140 CLR 591