Gillies v His Honour Judge Solomon DCJ

Court of Appeal (NSW)|2024-06-11|Before: Ward P, Payne JA, Harrison CJ

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

THE COURT: Following orders made in this Court by consent on 15 May 2023, the applicant filed a Statement of Claim on 11 July 2023.
The applicant seeks leave to appeal from the primary judge's decision refusing his motion to have three motions filed in these proceedings tried by a jury: Gillies v State of New South Wales [2023] NSWSC 1520. The first motion, filed 12 July 2023, is the applicant's motion seeking summary judgment. The second motion is one filed by the first and second respondents seeking summary dismissal and, in the alternative, an order striking out the Statement of Claim. The third motion is one filed by the third respondent, seeking essentially the same relief as the second motion. The applicant requires leave because the decision of the primary judge was interlocutory: s 101(2)(e) of the Supreme Court Act 1970 (NSW).

Background

In 2006, the applicant was found guilty by a District Court jury of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Solomon DCJ sentenced him to 6 years 8 months' imprisonment, with a non-parole period of 5 years. The applicant's conviction and sentence appeal was dismissed: Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339.

The present proceedings

On 10 November 2021, the applicant filed a statement of claim against seven defendants. In Gillies v State of New South Wales & Ors [2022] NSWSC 640, Bellew J struck out this statement of claim. His Honour refused leave to replead and summarily dismissed the proceedings.
On 29 November 2022, in this Court Macfarlan and Brereton JJA granted the applicant leave to appeal from Bellew J's orders. Thereafter the applicant and the seven defendants to the 2021 statement of claim agreed consent orders permitting the applicant to replead his claim. Registrar Riznyczok made those orders by consent on 15 May 2023.
On 11 July 2023, the applicant filed an amended statement of claim, although that document was not included in the applicant's White Folder.
The three motions referred to at [2] above were originally listed for hearing on 13 February 2024.
On 3 October 2023, the applicant filed a notice of motion seeking an order pursuant to UCPR 29.2(4) and s 85 of the Supreme Court Act 1970 (NSW) that "the proceedings as against the defendants be a trial by jury" ("the Jury Trial NoM").
On 6 October 2023, the applicant filed a further notice of motion, seeking two orders ("the 6 October NoM"): 1. first, that Registrar Riznyczok's orders and reasons he gave for making those orders in the unpublished judgment dated 15 May 2023 be given a medium neutral citation and be published on the Caselaw website (the unpublished judgment is in the applicant's White Folder); 2. second, that the applicant be provided with a copy of the audio recording of a hearing before Bellew J on 8 April 2022, which was one of the two hearing dates for the motion to strike out the applicant's 2021 statement of claim.

Hearing of the NoMs

Both the Jury Trial NoM and the 6 October NoM were listed before the primary judge on 5 December 2023. At the outset of the hearing, the applicant made an oral application that the primary judge recuse himself for "actual bias", an application that was later specifically withdrawn by the applicant.
The applicant clarified that, by the Jury Trial NoM, he was not seeking that a jury hear and determine the entire proceedings. Rather, the applicant wanted a jury to determine the three notices of motion listed before the Court on 13 February 2024: PLAINTIFF: … 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."
At the end of his submissions, the applicant briefly addressed the 6 October NoM. The primary judge said he struggled to understand what ongoing relevance audio of the 8 April 2022 hearing before Bellew J could have, since his Honour's decision to strike out the applicant's 2021 statement of claim was set aside by the parties' consent orders. Further, the applicant's request that Registrar Riznyczok's orders be given a MNC and published was, the primary judge said, "not the biggest issue in the proceedings". No reference was made in the decision of the primary judge to the 6 October NoM and no orders were made by the primary judge relating to the 6 October 2023 NoM.

Primary judgment

On 13 December 2023, the primary judge dismissed the applicant's Jury Trial NoM (the NoM filed 3 October 2023). As we have said, the primary judgment did not address the 6 October NoM.
The primary judge set out the terms of s 85 of the Supreme Court Act which provides that proceedings in any division of this Court "are to be tried without a jury", unless the Court orders otherwise. Section 85(2) provides that the Court may "order otherwise" if (a) a party to proceedings requests a jury trial and pays the relevant fees, and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings.
The primary judge noted that the applicant's Jury Trial NoM sought a jury only for the purpose of determining the three motions seeking summary relief. Those motions raised interlocutory questions, and any orders entered would be interlocutory in character. That was so even if the Court's ultimate order was for summary judgment or summary dismissal, because the authorities show that such an order is interlocutory in nature: Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [11]. Section 85(2) of the Supreme Court Act does not, his Honour found, allow the Court to empanel a jury to determine an interlocutory issue. The language of "trying" a proceeding, as used in s 85(2)(b), properly describes the hearing and final determination of the actual cause of action. The section applies only at that stage. The primary judge held, in the alternative, that he was not satisfied that the interests of justice required a trial by jury in the proceedings.
The primary judge explained that the notices of motion did not raise issues that a jury could properly consider. Juries decide factual contests. Applications for summary judgment, summary dismissal or strike out, under Uniform Civil Procedure Rules 2005 (NSW), raise questions of mixed fact and law, inviting close assessment of the pleadings. Nothing depends on the truth or otherwise of factual allegations in the pleadings, and there is no question for a jury.

Leave to appeal

On 21 December 2023, the appellant filed a draft notice of appeal, advancing five proposed grounds of appeal. In a summary of argument dated 24 January 2024, the applicant reduced the grounds he relied on to four: Ground of appeal 1: The primary judge decision should be set aside for actual bias on the part of the judge by (a) failed to take a relevant consideration of his previous misconduct (b) made deliberate adverse credibility findings of the appellant (c) made deliberate adverse credibility findings of the appellant's evidence. … Ground of appeal 2: The primary judge made a conscious decision to break the law by (a) failed to exercise jurisdiction under section 85(2)(b) of the Supreme Court Act 1970 which was not open to him to give no weight (b) failed to give proper, genuine and realistic consideration as to the applicants' evidence which clearly supported the trial by jury application - for the reason that on such an application the primary judge was required to take in account that the interest of justice required an order for trial by jury based on that evidence according to law. … Ground of appeal 3: The primary judge made a conscious decision to break the law by refusing to deal with the applicant's motion which sought (1) access copy of the audio recording from the hearing before Bellew J in the NSW Supreme Court on 8 April 2022, (2) the 15 May 2023 judgment made by Registrar Riznyczok of the Court of Appeal be amended to reflect the applicant's overall case and made public. … Ground of appeal 4: The primary judge made a conscious decision to break the law by producing an inaccurate transcript of the proceedings in the Court below and as a consequence that led to the primary judge to refuse the applicants' application which sought access to the audio recording of the proceeding.
Leave to appeal will ordinarily be granted only when the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

Ground 1: Actual bias

Ground 1 embraced two arguments. First, the applicant reagitated the allegation of actual bias he made against the primary judge in support of his abandoned recusal application. Second, the applicant complained that the primary judge's failure to recuse himself was itself proof of bias and amounted to a denial of procedural fairness.
A finding of actual bias is a grave matter and must be supported by cogent proof: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] per Gleeson JA (Emmett JA and Tobias AJA agreeing). Where the issue is alleged prejudgment, an applicant must establish that the judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [176] per Gleeson CJ and Gummow J (Hayne J agreeing).
The applicant raised the following matters under this ground: 1. The fact that the primary judge found against the applicant in another motion in May 2020 relating to legal aid: Gillies v The Legal Aid Commission of New South Wales [2020] NSWSC 505 ("the 2020 Reasons"). 2. The way the primary judge described the Crown's case against the applicant at [1] of his 2020 Reasons: The Crown case was that on 9 July 2004, Mr Gillies had filmed himself committing a number of sexual acts on his then partner while she was unconscious.
The applicant complained about the use of the word "unconscious". No jury, he said, has ever found the applicant had committed a crime against his partner while she was "unconscious". The primary judge had refused the applicant's earlier informal request, made by email to his chambers, for this word to be removed.
No basis has been shown to conclude that the primary judge was affected by actual bias. It is commonplace that a judge may make rulings at several different stages of the same or related proceedings involving the same or similar parties. It does not follow that, by dismissing the applicant's procedural motion, the primary judge thereby demonstrated bias.
Nor does the primary judge's use of the word "unconscious" in his 2020 Reasons show bias. As the primary judge explained at [1] of that judgment, he used the word "unconscious" to reflect his understanding of the Crown case against the applicant during the 2006 trial. The presence of one word, in a short introductory paragraph, does not connote actual bias. The primary judge did not, by including that word, express any concluded view about the applicant.
The applicant also submitted that the primary judge made threats and applied pressure until the applicant withdrew his bias application. We reject this submission.
The transcript of the 5 December 2023 hearing shows the primary judge entered into a dialogue with the applicant about his recusal application. The primary judge informed the applicant variously that: 1. he was prepared to deal with the applicant's NoMs that day, and give considered written reasons; 2. if he recused himself, any hearing of the applicant's NoMs would be delayed by some months, given resource constraints; 3. he understood the applicant's arguments for a jury trial, and the applicant agreed that the primary judge seemed to understand those arguments.
After hearing some of the applicant's substantive submissions on the Jury Trial NoM, the primary judge asked the applicant whether he still pressed his recusal application: HIS HONOUR: But you still want me to disqualify myself? PLAINTIFF: No, you Honour, I am in your hands, let's just HIS HONOUR: No, no. PLAINTIFF: No, let's just go ahead. HIS HONOUR: You are in my hands, but I want to understand what you want me to do. Anyway, think about that. I won't do anything before I come back to you. …
Counsel for the respondents then made submissions, before the primary judge returned to the applicant: HIS HONOUR: Well, I should ask you again, Mr Gillies, do you want me to deal with sorry, is it your proposition that I should disqualify myself? PLAINTIFF: … So I am quite happy to get your verdict on it your Honour without wasting the Court's time. HIS HONOUR: You are not wasting the Court's time. If you think a judicial officer has demonstrated actual bias, and that was your application, you are entitled to proceed with it. I just want to know if you want to proceed with it. I take it now that you are withdrawing that oral application, are you? PLAINTIFF: Yes I am. HIS HONOUR: That's fair enough, I note that. …
The primary judge gave the applicant ample opportunity to press his recusal application. The applicant withdrew his claim of bias and thereby waived the right to complain about that matter in this Court: Smith v Roach (2006) 227 CLR 423; [2006] HCA 36. His Honour appropriately informed the applicant that, if his recusal application succeeded, hearing of his NoMs would be delayed. No pressure was applied to the applicant. Nor does the primary judge's handling of the recusal application show prejudgment against the applicant. To the contrary, the primary judge was open to hearing the recusal application and made appropriate efforts to understand the applicant's position. None of these matters provides any basis to suspect actual bias.
We do not accept that there is any reasonably arguable case of actual bias. Proposed ground 1 raises no issue of principle, question of public importance, or reasonably clear injustice and should be dismissed.

Ground 2: Jury trial

By this ground, the applicant complained that the primary judge overlooked his submissions and evidence on why a jury trial should be granted (the order sought by his Jury Trial NoM).
First, the applicant pointed to the following exchange between himself and the primary judge: PLAINTIFF: Well, my argument in that context, your Honour, there is no proviso in section 85 of the Supreme Court Act that says an interlocutory application can't have a jury. HIS HONOUR: No, I agree with that.
At [23] however, the primary judge found that 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". The applicant submitted that by reaching this conclusion, even though he earlier agreed with the oral submission extracted above, the primary judge "in the heart of his reasons closed his mind to those submissions of fact and law".
This argument must be rejected. The primary judge was simply stating that s 85 of the Supreme Court Act does not contain an explicit provision excluding interlocutory applications from its operation. That is correct. There is no tension between that remark and the primary judge's conclusion at [23] that the meaning of "trial", in s 85, does not include an interlocutory application. The primary judge reached that conclusion after hearing both the applicant's and the respondents' submissions. The applicant's submissions, on this question, were to the effect that the term "proceedings" used in s 85 has a very broad defined meaning and is capable of applying to interlocutory applications. The point being made by the primary judge was that the subject matter, scope and purpose of s 85 of the Supreme Court Act meant that an interlocutory dispute, in which no factual issues arose, fell outside the power to order "trial" by jury in the proceedings.
Secondly, the applicant submitted that it was wrong for the primary judge to rely on the authorities he cited in concluding that an interlocutory hearing is not a "trial" within the meaning of s 85. Those authorities were not applicable, the applicant said, because they all relate to "the final determination of final hearings" and not interlocutory hearings. This submission is incorrect. The principal cases referred to by the primary judge in summarising submissions made to him, Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 and Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 were appeals against, respectively, an order for summary dismissal and for summary judgment, which are both types of interlocutory ruling. In any event, all authorities cited by the primary judge (which were referred to in the context of summarising submissions made to him), including Patton v Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 15; [1993] HCA 23, were relevant to the distinction between interlocutory and final orders, and his Honour was entitled to take them into account when considering the meaning of "trial" in s 85. The one authority the primary judge did refer to in his consideration of s 85 of the Supreme Court Act was Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496. That case emphasises that the statutory language of "require" connotes that which is obligatory, not that which is authorised. The primary judge was correct to refer to and act upon this authority.
The applicant's third argument under this ground was that the primary judge failed to consider why "the interests of justice" required a jury hearing of his interlocutory applications. To make good this argument, the applicant reiterated at length his allegations of a conspiracy to tamper with official court records, accusing "judges of the Supreme Court" of "a clear tendency to break the law by protect each other and any other judge that is the subject of an allegation of tampering with court transcripts". This supposed conspiracy involved illegal conduct, the applicant said, and was a matter of public concern, which should be considered by a jury. The primary judge, the applicant submitted, was wrong to reject this submission.
This argument is without merit. The primary judge gave consideration to the applicant's submission at [9]-[12] of the primary judgment, including: [12] … 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.
The primary judge properly considered the applicant's submissions. His Honour accepted, at [22]-[23], that the applicant wanted a jury trial. His Honour reached no conclusion about the conspiracy allegations the applicant makes. All that was before him was an application to convene a jury trial to hear three interlocutory motions. The point being made by the primary judge was that the determination of the three notices of motion did not raise issues that a jury could properly consider. Juries decide factual contests. Nothing depended on the truth or otherwise of factual allegations in the pleadings, and there was no question for a jury. There was no error in the approach of the primary judge.
Even assuming, in favour of the applicant, that there was power under s 85 of the Supreme Court Act to order a trial by jury of the three motions, no error has been shown in the discretionary decision of the primary judge in failing to be satisfied that the interests of justice required a trial by jury of those motions. This is because the primary judge was plainly correct that juries decide factual contests and there were no factual matters to be tested in hearing these motions. The primary judge was correct to so conclude.
Proposed ground 2 raises no issue of principle, question of public importance, or reasonably clear injustice and should be dismissed.

Ground 3: The second NoM

By proposed ground 3, the applicant complains that the primary judge did not deal with his 6 October NoM. That NoM sought access to audio of a hearing before Bellew J and publication of Registrar Riznyczok's consent order judgment on the Caselaw website, as well as the application of a medium neutral citation.
It is correct that the primary judge did not address the second NoM in his reasons or make orders about it. In those circumstances, the NoM remains on foot. We note, in this regard, that an exchange of emails was handed up during the application for leave to appeal. It seems that the position of the respondents is that the primary judge should be invited to deal with the 6 October NoM but that the applicant objects to his Honour playing any role in the determination of that NoM. What course is taken in the Division is not a matter properly before this Court and we express no view about who should determine the 6 October NoM.
Proposed ground 3 raises no issue of principle, question of public importance, or reasonably clear injustice and should be rejected.

Ground 4: Transcript inaccuracies

By this ground, the applicant alleges that the primary judge "illicitly" altered the transcript of the 5 December 2023 hearing. In support of this ground, the applicant relies on a list of six passages in the transcript which he asserts were changed. There is no evidence, beyond mere assertion, that these passages were changed, much less that the primary judge made any changes to the transcript. The applicant suggests the primary judge acted with the "female court reporter" present at the 5 December hearing to make these changes. There is no evidence supporting that allegation.
Ground 4 makes serious allegations without any evidence in support. Ground 4 raises no issue of principle, question of public importance, or reasonably clear injustice and should be rejected.

Conclusion

The orders of the Court are: 1. Leave to appeal is refused. 2. Applicant to pay the respondents' costs of the application for leave to appeal.

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: 13 June 2024

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