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[2025] NSWCA 98
respondent. The notice of motion filed on 3 April 2025 was dismissed; leave to appeal was refused; the applicant was ordered to pay the respondents' costs: [47].
The Court of Appeal found that the applicant's dissatisfaction with earlier decisions by the same judge did not show that the judge was biased. Those decisions had been made on procedural and limitation grounds rather than findings about the applicant's credibility. The applicant also alleged that a hearing transcript had been altered, but provided no evidence to support that allegation. The court therefore dismissed his motion, refused permission to appeal and ordered him to pay the respondents' costs.
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1,799 words · generated 07/10/2026
In Gillies v State of New South Wales [2025] NSWCA 98, Max Perry Gillies sought leave to appeal from Garling J's refusal to recuse himself from hearing several interlocutory motions in Gillies' proceedings against the State of New South Wales and the Commonwealth. Gillies alleged actual and apprehended bias. His case rested principally on Garling J's earlier decisions against him in [2014] NSWSC 1481 and [2014] NSWSC 611, and on his allegation that the transcript of the 20 August 2024 hearing had been altered: [1]–[3].
3 cited instruments linked from this judgment.
The underlying proceedings sought $190 million, plus general, aggravated and exemplary damages, for claims including malicious prosecution, malicious procedure, misfeasance in public office and false imprisonment: [26]. The court placed those claims in the context of Gillies' 2006 criminal proceedings, in which he was convicted of sexual intercourse without consent and sentenced to imprisonment. His conviction and sentence appeal was dismissed, as was his later application for an extension of time to seek special leave to appeal: [27].
The Court of Appeal was constituted by Leeming JA and Stern JA. Gillies' notice of motion, filed on 3 April 2025, sought access to the audio recording of the 20 August 2024 hearing, an order striking out the respondents' submissions, and judgment in his favour: [10]–[12]. The court explained that, at this stage, it could consider whether to grant leave to appeal, but could not itself allow the appeal or enter the judgment Gillies sought: [12]. The court dismissed the motion, refused leave to appeal and ordered Gillies to pay the respondents' costs: [47].
The court began with the established tests. Actual-bias allegations should not be made lightly and require cogent evidence. Apprehended bias is assessed by asking whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to deciding the issues: [7]. The court also applied the ordinary leave threshold: leave is generally appropriate only where there is an issue of principle, a question of general public importance, or reasonably clear injustice beyond what is merely arguable: [8].
As to the Moir proceedings, the court found that Garling J had not decided issues of credit or made findings about the letters Gillies said would be relevant to his current claim. The earlier case had been decided because the causes of action had vested in Gillies' bankruptcy trustee and there was no evidence they had been assigned back to him. The claims were also found to be out of time: [30]–[31]. The court therefore rejected the contention that the earlier adverse result indicated bias. It stated that the mere fact that a judge has decided an earlier case against a litigant does not support a finding of actual or apprehended bias: [32].
The court reached a similar view about the Eastlake proceedings. There, the dispositive reasoning concerned limitation periods and the status of costs entitlements, not the truth of Gillies' allegations or his credibility: [34]–[39]. It considered the specific complaints he raised, including his reliance on a provision he described as s 32A(2)(a) of the NSW Limitation Act 1969. The court noted there was no s 32A in that Act, and that s 32A of the UK Limitation Act 1980 did not apply: [36]. It also rejected the proposition that incarceration automatically prevented a civil claim or extended a limitation period: [36]. Any alleged error in the earlier judgment was not, even if established, evidence of prejudgment or bias: [37].
The transcript allegation failed for want of evidence. Gillies said that two passages appeared on pages 40 and 41 when they should have appeared at the beginning of the hearing. The court noted that he had produced no contemporaneous note or affidavit from someone present at the hearing supporting that recollection: [18]. It considered that the transcript read naturally as recorded, because the judge's responses appeared to follow from what the transcript recorded Gillies saying: [19]. Even assuming some garbling, the court said that ordinarily nothing significant would turn on the passages being located earlier: [20].
The court took account of the seriousness of the further allegation that the judge or the respondents' representatives had been aware of or complicit in corrupting the transcript. It found no evidentiary basis for it and observed that the passages were innocuous: [21]–[22]. Gillies' complaint itself did not prove that the transcript had been altered: [23]. In that evidentiary context, the court found no basis to order access to the audio recording: [17]–[24].
Finally, the court considered Gillies' other complaints about how Garling J had handled the proceedings. The judge's case-management decisions, including initially seeking to proceed before giving reasons for refusing recusal, did not suggest bias; the judge later granted Gillies' request for an adjournment: [42]. Nor did the judge's failure to list each tendered document in the reasons demonstrate that the material had been ignored. The reasons referred to the documents and addressed the submissions they supported: [43]–[45]. Taken individually or cumulatively, the complaints did not disclose reasonably clear injustice or a matter of principle or public importance: [46].
The judgment presents itself as applying established principles rather than changing the law. For actual bias, it relied on South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 for the requirement of cogent evidence: [7]. For apprehended bias, it stated the test from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the determination of the issues: [7].
For leave to appeal, the court relied on Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118: [8]. Its reasons apply that threshold by asking whether the case presents an issue of principle, a question of general public importance, or reasonably clear injustice, and concluding that it does not: [46].
The judgment's main contribution in this case is its application of those principles to the asserted facts. It explains why a prior adverse decision, without more, does not establish bias: [32]. It also separates a disagreement with the correctness of an earlier decision from proof that the judge had prejudged a later matter: [37]. On transcript allegations, the court distinguishes an assertion from evidence capable of supporting it: [18], [23]. The judgment does not state that a prior adverse ruling can never be relevant to a bias application; its stated conclusion concerns the circumstances before it, including the legal and procedural bases of the earlier decisions.
At [32], the court said: “The mere fact that a judge has determined a previous case adversely to a litigant does not support findings of actual or apprehended bias.” In plain English, losing an earlier case before the same judge is not, by itself, proof that the judge cannot be impartial in a later one. The court examined what the earlier decisions actually decided rather than treating their outcomes alone as evidence of bias.
At [37], the court said: “Error, even if established, does not suggest prejudgment or bias.” This distinguishes two different complaints. A party may contend that a judgment was legally or factually wrong, but that contention does not itself establish that the judge had already decided later issues without an open mind. The court said that a challenge to the earlier result should have been advanced by appeal.
At [18], the court explained that there was no note or testimonial evidence supporting Gillies' claim that the passages were spoken at the commencement of the hearing. The practical point is that a claim about an inaccurate transcript needs evidentiary support, not only the litigant's assertion. At [23], the court made the point directly: “The fact that Mr Gillies has complained of an alteration of the transcript is not evidence of the fact.”
At [46], the court concluded there was no reasonably clear injustice, issue of principle or question of general public importance. In plain English, even considering the complaints together, the case did not meet the stated threshold for permission to appeal.
The decision is relevant where a party asks a judge to step aside because that judge previously decided a case against them. It indicates that the earlier judgment's reasoning matters: the court considered whether the judge had made credibility findings, resolved overlapping factual issues, or otherwise shown prejudgment, rather than relying on the unfavourable result alone: [29]–[39].
It is also relevant where a party alleges transcript alteration or seeks an audio recording to support such an allegation. The decision illustrates the importance the court gave to specific evidence supporting the claimed discrepancy, such as a note or evidence from someone who attended the hearing: [18]. The court also considered whether the transcript made sense on its face and whether the alleged discrepancy could affect the matter: [19]–[20].
The judgment also bears on applications for leave to appeal from interlocutory decisions. It illustrates the court's stated focus on whether there is reasonably clear injustice, an issue of principle or a question of general public importance, rather than treating an arguable disagreement as enough: [8], [46]. These are applications of the principles to this case, not a conclusion about how a different factual situation would be decided.
The judgment is dated 8 May 2025. The text supplied contains no decisions of later courts applying, distinguishing, approving or rejecting Gillies v State of New South Wales [2025] NSWCA 98. Its cited authorities are earlier decisions, including Ebner, Edmonds, Cheng, SKA v The Queen and The King v ZT: [7]–[8], [14]. On the material available here, later treatment cannot be assessed.
The reasons do not lay down a general test for when a prior decision by the same judge may contribute to an apprehended-bias argument. They decide that the Moir and Eastlake decisions did not do so on these facts, because of the grounds on which those cases were resolved and the absence of relevant credibility findings: [30]–[39].
The court also did not determine what access to a hearing recording might be available on a different evidentiary basis. It decided only that Gillies had not shown a basis for an order in this application: [17]–[24]. Nor did it decide the substantive merits of the underlying damages claims. Its task was to decide the motion and whether leave should be granted from the recusal decision: [2], [25]–[26], [47].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gillies v State of New South Wales [2025] NSWCA 98
Hearing dates: 2 May 2025
Date of orders: 8 May 2025
Decision date: 08 May 2025
Before: Leeming JA; Stern JA
Decision: (1) Notice of motion filed by Mr Gillies on 3 April 2025 is dismissed.
(2) Leave to appeal refused.
(3) Applicant to pay the respondents’ costs.
Catchwords: COURTS AND JUDGES – bias – application for recusal – actual or apprehended bias – where primary judge previously decided cases adversely to the applicant – where plaintiff alleged that primary judge altered transcripts – no actual or apprehended bias
PROCEDURE – notice of motion – application to access audio recording of hearing – where applicant alleged that transcript had been altered – where applicant led no evidence – notice of motion dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 58
Crimes Act 1900 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 6.29
Cases Cited: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Gillies v Eastlake [2014] NSWSC 611
Gillies v His Honour Judge Solomon DCJ [2024] NSWCA 146
Gillies v Moir [2014] NSWSC 1481
Gillies v State of New South Wales (No 3) [2024] NSWSC 1058
Gillies v The Queen [2022] HCASL 138
GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
The King v ZT [2025] HCA 9
Category: Principal judgment
Parties: Max Perry Gillies (Applicant)
State of New South Wales (First Respondent)
Commonwealth of Australia (Second Respondent)
Representation: Counsel:
Litigant in person (Applicant)
T Buterin (First Respondent)
M Sherman (Second Respondent)
Solicitors:
Crown Solicitor (NSW) (First Respondent)
Ashurst (Second Respondent)
File Number(s): 2025/24006
Publication restriction: Nil
THE COURT: By orders made on 21 August 2024, with reasons given on 23 August 2024, Garling J dismissed an application by Max Perry Gillies that he recuse himself, on the basis of either actual or apprehended bias, from hearing a number of notices of motion (the motions): Gillies v State of New South Wales (No 3) [2024] NSWSC 1058.
Mr Gillies now seeks leave to appeal from those orders and also seeks, by notice of motion considered at [10]-[24] below, orders in support of his application for leave to appeal.
In support of his application for leave to appeal he contends, in essence, that his Honour erred in dismissing his application for two reasons. First, because in 2014 Garling J decided two cases, Gillies v Moir [2014] NSWSC 1481 (the Moir proceedings) and Gillies v Eastlake [2014] NSWSC 611 (the Eastlake proceedings), adversely to him in circumstances which showed that Garling J was actually biased against Mr Gillies and had prejudged matters of relevance to the motions. Mr Gillies calls this “previous bias conduct”. Second, because, he alleges, Garling J altered the transcript of the hearing of the recusal application, failed to take the evidence relied upon by Mr Gillies into consideration (or to give it proper, genuine and realistic consideration) and has conducted himself in such a manner that this Court should find actual bias and should thus grant leave to appeal. Mr Gillies also relies upon both matters in support of an alternative contention relying upon apprehended bias.
Mr Gillies also seeks leave to appeal from further orders of Garling J on 21 August 2024:
allowing Mr Gillies’ application for an adjournment of the hearing of the motions pending his Honour publishing his reasons for dismissing the recusal application. As this was a decision in Mr Gillies’ favour and is in any event of no ongoing practical significance, there is no basis upon which leave to appeal could properly be given against this order.
under the Uniform Civil Procedure Rules, r 6.29, removing Judge Ronald Solomon, who had died, as a defendant in the proceedings because he had ceased to be a proper or necessary party and amending the title of the proceedings accordingly. This order was made with Mr Gillies’ consent. Mr Gillies now complains that it was improper as it was made after Garling J adjourned the hearing of the motions that were before him for hearing. Again, there is no basis upon which leave to appeal could properly be given against these orders. We would add that there is absolutely no foundation for the allegation, advanced in Mr Gillies’ proposed grounds of appeal, that Garling J made a conscious decision to break the law by removing Judge Solomon as a defendant in the proceedings.
We do not propose further to consider the application for leave to appeal insofar as it relates to the matters at [4] above.
After Mr Gillies’ application for leave to appeal was set down for hearing, he filed a notice of motion, on 3 April 2025, in accordance with directions made by the Registrar, seeking various orders which were said by him to arise out of the respondents’ written submissions opposing the grant of leave.
The motion contains three substantive paragraphs. Paragraph 2 sought an order that “the ‘Audio Recording’ from the hearing in the court below on 20 August 2024 is made available to this Court in aid of the Application for Leave to Appeal in the interest of justice”. Paragraph 3 sought an order that the respondents’ submissions be struck out on the grounds that they were misleading and amounted to misconduct contrary to various provisions of the Crimes Act 1900 (NSW). Paragraph 4 sought an order that “the whole proceedings are ended by judgment in favour of the Applicant and damages against the Respondents regarding the sum sought in the statement of claim is to be assessed, if the court accepts the fresh evidence”.
Early in the hearing on 2 May 2025, the Court directed Mr Gillies to the various paragraphs in the notice of motion, and stated that the Court, as constituted by two Judges of Appeal, had no power to allow an appeal or enter judgment in his favour, that the most he could obtain was a grant of leave so that there might be in the future a hearing before the Court constituted by three Judges of Appeal to hear and determine his appeal from interlocutory orders made by Garling J, and that even if the written submissions of the respondents were struck out, he still bore the onus of persuading the Court that there should be a grant of leave. We note that Mr Gillies is not unfamiliar with procedure in the Court of Appeal, including having regard to the grant of leave by this Court constituted by Macfarlan and Brereton JJA on 29 November 2022, and the refusal of leave to appeal from an earlier interlocutory decision in the same proceedings by this Court constituted by Ward P and Payne JA on 13 June 2024 in Gillies v His Honour Judge Solomon DCJ [2024] NSWCA 146. Mr Gillies appeared to understand those points, and no further attention was given to the second and third orders sought in his motion. For those reasons, there is no utility in striking out any of the respondents’ submissions, even if a basis for doing so was made out, and there is no power to enter the judgment sought by Mr Gillies.
In relation to the first order sought, namely, for the audio recording of the hearing before Garling J on 20 August 2024 to be made available, the Court directed Mr Gillies to what had been said by this Court constituted by Ward P and Payne JA on 13 June 2024 at [45]-[46]:
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.
That accords with what was said by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [31] and The King v ZT [2025] HCA 9 at [14], to which the Court referred Mr Gillies. The Court emphasised that it would be necessary for Mr Gillies to identify, by reference to evidence, what passages of the transcript of the hearing on 20 August 2024 were inaccurate. On two occasions during the hearing on 2 May 2025, the Court directed Mr Gillies to the fact that hitherto he had not sought to tender any evidence, and the only material before the Court was the material in the White Folder. After he had concluded his oral address, when counsel for the State noted there was no evidence, the Court gave a further opportunity to Mr Gillies to adduce evidence, and he read, relevantly, paragraphs 5, 6, 9 and 10 of his affidavit of 3 April 2025, including annexures MPG 1, MPG 2, MPG 3 and MPG 4, without objection. It was pointed out to Mr Gillies that all of those paragraphs were expressed to be submissions, and would be read as such. Paragraph 5 commences “The applicant submits …”, paragraph 6 commences “The applicant contends …”, and paragraphs 9 and 10 make submissions to the effect that the Court should be satisfied of various matters upon reading the transcript of the hearing on 12 September 2024 and the subsequent directions hearing on 6 February 2025.
The only evidence in addition to the material in the White Folder was the transcript of 12 September 2024, consent orders made on 11 December 2024, extracts of a proposed amended statement of claim, and a letter dated 17 December 2024 expressing the State’s opposition to the filing of that pleading.
Mr Gillies contended that two passages in the transcript of 20 August 2024 had wrongly been placed at pages 40 and 41 of the transcript, rather than at the commencement of the hearing. The first passage was lines 32-37 of page 40 and the second was lines 32-42 of page 41. Those passages, in their context, are as follows (the words which Mr Gillies says were wrongly located are in bold):
PLAINTIFF: So I’m not making high [and wide] allegations that can’t be substantiated. I have got the paperwork here to prove it. So what I am saying, I am going to read this on its entirety so everyone in this courtroom can hear the evidence.
HIS HONOUR: Mr Gillies, unfortunately for a person in your position you may not appreciate but I have an obligation to control the proceedings in front of me and that is for the benefit of the public at large and the administration of justice.
PLAINTIFF: Well, I’m making very serious allegations about your Honour.
HIS HONOUR: Mr Gillies, please let me finish.
PLAINTIFF: Yes.
HIS HONOUR: I am telling you that I do not want you to read these documents out aloud because there is no need to. They are – the entirety of them are exhibits. The entire contents of them form part of exhibit W on this application and they are available to everybody to read. It is unnecessary for you to read them out aloud and places an undue burden on the Court Reporting branch.
PLAINTIFF: Well, hang on, your Honour. In the case of the Federal Court of Australia, **Keenan(**as said) v Woolworths Group Limited [2023] FCA 379, paragraph 31, “A claim of actual bias requires cogent evidence”****. R v Australia Stevedoring Industry Board Ex Parte Melbourne Stevedore Co Pty Ltd [1953] High Court of Australia 22, (1953) 88 CLR 116, Dixon CJ. So clearly l’m putting on cogent evidence.
HIS HONOUR: Well, yes, Mr Gillies, of course, but I am talking about something which is a little different. Because as I have told you, these documents are an exhibit in the proceedings.
As an exhibit, they are part of the proceedings and constitute evidence. So to the extent that you need to rely on the contents of these documents, they are already in evidence.
PLAINTIFF: Well--
HIS HONOUR: All I am simply directing you is that for you to read the contents of these exhibits out aloud is both unnecessary and detrimental to the way in which these proceedings should be conducted efficiently.
PLAINTIFF: Well, you’ve said in your judgment, with all due respect, your Honour, that I provided no evidence to support my claim. Now, these evidence are very factual and it’s sent - it goes to the very heart to my - why he knew he is going to go to gaol and your Honour would also know with some of the evidence here, these solicitors have acted outside of their judicial oath which are not only a form of breaches of law under the Crimes Act 1900.
HIS HONOUR: I think we are talking about something quite different, Mr Gillies, with respect. We are talking about the process by which you are supporting your claim that I am actually biased.
Now, you have to put evidence before the Court. That’s what the authorities say. You have tendered these documents. They constitute evidence before the Court.
What you say from the Bar table in submissions is not evidence so there is no need for you to read out the evidence in your submission. That’s all I am telling you.
PLAINTIFF: Righto, your Honour.
HIS HONOUR: And I am asking you not to.
PLAINTIFF: Well, I will do what your Honour did say, point to specific pages.
HIS HONOUR: Thank you, I would be most grateful.
PLAINTIFF: The first letter.
HIS HONOUR: Just before we go on, you did mention a case name in the Federal Court. Can you just give me the reference of that again?
PLAINTIFF: Keenan (as said) K-E-A-N-E v Woolworths Group limited [2023] FCA 379.
HIS HONOUR: Thank you very much.
PLAINTIFF: Judgment of O’Sullivan J.
HIS HONOUR: Yes. Do go on.
PLAINTIFF: Right. The second letter, your Honour, where it says, “Darrin Gillies Lisa Eastlake trial”. Paragraph (a): …
No basis has been put forward to warrant an order that Mr Gillies be given access to a recording of the hearing.
First, there is no evidence to establish that the passages in bold were spoken at the commencement of the hearing, rather than on pages 40 and 41 of the transcript as Mr Gillies contends. As was pointed out by way of example, there was no copy of a note prepared by someone who was in attendance at the hearing. Nor was there any testimonial evidence, for example an affidavit made by someone present at the hearing, to the effect that the words were spoken at the commencement of the hearing.
Secondly, on the face of the matter, the transcript suggests that the passages are correctly located. Taking the first passage, concerning Keane v Woolworths Group Ltd, the response by the primary judge that the documents which Mr Gillies was seeking to read out verbatim in court were already in evidence as an exhibit in the proceedings reads naturally as a response to what the transcript records Mr Gillies said as to the requirement for cogent evidence. Later, when his Honour said “Now, you have to put evidence before the Court. That’s what the authorities say”, that likewise reads as a response to what the transcript records Mr Gillies had said moments earlier.
Thirdly, let it be assumed that there has been some garbling of a recording and the submissions made by Mr Gillies recorded on pages 40 and 41 of the transcript were actually made earlier. Not a jot would ordinarily turn on that.
However, the reason that Mr Gillies wishes to obtain a sound recording is that he makes the very serious allegation that Justice Garling, or if not the judge, the representatives for the State and the Commonwealth, were aware of or complicit in the corruption of the transcript in the fashion he recollects. Notwithstanding its seriousness, this is an allegation that Mr Gillies has made on at least four prior occasions as regards hearings which have taken place between 2006 and 2024: see [13] above, GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [35]-[42]; Tcpt of hearing before Macfarlan and Brereton JJA, 29 November 2022, p 2(21-30).
There is absolutely no evidentiary basis for the submission. It is as well to say that it is impossible to think of any plausible motive to alter the transcript in the manner which Mr Gillies contends, because the passages to which Mr Gillies refers are innocuous.
Nothing in the subsequent hearings in the proceedings on 12 September 2024 or 6 February 2025 alters the position. The fact that Mr Gillies has complained of an alteration of the transcript is not evidence of the fact.
For those reasons, no basis has been made out for any of the orders sought in the notice of motion, which will be dismissed.
The motions before Garling J on 20 August 2024, when Mr Gillies made the recusal application, were motions:
by the State and the Commonwealth seeking summary dismissal or that some or all of Mr Gillies’ statement of claim be struck out; and
by Mr Gillies, seeking summary judgment against the defendants and seeking leave to file a subpoena and alternative relief.
As at 20 August 2024, the underlying proceedings involved claims by Mr Gillies against Judge Solomon, the State and the Commonwealth for damages of $190 million plus general, aggravated and exemplary damages for malicious prosecution, malicious procedure, misfeasance in a public office and false imprisonment.
By way of overarching context, in 2006 Mr Gillies was found guilty by a District Court jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act. He was sentenced by Judge Solomon to 6 years 8 months’ imprisonment, with a non-parole period of 5 years. We will refer to these together as the 2006 proceedings. His conviction and sentence appeal was dismissed: Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339, as was an application for an extension of time for seeking special leave to appeal to the High Court: Gillies v The Queen [2022] HCASL 138. In large measure the claims advanced in the current proceedings arise out of conduct and events associated with the 2006 proceedings.
In support of some of those claims, in a statement of claim filed on 11 July 2023 (after his previous statement of claim was struck out and, after the grant of leave to appeal, he had been given leave to file a new statement of claim), Mr Gillies makes allegations that include reference to a Mr Moir who was instructed by the plaintiff as his solicitor for at least some of the 2006 proceedings. Two such allegations were relied upon by Mr Gillies in support of his application for leave to appeal. These were:
at [29(b)] where he alleges that Mr Tierney, a solicitor whom he retained on 14 April 2023, advised him to sue Mr Moir but that he (Mr Gillies) rejected that line of action; and
at [155(a)-(b)] where he alleges that in the 2006 proceedings Mr Moir shared his defence evidence with the Director of Public Prosecutions and that evidence was used against him at trial, and identifies that in the past he had sued Mr Moir for $53,000 which Mr Gillies had paid to Mr Moir’s firm on account of expert’s fees.
The first matter Mr Gillies relies upon in support of his contentions that Garling J was actually or apparently biased such that he should have recused himself from hearing the motions is the Moir proceedings. In those proceedings Garling J gave summary judgment for the defendants, including Mr Moir, on Mr Gillies’ claim (and ordered costs against him). Mr Gillies relies in part on the fact that he had filed evidence with the court in the Moir proceedings which may also be relied upon in the current proceedings, having regard to the allegations in his statement of claim at [29(b)] and [155]. He points, in particular, to eight letters sent on his behalf in March and April 2006 (the 2006 letters), broadly relating to fees charged by Mr Moir, costs paid in the 2006 proceedings, money allegedly lent to Mr Moir, money paid to Mr Moir on account of expert’s fees and requesting information from Mr Moir as to why certain steps were not taken in proceedings described in the letter as the “Lisa Eastlake Trial”. He says that these documents were filed in the Moir proceedings and will be relevant to the claims he advances in the current proceedings.
In support of his application, the plaintiff tendered a significant number of documents which he relied upon to demonstrate that the findings I had made in my two earlier judgments were, by reference to the Exhibits on this application, erroneous. He submitted that this demonstrated actual bias on my part in respect of the matters set out in the second Statement of Claim, and as well, going to the truth of the matters in the second Statement of Claim.
His Honour then went on to give detailed consideration to the submissions made by Mr Gillies in support of his application, including Mr Gillies’ submissions as to both the Moir and the Eastlake proceedings. There was no need for the primary judge to refer expressly to the individual documents tendered. The failure to do so does not suggest actual or apprehended bias. Nor does it suggest that the primary judge ignored relevant material, still less that this was done deliberately because of actual bias against Mr Gillies.
For completeness, we would add that nothing in the evidence set out above at [15] supports a finding of actual or apprehended bias.
In the circumstances, irrespective of whether the matters on which Mr Gillies relies are considered individually or cumulatively, there is no reasonably clear injustice as could support a grant of leave to appeal. Nor does this application raise any issue of principle or question of general public importance. Leave to appeal should be refused.
The orders of the Court are:
Notice of motion filed by Mr Gillies on 3 April 2025 is dismissed.
Leave to appeal refused.
Applicant to pay the respondents’ costs.
**********
Gillies
State of New South Wales [2025] NSWCA 98
(2022) 108 NSWLR 342
(2000) 205 CLR 337
(2011) 243 CLR 400
(1953) 88 CLR 116
The notice of motion filed on 3 April 2025 was dismissed; leave to appeal was refused; the applicant was ordered to pay the respondents' costs: [47].
Mr Gillies also seeks an order under s 58 of the Civil Procedure Act 2005 (NSW) that the respondents pay him $190 million dollars on the grounds of continued abuse of power. That is not an order that properly fell within the ambit of the application for leave to appeal that was before the Court. Nor is it an order that this Court, constituted by two Judges of Appeal on the application for leave to appeal, have power to make. Again, we do not propose to consider this further.
The relevant principles are not in doubt. As to actual bias, such complaints should not be made lightly and cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] (McColl JA, Giles and Tobias JJA agreeing) and the authorities there cited. As to apprehended bias, the relevant principle is that a judge is precluded from sitting in a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the determination of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6].
It is well-established that ordinarily it is appropriate to grant leave only concerning matters involving an issue of principle, questions of general public importance, or where an injustice is reasonably clear, in the sense of going beyond being merely arguable: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
For the reasons set out below, Mr Gillies’ application for leave to appeal should be dismissed with costs.
There was no appearance by or for Mr Gillies when the Moir proceedings were heard. No evidence was tendered by him. Garling J made orders dismissing Mr Gillies’ claim because any cause of action he pleaded must have arisen before he was made bankrupt on his own petition on 3 November 2006, and the causes of action thus vested in his trustee in bankruptcy. No evidence was provided by Mr Gillies that the causes of action had been assigned back to him. The primary judge found that Mr Gillies thus had no standing to bring the Moir proceedings. The primary judge also found that the claims advanced by Mr Gillies were statute barred as the relevant limitation period had expired and there was no room on the facts for any contention that the limitation period had not expired.
As is clear, in the Moir proceedings Garling J did not determine any issues of credit. Nor did he make any findings as to the 2006 letters (which were not in any event tendered before him). Whilst Mr Gillies clearly feels aggrieved by the outcome of the Moir proceedings and contends that the outcome was wrong, he did not appeal Garling J’s decision in those proceedings.
There is no merit in Mr Gillies’ contention that Garling J should have recused himself from determining the motions by reason of his Honour’s earlier involvement and judgment in the Moir Proceedings. There is nothing that suggests prejudgment of the matters raised in the current proceedings. Nor does the outcome in the Moir proceedings of itself support Mr Gillies’ contentions that Garling J should have recused himself from hearing the motions. The mere fact that a judge has determined a previous case adversely to a litigant does not support findings of actual or apprehended bias. That is so even where, as here, Mr Gillies makes serious allegations of sharing of defence evidence against Mr Moir in the current proceedings.
As regards the Eastlake proceedings, in which Garling J summarily dismissed Mr Gillies’ statement of claim and ordered costs against him, Mr Gillies contends that the outcome and reasoning of Garling J in his judgment support findings that Garling J was actually biased against Mr Gillies or of apprehended bias. He relied upon a number of matters, the most significant of which were the following.
First, he relied upon Garling J’s finding in the Eastlake proceedings at [37] that he accepted Ms Eastlake’s evidence as set out in an affidavit which she had filed in circumstances where she was not cross-examined. That does not suggest any prejudgment against Mr Gillies, nor does it suggest that the primary judge weighed that evidence against any evidence relied upon by Mr Gillies or made any findings of credit. The primary judge did not get to the point of making any factual or credit findings in the Eastlake proceedings. Instead, the primary judge’s orders were based upon the expiry of the applicable limitation periods for the claims and, as regards claims arising from costs orders made in earlier District Court proceedings, upon the facts that costs were ordered to paid “as agreed or assessed” but there had been no agreement or assessment of those costs and that any entitlement to costs was in any event vested in the Trustee in Bankruptcy. Ms Eastlake’s affidavit evidence was not relied upon in any way in Garling J’s dispositive reasoning in the Eastlake proceedings.
Secondly, he relied upon the nature and what he contends was the force of his allegations in the Eastlake proceedings. Again, even if these contentions were to be accepted, the primary judge made no determination as to these matters in the Eastlake proceedings. Mr Gillies’ contentions as to the nature and strength of his claims do not, in these circumstances, support a finding of actual or apprehended bias.
Thirdly, he submitted that, in the Eastlake proceedings, Garling J did not properly consider his contentions that the limitation period had been extended such that his claims were not statute barred. There is no merit in this contention. In the Eastlake proceedings Garling J expressly considered and made findings on each of the bases upon which Mr Gillies contended that the limitation period should be extended except for one, which sought to rely upon “s 32A(2)(a) of the Limitation Act 1969”. There was no s 32A in the Limitation Act 1969 (NSW) in 2014, nor is there any such section now. Perhaps reflecting this, in the Eastlake proceedings Garling J observed that s 32A of the Limitation Act 1980 (UK) had no application. That conclusion is, of course, unassailable. To the extent that Mr Gillies relies upon the fact of his incarceration as extending the limitation period, there is no merit in that contention as incarceration neither precludes a civil claim nor automatically extends a limitation period. Contrary to Mr Gillies’ contention, no actual or apparent bias is suggested by the approach or findings of Garling J in the Eastlake proceedings.
As regards each of the matters considered above, it is of some significance that Mr Gillies did not appeal the judgment of Garling J in the Eastlake proceedings. To the extent that his contentions of actual or apprehended bias are in reality contentions of error on the part of Garling J in the Eastlake proceedings, the appropriate means by which they should have been advanced is by way of appeal. Error, even if established, does not suggest prejudgment or bias.
Fourthly, Mr Gillies contends that his evidence in relation to the limitation period in the current proceedings is, or will be, the same as that relied upon in the Eastlake proceedings. That may be so, but Garling J’s findings in the Eastlake proceedings did not involve any assessment of the cogency of the evidence nor of Mr Gillies’ credit. His Honour’s findings were based upon the way in which the claim was put and the expiration of time. There is nothing to suggest that Garling J might not approach the issue of limitation in the current proceedings with an open mind.
As the primary judge made no credibility findings in either the Moir or the Eastlake proceedings, there is no substance to Mr Gillies’ contention that his Honour “carried over adverse credibility findings” from his Honour’s judgments in those proceedings to the current proceedings.
The final category of matters relied upon by Mr Gillies in support of his contentions that Garling J should have recused himself for actual or apprehended bias can be described as matters going to the manner in which Garling J has conducted the proceedings. In this regard, Mr Gillies placed particular emphasis upon three matters.
First, he alleged that Garling J had altered the transcript of the hearing on 20 August 2024. Having regard to our findings at [16]-[23] above, that contention should be rejected. Further, having regard to our findings, it was entirely proper for Garling J to decline to make an order granting the transcript providers permission to give Mr Gillies a copy of the audio recording of the hearings on 20 and 21 August 2024. There was no evidence before Garling J to support the contention that the transcript had been altered. Moreover, as Garling J observed, it is not for a first instance judge to make orders which are sought solely for the purposes of this Court’s appellate jurisdiction.
Secondly, he relied upon the fact that Garling J made orders refusing the recusal application but indicated that reasons would follow and initially sought to commence hearing the motions prior to handing down those reasons. Nothing in these case management decisions suggests actual or apprehended bias, and there is nothing unusual about taking those steps in the interests of the efficient use of judicial and ’party resources. In any event, Garling J ultimately acceded to Mr Gillies’ application that the proceedings be adjourned until he had handed down his reasons for refusing the recusal application.
Thirdly, he relied upon the failure of Garling J expressly to refer in his judgment to the evidence relied upon by Mr Gillies in support of the recusal application. As the transcript discloses, Mr Gillies tendered a number of documents in support of the recusal application. In his judgment at [37], Garling J said: