Supreme Court New South Wales Medium Neutral Citation: Gillies v State of New South Wales [2023] NSWSC 1520 Hearing dates: 5 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Common Law Before: Harrison CJ at CL Decision: (1) Dismiss Mr Gillies' notice of motion filed 3 October 2023. (2) Order Mr Gillies to pay the defendants' costs of and incidental to the motion. Catchwords: CIVIL PROCEDURE – application for a trial by jury of interlocutory matter pursuant to Supreme Court Act s 85 – whether trial by jury can be ordered for interlocutory matter – whether the Court is satisfied that the interests of justice require a trial by jury in the proceedings Legislation Cited: Supreme Court Act 1970 (NSW) s 85 Uniform Civil Procedure Rules 2005 (NSW) r 7.36, 13.4, 14.28, 29.2 Cases Cited: Gillies v State of New South Wales & Ors [2022] NSWSC 640 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 Macatangay v New South Wales (No 2) [2009] NSWCA 272 Maroubra Rugby League Football Club Inc v Malo & Anor (2007) 69 NSWLR 496; [2007] NSWCA 39 Patton v Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 15; [1993] HCA 23 Category: Procedural rulings Parties: Max Perry Gillies (Plaintiff) His Honour Judge Ronald Solomon (1st Defendant) State of New South Wales (2nd Defendant) Commonwealth of Australia (3rd Defendant) Representation: Counsel: T Buterin (1st and 2nd Defendants) C Trahanas (3rd Defendant) Solicitors: Crown Solicitor's Office (1st and 2nd Defendants) Ashurst Australia (3rd Defendant) File Number(s): 2021/321823 Publication restriction: Nil JUDGMENT 1. HIS HONOUR: These proceedings were originally commenced by statement of claim filed on 10 November 2021. On 30 May 2022, Bellew J made orders on the application of the defendants dismissing the proceedings pursuant to UCPR 13.4: see Gillies v State of New South Wales & Ors [2022] NSWSC 640. 2. Following his Honour's decision, Mr Gillies sought leave to appeal to the Court of Appeal. The Court of Appeal found that there was "an arguable case that summary judgment should not have been granted". Following his success in the leave application, Mr Gillies and the defendants agreed upon consent orders to dispose of the appeal in the following terms: 1. Appeal allowed. 2. Set aside the orders made by the primary judge on 30 May and 19 July 2022 and, in their place, order: 1. the statement of claim filed 10 November 2021 be struck out; and 2. the plaintiff is given leave to file and serve a new statement of claim by 12 July 2023; 3. the notices of motion filed 8 and 14 February 2022 are dismissed and there be no order as to the costs of those notices of motion. 4. the matter be listed for directions before the Common Law Registrar on 19 July 2023. 1. The Respondents are to pay the appellant's costs of the appeal as agreed or assessed on the ordinary basis. 2. Pursuant to r. 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), the appellant is referred to the Registrar to make a referral to a barrister having experience in relation to claims in tort against public authorities, on the Pro Bono Panel, for assistance in drafting a statement of claim. 1. On 11 July 2023, Mr Gillies filed a statement of claim in accordance with the leave granted by order 2(b) above. That statement of claim is now the subject of a series of applications by the defendants for summary relief and associated orders. Mr Gillies has also sought to have judgment entered for him. Those motions are currently listed together for hearing on 13 February 2024. In advance of that, Mr Gillies seeks orders by notice of motion filed on 3 October 2023 pursuant to UCPR 29.2(4) and s 85 of the Supreme Court Act 1970 that "the proceedings as against the defendants be a trial by jury". 2. When the matter came before me on 5 December 2023, the defendants not unreasonably sought clarification of whether Mr Gillies was asking for trial by jury in the proceedings generally or whether his application related only to the motions listed for determination next February. The defendants' concern was fairly generated by the terms of the relief sought. However, as the transcript will reveal, Mr Gillies clarified his desire to have only the interlocutory matters heard by a jury: "HIS HONOUR: … Mr Gillies, do you want a jury trial for the final determination of your statement of claim, if it is not struck out? PLAINTIFF: Yes, that's correct, for the 13th of February. HIS HONOUR: No, that's an application for summary judgment by you and the cross notices of motion to strike it out. If your statement of claim survives that process, that is to say if the defendants can't get rid of you at that stage, you will need, the matter will go to a hearing. My understanding from what you said earlier was that you, somewhat curiously, wanted a jury to determine whether the statement of claim should be struck out and the like or do you really mean that if your statement of claim survives and I don't give summary judgment to you by striking out the defendants' defences, you will have a jury when the matter finally comes on for hearing? PLAINTIFF: No, your Honour, sorry about that. I would like a jury 'for' this application. HIS HONOUR: All right. PLAINTIFF: Because on the grounds that we have, they have already had a shot at striking it out. HIS HONOUR: No, no, you don't need to go on. We just needed to clarify that because… PLAINTIFF: So it is for the interlocutory applications, the three notice of motions that are set down for the 13th of February." 1. It is clear from this exchange that Mr Gillies has expressly disavowed any current claim for a trial by jury of the principal issues raised in the statement of claim. However, I did not take Mr Gillies to indicate that he might not later ask for a trial by jury of the principal proceedings. As inefficient as limiting the present application to the interlocutory hearing may appear to be, I proceeded in the absence of objection to deal with it on that limited basis in accordance with Mr Gillies' stated preference. 2. Section 85 of the Supreme Court Act is relevantly as follows: 85 Trial without jury unless jury required in interests of justice (1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. (2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if-- (a) any party to the proceedings-- (i) files a requisition for trial with a jury, and (ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings. (3) … 1. The leading judgment on s 85 is Maroubra Rugby League Football Club Inc v Malo & Anor (2007) 69 NSWLR 496; [2007] NSWCA 39. Mason P said this at [18] and [25]: "[18] A party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party. The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone. … [25] There is, in my view, a subtle but significant distinction between circumstances 'warranting' a course of action and circumstances 'requiring' it. I am not suggesting that the applicant for jury trial must show ineluctable necessity, but the statutory language of 'require' connotes that which is obligatory, not that which is authorised. To speak of something being 'warranted' smacks of the latter without the added stricture of the former." 1. In the light of the section and decisions such as this, the parties submitted as follows. 2. Mr Gillies said this: "In my submission, your Honour, I think doctoring Court transcript, the community is invested in that given that the Courts represent the community. It goes beyond my interests in the matter, and because of the flavour of me being wrongly addressed by the judicial officers thus far in this matter, I think, you know, the only way to determine this in accordance with the interests of justice is by a jury and to depart from the normal judge alone trial. Because I have been down that process and I just don't want to get to a point on the 13th of February that another judge might think the same way or act the same way as Bellew J did and dismiss the whole thing and then the taxpayer is subjected to a lot of costs, the same with the defendants." 1. Mr Gillies' reference to doctoring court transcripts is a reference to one of the allegations he makes in his statement of claim. Mr Gillies was tried for a criminal offence before Solomon DCJ and a jury in 2006. He alleges at [62] that the transcripts from that trial were unlawfully tampered with in the following ways: 1. Words that were not said during the trial were imbedded into the transcripts; 2. Evidence that had been given in the trial had been changed and deleted in respect to the plaintiff's evidence and witnesses evidence for the defence and prosecution; 3. Evidence given in the trial had been cut and inserted with other evidence: in particular the evidence of the plaintiff and Detective Abbott's evidence; and 4. None of the transcripts of the 2006 trial displays any markings or headings to indicate that any changes made to them were done in line with the errata process or the law, to account for those changes made to the transcripts. 1. I observe in passing that it is at one level difficult to understand the significance that attaches to the allegation that transcripts of evidence of a criminal trial before a jury were inappropriately or impermissibly altered. In the normal course of events, the jury would hear and determine the issues upon the basis of evidence heard and seen in open court. I am not aware of whether or not the jury were provided with the transcript of any evidence in the 2006 trial or whether any such transcript was the subject of the alterations about which Mr Gillies complains. It would seem, without more, that alterations to any transcript that was not provided to the jury would be of no consequence. However, at [253] of Mr Gillies' long and challenging statement of claim, he contends that the jury relied upon illicit transcripts in finding him guilty at the 2006 trial. Perhaps significantly for present purposes, the truth of that contention does not arise for determination by me. 2. Without expressing a concluded view about it, I understand Mr Gillies' submission to be that an important matter of public or community concern, such as the possibility that the official record or court proceedings might have been altered without authority, or on one view of his statement of claim, by authorities but illicitly, is properly a matter for consideration by a jury made up of members of the community. That issue may well arise for consideration at some later time should Mr Gillies seek to have the substantive issues adumbrated in his statement of claim decided by a jury. 3. As the preceding paragraphs will reveal, however, Mr Gillies only asks for a jury to determine the 13 February 2024 interlocutory contest: the truth or otherwise of the transcript doctoring allegations that he makes are for another day. 4. The Commonwealth made the following submissions. 5. To the extent that Mr Gillies requests that the hearing of the motions for summary dismissal and for summary judgment, scheduled for 13 February 2024, be heard by a jury, the motion should be dismissed with costs for the following reasons. 6. First, s 85(1) of the Supreme Court Act does not contemplate that interlocutory hearings, including motions for summary dismissal and for summary judgment, would be heard by a jury. "Tried" as used in s 85 suggests that proceedings are to be heard and determined: see, for example, Patton v Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 15; [1993] HCA 23 at 16-17. Proceedings are heard and determined when the actual causes of action are heard and finally determined. This is not what happens on a motion for summary dismissal or on a motion for summary judgment. 7. Orders for summary dismissal and summary judgment are interlocutory in nature. As stated by the Court of Appeal in Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [11], whatever its practical effect, an order for summary dismissal is "not final in legal effect because there [is] no triable issue, and it [does] not finally determine the rights of the parties or create res judicata estoppels". Similarly, as stated by the Full Court of the Federal Court in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [40], when considering a summary judgment motion, the judge "make[s] a determination, on the material then before the court, as to the prospects of the moving party successfully prosecuting the proceeding. The legal effect of such a judgment is not final". 8. Secondly, Mr Gillies has not established that "the interests of justice require a trial by jury". His application is based on his suspicion that the Court is unwilling to hear his case impartially, "given the long history of the matter": see Mr Gillies' 3 October 2023 affidavit at [5]. The fact that a matter has a long history in the judicial system does not establish the existence of actual or apprehended bias. Mr Gillies' concerns do not permit the Court positively to be satisfied that "disinterested interests of justice require departure from the general rule of trial by judge alone": Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496 at [18]. 9. Thirdly, Mr Gillies' motion was filed out of time. UCPR 29.2(4) provides that it had to be filed by 8 September 2023, 56 days after he served the latest statement of claim on the Commonwealth. The Court may extend the time for filing the motion but Mr Gillies has provided no explanation for the delay. Consideration 1. In my opinion, and adopting Mr Gillies' concern about the importance of exposing improper or illegal conduct, there is no special public interest in the adjudication of a dispute about whether a plaintiff's proceedings or pleadings can withstand scrutiny generally or whether they are amenable to orders for dismissal or strike out under UCPR 13.4 or 14.28. The assessments called for under UCPR 13.4 of whether proceedings are frivolous or vexatious, or whether no reasonable cause of action is disclosed, or whether they are an abuse of the process of the court, are technical legal issues of mixed fact and law that are dependent upon a consideration of the statement of claim as a whole, or sometimes in particular respects, upon the assumption, favourable to a plaintiff, that the pleaded allegations are to be taken at their highest. The assessments called for under UCPR 14.28, of whether a pleading discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or has a tendency to cause prejudice, embarrassment or delay, or is otherwise an abuse of the process of the court, are similarly technical: the allegations in the statement of claim are taken at their highest and the outcome of the application is not dependent upon whether the allegations contained in the pleadings have been or can be proved. 2. An example may assist. It is well understood that a witness who has given evidence in court cannot be sued. The witness immunity rule, a fundamental principle of Australian law, precludes an action against a witness for his or her conduct in or out of court when giving evidence, provided that the conduct had a functional connection to active or anticipated court proceedings. The rule operates so that even if a litigant in court proceedings alleges that a witness or expert witness gave negligent opinion, defamed the litigant, or misled the court with malicious intent, that litigant cannot bring a civil claim against the witness. Proceedings claiming damages against a witness in such circumstances would be amenable to summary disposal under UCPR 13.4, even if it was otherwise pleaded in accordance with the rules. Similarly, the pleadings would be liable to be struck out for the same reason. The factual contest concerned with whether or not the witness did or did not give false evidence or a negligent opinion or misled the court is irrelevant to the question of whether the proceedings were liable to be summarily dismissed or the pleadings were liable to be struck out. 3. For cognate reasons, the truth or otherwise of Mr Gillies' allegations, that I perceive him to want a jury to determine, is beside the point of whether the defendants' applications to dismiss his proceedings or strike out his pleadings should succeed. 4. I accept that Mr Gillies wants a jury to determine the defendants' interlocutory applications. That desire is not the same as, and in this case is not coextensive with, the interests of justice requiring it. Moreover, an interlocutory application is not a trial as properly understood, so that in my view the Supreme Court Act makes no provision for the possibility of a jury being empanelled to decide such an issue. Orders 1. In these circumstances I make the following orders: 1. Dismiss Mr Gillies' notice of motion filed 3 October 2023. 2. Order Mr Gillies to pay the defendants' costs of and incidental to the motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2024