Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales

[2024] NSWDC 135

District Court

New South Wales

Medium Neutral Citation:

Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales [2024] NSWDC 135

Hearing dates:

26 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

See paragraph [88] for dispositive orders. See paragraph [89] for case management orders.

Catchwords:

CIVIL PROCEDURE – non-appearance of plaintiff at the hearing of her notice of motion filed on 22 April 2024 – insufficiency of reasoning in medical certificates purporting to explain plaintiff’s continued non-engagement with the requirements of her litigation – examination of litigation conduct of the parties – revocation of previous non-publication order following plaintiff’s failure to respond to notice requiring her to show cause why non-publication order should remain in force – circumstances indicate that plaintiff’s request for judicial recusal requires a formal application – remedial case management orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56, s 57, s 58, s 59. s 60, s 61, s 62, s 183

Courts Suppression and Non-publication Orders Act, 2010 (NSW), s 7, s 8, s 10

Evidence Act 1995 (NSW), s 29(2)

Uniform Civil Procedure Rules 2005 (NSW), r 7.36, r 23.4, r 35.1, r 42.1

Cases Cited:

Bobolas v Waverley Council [2016] NSWCA 139

Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Douglas v Mikhael [2024] NSWCA 89

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Foster v Harvey [2006] NSWSC 1112

Nobarini v Mariconte [2018] HCA 36

Polsen v Harrison [2021] NSWCA 23

Rasjki v Scitiec Corporation Pty Ltd, unreported, New South Wales Court of Appeal, 16 June 1986

Texts Cited:

Trauma-informed Courts Guidance for trauma-informed judicial practices: Judicial Commission of NSW 2022; Equality before the law Bench Book Judicial Commission of NSW 2022

Category:

Procedural rulings

Parties:

Eedra Zey (formerly using the pseudonym Eva Williams) (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
(Self-represented plaintiff did not appear)
Mr N Newton (Defendant)

Solicitors:
(Plaintiff not represented)
Wotton + Kearney (Defendant)

File Number(s):

2022/00355036

Publication restriction:

None.
(Revocation of previous non-publication order made on 31 July 2023).

JUDGMENT

1. The need for these interlocutory reasons arises on the 9^th day of the listing of these contested part-heard proceedings the plaintiff has brought against the State of New South Wales.

2. The plaintiff’s litigation has its origins in circumstances which led to the issue of two parking infringement notices related to the locations at which her motor vehicle had been parked in a position of traffic obstruction on 17 and 21 September 2021, and subsequent steps taken by police officers in the course of their official duties, including at premises at [street address redacted], Belmont, New South Wales, where they unsuccessfully sought to speak with the plaintiff about her vehicle.

3. In the substantive claim, the self-represented plaintiff, who, on the evidence, appears to be something of a vigilante neighbourhood activist concerning heavy vehicular traffic in her area, since 31 July 2023, has been using the litigation pseudonym Eva Williams. She claims to be affected by a pre-existing post-traumatic stress disorder (“PTSD”).

4. The plaintiff alleges that, against her interests, two named police officers committed the intentional torts of trespass to goods, trespass to land, assault, breach of privacy, and misfeasance of public office. In light of those allegations, she claims compensatory, aggravated and exemplary damages.

5. In the preface to the most recent document filed by the plaintiff at 9.54pm on 25 April 2024, in the form of submissions, she obscurely claims that in her present state of health, she has “yelled at [her] perfect and beautiful cat .. talis quails” (sic for “qualis”).

6. Be that as it may, these interlocutory reasons have become necessary because the plaintiff, by her conduct, has become disengaged from the obligatory task of seeing her litigation to its procedural conclusion: s 56 of the Civil Procedure Act 2005 (NSW) (“CP Act”).

7. Those circumstances now require focussed remedial attention, including an application of the considerations embodied in the CP Act, s 56 to s 62.

Notice of motion filed by plaintiff on 22 April 2024

8. On 22 April 2024, the plaintiff filed a notice of motion seeking a number of orders, which may be conveniently summarised as follows:

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 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 plaintiff to the NSW Bar Association for pro bono legal assistance;

4. Referral of the plaintiff for pro bono legal assistance pursuant to UCPR r 7.36;

5. That each party pay their own costs of the motion.

9. The defendant opposes the plaintiff’s motion and has made submissions aimed at advancing the case to a point of finality, which, regrettably, still appears to be some distance away from being concluded.

10. The plaintiff, in making the above application, and then not attending at court in order to argue the merits of the application, despite AVL facilities having been made available to her, presents the Court with a situation in the nature of a fait accompli adjournment that gives rise to a need, yet again, to adjourn the proceedings to another date in order to seek her re-engagement with the substantive issues which remain outstanding and unconcluded.

11. The phenomenon of fait accompli adjournments has been the subject of recent critical remarks by the NSW Court of Appeal: Douglas v Mikhael [2024] NSWCA 89, at [58].

Procedural background

12. The present circumstances require a consideration of some of the complicated procedural background of this case, applying a trauma informed approach, including an examination of the litigation conduct of the parties, and an application of the provisions of s 56 to s 60 of the CP Act to the elements of the interlocutory relief sought by the plaintiff.

13. After many interlocutory listings between 2022 and 2024, the case proceeded to trial in Newcastle on 26, 27, 28 and 29 February and 1 March 2024, at which time the case remained part heard and unconcluded.

14. The plaintiff has continued to absent herself from the time of the scheduled continuation of the hearing on 1 March 2024 and also on 7, 15 and 22 March 2024. Those circumstances give rise to the suggestion that the plaintiff 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.

15. In that latter regard, without reasonable explanation, the plaintiff has twice refused to present herself for a psychiatric assessment at the request of the defendant. The second such appointment followed an order of the Court on 22 March 2024, which was made on the application of the defendant pursuant to UCPR r 23.4. The purpose of those proposed assessments was to ascertain whether the plaintiff was capable of attending to the demands of her litigation.

16. Today, the plaintiff was due to appear on her notice of motion but instead she left a message with Registry staff and with the defendant’s solicitor to the effect that she was not going to attend.

17. Beforehand, at 2.30pm on 24 April 2024, the plaintiff filed a lengthy affidavit incorporating some 107 paragraphs in which sets out matters of contention, and at paragraph 2, she presumptively claimed reliance on UCPR r 35.1 without seeking leave to seek to overcome the inherent irregularity of her litigation conduct. The defendant has not yet had an opportunity to consider the content of that affidavit and it has been denied the opportunity of testing its contentious content through cross-examination on a range of matters. She has not appeared to read that affidavit.

18. At 9.43pm on 24 April 2024 (the 25^th being a public holiday), as an apparent late night after-thought to her motion filed on 22 April 2024, the plaintiff filed a form of written submissions. In effect, her material, dated 22 and 24 April 2024, traversed the following topics:

1. A claim of denial of natural justice;

2. A claim of inequitable access to justice;

3. An application for a stay of proceedings;

4. A claim that the Court has not properly considered and made allowance for her history of trauma;

5. A claim that she has had a “meltdown” after certain intra-trial rulings have operated against her planned objectives in the litigation;

6. Some out of court discussions she has had concerning possible legal assistance;

7. Her perceptions on the reasonableness of intra-trial orders;

8. The obligations of model litigants;

9. The subject matter of an exclusionary pre-hearing interlocutory order made on 20 February 2024, on a notice of motion filed by her on 23 January 2024, which had the effect of denying her an entitlement to rely upon putative “expert” evidence, the context being that the letter in question, from a counsellor, dated 2 February 2024, was served irregularly on 4 February 2024, which was outside the time for service as required by the rules;

10. Allegations of judicial interference, and alleged pre-judgment;

11. Her perceptions as to the meaning or significance of judicial exchanges with counsel for the defendant during the course of the proceedings.

19. Some of those matters raised by the plaintiff require separate consideration and are outwith the scope of these reasons. My consideration of the matters calling for explanatory reasoned determination or comment, now follows.

20. The overall context is that the defendant now simply wants this case to proceed to finality on the evidence that has been adduced to date, without further delays.

Trauma informed approach and plaintiff’s PTSD

21. In modern litigation it is sometimes necessary to ensure that a trauma informed approach is taken to the conduct of litigation: Trauma-informed Courts Guidance for trauma-informed judicial practices: Judicial Commission of NSW 2022; Equality before the law Bench Book Judicial Commission of NSW 2022,

22. The introduction to the NSW Judicial Commission’s series of e-resources contain the following statement of acknowledgment of the effects of trauma in a litigation context, at p 5:

“Introduction

Many courts have come to recognise that acknowledging and understanding the impact of trauma on court participants may lead to more successful interactions and outcomes. Courts that do not practice trauma-informed decision making may inadvertently increase the level of trauma that [people] experience. Every interaction is an opportunity.

Trauma is highly prevalent in the community. It may be safely concluded that many court participants are trauma survivors and may continue to experience trauma to varying degrees. ... The very nature of legal proceedings, both civil and criminal, has the potential for severe stress for those involved. Further, there is a growing understanding of the prevalence and impact of trauma ...”

[References omitted]

23. Trauma is recognised as encompassing a wide range of mental health issues, including PTSD. Those cited resources refer to the significant statistical prevalence of various types of mental conditions and disability in the community.

24. Although the plaintiff has stated that she has pre-existing PTSD, the factual and diagnostic basis of that claim has not been definitively identified by reliable medical or allied opinion evidence. She has professed self-expertise in the management of her condition.

25. The plaintiff has had the professional assistance of a treating general practitioner and a named treating psychiatrist, as has been disclosed in the evidence. She has chosen not to introduce rules complaint explanatory opinion evidence from those persons.

26. The plaintiff’s decision in that regard appears to have been based on her erroneous view that evidence did not relate to any issue in the case, whereas the converse was true, where those matters are of relevant background importance to her claim of being affected by trauma. She cannot have it both ways. Her stance on this issue is somewhat misguided, if not paradoxical. Her repeated reference during the hearing to the Latin phrase “talem qualem” (the egg shell skull principle), as it applies to her, demonstrates that paradox.

27. The plaintiff appears not to have recognised that some cogent medical opinion evidence is required as to the origin and the effects of her PTSD in order to deal with the issues she has raised in her case, in a trauma informed way.

28. Despite the plaintiff’s 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.

29. Those circumstances, and her unreasonable non-attendances at medical examinations appointed by the defendant on two occasions have had the effect of the defendant being denied the fair and just opportunity of exploring that issue.

30. Consequently, and unjustly, the defendant has incurred a cost liability for such non-attendance by the plaintiff and has indicated that it will ultimately seek a compensatory cost order in respect of that liability.

Procedural fairness

31. The plaintiff’s claim of denial of natural justice or procedural fairness is noted. Ultimately, the record will speak for itself concerning that claim.

32. Notwithstanding the plaintiff’s described avoidant behaviour in the litigation, she has been afforded considerable procedural leeway for the presentation of her case. This included the opportunity to have her case heard in Newcastle because she claimed she was unable to travel to Sydney.

33. This was in circumstances where the standard practice of the Court in circuit cases with a hearing estimate of 5 days plus, is to routinely transfer them to Sydney on account of resourcing issues.

34. In view of the plaintiff’s self-representation, pursuant to s 29(2) of the Evidence Act 1995 (NSW) she was also given the facilitative benefit of an order that enabled her to give her evidence in chief in a narrative form, and subsequently, when difficulties arose in that regard, in addition, at her request, she was given leave to refer to her notes when giving her oral evidence.

35. However, those facilitative allowances did not extend to permitting the plaintiff to read her evidence from a prepared statement onto the record. When that limitation was identified, and rulings were made to that effect, the plaintiff took exception, and then sought time out of court to see her general practitioner.

36. Thereafter, she has absented herself form the continued hearing of her case and she has repeatedly failed to re-engage with the litigation in order to finalise her evidence and to take her proceedings to a logical procedural conclusion.

37. The record will ultimately show that anything that occurred during her fait accompli absences from court proceeded on the reasonable understanding that a transcript of the proceedings would be taken out and provided to her, along with details of any orders made, to keep her informed of what was being required of her in the circumstances of her continued non-attendance to procedural matters.

Litigation conduct of the parties

38. The plaintiff’s disengagement from her litigation occurred on the fourth day of the hearing in Newcastle on 29 February 2024, when she left the court room to attend her general practitioner after her cross-examination had concluded. Since then, she has not attended any hearing dates fixed for her case to continue. At the time the plaintiff left the court room, she was yet to indicate whether her evidence would be the subject of re-examination.

39. At that time, that is, before she saw her doctor, she was informed of the reliability requirements for a medical certificate seeking for her to be excused from attending Court: Bobolas v Waverley Council [2016] NSWCA 139, at [220].

40. Contrary to those requirements, the plaintiff arranged for her general practitioner, Dr Erica Rowley, to email a certificate to directly the Court at 5.16pm on 29 February 2024 in the following terms:

“THIS IS TO CERTIFY THAT

Miss Eedra Zey has significant mental health issues which have been exacerbated by current court proceedings.

She is unable to attend court tomorrow the 1st of March 2024.”

[Exhibit “E”]

41. In my view, that certificate, which was inherently deficient of explanatory detail, only applied to an inability of the plaintiff to attend the hearing on the following day. It formed an unreliable and unsatisfactory basis for excusing the plaintiff from attending the Court to complete the hearing.

42. The lack of explanatory detail in that certificate meant that certificate had little if any probative value: Bobolas v Waverley Council [2016] NSWCA 139, at [220]. The requirements of medical certificates in such circumstances have been made plain in a series of other decided cases to which I shall shortly refer.

43. Thereafter, despite being advised of further listing dates, the plaintiff has continued to absent herself from appearing on 7, 15 and 22 March 2024, and again today.

44. In those circumstances the defendant took up the option of seeking to have the plaintiff medically examined by two psychiatrists with the aim of determining whether she has the mental capacity to attend to the requirements of her litigation. The plaintiff did not attend the first appointment, which was with Dr Doron Samuell, on 21 March 2024.

45. The defendant then sought to have the plaintiff examined by Dr Alexey Sidorov, on 19 April 2024, by means of an AVL connection. An order was made to that effect: UCPR r 23.4. The plaintiff sought to have that examination conducted by telephone, claiming, to the contrary to her earlier communications, that she was not using email. She did not attend the appointment with Dr Sidorov on 19 April 2024. As a consequence, the defendant has incurred a liability for a costly non-attendance fee.

46. The matter was listed for directions today. In advance of this listing, on 22 April 2024, the plaintiff filed her notice of motion in the terms identified at paragraph [8] above. Paradoxically, she has not appeared to argue the motion which she has filed, despite an AVL facility being made available to her at Newcastle court house, as was also the case on 7, 15 and 22 March 2024, when she also failed to appear.

47. The plaintiff has filed an affidavit on 22 April 2024, in which she stated she had medically diagnosed mental health issues. She claims that supervening events have triggered her, and that she has become unwell, and suffers anxiety. She has annexed a letter dated 20 April 2024 from her general practitioner, who also holds qualifications in psychological medicine.

48. In that letter, Dr Rowley cited the plaintiff’s historical diagnosis of PTSD which was made by a named psychiatrist on an unknown date. She also cited the plaintiff’s ongoing therapeutic contact for counselling. She also stated that the plaintiff had reported to her that she was triggered by questioning on matters she felt to be irrelevant to the litigation, thereby allegedly causing re-traumatisation.

49. Although the plaintiff holds the opinion that the subject matter of that questioning was not relevant to her case, that view is contrary to the rulings made in the course of evidence when she unsuccessfully took objections to that course. Dr Rowley’s letter dated 10 April 2024 concludes with the following statement: “At the present time, I do not consider [the plaintiff to be] fit to attend Court or to be subject to AVL requirements”: Exhibit A to the affidavit of the plaintiff affirmed on 22 April 2024.

41. In my view, that certification does not adequately or satisfactorily explain why the plaintiff is unable to attend to complete her evidence and attend to the matters necessary to complete her case. I therefore attach very little weight to that opinion: Bobolas v Waverley Council [2016] NSWCA 139, at [220]; Douglas v Mikhael [2024] NSWCA 89, at [61]; Foster v Harvey [2006] NSWSC 1112, at [8].

42. Diminished 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.

43. The vagueness of the certificate, including as to the circumstances in which it was issued, where the content does not sufficiently expose the reasoning process of the doctor issuing it, where there is an absence of satisfactory explanatory detail of any assessment made, or whether it was simply issued on the basis of instructions provided by the recipient, all serve to impugn the reliability of the certificate: Douglas v Mikhael [2024] NSWCA 89, at [61].

44. The plaintiff’s aberrant litigation conduct, in absenting herself from the continuation of the hearing of her case, has caused considerable disruption, additional costs to the defendant, and that conduct has disproportionately and needlessly led to the diversion of considerable public resources which comes at a cost to society generally: s 57(1)(c) of the CP Act.

45. At various times when the plaintiff was engaged with the hearing of her case, she made repeated reference to the defendant’s assumed status and obligations as a model litigant.

46. In that regard, in my view, it is sufficient to say that over the entire pre-trial period and over the course of the previous 8 listing days when the case has been before the Court, the defendant and its legal representatives have unfailingly observed those requirements. This has even to the extent of providing the plaintiff with an undertaking to call a police witness in circumstances where the defendant was not obliged to call that witness to give evidence. The plaintiff’s litigation conduct has been far below that standard.

Revocation of previous pseudonym and non-publication orders

56. At an interlocutory hearing on 31 July 2023, on the application of the plaintiff, with the consent of the defendant, an interim order was made allowing the plaintiff to use the litigation pseudonym of Eva Williams.

57. As that interim order was made by consent in the context of a busy motions list, it did not involve an examination of the requirements of the Courts Suppression and Non-publication Orders Act, 2010 (NSW), s 7, s 8, s 10.

58. However, during the subsequent hearing of the case, nothing appearing within the evidence concerning the plaintiff’s circumstances seemed to justify the continuation of the pseudonym order in terms of the requirements of the cited enabling legislation.

59. Accordingly, on 7 March 2024, a directive order was made requiring that, by 15 March 2024, the plaintiff was to show cause as to why, in the interests of open justice, the above order made on 31 July 2023, should not be revoked: s 61 and s 183 of the CP Act.

60. The plaintiff has failed to show such cause as was required of her and she has failed to respond to that issue in any way. She has not proffered any cogent reasons establishing the existence of sufficient circumstances supporting the continuation of the non-publication order made on 31 July 2023. She has not satisfied the basic statutory requirements that would otherwise justify the making such an order, in either an interim or in a final form.

61. In those circumstances, I consider that the interests of open justice substantially outweigh the plaintiff’s subjective stated concerns over her privacy. In this context, there is a fundamental tension and inconsistency between the plaintiff’s apparent pursuit of an agenda of public social activism as is evident from the subject matter of this litigation and at the same time seeking to maintain her anonymity in respect of her actions which have led to this litigation.

62. Accordingly, the non-publication order made on 31 July 2023 must be revoked.

Application of the provisions of Part 6 of the CP Act 2005: s 56 – to s 60

63. The plaintiff has demonstrated she has acquired considerable acumen as to matters of law, legal processes, and legal procedures. She has been enrolled in legal studies at university. She has informed the Court that she has had previous access to legal advice: T45.4. Her history apparently includes a number of litigious disputes.

64. The plaintiff said she has many contacts with pro-bono legal assistance authorities and has been refused such assistance: T124.36-T124.41. She has already had contact with the Judicial Registrar of this Court regarding the possibility of obtaining further pro-bono legal assistance. Her financial means are not known but she owns property. She holds advanced tertiary degrees. Her given occupation is farm manager.

65. The plaintiff is aware of the pro-bono scheme provided by the New South Wales Bar Association. She has demonstrated that she has conducted legal research, and it is apparent that she is well aware of the issues calling for decision in the case.

66. In the documentation the plaintiff has assembled she has set out something of what might be anticipated of her ultimate submissions in the case. She has also had the benefit of having been served with the proposed submissions of counsel for the defendant.

67. In those circumstances, notwithstanding her claim of having been affected by PTSD, a condition that affects many litigants, I am unpersuaded that she is materially disadvantaged to the extent that at this late stage of the litigation the proper administration of justice and the dictates of justice requires that she be referred for consideration of pro-bono legal assistance. She is in no worse a position than many self-represented litigants who choose to embark upon litigation. If anything, by reference to her materials, she has shown herself to be in a more informed and more capable position.

68. In that regard, the plaintiff has shown an adeptness for making focussed objections and submissions. She is articulate and intelligent. She has demonstrated calmness in the face of litigation challenges. She has demonstrated she is knowledgably aware of the issues which must be addressed in the case.

69. It is plain that if an order was made as sought for a stay or proceedings, even only for a temporary fixed period to obtain legal assistance, this would serve to unduly delay the finalisation of this needlessly protracted case. That result would be contrary to the overriding purpose of facilitating the just, the quick, and the cheap resolution of the real issues in dispute given the stage the proceedings have reached: s 56(1) of the CP Act.

70. In my view, to delay the finalisation of the case at this late stage would be contrary to the dictates of justice: s 58(1) of the CP Act. This is so especially where the plaintiff has been untimely with her interlocutory activities concerning the service of aspects of her documentation and where she has made her present application belatedly: (s 58(2)(b)(ii) of the CP Act), and where she has not complied with court orders and directions concerning not only the show cause issue already referred to, but also, her non-compliance with a court ordered medical examination, together with her failure to re-engage with the procedural requirements of this unfinished case: s 56(3) of the CP Act.

71. There is no evidence that there was an impediment preventing the plaintiff, who is intelligent and resourceful, from pursuing a course of seeking legal assistance, whether paid or pro bono, of her own volition, without the need for an order pursuant to UCPR, r 7.36.

72. The plaintiff’s pursuit of an order for pro bono assistance pursuant to that provision at this late stage is contrary to the dictates of justice and a delay for that reason would unfairly and prejudicially add to the cost burden of the case to the defendant. That would defeat the dictates of justice where a timely resolution is now required: s 58(2)(vi) of the CP Act. The plaintiff has made her tactical decisions and she must now follow the course she has chosen through to its conclusion.

73. In coming to that view, a consideration of the dictates of justice to both parties must take into account that this litigation should be concluded with due despatch, with proportionality as to costs. In my view, the plaintiff’s litigation conduct to date has materially disadvantaged the defendant with needlessly numerous listings, to an extent and cost that is prejudicially disproportionate and beyond what was reasonably required, contrary to the dictates of justice: s 58(2)(b)(iv) of the CP Act.

74. The time has now come to ensure that this case is set on a course towards a timely and just conclusion on the evidence the parties have chosen to marshal. Section 56(1) of the CP Act requires that due emphasis be placed on the consideration of justness, quickness and cheapness of the remaining steps that will facilitate the resolution of the issues in the proceedings.

75. What the plaintiff is proposing, namely, the postponement of the finalisation of her case without definable limits, will needlessly increase the cost and the timing of the finalisation of the case. That proposed course will necessarily serve to defeat the overriding objectives of quickness and cheapness.

76. On the question of justness, the defendant’s interests must also be taken into account in the consideration of what the plaintiff now seeks to impose on the defendant. In that regard, in her most recent materials, the plaintiff sought to make an argument that the assistance to which she claims be entitled has not been fairly provided. That cannot be a proper criticism of the Court, which must remain impartial. The plaintiff was informed that there were limits to the assistance a court could provide to a self-represented litigant: T133.28.

77. Paradoxically, the plaintiff cited, or more properly described, selectively invoked a case which referred to the need for impartiality in cases involving self-represented litigants: T126.25. The case she referred to was Nobarini v Mariconte [2018] HCA 36, where, at [47] the High Court unanimously adopted with approval, the remarks of Samuels JA in Rasjki v Scitiec Corporation Pty Ltd, unreported, New South Wales Court of Appeal, 16 June 1986, at [27], namely:

“ … the absence of legal representation on one side ought not to induce court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent."

78. The plaintiff was informed of her misinterpretation of that authority, and of that quotation on the third day of the trial: T133.30.

79. The plaintiff’s complaint of an unjust consideration in that regard is misplaced. She cannot reasonably expect the defendant to be deprived of its lawful entitlements on procedural matters, including the case proceeding to a timely finality, where the defendant has acted according to law and applicable principles: s 56 and s 58(2) of the CP Act.

80. My conclusion on the matters now raised by the plaintiff is that the defendant is entitled to a timely determination of this claim. In my view, the procedural relief now sought by the plaintiff, if granted, would tend to defeat the overriding purpose of s 56 of the CP Act.

81. Accordingly, appropriate case management orders will shortly be directed at that objective.

Claim of judicial interference

82. The plaintiff’s materials raise comments claiming judicial interference in the course of the proceedings. Although the option and facility for intra-trial comments by judges is well understood in the legal profession, for the better understanding of the plaintiff, attention is drawn to observations made in Johnson v Johnson [2008] HCA 48; (2008) 201 CLR 488, at 493, [121].

83. In that case, it was re-affirmed that in modern litigation, judges are not expected to remain inscrutably Sphinx-like until the moment judgment is pronounced. On the contrary, tentatively expressed views on matters in issue provide the parties with an opportunity to take stock, address and deal with tentatively expressed views on matters in dispute. Whether or not any such comments crossed permissible limits in this case is not a matter that calls for comment here.

Application for judicial recusal

84. In her materials, the plaintiff has cited parts of the Civil Trials Bench Book published by the Judicial Commission of NSW with veiled references to bias. She has also referred to claimed the existence of pre-judgment. There has been no formal application made for judicial recusal in this case.

85. The procedures and principles to be followed and applied where judicial recusal is sought, namely the “double might” test, are well described and understood: Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, at [6]-[7]; [83]; Polsen v Harrison [2021] NSWCA 23, at [23]-[24]; [46]; [47]-[50]. Douglas v Mikhael [2024] NSWCA 89, at [103]; Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, at 110]-[112].

86. At this point, absent a formal notice of motion which articulates an application that properly raises a recusal issue, I decline to make a ruling on whether there should be a judicial recusal in this case as the foundations for such an application have not been laid.

Costs

87. I consider that the costs of this motion should follow the general rule in the usual way, especially as the plaintiff has not seen fit to appear in order to argue her motion: UCPR r 42.1.

Dispositive orders

88. I make the following orders concerning the show cause notice dated 7 March 2024 and on the plaintiff’s notice of motion filed on 22 April 2024:

1. The non-publication and pseudonym orders made by consent at the directions hearing on 31 July 2023 are revoked with the intent that henceforth, the plaintiff will be referred to by her legal name, Eedra Zey, as appeared in her originating process;

2. The plaintiff’s notice of motion filed on 22 April 2024 is dismissed;

3. The plaintiff is to pay the defendant’s costs of the dismissed motion.

Case management orders

89. Pursuant to s 61 and s 62 of the Civil Procedure Act 2005 (NSW), I make the following case management orders aimed at facilitating finalisation of these part-heard proceedings:

1. Any application by the plaintiff seeking an order for judicial recusal in these part-heard proceedings is to be made by filing a notice of motion within 7 days of today’s date with supporting affidavit evidence articulating the basis for any such order;

2. By 3 May 2024 the plaintiff is to notify the defendant as to whether she intends to :

1. adduce evidence by way of re-examination;

2. cross-examine Senior Constable Edwards;

3. adduce any further evidence in her case apart from her own evidence as referred to in case management order (2)(a) and (2)(b) above;

3. In the event the plaintiff intends to adduce evidence in re-examination, such evidence is to be in affidavit form, in numbered paragraphs, with topic headings, formatted in no smaller than 10 sized font, 1.5 line spacing, limited to 10 pages, filed and served on the defendant’s solicitor by 3 May 2024;

4. In the event the plaintiff intends to cross-examine Senior Constable Edwards, notice in writing of such intention is to be served on the defendant’s solicitor by 3 May 2024 to facilitate appropriate arrangements;

5. In the event the plaintiff intends to adduce further evidence from a witness (other than her own evidence as specified in case management order (2)(a) above), such evidence is to be in affidavit form from each such witness, to be formatted in no smaller than 10 sized font, 1.5 line spacing, limited to 10 pages, filed and served on the defendant’s solicitor by 10 May 2024;

6. In the event the plaintiff intends to adduce further documentary evidence in her case, copies of such evidence are to be served on the defendant’s solicitor by 10 May 2024;

7. If the defendant intends to cross-examine any witness proposed to be called by the plaintiff, notice of such intention is to be served on the plaintiff by email, text message and in hard copy, to the plaintiff’s postal address known to the defendant within 3 days following the date referred to in case management order (5) above;

8. If the plaintiff does not intend to adduce any further evidence she must file and serve her final written submissions in support of her case by 4.00pm on 10 May 2024, such submissions are not to exceed 20 pages, formatted no smaller than 10 sized font, and 1.5 line spacing;

9. The hearing of the substantive proceedings is to resume at 10.00am on Friday 17 May 2024;

10. On 17 May 2024 the plaintiff may appear via an AVL connection from Newcastle Court House and the Registry is to make those facilities available for that purpose;

11. A transcript of today’s hearing is to be taken out and as soon as it becomes available and a copy of it is to be served on the plaintiff by the defendant at the plaintiff’s email address, and as an annexure to an SMS text message to the plaintiff’s mobile telephone number, the details of which are known to the defendant;

12. The Registrar of the Court is to arrange for the Sheriff    to serve a printed copy of these reasons on the plaintiff as soon as practicable at her residential address which is already known to the Sheriff;

13. Liberty to the parties to apply for further orders and directions at short notice, if required.

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Decision last updated: 17 July 2024