Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No 2)

[2024] NSWDC 289

District Court

New South Wales

Medium Neutral Citation:

Eedra Zey (formerly using the pseudonym Eva Williams) v State of New South Wales (No 2) [2024] NSWDC 289

Hearing dates:

26, 27, 28 and 29 February, 1, 7, 15 and 22 March, 26 April, 17 May and 7 June 2024

Date of orders:

17 July 2024

Decision date:

17 July 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

See paragraph [244] for orders

Catchwords:

TORTS – intentional torts – multiple claims by plaintiff based on actions of police officers in the discharge of their duties responding to provocative antisocial conduct of plaintiff – claim by social activist plaintiff seeking compensatory aggravated and exemplary damages – allegations of trespass to goods (plaintiff’s unattended motor vehicle deliberately causing nuisance and obstruction to traffic and towed away on two occasions) – claims of trespass to land, assault, false imprisonment, breach of privacy, misfeasance in public office, and breach of Article 17 of International Convention on Civil and Political Rights (police officers lawfully attended plaintiff’s property to speak with her about her motor vehicle repeatedly causing obstructed access to building works at a nearby school) – brief period of trespass to land conceded by defendant when implied licence for police officers to enter plaintiff’s land for the lawful purpose of abating a public nuisance was terminated when plaintiff requested police officers to leave her premises

DAMAGES – significance of plaintiff’s antecedent provocative conduct – conceded brief period of trespass to plaintiff’s land by police officers was trifling in nature – application of doctrine de minimis non curat lex – nominal damages assessed at $1.00

COSTS – appropriate order for costs to be determined after hearing from the parties where plaintiff’s claims were substantially unsuccessful and only nominal damages awarded

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56 and s 98

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

Crown Proceedings Act1988 (NSW), s 5

Evidence Act1995 (NSW), s 29, s 56 and s 136

International Convention on Civil and Political Rights, Article 17

Law Reform (Vicarious Liability) Act1983 (NSW)

Road Transport General Regulation2013 (NSW), cl 39

Uniform Civil Procedure Rules 2005 (NSW), r 23.1, r 23.2 and r 24.2.

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Barton v Armstrong [1969] 2 NSWR 451

Bobolas v Waverley Council [2016] NSWCA 139

Bradley v The Commonwealth (1973) 128 CLR 557; [1973] HCA 34

Chow Hung Ching v R (1948) 77 CLR 449

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Dietrich v R (1972) 177 CLR 292; [1972] HCA 57

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

Glen v Sullivan [2015] NSWCA 191

JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 A.C. 418

John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364

Kioa v West (1985) 159 CLR 550

Koowarta v Bjelke-Petersen (1982) 153 CLR 168

Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822

Latoudisv Casey(1990) 170 CLR 534; [1990] HCA 59

Mahenthirasav State Rail Authority of NSW(No 2) (2008) 72 NSWLR 73; [2008] NSWCA 201

McHale v Watson (1964) 111 CLR 384

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation [1970] HCA 51; (1970) 122 CLR 13

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Northern Territory v Mengel (1995) 185 CLR 307

Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59

Oshlackv Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Rajski v Scitec Corporation Pty Ltd (New South Wales Court of Appeal, 16 June 1986, unreported)

Romani v State of New South Wales [2023] NSWSC 49

Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45

Pargiter v Alexander (1995) 5 Tas R 158; [1995] TASSC 62

Sahade v Bischoff [2015] NSWCA 418

Simsek v Macphee (1982) 148 CLR 636; [1982] HCA 7

Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14

Stanley v Powell [1891] 1 QB 86

State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

State of New South Wales v McMaster [2015] NSWCA 228

SzeTuv Lowe(No 2) [2015] NSWCA 91

TCN Channel Nine Pty Limited v Anning (2002) 54 NSWLR 333

Thomas v National Union of Mineworkers [1986] Ch 20

Venning v Chin (1974) 10 SASR 299

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Williams v The Queen (1978) 140 CLR 591; [1978] HCA 49

Texts Cited:

Balkin and Davis, Law of Torts, 3^rd Ed
Fleming, Law of Torts, 10^th Ed

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
Plaintiff appearing in person
Mr N Newton (Defendant)
Mr M Burns, solicitor (Intervenor seeking leave to set aside a subpoena)

Solicitors:
Wotton + Kearney (Defendant)
McNally Jones Staff Lawyers (Intervenor seeking leave to set aside a subpoena)

File Number(s):

2022/00355036

Publication restriction:

None.
(Previous non-publication order made on 31 July 2023 revoked)

JUDGMENT

Table of Contents

Introduction and factual background	[1]-[13]
Revocation of non-publication order	[14]-[20]
Procedural matters	[21]-[55]
Plaintiff’s background circumstances	[56]-[75]
Evidence overview	[76]-[85]
Credit findings	[86]-[103]
Facts	[104]-[133]
Consideration and determination of plaintiff’s claims	[134]-[226]
• Claim of trespass to goods on 17 September 2019	[135]-[145]
• Claim of trespass to land on 21 September 2019	[146]-[179]
• Claim of non-battery assault on 21 September 2019	[180]-[195]
• Claim of false imprisonment on 21 September 2019	[196]-[205]
• Claim of alleged breach of privacy	[206]-[210]
• Claim of misfeasance of public office	[211]-[221]
• Claim of breach of Article 17 of International Covenant on Civil and Political Rights	[222]-[225]
• Conclusions on tort claims	[226]
Damages	[227]-[238]
Disposition	[239]
Costs	[240]-[243]
Orders	[244]

Introduction and factual background

1. The dispute in this case arises from the self-represented plaintiff’s deliberate conduct on 17 and 21 September 2019 in the course of her pursuit of an agenda of provocative passive aggressive activism where her actions caused a public nuisance. Those circumstances led to the police issuing two parking infringement notices to which she has taken umbrage.

2. On both of those occasions the plaintiff believed she was entitled to leave her motor vehicle parked in a position in a public place obstructing vehicular traffic. Her vehicle was left parked across and obstructing a gateway and school access point for substantial ongoing building works located at the northern end of a cul-de-sac in Albert Street Belmont, New South Wales. Those events required interventions by police officers.

3. The plaintiff’s claim of an entitlement to leave her vehicle in the position of obstruction, which attracted police attention, was founded upon her strongly held social justice rights viewpoint (T43.36), and her belief that the area in question, which was not her property, was not a road, but was instead, a “road-related area” on “private property”: T53.2.

4. On each of those occasions, the plaintiff had deliberately left her vehicle parked in a position of public nuisance blocking a vehicular entry and exit gate point where major building works were being undertaken at Belmont High School. That site access point had, for some months beforehand, been regularly used by vehicles associated with construction and school activity.

5. The plaintiff lives in a nearby street to that school. For some months beforehand, she and other neighbourhood activists of like mind had been taking exception to the practice of the drivers of heavily laden construction vehicles using that access point for building works. On the two dates in question, she left her vehicle in a parked position of obstruction as a demonstrative means by which to pursue an agenda of neighbourhood vigilantism by civil protest.

6. A relevant background factor to those events was the plaintiff’s belief and related concerns that there had been a 3-year history of heavily laden vehicles using the area, apparently contrary to an applicable 5-tonne load limit: T43.42.

7. The plaintiff, who at an early stage of the proceedings stated, without supporting explanatory medical evidence at that time, that she has longstanding mental health issues, said that at the time of the events in question, she had been self-medicating with alcohol to a dangerous degree: T48.37.

8. The plaintiff now brings this tort claim against the State of New South Wales in respect of police responses to the manner and place in which her vehicle was parked. Her claim involves seven individual elements of tort, for which she seeks compensatory, aggravated, and exemplary damages.

9. Those allegations comprise two claims of trespass to her goods, and claims of trespass to her land, trespass to her person in the form of a non-battery assault, false imprisonment, misfeasance in public office, breach of privacy, and breach of Article 17 of the International Convention on Civil and Political Rights.

10. The State of New South Wales is named as the defendant pursuant to the provisions of the Law Reform (Vicarious Liability) Act1983 (NSW) and s 5 of the Crown Proceedings Act1988 (NSW).

11. The defendant maintains its denials of all aspects of the plaintiff’s claims except for a conceded relatively short period comprising a few minutes of trespass on her property on 21 September 2019. That trespass arose after the plaintiff asked two police officers to leave her property after she became aware of their presence.

12. Beforehand, those police officers had attended the plaintiff’s property for a lawful purpose to seek to discuss with her the position of her parked vehicle which was causing a public nuisance by obstructing vehicular traffic.

13. The defendant concedes that when the plaintiff asked the police officers to leave her premises, her demand effectively terminated any implied licence those police officers had for entering her property. The police officers left her property relatively promptly after experiencing a lack of success in seeking to engage the plaintiff in meaningful discussion about her parked motor vehicle.

Revocation of non-publication order

14. During the hearing a question arose as to whether the non-publication and pseudonym order made on 31 July 2023 was justified.

15. Prior to the hearing, at an interlocutory listing in Newcastle on 31 July 2023, with the consent of the defendant, the plaintiff sought and was given interim leave to proceed using her chosen pseudonym of Eva Williams. The justification proffered for that order was her claim, made without supporting evidence, that she had a longstanding PTSD condition: Courts Suppression and Non-publication Orders Act, 2010 (NSW), s10.

16. Following the issue of a show cause notice requiring the plaintiff to show cause why the interim leave previously granted for her to use a litigation pseudonym should not be revoked, that order was revoked at the conclusion of the evidence.

17. Prior to that revocation order, the plaintiff had not proffered any cogent reasons or satisfactory evidence for establishing the existence of sufficient circumstances to support the continuation of the non-publication order. She was unable to satisfy the basic statutory requirements that would otherwise justify the making of such an order in final form: s 7 of that Act.

18. In that regard, I considered that the interests of open justice substantially outweighed the plaintiff’s subjectively stated concerns over her privacy. In this context, there is an obvious and fundamental inconsistency between the plaintiff’s pursuit of an agenda of public social activism, including through litigation, whilst also seeking to maintain her anonymity in respect of her actions as a public activist.

19. Accordingly, the non-publication order made on 31 July 2023 was revoked on 26 April 2024: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales [2024] NSWDC 135, at [56]-[62]. These reasons assume familiarity with that decision and both decisions should be read together in conjunction.

20. From 31 July 2024, the plaintiff has been referred to by her proffered legal name, Eedra Zey.

Procedural matters

21. Regrettably, 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. A summary of those unfortunate events now follows.

29 February 2024

22. At the end of the fourth day of the hearing, in Newcastle on 29 February 2024, an unexpected interruption occurred when the plaintiff failed to return to Court to continue her evidence.

23. Those circumstances occurred after the plaintiff had sought time out to see a medical practitioner. At that stage, the defendant had concluded its cross-examination of the plaintiff, and she was yet to indicate whether she would be pursuing re-examination in relation to that cross-examination and call further evidence, either in her case, or in reply.

24. On that afternoon, in the plaintiff’s absence from Court, but plainly at her request, Dr Erica Rowley, a general medical practitioner whom she had consulted emailed a copy of a typed medical certificate to the Court: Exhibit “F”. It was in very brief terms, stating, without explanatory diagnostic detail, that the plaintiff’s mental health issues, which were not specifically identified in that letter, had been exacerbated by the hearing of her case. The letter stated that the plaintiff was unfit to give evidence on the following day.

25. In terms of reliability, that certificate was problematic due to a lack of relevant and specific explanatory detail: Bobolas v Waverley Council [2016] NSWCA 139, at [219] – [232].

1 March 2024

26. The medical certificate sent by the plaintiff’s doctor on 29 February 2024 only referred to the plaintiff’s unfitness to give evidence on the scheduled fifth day of the hearing, namely, on 1 March 2024: Exhibit “E”.

27. In the plaintiff’s absence on the fifth day, the hearing was necessarily adjourned, with orders made for it to be continued in Sydney, 7 days later, on 7 March 2024, with notice to be provided to the plaintiff.

28. That order was necessary as the allocated hearing time on circuit in Newcastle had expired, in circumstances where another Court was rostered to sit in that Newcastle courtroom for the following week and no other courtrooms were available after 1 March 2024 due to prior rostering arrangements.

29. Appropriate AVL arrangements were therefore made to enable the plaintiff to participate at a resumed hearing on 7 March 2024. That arrangement was made because the plaintiff had earlier claimed, without supporting evidence that her PTSD condition prevented her from travelling to Sydney.

7 March 2024

30. On 7 March 2024, despite the plaintiff having been given notice of the continuation of the hearing in Sydney, she failed to appear at the pre-arranged location at Newcastle Court House where AVL facilities had been made available for her. On that day the Registry in Newcastle had tried to contact the plaintiff to no avail. This resulted in a costly waste of public resources.

31. In those unexplained circumstances, in order to salvage what could be salvaged reasonably in terms of court time, the defendant pressed ahead and called evidence-in-chief from Senior Constable Edwards.

32. That course was taken on the understanding that, in the interests of expedient efficiency with due regard to procedural fairness in those unusual circumstances, the plaintiff would receive a copy of the transcript of that day’s proceedings. Her right on resumption for re-examination in respect of her own evidence, her right to raise objections if any, and her right to cross-examine Senior Constable Edwards, remained unaffected. Senior Constable Edwards was called to give evidence because the defendant, well beyond the obligations of a model litigant, had earlier given an undertaking to the plaintiff that it would do so.

33. At the conclusion of the evidence on 7 March 2024, facilitative orders were made for the service of the transcript and relevant notices on the plaintiff. At the request of the defendant an order was made for the issue of a short-notice subpoena to Dr Erica Rowley, who had provided the plaintiff with medical certificate dated 29 February 2024: Exhibit “F”. The defendant’s subpoena sought copies of Dr Rowley’s consultation notes with the plaintiff on that date. An order was made for the plaintiff to be notified of the resumed date for hearing fixed for 15 March 2024.

11 March 2024

34. On 11 March 2024, pursuant to an order by the Court, the Registrar arranged for service of a letter on the plaintiff informing her of the above orders, including a notice that she show cause as to why the interim non-publication order made by consent on 31 July 2024 should not be revoked in the interest of open justice. That notification was sent to the plaintiff by the Registrar by email at 4:01pm on 11 March 2024 to the email address from which the plaintiff had hitherto and since been communicating.

35. On the same day, at 4:07pm, the plaintiff left a telephone message with the Registrar to the effect that her “doctors” had “recommended” that she be required to receive any correspondence in this matter “as per her postal address” as notified on JusticeLink, and that she had been “advised … not to use email”.

36. At no stage was there any medical evidence put forward by the plaintiff to justify or support a rational foundation for those recommendations or suggestions.

37. In those circumstances, to preserve the adjourned hearing date fixed for 15 March 2024, the Sherriff was requested to serve a copy of the Registrar’s letter to the plaintiff dated 11 March 2024 setting out the orders made on 8 March 2024.

38. This was in circumstances where an order had already been made for the plaintiff to be provided with a copy of the transcript of proceedings that had taken place in her unexplained absence on that date. It is noted that the defendant had complied with that order in a timely manner.

15 March 2024

39. On 15 March 2024, again the plaintiff did not appear. Her medical records were in part produced by Dr Rowley in compliance with a subpoena. These were tendered and marked Exhibit “F” with a limiting order made pursuant to s 136 of the Evidence Act 1995 (NSW). Those records showed, inter alia, that there was a record of the plaintiff having PTSD, anxiety, and depression, and was prescribed psychotropic medication.

40. In those circumstances, after discussions concerning procedural options, the defendant elected to proceed to have the plaintiff medically examined to determine whether she had the capacity to continue her litigation to conclusion: UCPR r 23.1 and r 23.2. The proceedings were then stood over to 22 March 2024 for further directions and hearing, with facilitative orders. The plaintiff’s non-appearance on this occasion, for a third time, resulted in a further costly waste of public resources.

22 March 2024

41. On 22 March 2024, again without explanation, for a fourth time, the plaintiff did not appear. Beforehand, the defendant had served a notice on the plaintiff requiring her to attend a medical examination appointed for 21 March 2024 with a psychiatrist, Dr Doron Samuell. The plaintiff failed to attend that examination. The object of that examination was to ascertain whether there was any medical impediment preventing the plaintiff from attending to the remaining steps required to conclude the litigation she had commenced.

41. As a consequence of the plaintiff’s non-attendance at the appointed medical examination with Dr Samuell, absent any explanation from her, the defendant was given leave to file a notice of motion instanter, with supporting affidavits, seeking an order that the plaintiff attend an alternative medical examination with Dr Alexey Sidorov, psychiatrist, appointed for 19 April 2024, by means of an AVL connection. An order ex parte was then made to that effect: UCPR, r 24.2. The hearing was then stood over to be resumed on 26 April 2024, and orders were made for the service of documents.

26 April 2024

43. On 26 April 2024, the plaintiff failed to appear despite the fact that AVL facilities were made available to her at Newcastle courthouse. She had informed the solicitor for the defendant that she would not appear. The circumstances are more fully set out in my reasons delivered on 26 April 2024, which dismissed a notice of motion filed by the plaintiff on 22 April 2024 in which, inter alia, she sought a stay of proceedings. A series of 13 facilitative orders, including case management orders, were made on that occasion: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales [2024] NSWDC 135, at [89].

44. In light of the plaintiff’s veiled reference in her materials to bias and pre-judgment, one of those orders required that if the plaintiff wished to make an application for judicial recusal in the part heard proceedings she should do so formally, by filing a notice of motion with supporting affidavit evidence articulating the basis for such application within 7 days of 26 April 2024, that is, by 3 May 2024: Eedra Zey (formerly using the litigation pseudonym Eva Williams) v State of New South Wales [2024] NSWDC 135, at [89](1).

17 May 2024

45. On 17 May 2024, the plaintiff again failed to appear despite AVL facilities having been made available at Newcastle courthouse. In those circumstances, on the basis of the content of the affidavit of the defendant’s solicitor, Ms Alicia Dodd, affirmed on that date, I was satisfied that the plaintiff was sufficiently made aware of the need for her to attend on that date.

46. The content of that affidavit included the terms of the plaintiff’s expletive laden reaction on 9 May 2024 on learning that her litigation pseudonym had been revoked. It also cited some ad hominem remarks from the plaintiff that appeared in an email she sent on 16 May 2024, in which she expressed some opinions on matters concerning her access to justice as a self-represented litigant.

47. Those remarks were in the form of a reactive vituperative outburst commenting on the reasons for judgment delivered on 26 April 2024 by which her motion for a stay of proceedings was dismissed and her litigation pseudonym was revoked.

48. Those reasons for decision, at paragraph [89], set out a series of 13 timetabled case management orders essentially directed to the plaintiff concerning her obligation to advance her litigation to finality. The circumstances mandated that a practical course was required to be taken. At that time, it was observed that she appeared to have abandoned her litigation. In those circumstances, the defendant was permitted to proceed to present its final submissions in the plaintiff’s absence on the understanding that the plaintiff would be provided with a copy of those submissions and would have a right to file written submissions in reply.

49. The option of proceeding by way of written submissions was taken in view of the apparent futility of fixing another date for hearing, given the unlikelihood of her attendance, based on her non-engagement with her case since the afternoon of 29 February 2024. In those circumstances, a date for any submissions by the plaintiff in reply was fixed for 31 May 2024.

50. The administrative correspondence on the Court file incorporating an affidavit of service by Sherriff Officer Stephen David Andrews provided satisfactory evidence that the plaintiff had been made aware of the facility for her to file her submissions if she was so minded. If no such submissions were filed by 31 May 2024, judgment was to be taken to have been reserved.

7 June 2024

51. On 7 June 2024, the plaintiff again failed to appear despite AVL facilities having been made available for her to appear at Newcastle courthouse. The purpose of this listing was twofold.

52. The first was to inform the parties that the time for submissions had closed on 31 July 2024 in accordance with orders made on 17 May 2024, and secondly, to inform the parties that the delivery of judgment would be delayed pending the resolution of a complaint made by the plaintiff to the Judicial Commission of NSW on 13 May 2024, which was received by the Court on 23 May 2024.

53. As occurred on other occasions when the plaintiff did not appear, on 7 June 2024 a direction was made that a transcript of that listing be taken out and served on the plaintiff. The affidavit of Ms Alicia Dodd affirmed on 18 June 2024 provided satisfactory evidence that the solicitor for the defendant has complied with that order.

54. On 15 July 2024, absent an application for judicial recusal, and absent progress of the plaintiff’s complaint to the Judicial Commission, pursuant to the requirement of timeliness embedded within s 56 of the Civil Procedure Act (NSW) 2005, after due reflection, the parties were informed that judgment would be delivered in these proceedings today as I consider that the plaintiff’s outstanding complaint to the Judicial Commission pending the delivery of a reserved judgment would have no bearing on the outcome of the proceedings, and there is a concurrent obligation for the timely delivery of judgment once finalised. There was no justification for continuing to reserve judgment, escrow-like, pending the outcome of that complaint.

55. Accordingly, as occurred on previous listings, administrative arrangements were made for the plaintiff to appear at the time of delivery of judgment by means of an AVL connection from the courthouse at Newcastle in the event that she wished to do so.

Plaintiff’s background circumstances

56. At this point it is relevant to say something of the plaintiff’s background circumstances.

57. She is presently aged 63 years. Her listed occupation is farm manager. She has a number of advanced tertiary qualifications in a variety of fields. According to a copy of her tendered LinkedIn page, between 2009 and 2012, she had been enrolled in legal studies at Sydney University. It appears that she has not completed those studies.

58. The plaintiff recounted a history of having beforehand been successfully involved in business and professional life, including farming and cattle breeding, until she became the alleged victim of fraud and defalcation which she claimed was perpetrated by a former business partner. She claimed that this resulted in her becoming impecunious and homeless for a period of 10 years. The evidence suggests that the plaintiff’s evidence of her period of homelessness involved something of an overstatement as she had held the property in which she presently resides.

59. Without cogent supporting evidence, the plaintiff said she had a history of anxiety and other traumas which has made her hypervigilant, even whilst in her home.

60. The plaintiff has been involved in other litigation. She was successful in defending a case of alleged parking infringement in the Local Court concerning her decision to park in the area in question in this case: T104.36. She seems to have taken the view that such success warranted the commencement of these proceedings. She is presently also engaged in litigation with a bank over a tort claim in which she alleges a substantial loss of her funds, where she alleges her funds had been accessed without entitlement by her former business partner: T47.49.

61. It became apparent from the cross-examination phase of the plaintiff’s evidence that she has been something of an activist, championing causes to test boundaries concerning the rights of individuals in society on a number of issues.

62. Since 2009, the plaintiff has been the holder of the trademark called “Barking Mad”: T173.17. At the time of the events in question she was part of a neighbourhood residents action group called “Bad Rags”: T103.27; T184.32.

63. In the background to the events in question in this case, it seems that latter 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 an ongoing issue concerning the phenomenon of barking dogs in her area: T103.30.

64. At the time of the events in question, the plaintiff resided in premises which she has variously described as a Garden Fortress (T109.36; T112.49), a castle (Exhibit “A”, Tab HI, p 35), and a secure private compound: T109.40. She had designed and built those premises in such a way that restricted views into her premises from outside. Plainly, she placed high value on her privacy and her security: T163.18.

65. The plaintiff said that she had also designed her home space with emphasis on acoustic and visual privacy, with space for her feline companions, a dog, and habitats for birds, bugs, and reptiles: T109.39.

66. Access to the plaintiff’s premises was restricted by barred gated access at multiple points with multiple signage displayed in bold lettering at various points of approach, variously stating: “NO ENTRY” and “PRIVATE”: Exhibit “A”. Tab HI, pp 31-32. Those signs were located on a latched gate on the plaintiff’s property in the terms displayed in the photograph copied below:

[Exhibit “A”, Tab HI, p 32]

67. The plaintiff described her premises as having been locked at the time of police entry on 21 September 2019. Misleadingly in my view, she described the locks on her premises to have been broken in the course of entry by police officers, where entry was obtained by simply opening a latch on a gate. She repeatedly described the event as a break-in: T59.11; T62.3; T115.49; T119.42; T143.18.

68. A dispute arose as to whether a “No Trespassing” sign had been on display at the plaintiff’s premises on 21 September 2019 when the police officers entered. The above extract and the following extract from Exhibit “A” shows something of the displayed signage on the plaintiff’s property:

[Exhibit “A”, Tab HI, p 32]

69. Contrary to the evidence of the plaintiff, there was no objective evidence to suggest that any “no trespassing” signs were displayed on the plaintiff’s property on 21 September 2024.

70. The plaintiff stated, without supporting medical evidence, that she has a long-standing history of PTSD: T96.46; T120.7. She describes herself as a victim of crime in receipt of victim support services. She gave a description of a past assault as the underlying basis for feeling traumatised by the presence of the police officers at her premises: T148.31-T148.43,

71. It later transpired that in 2016, the plaintiff was identified in correspondence from a counsellor as having carried a heavy burden of PTSD symptoms for some considerable time: Exhibit “A”, Tab C, p 8. The qualifications of that counsellor to identify a medical diagnosis of PTSD was not apparent. Later, that question was in part resolved, when on Day 8, the records produced by the plaintiff’s general practitioner contained a note comprising a medical record of the plaintiff’s history of PTSD, anxiety and depression: Exhibit “F”.

72. The precise origins of the plaintiff’s mental health issues remain unclear. The plaintiff claimed that in 2008, as a result of an incident in which a police officer allegedly kicked her feet out from under her, she said she had fallen backwards and hit her head and suffered an acquired brain injury. She stated that as a result of that incident, she has issues with sequencing: T66.42 – T67.18. There was no medical evidence introduced to independently support her evidence in that regard. She stated that about two months after that described event, she had had received a police apology for that occurrence. She said that no litigation ensued from those events.

73. Given my credit findings which will shortly be identified and noting that in parts of her evidence the plaintiff has exaggerated and resorted to hyperbole, I consider that her evidence about her health issues should be viewed with caution absent objective corroborative evidence.

74. The question of the plaintiff’s previous mental health status assumes some relevance in this case because of her repeated references to the well-recognised legal principle that the defendant must take her as she is found: T148.19-T148.25; T150.16. In that regard, it was incumbent upon her to provide medical evidence of her baseline condition which existed prior to the alleged effects of the events of 17 and 21 September 2019.

75. The plaintiff moved into her present premises in 2019. In the months that preceded the events which led to these proceedings she had a history of dispute with building contractors engaged in carrying out works at nearby Belmont High School and the with local council concerning noise and frequent heavy vehicle movements in her locality. Plainly, she had taken umbrage over those matters: T184.5 – T184.1. That attitude appears to have influenced the sub-stratum events that have led to these proceedings.

Evidence overview

76. The plaintiff was the only witness who gave oral evidence in her case. Acting on an apparent misapprehension of the dynamics of this type of litigation, the plaintiff stated that she had hoped to cross-examine police witnesses to gain admissions on some issues. Her misapprehension was that there was no guarantee all of those witnesses would be called in the defence case.

77. The plaintiff’s self-representation caused obvious problems with regard to the presentation of her evidence. To assist her, at the commencement of the hearing, a facilitative order was made permitting her to give her evidence in narrative form: s 29(2) of the Evidence Act 1995 (NSW).

78. That course ultimately proved problematic as the plaintiff was resolutely intent on reading her evidence in an inappropriate manner from a pre-prepared format on her lap-top computer. In an endeavour to overcome emergent objectionable difficulties, a series of prompt questions were directed at the plaintiff with the aim of assisting her to give spontaneous evidence on specific topics of apparent relevance to her claim. That process ultimately became untenable when the plaintiff indicated she could not proceed.

79. In order to overcome those difficulties, with s 56 of the Civil Procedure Act 2005 (NSW) being the focus, with the consent of the defendant, the plaintiff was allowed to give her evidence by referring to a 35-page pre-prepared statement that comprised an admixture of contended fact, legislative and allied references, opinions, and argument. This was on the understanding that this evidence would ultimately be sifted for relevance at the conclusion of the case when making relevant findings; MFI “4”; T106.29.

80. The plaintiff said she had intended to adduce oral evidence from Senior Constable Craig Thomas by means of cross-examination. He was the police officer concerned with the events of 17 September 2019. The defendant indicated Senior Constable Thomas would not be called to give evidence in the defence case. It was indicated that he was in the process of undergoing a medical discharge from the Police Force on account of a longstanding work-related PTSD condition.

81. Consequently, the plaintiff’s subpoena issued by leave at short notice requiring Senior Constable Thomas to attend to give evidence, issued at the commencement of the hearing at the plaintiff’s request, was, on the application of Senior Constable Thomas, by his solicitor, Mr Burns, ultimately set aside. This occurred on the second day of the hearing after compelling and undisputed medical evidence was presented on his behalf by his solicitor, indicating he was medically unfit to give evidence.

82. The plaintiff had also intended to adduce oral evidence from Senior Constable Glen Townsend who was also subpoenaed to attend and give evidence at the hearing concerning the events of 21 September 2019. The evidence of substituted service of a late issued subpoena issued by leave was equivocal in nature. Ultimately, no formal application was made to enforce that subpoena and Senior Constable Townsend did not attend to give evidence.

83. The plaintiff produced a Court Book; MFI “1”, Tabs A to Z, pp 1-107. Some of the content comprised irrelevant material which was not admitted into evidence: s 56 of the Evidence Act1995 (NSW). Much of the excluded material was in the nature of submissions and it was ultimately viewed in that light. The balance of the plaintiff’s Court Book was marked Exhibit “A”.

84. In the defence case, oral evidence was given by Senior Constable Edwards who described the basis for police entry on the plaintiff’s property on 21 September 2019 as being an endeavour to sort out the problem of her parked vehicle causing an obstruction to traffic. He also gave evidence as to the manner in which police entry to her property was obtained. Ultimately, the plaintiff did not seek to cross-examine Senior Constable Edwards.

85. The defendant produced a comprehensive Court Book: Exhibit ‘1’, Tabs 1-26, pp 1-160. Those materials included audio-visual recordings and related transcripts prepared from police body worn videos, police COPS event records, photographs, police note book entries, towing authorisations, copies of police policy manuals, affidavits, and relevant correspondence.

Credit findings

86. In view of the plaintiff’s self-representation, she was given significant procedural leeway. Allowances were made to enable her to present her oral evidence, including allowances that took into account her claimed history of significant mental health issues.

87. The plaintiff sought to invoke a decision which was said to be authority for the proposition that the Court should assist her, but in doing so she misdescribed the effect of an important limiting aspect of the decision in that case: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36.

88. In that case, at [47], the High Court unanimously adopted with approval, the remarks of Samuels JA in Rajski v Scitec Corporation Pty Ltd (New South Wales Court of Appeal, 16 June 1986, unreported) at 27, namely:

“… the absence of legal representation on one side ought not to induce a 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.”

89. In my assessment, the evidence and the circumstances described in the evidence did not reveal any proper exceptions to justify further significant departures from adherence to the rules that apply to all litigants in such circumstances.

90. As to the specific issue of the plaintiff’s credit as a witness, for a confluence of reasons, I found her to be an avoidant and unsatisfactory witness on critical matters in dispute.

91. In the plaintiff’s evidence in chief, and during cross-examination, she frequently diverted and digressed from the issues and introduced distractions and non-issues and referred to irrelevant matters. She sought to deflect questions that seemed inconvenient to her case. She persisted with that attitude despite instruction to the contrary. On a number of occasions she was informed that her focus and her approach to answering questions was not assisting her case: T43.22; T146.13-T146.27; T203.27; T229.8; T229.12.

92. At times the plaintiff was querulent (T169.2; T169.15), she sought to reframe questions that had been asked of her in order so as to better suit her agenda. She demonstrated a marked reluctance to make fair concessions when answering questions put to her in cross-examination when such concessions were due. At times her answers were evasive and avoidant, requiring that the audio recording of questions be played back, and repeated to her in order that she address them and provide proper answers. At times she insisted on giving over-inclusive answers which involved irrelevancies. At times she sought to make submissions in the course of her evidence. On one occasion she resorted to gratuitous hyperbole, stating that the duty of police officers was not to act as criminals: T119.34.

89. In combination, those matters operated as a significant source of delay in the completion of her evidence at the trial.

90. When the plaintiff’s evidence of a claimed history of a decade of homelessness was explored it became evident that she had significantly exaggerated her evidence in that regard. It transpired that in the period in question she owned a house on the land where she presently lives, and she was building her fortress as she described it, on that land, although at times she slept in her car and couch surfed at the homes of others.

91. The plaintiff sought to exaggerate in giving evidence of her descriptions of police officers entering her property, describing the event as a break-in (T59.11; T62.3; T110.12; T115.49; T119.42; T143.18), when she had no direct knowledge of how they had entered her land (T112.25 – T112.33; T112.48). Despite her evidence that a lock on her premises had been broken, her premises were undamaged: T113.3. The plaintiff sought to mischaracterise the police entry onto her land as being abuse on their part.

92. When the plaintiff was questioned about her verbal exchanges with police officers on her property her attention was drawn to a portion of the transcribed audio where she asserted to the police officers that they had ignored the significance of a no trespassing sign on her property.

93. On my review of the evidence, there was no objective evidence of the existence of any no trespassing signs on the plaintiff’s property at the relevant time. When this was explored, she claimed there was such signage: T113.42. She was asked to explain but did not answer why she had not photographed such signage along with the other photographs she had introduced into evidence. Her answer did not address the question and rambled into irrelevant and distracting content: T144.28 -T144.40.

94. I found the plaintiff’s answers in that regard to be dissembling, unconvincing, and indicative of a willingness to answer questions in a way that best suited her case irrespective of the true facts.

95. The plaintiff resorted to grandiosity by seeking to characterise the actions of police officers whilst on the property on 21 September 2019 as being abusive to her, as a female who was alone, and contrary to the oath taken by them: T145.19.

96. From the outset of the events on 21 September 2019, the plaintiff sought to portray an exaggerated account of the actions of the police officers: Exhibit “4”. Immediately after the police officers left her property, she rang the police assistance line on that day and asserted that persons had broken into her property without identifying them as police officers, falsely stating that they had broken her gate lock and falsely claiming in an overdramatised manner that those persons were “slamming” on her door. At that time, she refused to engage truthfully with the telephone operator on the police assistance line when she obviously knew those persons were police officers.

97. In furtherance of that attitude, in her oral evidence, the plaintiff gave objectively incorrect and melodramatic evidence that the police officers had been abusive to her whilst they were at her premises: T247.38. That much is evident from the audio-visual evidence tendered in the proceedings.

98. As a result of those matters, individually and in combination, I found the plaintiff to be an unsatisfactory witness on factual matters in dispute in this case.

99. No adverse credit findings arise from the evidence of Senior Constable Edwards or from any of the documents generated by police officers following their dealings with the plaintiff.

Facts

104. In an endeavour to save time in a case that proved to be proceeding very slowly and taking significantly more than the estimated time, in the interests of clarity, the parties were invited to prepare a list of facts not in dispute: Exhibit “D”.

105. The factual summary which appears in the paragraphs that follow draws upon Exhibit “D” as was initially prepared by the defendant and then annotated by the plaintiff. Those facts are annotated to indicate the respective sources within Exhibit “D” and the transcript.

106. Prior to the events which have led to these proceedings, the plaintiff appears to have had longstanding mental health issues which were described as PTSD. No formal diagnostic opinion evidence was introduced to explain the origins or the extent of those problems.

107. The plaintiff gave vague evidence of a past history of an alleged assault; previous interactions with police, in which she said she sustained an acquired brain injury from a fall; business and financial losses due to alleged defalcations and embezzlement by a former business partner; and a period of homelessness. She also described having issues with self-medication using alcohol to excess. That history was not challenged or contradicted.

108. It appears that evidence was introduced by the plaintiff to develop her common law “talem qualem” argument (more commonly known as the egg shell skull concept), to the effect that the defendant must take her as she is found.

109. The plaintiff carried the onus of providing cogent evidence comprising satisfactory proof for any claim that any of her pre-existing issues of adverse health had been exacerbated by the alleged torts she claims: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4].

110. The plaintiff sought to portray the vibe that her previous adverse experiences in life apparently made her anxious and hypervigilant about her security, and this had led her to take an unusual approach to securing her premises from unwanted visitors, intruders, and from being viewed from the street.

111. Prior to the events of 19 and 21 September 2019, it appears from COPS events records that police had a general background understanding of the plaintiff’s role as a local activist but it was unlikely that anything was known of her specific past history of trauma, her pre-existing psychological problems, or her attitude of hypervigilance with regard to her property.

112. At all material times the plaintiff owned the property located at [street address redacted], Belmont. She was also the owner of a grey Subaru Impreza hatchback vehicle registration number [vehicle registration redacted]: Exhibit “D”, paragraph 1.

113. In September 2019, the plaintiff’s property consisted of a house at the front of her land, and a driveway on the left-hand side of that house. She also had another house at the rear of the block with a separate access from the driveway. The plaintiff resided in the house situated at the rear of the property: Exhibit “D”, paragraph 2.

114. In September 2019, Belmont High School was undergoing significant construction works and there were trucks travelling along Evans Street and then entering Albert Street before accessing the construction site as well as trucks exiting from the construction site at Albert Street: Exhibit “D”, paragraph 3.

115. The plaintiff and others in her neighbourhood were vigilantly concerned with the movement of those trucks as Evans Street was the subject of 5 tonne load limits: Exhibit “D”, paragraph 3.

116. The plaintiff’s concerns over heavy vehicles using Albert Street extended to her being involved with her neighbourhood community action group of activists who were prepared to provoke controversy with the local council, the local high school, and the drivers of heavy vehicles using the Albert Street access point to building works at the school site.

117. That activism behaviour extended to the plaintiff’s preparedness to use the physical mal-positioning of her parked vehicle in such way as to obstruct the access and egress of heavy vehicles to and from the school at a point adjacent to the Albert Street access and egress point.

118. On 17 September 2019, the plaintiff’s vehicle was left by her, parked on the roadway near the gates to the school, as appears in the copy photograph appearing below:

[Exhibit “1”, Tab 10, page 42]

119. On 17 September 2019, at 8.21am, Lake Macquarie Police received a complaint concerning the plaintiff’s vehicle. The police Computer Assisted Dispatch (CAD) records (Tab 9 of Ex1) recorded the following summary:

“INF IS FROM THE BELMONT COUNCIL RANGERS AND STATES THAT POI [name of plaintiff] HAS DELIBERATELY PARKED HER VEHICLE [vehicle registration redacted] ACROSS THE MAIN ENTRANCE TO BELMONT HIGH SCHOOL. VOI IS NOW STOPPING STAFF AND CONSTRUCTION WORKERS FROM ENTERING THE SCHOOL. POI LIVES AT [street address redacted] BELMONT. POLICE TO ASSIST.”

[Exhibit “D”, paragraph 4]   

120. From about 9.59am until about 11.27am on 17 September 2019, Senior Constable Craig Thomas responded to the complaint received by police, eventually arranging for the plaintiff’s car to be towed to a location outside 32 Albert Street. Senior Constable Thomas created COPS Event E75193067 (Exhibit “1”, Tab 10), about those events at about 11.46am on 17 September 2019, which states:

“Since Sunday 15th September 2019 a grey Subaru Impreza S/W registered number [vehicle registration redacted] has been parked across the driveway access to Belmont High School in Albert Street, Belmont. LMCC Rangers have attended a number of times as it is causing major obstruction into the Building site works for the $20 million revamp of Belmont High School. Rangers have spoken to the owner of the VOI who has aggressively abused Rangers about speaking to her. Rangers have consequently issued her a PIN for parking across driveway. The owner of the VOI [name of plaintiff] from [street address redacted] Belmont is deliberately parking across the driveway entrance to Belmont High School as a protest to trucks travelling up Evans Street to the work site. HWP Police have spoken to LM DI and have consequently towed the VOI away from the driveway and parked it outside 32 Albert Street. The DI has stated that they have had prior issues with the POI for other traffic matters in Evans Street.”

[Exhibit “D”, paragraph 5]

121. Senior Constable Thomas took 3 photographs which were attached to his COPS Event (Exhibit “1”, Tab 10), which show the position of the plaintiff’s car on Albert Street, Belmont: Exhibit “D”, paragraph 6.

122. On 21 September 2019, Lake Macquarie Police received a further parking complaint concerning the Plaintiff’s car with the Police’s Computer Assisted Dispatch (CAD) records (Exhibit “1”, Tab 11) recording:

“ON GOING ISSUE - MV [vehicle registration redacted] (NSW) GREY SUBURU IMPREZA PARKED BLOCKING THE DRIVEWAY ACCESS TO BELMONT HIGH SCHOOL. CONSTRUCTION WORKERS UNABLE TO SECURE THE SCHOOL DUE TO VEHICLE BLOCKING THE GATES. ATTENDING CREW TO CONTACT LM10 REGARDING A POSSIBLE TOW IF OWNER EEDRA ZEY REFUSES TO MOVE VEHICLE.”

[Exhibit “D”, paragraph 7]

123. On 21 September 2019, at approximately 11.39am, Senior Constable Edwards and Senior Constable Townsend attended at the plaintiff’s house. The evidence of what occurred at the plaintiff’s house is substantially captured on the plaintiff’s audio recording and on Senior Constable Edwards’ Body Worn Camera (BWV) video footage (Exhibit “1”, Tab 6). Based on an examination of the two recordings, the total time that Senior Constable Edwards and Senior Constable Townsend spent in the garden area of the plaintiff’s house was about 3 to 3 ½ minutes: Exhibit “D”, paragraph 8.

124. The audio recording by Senior Constable Edwards’ Body Worn Camera commences at the time he turned the camera on. There is also approximately 56 seconds of footage before the audio commences. This occurs automatically whenever the camera is turned on.

The transcript of the Body Worn Camera Audio (BMV) is as follows (Exhibit “1”, Tab 9, p 35):

11.39.42 - BWV starts

11.40.38 - BWV audio starts

11.40.39 - Senior Constable Edwards - Just to let you know I’m recording as well.

11.40.41 - Senior Constable Edwards - I need you to open the door so I can have a quick chat to you about your car that’s parked up the street there.

11.40.45 – Plaintiff - Get off my property.

11.40.47 - Senior Constable Edwards - Can you open the door for me please?

11.40.48 – Plaintiff - Get off my property.

11.40.50 - Senior Constable Edwards - Can you open the door please? Okay.

11.40.53 – Plaintiff - You have a no trespass sign, get off of my property.

11.40.55 - Senior Constable Edwards - Like on Tuesday, listen, like on Tuesday, your car is parked illegally in the driveway of the construction site, so you’ll be receiving an infringement notice and I’m gonna have to possibly get it towed again.

[Exhibit “D”, paragraph 9]

125. A transcript of the plaintiff’s audio, which was made at or about the same time as Edwards’ BWV is as follows (Exhibit “1”, Tab 8, p 35):

Plaintiff   You need to leave, you need to leave this property immediately, you are trespassing.

Plaintiff   You are aware that you are trespassing, so you need to leave.

Plaintiff   You need to get off of my property.

Edwards    Knocking

Plaintiff   You need to leave.

Plaintiff   You to leave now or I will use reasonable force to get you off my property.

Plaintiff   You need to leave now or I will use reasonable force to get you off my property.

Plaintiff   Get off my property.

Plaintiff   Get off my property.

Plaintiff   You broke in, you have a no trespass sign, get off of my property.

Plaintiff   Get off my property.

Plaintiff   Get off my property.

Plaintiff   I don’t understand what part of English you do not understand.

Plaintiff   Get off my property.

Plaintiff   Get off my property.

Plaintiff   You have no right to be here.

Edwards   knocking x 3

Sound of blinds being drawn.

[Exhibit “D”, paragraph 10]

126. The plaintiff disagreed with the proposition that the knocking described in the preceding extract occurred three times. In my view, the knocking was clearly audible on the recording. Nothing turns on her disagreement on that point. For the purpose of these proceedings, the plaintiff appears to have manipulated the two sets of recordings in some sort of attempt to synchronise them.

127. The defendant has submitted, correctly, that a close review of the recorded police body worn video footage demonstrates that:

1. The plaintiff was at all times located behind a locked glass door and the officers were on the other side of that door in her garden;

2. At all times, the two officers acted in a calm manner and were at no stage behaving in a threatening manner towards the plaintiff;

3. Initially, the two officers stood in front of and away from the plaintiff’s window in a position that was clearly visible to the plaintiff;

4. Senior Constable Edwards stepped forward and appeared to be listening to the plaintiff’s voice through the glass door and he then knocked on the glass door;

5. Senior Constable Townsend stood back in an observer position behind Senior Edwards;

6. Notwithstanding that the plaintiff claimed Senior Constable Edwards went to her side gate, that is not shown on the body worn footage. That footage shows Senior Constable briefly leaving the field of view of the camera a few seconds before returning into view. That footage also shows him and the plaintiff’s dog behaving in a friendly manner towards each other in the plaintiff’s garden.

128. It is clear from the contemporaneous audio recordings of the plaintiff’s voice that at the time the police were in her garden she was speaking assertively when she forcefully and with an air of authority told the police officers to leave: T253.45; T254.37. In speaking in that manner, she did not seem to have been fearful of them. She knew they were police officers. When she spoke to her friend Michelle shortly after they had left her premises it was plain that she knew they were police officers: T236.19 – T236.26; T237.22.

129. The plaintiff’s subsequent account of the events to the operator of the police assistance line as described in paragraph [100] above, was disingenuous.

130. After the fruitless efforts at seeking to engage with the plaintiff at her home as described above, the officers returned to the Albert Street location and observed that her vehicle was still parked in a position of obstruction preventing other vehicles from entering and leaving the school construction site and made the observation that the gates could not be closed to secure the site because of the position of her vehicle: T289.47-T289.49.

131. Senior Constable Edwards then contacted his superior officer, Acting Inspector Batley to seek advice and the Inspector then gave permission for the plaintiff’s vehicle to be towed away after photographs were taken of the obstruction: T 289.19-T289.27; T289.30.

132. Later, when the officers returned to the police station, Senior Constable Edwards prepared a COPS Event E75193067 (Exhibit “1”, Tab 12) in which he recorded the following:

“There has been ongoing issues with the VOI blocking access to the location and on the 17th of September the VOI was towed from the location so vehicles could enter and leave the site. Both Police and Council rangers were present.

At the above time and date Police were contacted about the VOI blocking the entry and exit driveway to the construction site at Belmont High School. The veh was parked across the driveway preventing any vehicle from entering or leaving.

Police attended the home address of the owner who refused to open her door to police and continually asked police to leave her property. Police made the owner aware that her vehicle was blocking access to the location and that it would be towed away at her cost if she did not remove it. The owner refused to acknowledge this and continued to tell police to leave.

Police left and returned to the location and contacted LM10 by phone where advice was given to have the VOI towed again from the location and taken to Fenwicks holding yard at Adamstown.

Police tried to contact the owner by phone but were unsuccessful. A Parking infringement was also issued to the owner.”

133. At the end of Senior Constable Edwards’ shift on 21 September 2019, Acting Inspector Batley made a note in the Lake Macquarie Police District Inspector’s Log, in the following terms:

“Another parking complaint was received from workers at Belmont High School relating to the car owned by [name of plaintiff]. The POI refused to move her car and refused to open her door when police went to her home. She told police to leave and was filming them on her iPad. I gave authority for the car to be towed away and it was taken back to the Towies holding yard. The owner has been refusing to pay the towies for the car being towed last week. Another parking ticket was issued. Event created and BWV worn during conversation with the POI.”

Consideration and determination of plaintiff’s claims

134. I now turn to the consideration of the seven individual elements which comprise the plaintiff’s particular claims against the defendant in the chronological sequence in which they arose, as follows.

First claim – 17 September 2019 – Claim of trespass to goods – Motor vehicle

135. The first of the plaintiff’s complaints arises from the events of 17 September 2019, when Senior Constable Thomas was called to attend the Albert Street site, where he was presented with the fact that the plaintiff’s vehicle had been left parked in a position on the roadway that was unreasonably obstructing the legitimate access and egress requirements of vehicles using the Albert Street gate at Belmont High School. The photograph of the obstruction taken by Senior Constable Thomas is reproduced below:

[Exhibit “1”, Tab 10, page 42]

136. In those circumstances, the plaintiff’s vehicle was not parked on a roadway close and parallel to a kerb. Instead, it was parked across a gate access in a position of obstruction to legitimate road users. Accordingly, the attending police officers were obliged, and duty bound, to clear the obstruction. After making relevant inquiries, this was achieved by police arranging for a contractor to move the vehicle in order to abate the obstruction impeding and disrupting normal vehicular activity at that site. It was the plaintiff’s deliberatively provocative conduct which caused the need for her vehicle to be moved and repositioned away from that point of obstruction.

136. The plaintiff submitted that the towing of her vehicle at the behest of police constituted a trespass to her goods. Significantly, there is no evidence that movement of the vehicle and the associated actions in repositioning it caused any compensable damage to her vehicle.

137. In contrast, the defendant submitted that the removal and repositioning of the plaintiff’s vehicle was an action lawfully undertaken at the request of police pursuant to cl 39 of the Road Transport General Regulation2013 (NSW), which provides as follows:

“39 When police officers may seize motor vehicles or trailers

(1) A police officer may seize and take charge of, and remove or tow away or cause to be removed or towed away, any motor vehicle or trailer:

(a)  that is a danger or unreasonable obstruction to traffic, or

(b)  that has been abandoned on a road, or

(c) that has been caused or permitted to be used contrary to law on any part of a road in which is conspicuously displayed a sign exhibiting or including the words “tow away area” or “vehicles impounded” or other words indicating that the vehicle is subject to seizure.

(2) Before seizing a motor vehicle or trailer, the police officer must:

(a)  if no person is in charge of the vehicle—make reasonable inquiry for the purpose of locating the responsible person for or driver of the vehicle, and

(b)  if on such inquiry the responsible person for or driver of the vehicle is located—request the responsible person for the vehicle or driver to remove the vehicle or cause it to be removed immediately and give the responsible person or driver a reasonable opportunity to comply with the request, and

(c)  if any person is in charge of the vehicle—request the person to remove the vehicle or cause it to be removed immediately and give the person a reasonable opportunity to comply with the request.

(3) The inquiry referred to in subclause (2) (a) must be made in the vicinity of the place where the vehicle is found. However, nothing in that paragraph authorises or requires a police officer to enter any building for the purpose of the inquiry.”

139. The site photographs taken by Senior Constable Thomas on 17 September 2019 and the subsequent contemporaneous COPS entry he made of the events of that day concerning the plaintiff’s vehicle, including reference to the reasonable enquiries he made about the plaintiff (who was not at the scene), satisfactorily demonstrate that he met the requirements of cl 39 as cited above.

140. In those circumstances, the police officers were obliged to deal with what was plainly a major obstruction to legitimate vehicular traffic using Albert Street where that obstruction was causing interference with access and egress in relation to the school construction site.

141. In those circumstances, the plaintiff’s vehicle was parked in a position that obviously straddled and blocked the access point to and from a public roadway. It was obviously blocking vehicular traffic. As such, this amounted to a public nuisance. The attending police officers made reasonable and appropriate inquiries at the scene as required by cl 39(2)(a) as cited above without result. They were therefore justified in having the plaintiff’s vehicle towed and moved away to abate that nuisance which was causing an unreasonable obstruction to legitimate traffic.

142. There is no dispute that the plaintiff’s vehicle was moved at the direction of the police officers. The plaintiff claims that action amounted to a trespass to her chattel.

143. The legal principles that apply in relation to trespass to chattels is succinctly summarised in Pargiter v Alexander (1995) 5 Tas R 158; [1995] TASSC 62 as follows:

“[8] Trespass to chattels is a wrong to possession (Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 224) committed by an act of the defendant and as a direct consequence thereof (Hutchins v Maughan [1947] Vic Law Rep 18; (1947) VLR 131) …

[9] Damages I trespass are by way of compensation for the injury done to the chattel by reason of the wilful interference with it, although nominal damages may be awarded where no actual damage occurs (Kirk v Gregory (1876) 1 Ex D 55) …”

144. In the first claimed instance of alleged trespass to her chattel the plaintiff was not deprived of the use of her vehicle in any material way and there was no reliable evidence to show that it had been damaged in any material way. Given that the officers had acted lawfully to abate a nuisance and no damage occurred, I decline to assess any damages in relation to that claimed trepass.

145. I find that the first element of claim by the plaintiff is defeated by the terms of cl 39(1)(a) of the Road Transport General Regulation2013 (NSW), and it must therefore fail.

Second claim – 21 September 2019 – Claim of trespass to land

146. The second element of the plaintiff’s claim, trespass to her land, is founded upon the events that occurred on the morning of Saturday 21 September 2019, which was a working day at the school construction site.

147. On that day, the plaintiff’s vehicle, to her knowledge, had been left parked in Albert Street in a manner that again obstructed access and egress to the school construction site, as is evident from the photograph taken at the time by Senior Constable Mark Edwards, as reproduced below:

[Exhibit “1”, Tab 12, page 53]

148. Senior Constable Edwards and Senior Constable Glenn Townsend were on general duties. When they were despatched to attend the site, from earlier inquiries they already knew the obstructing vehicle belonged to the plaintiff. This is evident from the content of the Lake Macquarie police station Computer Assisted Despatch record copied at Exhibit “1”, Tab 13, which is in the following terms:

“ON GOING ISSUE – MV [vehicle registration redacted] (NSW) GREY SUBARU IMPPREZA [sic] PARKED BLOCKING THE DRIVEWAY ACCESS TO BELMONT HIGH SCHOOL. CONSTRUCTION WORKERS UNABLE TO SECURE THE SCHOOL DUE TO VEHICLE BLOCKING THE GATES. ATTENDING CREW TO CONTACT LM10 REGARDING A POSSIBLE TOW IF OWNER EEDRA ZEY REFUSES TO MOVE VEHICLE”

149. When those officers arrived at the construction site, they observed the plaintiff’s vehicle in question parked in a position of obstruction to access and egress to and from the construction site at the end of the cul-de-sac of Albert Street. They established that the plaintiff owned the vehicle: T286.9; T286.17.

150. At the time, clearly, those police officers were cognisant of the requirements of cl 39 of the Road Transport General Regulation2013 (NSW) and they therefore took reasonable steps to contact the plaintiff to engage her in discussion about the obstructing position of her parked vehicle.

151. After unsuccessful attempts to contact the plaintiff to speak with her by telephone, reasonably, those police officers went to her home in order to seek to speak to her in person about the position of her parked vehicle. At the time they were wearing full police uniforms: Exhibit “D”; T 285.36 – T285.43.

152. At the time, neither of those police officers had any prior dealings with the plaintiff, and they did not know her. Senior Constable Edwards’ purpose in going to see the plaintiff was to ask her to move her vehicle to permit vehicular egress and access to and from the site and to enable the school construction site to be secured: Exhibit “D”; T286.25 -T286.27.

153. At about 11:39 am on 21 September 2019, those officers entered the plaintiff’s land by walking up an open driveway and through a gate which they had unlatched for that purpose.

154. As an ordinary incident of the social norms that apply in civil society, the police officers had an implied licence to enter upon the plaintiff’s land for the lawful purpose of knocking on her door to seek to communicate with her about the position in which her vehicle had been left parked in a position of nuisance and obstruction: Roy v O’Neill (2020) 272 CLR 291; [2020] HCA 45, at [11], [66].

155. To achieve that lawful purpose the police officers were entitled to use the available pathway or access route to the plaintiff’s front door in order to attend to their duties as police officers even if the plaintiff as occupier in possession may have found the visit of the police officers as being unwelcome. They were not there to interfere with the plaintiff’s property rights: Roy v O’Neill, supra, at [13], [15].

156. The tort of trespass to land is committed whenever there is an interference with possession of land without lawful authority, or relevant to the present case, where such interference occurs without the licence or consent of the person in possession of the land: TCN Channel Nine Pty Limited v Anning (2002) 54 NSWLR 333, at 339; [2002] NSWCA 82, at [23]; Romani v State of New South Wales [2023] NSWSC 49, at [38].

157. The plaintiff, as the owner of private property, retained the unquestionable fundamental right to at any stage exclude the police officers from her premises: Coco v The Queen (1994) 179 CLR 427, at 435-436; [1994] HCA 15, at [8], [14].

158. I accept the unchallenged evidence of Senior Constable Edwards that he had no recollection of the presence of anything that might have served to alert him to the fact that he was not permitted to enter the rear of the plaintiff’s property where her residence was located: T286.41-T286.48. At the time of police entry onto the plaintiff’s land, the police officers were not trespassing. I accept Senior Constable Edwards’ evidence that the police officers did not break anything when they entered the plaintiff’s premises: Exhibit “D”; T286.31.

159. I do not accept the plaintiff’s evidence that the gate in question was locked at that time. I find that the gate was simply held closed by means of a latch that was readily disengaged and opened without damage being caused in that process.

160. After the police officers passed through the gate they had unlatched and opened, they walked a distance of approximately 10 to 15 metres whereupon they activated their body worn cameras. The footage from Senior Constable Edwards’ camera was of about 2 minutes 40 seconds duration. During some of that time, the plaintiff had activated an audio recording of her iPad for about 1 minute 55 seconds. The plaintiff had subsequently obtained access to the police recording. I find that the principal source of the plaintiff’s knowledge of those events came from the recording made by Senior Constable Edwards: Exhibit “D”; T219.26.

161. When the police officers entered the plaintiff’s garden, her response to their presence was seemingly bizarre. She said that when she heard noise which indicated that the police officers had entered her premises, she saw that her gate had been breached (Exhibit “D4”; T 215.41), by which she meant that the gate was no longer locked (Exhibit “D4”; T 215.46), she fled from her garden and went inside. She said she put on some clothes, rang her friend Michelle, grabbed her iPad, and began to record the events. Overlapping those events, Senior Constable Edwards had activated his body worn camera to make an audio visual recording of the events: Exhibit “D4”; T 218.15 – T218.38.

162. The recording made by Senior Constable Edwards after he turned on his body worn camera has been transcribed: Exhibit “1”, Tab 8. That transcription appears at paragraph [124] above. The video shows a person appearing behind the glass door who appears to be holding an iPad or similar device. It was at that time Senior Constable Edwards activated his body worn camera. He assumed that person to be the plaintiff: T287.10. The plaintiff’s evidence and her own recording confirms that fact.

163. The plaintiff’s iPad recording of the events lasted for 1 minute and 55 seconds. It was transcribed: Exhibit ‘1’, Tab 8. That transcription appears at paragraph [125] above.

164. Based upon the above accounts of the conversations that passed between the police officers and the plaintiff I am satisfied that at that time, she knew and understood that the men in her garden were police officers, and that they had made it clear to her that they wished to speak to her about her parked vehicle which was located a considerable distance from her home.

165. I find that the recordings of those events clearly establish that the plaintiff knew the men in her garden were police officers and that they were there for a legitimate public duty in wanting to speak to her about the position of her parked vehicle which amounted to a public nuisance. In those circumstances it was also clear that the attempts by police to speak to her at that time involved the use of polite and respectful language. Her response was not to engage with them.

166. Instead, the recordings establish that the plaintiff used an expressively forthright, if not fierce, loud, and assertive tone, by which she repeatedly asked them to leave her property.

167. At the point in time when she asked the police officers to leave her property, she was unquestionably within her rights to do so. At that moment, the implied licence for the police officers to be on her land was negated or terminated, and they were required to leave without undue delay even though they had entered for a lawful police purpose: Roy v O’Neill, supra, at [11], [15].

168. In the course of that conversation, the plaintiff refused to acknowledge that her vehicle was obstructing access and egress to and from the construction site and she repeatedly asked the officers to leave her premises. She told them they were trespassing. That conversation which passed between the plaintiff and Senior Constable Edwards was in part captured by that officer’s body worn recording equipment, the transcript of which appears at paragraph [124] above.

169. In those unfolding events of conflict, the police officers did not unreasonably tarry before leaving. They tried to engage the plaintiff in reasonable civic conversation to seek her co-operation to achieve an abatement of the nuisance caused by the obstructing position of her parked car.

170. I find that in the described circumstances of 21 September 2019, when the police officers attended the plaintiff’s premises, she had closed her mind to the possibility of any polite discourse with them notwithstanding that they were recognisable as police officers in uniform.

171. I find that she recognised them as such and she then reacted irrationally and unreasonably, apparently because they were men whom she decided to treat as trespassers, without beforehand considering whether or not there was a lawful purpose.

172. In those circumstances, the plaintiff created an impasse in which the police officers were unable to secure her civic co-operation to move her vehicle. This led to Senior Constable Edwards attempting to overcome that impasse by politely knocking on her glass door which was curtained on the inside to continue to seek her engagement to overcome a public nuisance of concern. I find that he was justified in his attempts to do so because of the pressing need to abate the public nuisance caused by the plaintiff.

173. In the described circumstances, based on the concessions made by the defendant, I conclude that during the few moments whilst Senior Constable Edwards tried to reason with the plaintiff, a trifling technical trespass occurred.

174. This occurred because the plaintiff had created the underlying public mischief or nuisance which required a police response. The inescapable consequence of those circumstances was that the police officers were obliged to try to engage with her to overcome the persisting problem of her vehicle obstructing traffic. In that sense, the plaintiff brought the technical trespass upon herself, by reason of her aberrant uncivil and unco-operative behaviour.

175. The subsequent record comprising the content of the police COPS event narrative regarding this second precipitating event stated that “[t]here has been ongoing issues with [the plaintiff’s] vehicle blocking access” to the site, resulting in the plaintiff’s vehicle being issued with a parking infringement notice. That narrative, which was prepared by Senior Constable Edwards, was based on contemporaneous notes he had made to that effect: Exhibit “1”, Tab 17, p 65 and Tab 18, p 67.

176. In my view the plaintiff’s evidence describing the trespass was exaggerated, self-serving, and incorrect. Her incorrect evidence by which she claimed there were no trespassing signs on display on her property is demonstrative of that exaggeration.

177. The plaintiff’s bizarre reaction to the lawful presence of the police officers obviously left them bewildered and frustrated at her non-co-operation. This clearly explains why they did not leave immediately as they needed her to move her car to abate the public nuisance so caused. The resulting trespass was technical, it was provoked by her own unreasonable conduct and it was of only a few minutes duration.

178. Those matters must be taken into account when assessing the plaintiff’s entitlement to compensatory damages.

179. In my view the conceded brief trespass described above calls for the application of the doctrine of de minimis non curat lex, meaning the law is not concerned with trifles.

Third claim – Claim of alleged non-battery assault – 21 September 2019

180. The plaintiff claims she was the victim of a non-battery assault when she saw the police officers in her garden.

181. To make good her claim of tortious assault by police officers the plaintiff must prove that the actions of those officers, or one of them, caused her to reasonably apprehend a threat of force or violence: Barton v Armstrong [1969] 2 NSWR 451, at 455; State of New South Wales v McMaster [2015] NSWCA 228, at [205]; Sahade v Bischoff [2015] NSWCA 418, at [71].

182. A defendant will not be liable for damages for trespass to the person, here an alleged assault, unless the act in question was either intentional or negligent: Venning v Chin (1974) 10 SASR 299, at 310. In that case it was noted that the law on this topic was settled in those terms: Stanley v Powell [1891] 1 QB 86; McHale v Watson (1964) 111 CLR 384, at 387-388; State of New South Wales v McMaster, supra, at [207]-[209].

183. Furthermore, for there to be an assault, there must be an apparent ability to carry out the threat immediately: Thomas v National Union of Mineworkers [1986] Ch 20, at 62; Fleming, Law of Torts, 10^th Ed, p 35.

184. Accepting that the plaintiff may have felt that the police officers were unwelcome on her premises and she may have felt affronted and angered by those circumstances, as is confirmed by her assertive demands for them to leave, I do not accept that she felt fear or of the police officers either by their mere presence or actions, or by the fact that they were wearing their police appointments which were on plain display.

185. The plaintiff described the claimed assault as a feeling of fear as a woman, a homeowner, and as a “pet parent”. She said she was fearful of being physically “insulted” and felt “outraged”: T141. She stated that she felt unsafe and under threat: T141.18 – T141.23. She stated that she had a fear of an imminent battery: T146.43. She further stated that she felt the police were abusive to her as a woman alone, and that they had disrespected her: T145.19 – T145.41. At a later point in her evidence, she stated that she had the “impression of being assaulted”: T148.20.

186. In my assessment, the plaintiff, as a social activist, unrelated to the true facts, has unreasonably confected and exaggerated her assemblage of complaints as cited in the preceding paragraph.

187. I find that the plaintiff was not assaulted by the police officers as she has claimed. She was located safely behind her closed and locked glass door. The police officers were not behaving in a threatening manner towards her. At all times they had conducted themselves in a calm and a reasonable manner. There was a glass barrier separating her from the police, namely her locked door.

188. I find those conclusions properly emerges from the objective evidence of the plaintiff’s contemporaneous recording, and the recording made by Senior Constable Edwards on his body worn recording equipment, and from his oral evidence which I accept.

180. In my view, that assessment is also supported by the plaintiff’s own concession that she only had the impression of being assaulted. In my view, that characterisation was a hindsight conclusion which she has confected for reasons best known to herself. That evidence, namely her “impression”, undermines the very basis of her claim of an alleged non-battery assault.

181. The contemporaneous recordings of the events and the evidence of Senior Constable Edwards persuades me that the police officers were simply acting in the course of performing their duties in trying to communicate with the plaintiff, politely, in accordance with their assigned duty, to try and resolve the obstruction caused by the placement of her vehicle in a position that blocked traffic in a way that created a public nuisance.

182. The plaintiff has not demonstrated that the police officers had an apparent ability or intention to carry out any threat towards her and she has not shown that there had been any act of a police officer that would have caused her to reasonably apprehend a threat or force of violence.

183. I find that her evidence to the contrary is an unreasonable construction of the events that occurred at her house. According to the video footage, not even her dog showed any apparent signs of apprehension towards the police officers.

184. The police officers were in full uniform. The plaintiff was located behind her closed locked door. She refused to open that door to them. She herself had behaved in a threatening manner towards them. The officers had simply explained to her that they were there to speak to her about the position of her car which had to be moved. After knocking on her door a number of times and asking her to open the door, they left. There was nothing about the manner or the conduct of either officer from which she could have reasonably apprehended an imminent threat of force or violence. Her claim in that regard is exaggerated and untruthful.

185. Accordingly, I do not accept the plaintiff’s complaint of having been assaulted by the presence of the police officers in her garden on 21 September 2019 as she has claimed.

186. The plaintiff’s claim of assault must therefore be rejected.

Fourth claim – Claim of alleged false imprisonment – 21 September 2019

196. The plaintiff claims that the police presence in her garden caused her to be falsely imprisoned.

197. The plaintiff claimed that the presence of police officers in her garden, and at her front door, necessarily meant that she had “no means of escape” as her egress had been blocked by intruders: T139.27 – T139.41. She also claimed that she was “trapped” by the presence of the police officers, whom she claimed did not accept her “authority”: T140.31. She also claimed the police exercise of the “power of the State” (T140.35), was “shocking”, and left her with “unwelcome” feelings of being “unsettled”, “insecure”, and of having “lost her sense of well-being”: T 150.40.

198. I find those claims to be melodramatic, untruthfully confected, and that they represent a false and exaggerated construction of the events.

199. The plaintiff also claimed that she had felt fear of imminent harm from the two men, police officers, in uniform, with guns and tasers, and claimed that her response was not an overreaction to the circumstances: T 150.34 – T150.36. She said that those circumstances had “sent [her] over the edge” and had broken her period of “almost there and a half years of sobriety”, and had turned her back to using alcohol: T151.24 – T151.32. The plaintiff sought to make a case based on the “talem qualem” principle that a tortfeasor must take the victim as found: T148.19-T148.25; T150.16.

200. There was no medical evidence to support those contentions. I considered the plaintiff’s evidence on those matters to involve exaggerated hyperbole. Without medical evidence to provide a reasoned analysis of her historical baseline, I do not accept the plaintiff’s evidence on those matters.

201. The police officers had attended the plaintiff’s premises for a lawful purpose and the plaintiff, by her reaction to their presence, assertively refused to reasonably engage with them. Her refusal to do so led to Senior Constable Edwards, for a relatively short time, to seek to gain her attention by knocking on the glass panel of her door. I do not accept that the plaintiff was falsely imprisoned as she has claimed.

202. The evidence clearly shows that the plaintiff was free to leave her premises if she had chosen to do so. In fact, the police officers were inviting her to open her door and at no stage did they suggest by their actions or words that she was in any way confined to her house. Her evidence was that she did not attempt to leave her home whilst the police officers were there, nor did she intend to leave. Rather, it was the plaintiff who refused to open the door.

203. I find that the plaintiff’s claim of false imprisonment is unfounded and without substance. She was not deprived of her liberty. She was not detained. She was free to leave if she so desired. Instead she chose to lock herself inside her home as a bizarre response to the reasonable presence of police officers who, in a non-threatening manner, were merely trying to enlist her co-operation to abate the nuisance she had created by leaving her vehicle in a position which obstructed traffic.

204. This element of the plaintiff’s claim requires that the actions of the police officers directly and intentionally or negligently caused the confinement of the plaintiff within an area defined or controlled by the defendant: Balkin and Davis, Law of Torts, 3^rd Ed, at p 52. That element has not been proven by the plaintiff.

205. The plaintiff’s claim of wrongful imprisonment must therefore be rejected.

Fifth claim – Claim of alleged breach of right to privacy

206. The plaintiff did not make any submissions concerning her claim of a breach or an invasion of privacy. The defendant’s submissions on this element of claim may be conveniently summarised as follows.

207. First, Australian common law has not recognised a tort based on a breach of privacy: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; [2007] NSWCA 364, at [124], although that is not to say such a tort may ultimately emerge for individuals: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, at 258; [2001] HCA 63, at [132], [335]; Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822, at [61], [66]-[67]; Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14 at [86].

208. Secondly, the plaintiff’s interests are sufficiently protected by the cause of action for which she has sued, namely trespass, so that even if a tort of invasion of privacy were available, which the defendant disputes, it could not advance the plaintiff’s position beyond that which is already open to her.

209. Thirdly, even if there was an available cause of action involving a tort of invasion or breach of privacy, it would be an innominate action on the case, and as with the case of misfeasance of public office, the plaintiff would have to prove special damage and such damage, has not been proven in this case.

210. The plaintiff’s claim based on an alleged breach, or an alleged invasion of privacy cannot be sustained, and therefore this element of the plaintiff’s claim must also fail.

Sixth claim – Claim of alleged misfeasance in public office

211. The plaintiff’s amended statement of claim pleads that the described actions of Senior Constables Thomas and Townsend amount to misfeasance in public office. The plaintiff has not advanced any submissions to support that claim.

212. In this case the plaintiff must prove five elements to sustain a claim of misfeasance in public office: Northern Territory v Mengel (1995) 185 CLR 307, at 370; [1995] HCA 65. These elements are:

1. An invalid or unauthorised action taken by police officers;

2. The action in question was performed either maliciously or recklessly;

3. The relevant actor was a public officer;

4. The action was performed in the purported discharge of public duties;

5. The plaintiff sustained damage as a result of the actions in question.

213. The defendant has conceded that at the relevant times, both police officers were public officers, and that the subject actions they had undertaken were carried out in the purported discharge of public duties.

214. The defendant has argued, correctly, without contradiction, that none of the officers have been shown to have acted knowingly, intentionally, maliciously, or with reckless indifference, in excess of the powers vested in them at the time they carried out the duties which the plaintiff seeks to impugn in these proceedings: Northern Territory v Mengel, supra, at [57] per the plurality.

215. I find that when the officers entered the plaintiff’s property on 21 September 2019, they did so in the honest belief they were entitled to do so in the course of their duty to abate a public nuisance. I find that in carrying out those actions they did not act with the intention of causing harm of any kind to the plaintiff.

216. On the evidence, the plaintiff’s case, stated at its highest, is that on 21 September 2019 the police officers’ actions were unintentionally wrong. In my assessment, the evidence does not provide a sound basis for arguing the police officers were negligent in the performance of their duties when they attended upon the plaintiff’s premises or when they acted to abate the nuisance created by the positioning of the plaintiff’s vehicle.

217. Unintentionally wrong acts or acts carried out in a negligent fashion do not constitute a sufficient foundation for establishing a successful claim of misfeasance in public office: Nyoni v Shire of Kellerberrin (2017) 248 FCR 311, at 331; [2017] FCAFC 59, at [97]. In that case, it was there stated that:

“The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance):  see Watkins v Secretary of State for the Home Department: [2006] EWHC Admin 2927; [2006] 2 AC at 403, 41o, [7].”

218. Furthermore, because the tort of misfeasance in public office is an action on the case, the plaintiff must establish “special” or “material” damage: Nyoni v Shire of Kellerberrin, supra, at [98].

219. The plaintiff has not proven any of those elements.

220. In arriving at that conclusion, I have not overlooked the plaintiff’s recurrent mention of having PTSD. Notwithstanding the absence of cogent expert or historical medical evidence in this case explaining that diagnosis and the basis for it, and assuming for the purpose of analysis that she has that condition, it is nevertheless incumbent upon her to show that her presumed pre-existing baseline of that condition has been materially changed, exacerbated or aggravated by the claimed wrongful harm that she asserts: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [51].

221. The plaintiff carried the onus and burden of proof for each of those required elements of her claim of misfeasance in public office. I find that she has not discharged that evidentiary burden in this case. Accordingly, that element of her claim must also fail.

Seventh claim – Article 17 of International Covenant on Civil and Political Rights

222. The plaintiff’s amended statement of claim pleads that the conduct of the police officers who attended her premises on 21 September 2019 were by their conduct in breach of Article 17 of the International Covenant on Civil and Political Rights. The plaintiff has not advanced any arguments in support of that claim.

223. The defendant submitted that this element of the plaintiff’s claim is misconceived because an international treaty to which Australia is a party does not form part of Australian law unless the provisions of the treaty have been validly incorporated into our municipal law by statute: Chow Hung Ching v R (1948) 77 CLR 449 at 478; [1948] HCA 37; Bradley v The Commonwealth (1973) 128 CLR 557, at 582; [1973] HCA 34; Simsek v Macphee (1982) 148 CLR 636, at 641-642; [1982] HCA 7; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, at 211-212; Kioa v West (1985) 159 CLR 550, at 570; Dietrich v R (1972) 177 CLR 292, at 305; [1972] HCA 57; JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 A.C. 418, at 500.

224. The defendant further submitted that where Article 17 has not been incorporated into our municipal law, it cannot operate as a direct source of individual rights and obligations under that law: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 at [25] per Mason CJ and Deane J.

225. The defendant’s submissions on this element of the plaintiff’s claim are unanswered and unanswerable. Accordingly, this element of her claim must fail.

Conclusions as to the torts claimed by the plaintiff

226. It follows from the above analysis that the plaintiff has failed to make good all of her claims except for a conceded aspect of her claim of trespass to her land, which was, objectively, only transient in its nature and in its extent.

Damages

227. The only element of the plaintiff’s claims that attracts the need for a damages assessment is the relatively short period of time when a conceded trespass by police officers occurred at her premises on 21 September 2019.

228. The period of trespass was triflingly short. That trespass occurred when the implied licence to be on the premises was revoked whilst the police were seeking, without success, to enlist the plaintiff’s co-operation to abate a public nuisance over which she had control.

229. That revocation occurred whilst the police officers were at the rear of the plaintiff’s property, and it would have taken them some time to walk down the driveway to remove themselves from the property. The conceded period of trespass of approximately three to three and a half minutes, related to the time during which the plaintiff was refusing to engage with the police officers, which was why Senior Constable Edwards had persisted in knocking on her door for a few moments before leaving.

230. Had the plaintiff co-operated with the police officers and engaged with them to abate the nuisance created by the location of her parked vehicle she would have saved herself the bother of having to deal with a parking infringement notice and the cost of retrieving her vehicle from the place where it had been impounded after it was towed there at the direction of the police officers who were left with no other option of abating that nuisance.

231. Absent proof of the plaintiff having incurred special damages, as a model litigant, the defendant fairly conceded the plaintiff is entitled to some damages for the vindication of her right to exclude the police officers from the rear of her property: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, at [30]; Plenty v Dillon (1991) 171 CLR 635, at 645; [1991] HCA 5, at [11].

232. On reviewing cases where damages for trespass to land has been awarded, the defendant’s concession was that the maximum of any award for general damages in this case would be $6,000. In my view, an award approaching anything like that sum would be excessive and disproportionate to the circumstances, notwithstanding the defendant’s concession.

233. In my assessment, in this case, where the trespass was triflingly short, where it was caused by an uncivil course of conduct controlled by the plaintiff, both in permitting the nuisance to remain unabated, and in refusing to rationally engage with the police officers to remedy the problem so caused, only nominal damages should be awarded.

234. In the described context, the period of conceded trespass was “so insubstantial as to call for the application of the principle de minumis non curat lex”: National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation [1970] HCA 51; (1970) 122 CLR 13, at 18, [7]. The law should not be concerned with trifles.

235. The question of triviality in connection with the application of the principle or maxim de minimis non curat lex was considered in Williams v The Queen (1978) 140 CLR 591, at 602; [1978] HCA 49, at [6] per Murphy J, where the following statement appears:

“In my opinion, this is a case for the application of the principle that the law is not concerned with trifles (de minimis non curat lex) This principle has been recognized throughout legal history and is often applied to avoid imposition of punishment after a finding of guilt where an offence is trivial. This application of the principle is expressed in various State Acts of general application … The de minimis principle is also applied to avoid hysterical or oppressive law enforcement; cases in which a finding of guilt would tend to bring the law or the judicial system into ridicule or contempt because of triviality. This is such a case. … “

236. In my view, those statements apply aptly and with equal force to this claim by the plaintiff for civil damages.

237. Accordingly, I assess the plaintiff’s claim for compensatory damages for trespass to land in the sum of $1.00.

238. The plaintiff has not justified her claim for either aggravated or exemplary damages and I therefore decline to award such damages.

Disposition

239. The plaintiff has succeeded in establishing a limited entitlement to damages for trespass to land, assessed at $1.00. All of the plaintiff’s other claims against the defendant have failed.

Costs

240. The power of the Court to award costs involves the exercise of a discretion: s 98 of the Civil Procedure Act 2005 (NSW).

241. The plaintiff has failed to substantiate her claim in large measure. The extent of her success has been a token if not a pyhrric victory. In achieving that result, due to the plaintiff’s aberrant litigation conduct the defendant has been put to needless expense and that needs to be taken into account in making any order for costs in this case: Sze Tu v Lowe (No 2) [2015] NSWCA 91, at [37] – [39], applying Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [67], Mahenthirasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 73; [2008] NSWCA 201, at [8] – [9]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, at 542.

242. The plaintiff’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 the appropriate order for costs.

243. In those circumstances, for procedural fairness, I need to hear the parties as to the appropriate order for costs.

Orders

244. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $1.00 in relation to the claim of trespass to land;

2. Other than the claim of trespass to land, the plaintiff’s claims are rejected and dismissed;

3. I will hear the parties as to the appropriate order for costs before making an order for costs;

4. Liberty to apply for further or other orders if required.

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Decision last updated: 17 July 2024