Citation: Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No 2) [2024] NSWDC 289
Court: District Court of New South Wales
Date: 17 July 2024
Judge(s): Acting Judge Levy SC
Background
The plaintiff, a self-represented social activist, brought a tort action against the State of New South Wales arising from two police interventions in September 2019. On both occasions, she had deliberately parked her vehicle across a gateway used by construction vehicles at a nearby high school, as an act of civil protest against heavily laden trucks she believed were breaching a local load limit. Police attended, issued parking infringement notices, and on one occasion had her vehicle towed.
On 21 September 2019, two police officers also attended the plaintiff's property to speak with her about her parked vehicle, which was obstructing traffic. When she asked them to leave, they did so after a brief delay. The defendant (the State, vicariously liable for its officers) conceded that this brief failure to immediately depart constituted a trespass to land once the plaintiff had revoked any implied licence for the officers to be on her property.
The plaintiff sought compensatory, aggravated, and exemplary damages across seven separate tort claims. The proceedings were significantly protracted by what the court described as aberrant litigation conduct, including an unexplained mid-hearing absence and an extraordinary number of interlocutory applications.
Legal Issues
- Whether police officers committed trespass to goods by towing the plaintiff's vehicle on two occasions
- Whether police officers committed trespass to land when they remained briefly on her property after being asked to leave
- Whether the conduct of the officers constituted a non-battery assault on 21 September 2019
- Whether the plaintiff was falsely imprisoned on 21 September 2019
- Whether there was a breach of privacy actionable in tort
- Whether the officers committed misfeasance in public office
- Whether the conduct breached Article 17 of the International Covenant on Civil and Political Rights
- Whether, if any trespass to land was established, damages should exceed a nominal amount given the plaintiff's provocative antecedent conduct and the de minimis nature of the incursion
Decision
The court rejected all of the plaintiff's claims except for the conceded brief trespass to land. The towing of the vehicle was lawful; the plaintiff's car had been deliberately parked in a position of public nuisance, and police officers were entitled to act to abate that nuisance. The non-battery assault, false imprisonment, privacy, misfeasance, and ICCPR claims all failed on the evidence.
On the trespass to land claim, the court accepted the defendant's concession that when the plaintiff asked the officers to leave, their implied licence to be on her property was terminated. Their brief failure to depart immediately constituted a technical trespass. However, the court characterised the incursion as trifling in all the circumstances.
Applying the doctrine of de minimis non curat lex (the law does not concern itself with trifles), the court assessed compensatory damages at $1.00. The court declined to award aggravated or exemplary damages, finding no justification for either on the facts. The court specifically noted the plaintiff's own provocative conduct as a material background factor weighing against any more substantial award.
A non-publication and pseudonym order that had been made on the plaintiff's application was also revoked during proceedings. The court found that the interests of open justice substantially outweighed the plaintiff's privacy concerns, and noted an obvious inconsistency between pursuing a public activist agenda while simultaneously seeking litigation anonymity.
Orders Made
- Verdict and judgment for the plaintiff in the amount of $1.00 in relation to the claim of trespass to land
- All other claims rejected and dismissed
- Costs order reserved, with the parties to be heard before any order is made
- Liberty to apply for further or other orders if required
Key Takeaways
- The District Court confirmed that police officers attending private property for a lawful purpose (such as seeking to abate a public nuisance) hold an implied licence to be present; that licence is terminated when the occupier asks them to leave, and failure to depart promptly thereafter constitutes trespass to land.
- Where a trespass to land is established but the incursion is brief, trivial in nature, and occurred against a background of the plaintiff's own provocative conduct, the doctrine of de minimis non curat lex may limit damages to a purely nominal sum.
- Nominal damages of $1.00 were assessed as sufficient to mark the technical wrong, with no aggravated or exemplary damages warranted on these facts.
- A litigation pseudonym and non-publication order will not be maintained where the applicant cannot satisfy the statutory requirements under the Courts Suppression and Non-publication Orders Act 2010 (NSW); the court found it particularly inconsistent for a public activist to pursue anonymity in connection with her own activism.
- Aberrant or unco-operative litigation conduct by a self-represented plaintiff was identified as a factor relevant to any future costs order, with the court noting that such conduct had placed significant burdens on public resources and put the defendant to needless expense.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), ss 56, 98
- Courts Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10
- Crown Proceedings Act 1988 (NSW), s 5
- Evidence Act 1995 (NSW), ss 29, 56, 136
- International Covenant on Civil and Political Rights, Article 17
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Road Transport General Regulation 2013 (NSW), cl 39
- Uniform Civil Procedure Rules 2005 (NSW), rr 23.1, 23.2, 24.2
Cases
- Eedra Zey v State of New South Wales [2024] NSWDC 135 (earlier pseudonym decision)
- Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
- Bobolas v Waverley Council [2016] NSWCA 139
- Coco v The Queen (1994) 179 CLR 427
- Latoudis v Casey (1990) 170 CLR 534
- Mahenthirasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 73
- Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
- Nobarani v Mariconte (2018) 265 CLR 236
- Koowarta v Bjelke-Petersen (1982) 153 CLR 168