Zey v State of New South Wales

The Court has before it, in the referrals list, a notice of motion filed 12 February 2026 by the applicant, together with an affidavit in support filed 7 December 2025. The notice of motion, as initially filed, sought the Court to refer the applicant for pro bono assistance in respect of her application for leave to appeal and an extension of time filed 3 November 2025. Initially, the application also sought an order barring the Court taking into account any information or submissions provided to the Court by the respondent outside the case management timetable. Subsequently, the applicant indicated that she no longer pressed Order 2 of the notice of motion.

Thus, the part of the notice of motion which comes before me today relates to the issue of the pro bono referral. I will need to say something in a moment about a very recent development, in which the applicant seemingly seeks a non‑publication order. No formal application has been made in that respect. A fourth set of submissions, which the Court has received from the applicant, refers to such an application.

When the matter was called for hearing this morning, both inside and outside the Court, there was no appearance by the applicant. Mr Smartt of counsel announced his appearance for the State of New South Wales.

There has been quite a flurry of correspondence between the Court, the Registry and the applicant about today's proceeding. In brief, and without going to all of the emails, the applicant contended that, because of physical impairment, she was unable to attend in person and she said that she would appear by telephone (see her email dated 19 February 2026 at 2:50pm). That was not opposed by the State. The applicant was informed by an email that was sent on Monday 23 February at 9:01am that the Court of Appeal Registrar had approved her appearance via AVL for the listing at 9:45am that day before the Registrar. She was told that she should dial a particular number at the time of the hearing and put in an ID number and wait until her matter was called. She was further instructed that if she was using video link, then she could click onto a specific web link.

The applicant indicated, again in email correspondence, that she was very unhappy about the prospect of her appearing either by AVL or by telephone if the State itself appeared in person because she submitted that that would place her at a material disadvantage. In an email sent at 9:24am on 27 February 2026, the applicant suggested that both parties should appear remotely by telephone for the listing on 2 March 2026 so as to avoid any disadvantage.

The Court confirmed, by an email sent on 27 February 2026 at 4:27pm – that is, last Friday – that the Court would hear the applicant's motion for hearing today, in Court 12A at 10:15am, that the applicant had leave to appear by AVL and that it was a matter for the respondent to decide whether it would appear in person or also by AVL. Again, details about how the AVL link could be connected were provided to the applicant.

There was further correspondence from the applicant, culminating in an email sent this morning, 2 March 2026, at 9.45am to the Court of Appeal shared mailbox. I understand that Mr Smartt has not had an opportunity to review that document. It is unclear whether or not his solicitor was copied in on the document or had had access to it, but nothing of any moment turns on that in any event.

The applicant noted in her email that she had received no response to her last correspondence regarding participating at the hearing today and that the absence of response resulted in her "exclusion from participation in this proceeding". She said that this was the second occasion on which she had been so excluded and that previously an adverse order had been made in her absence and remained uncorrected despite her multiple requests. She said that the email was sent so the administrative record accurately reflects that position and she noted that, "I can be contacted by phone only today, as email access is limited". I pause to reiterate that the applicant had been told about how she should dial into the hearing today and that, if she also wanted to appear by video, relevant information was also provided to her. These instructions left no doubt that it was the applicant’s responsibility to dial into the hearing.

The applicant had the Court telephone number and was free, as far as the material before the Court is concerned, to have telephoned into the hearing as indicated.

Furthermore, in an email sent at 7:10pm on Sunday 22 February 2026 in anticipation of a listing before the Registrar, the applicant wrote: “Just to clarify. I can attend by phone IF I am provided with details for dial in”.

There is further correspondence received from the applicant last Friday morning in which she said that if she was to appear in person, the Court had obligations towards her under the Disability Discrimination Act 1992 (Cth). This included making reasonable adjustments. She said this would include providing her with accommodation here because she would have to travel down the day before the hearing, and also that reasonable adjustments would need to be made to allow for "regulation and recovery (including the effects of prescribed medication) so that [she] could travel safely; the presence of a support person; and practical transport and parking arrangements".

When the applicant did not appear this morning, I asked Mr Smartt to indicate what the State's position was regarding the notice of motion. He urged the Court to proceed to hear the notice of motion in the absence of the applicant, in circumstances where the record was abundantly clear that she was on notice that her matter was listed for hearing today. There is also, as Mr Smartt correctly pointed out, a history of the applicant not appearing at hearings, both below and here in the Court of Appeal.

Let me turn now to some broader background matters. The application for leave to appeal is directed to a judgment in the District Court by Levy SC ADCJ. The primary judgment was published on 17 July 2024. His Honour awarded the applicant $1 for damages for trespass by the New South Wales Police, who had attended the applicant's home regarding complaints that the applicant's car was blocking a driveway which trucks were using to carry out construction works at a building site. A gross sum costs order was also made against the applicant on 23 August last year and steps were taken to execute that judgment by way of a writ for a levy of a property. On 6 November last year, the District Court stayed enforcement of both the primary judgment and the costs order pending the outcome of this application for leave to appeal in this Court.

The application for leave to appeal has attached to it a draft Notice of Appeal which contains the following three grounds:

The orders which are sought include an order that a pseudonym non‑publication order made in July 2023 be reinstated or alternatively continued and is to remain in force. That is a reference to a separate judgment by Levy SC ADCJ, handed down on 26 April 2024 in proceedings with the medium neutral citation [2024] NSWDC 135. It is evident from his Honour's reasons for judgment in that matter, at [56]-[62], that an interim order in the nature of a non‑publication order was made in those proceedings on 31 July 2023.

His Honour explained that it was made in the context of a busy motions list and did not involve detailed examination of relevant provisions in the Court's Suppression and Non‑Publication Orders Act 2010 (NSW). His Honour then added that, during the subsequent hearing of the case, nothing in the evidence concerning the plaintiff's circumstances justified the continuation of the pseudonym order. His Honour said that, on 7 March 2024, a directive order was made requiring that, by 15 March 2024, the plaintiff show cause as to why, in the interests of open justice, that order should not be revoked. His Honour then concluded at [60] that no such show cause had been provided and that the applicant had failed to respond to that issue "in any way".

The applicant having given no cogent reasons for not revoking the order, his Honour therefore concluded at [61] as follows:

It is first necessary to consider and determine the applicant's application for pro bono assistance. That application is made under rr 7.36 and 7.37 of the Uniform Civil Procedure Rules 2005 and s 183 of the Civil Procedure Act 2005 (NSW). The relevant principles pertaining to such an application were helpfully described by Brereton JA in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12] (footnotes omitted):

Those principles were adopted and applied by Meagher JA in Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 88. His Honour gave particular emphasis there to the fact that, for a pro bono referral to be made (although obviously the Court need not delve into a detailed examination of the merits of the proceeding to which the referral relates), the Court needs to be satisfied that the referral would be in the interests of the administration of justice. If there are no reasonable prospects, then it could scarcely be concluded that such interests would be achieved by a referral.

In the written submissions filed by the State on 20 February 2026, it is made clear that the State neither consents to nor opposes the pro bono referral. Mr Smartt quite appropriately pointed to factors both in favour and against such a referral. The matters to which the Court's attention has been drawn may be summarised as follows. First, the applicant does not have a distinguished record of continually participating in the proceedings. Indeed, as the District Court judge recorded in his reasons for judgment, she repeatedly failed to attend Court, which necessitated several wasted hearing days. There is also a history of non‑participation in the proceedings in this Court, as I have already mentioned.

The second matter relates to the merits of the application for leave to appeal. While this is not the time to give a considered assessment, I believe that there is force in the State's submission that there does not appear to be real merit in the application for leave to appeal.

A third matter is the fact that the applicant has not put on any compelling material as to her financial circumstances and, in particular, whether or not she is able to afford legal representation.

Fourthly, and perhaps most compellingly of all, there are the consequences a referral would have at this stage in terms of progressing the underlying proceeding. As I have already mentioned, the application for leave to appeal was filed on 3 November last year. The White Folder has now been provided. If the matter were now referred to a legal practitioner, it would invariably add to the time in which this matter may be listed for hearing.

Finally, I also take into account that on the basis of the material that has been provided by the applicant in relation to her notice of motion, she is clearly not lacking in competence when it comes to the presentation of her case. As I have already mentioned, four different sets of written submissions have recently been provided by her in respect of this matter, together with the affidavit that she plainly has prepared herself and affirmed on 7 December 2025.

No doubt the applicant would prefer to have external legal assistance, but I am not persuaded in this case that the discretion under the relevant provisions should be exercised in her favour.

For those reasons I would dismiss the applicant's notice of motion filed on 12 February 2026 and order that costs be costs in the cause.

That then brings me to the matter that is raised in the applicant’s latest submissions and not in the formal notice of motion itself regarding a non‑publication order. The order sought is not one relating to the applicant's name, but rather appears to be directed to the disclosure of her geographic location.

I have already mentioned that the applicant had the benefit of an interim non‑publication order as far as her identity was concerned in the District Court proceeding, which was revoked in the circumstances described in [56]‑[62] of Levy SC ADCJ's judgment dated 26 April 2024. The applicant has not provided any updated information in support of any application for such a non‑publication order other than to refer in her written submissions filed on 1 March 2026 and to p 17 and pp 25‑27 of the White Folder in the present proceeding.

I do not see p 17 as involving any evidence.

Pages 25‑27 are part of an affidavit by the applicant dated 13 October 2025. Those paragraphs there set out the applicant’s concerns regarding disclosure of her name and where she had been living since establishing her home in 2016. She describes her reaction when she found out that the media had published information, although the actual detail of that information remains a little obscure on the face of that affidavit.

The relevant principles relating to the making of a non‑publication order are helpfully described by the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383, with particular reference to [217] and [223], where emphasis is given to the fact that the primary objective of the administration of justice is one which favours open justice.

There obviously will be appropriate cases where, on the evidence, open justice needs to be qualified. But on the basis of the material before me, I am not persuaded that this is a case where a non‑publication order of the type sought by the applicant should be granted. Accordingly, even though there is no formal application, I reject the applicant's request to make a non‑publication order.