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[2025] NSWSC 1534
Supreme Court of NSW
2025-12-18
Garling J
Original judgment source is linked above.
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 (No.6) [2025] NSWSC 1534
Hearing dates: 27 October 2025, 28 October 2025
Date of orders: 18 December 2025
Decision date: 18 December 2025
Jurisdiction: Common Law
Before: Garling J
Decision: (1) Order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the whole of these proceedings be, and hereby are, dismissed.
(2) Order the plaintiff to pay the defendants’ costs of the proceedings.
Catchwords: CIVIL PROCEDURE – Pleadings – Application for leave to file proposed Amended Statement of Claim – Allegations of malicious prosecution, abuse of process and criminal conspiracy – No reasonable cause of action disclosed – Consideration of the tort of collateral abuse of process – Pleadings deficient in identifying a tortfeasor – Failure to identify an improper purpose – Where pleading does not comply with the principles of proper pleading – Section 56 Civil Procedure Act 2005 (NSW) – Leave refused
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Where plaintiff out of time – Section 55 Limitation Act 1969 (NSW) – Application of principle of judicial immunity – Causes of action pleaded hopeless – No improper purpose identified – Application for summary dismissal granted
Legislation Cited: Civil Procedure Act 2005 (NSW) s 56
Court Security Act 2005 (NSW) s 9B
Crimes Act 1900 (NSW) s 61I
Crimes (Appeal and Review) Act 2001 (NSW) pt 7, ss 76, 78, 79
Evidence Act 1995 (NSW) s 191
Limitation Act 1969 (NSW) s 55
Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW)
Supreme Court Act 1970 (NSW) s 69
Uniform Civil Procedure Rules 2005 (NSW) rr 6.29, 7.36, 13.1, 13.4, 14.28
Cases Cited: Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Emanuele v Hedley (1998) 179 FCR 290; [1998] FCA 709
Gillies v Brewer [2014] NSWSC 1198
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Gillies v District Court of NSW [2014] NSWCA 357
Gillies v State of NSW & Ors [2022] NSWSC 640
Gillies v State of NSW [2025] NSWCA 98
Gillies v State of NSW (No.2) [2014] NSWSC 1598
Gillies v State of NSW (No.2) [2024] NSWSC 1057
Gillies v State of NSW (No.3) [2024] NSWSC 1058
Gillies v State of NSW (No.5) [2025] NSWSC 1265
GILLIES, Max Perry – Application Under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392
Hastwell v Parmegiani [2023] NSWSC 1016
Queensland v Mr Stradford (a pseudonym); Commonwealth of Australia v Mr Stradford (a pseudonym); His Honour Judge Vasta v Mr Stradford (a pseudonym) (2025) 421 ALR 376; [2025] HCA 3
State of NSW v Spedding [2023] NSWCA 180
Young v Hones [2014] NSWCA 337
Texts Cited: Not Applicable
Category: Procedural rulings
Parties: Max Perry Gillies (P)
State of New South Wales (D1)
Commonwealth of Australia (D2)
Representation: Counsel:
Self-represented (P)
T P O’Connor (D1)
S Gaussen (D2)
Solicitors:
Self-represented (P)
Crown Solicitors Office (D1)
Thomson Geer (D2)
File Number(s): 2021/321823
Publication restriction: Not Applicable
On 31 July 2006, the plaintiff, Max Perry Gillies, was charged on Indictment with three counts of having sexual intercourse with a complainant knowing that she was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW) (“Crimes Act”). He was also charged with one count of assault and committing an act of indecency, and, as well, one count of attempting to have sexual intercourse without consent.
Mr Gillies pleaded not guilty to all five counts, and the matter proceeded to trial in the District Court of NSW in August 2006, before a jury. The trial was presided over by Solomon DCJ (“the 2006 trial”).
On 24 August 2006, the jury found Mr Gillies guilty of one count of an offence contrary to s 61I of the Crimes Act, which was Count 5 on the Indictment. He was found not guilty of Counts 2 and 3. The jury was unable to reach a verdict on Counts 1 and 4.
Ultimately, the Director of Public Prosecutions for NSW (“DPP) again arraigned Mr Gillies on Count 1 before a jury in 2009. He was acquitted by the jury on that charge (“the 2009 trial”). Count 4 was not proceeded with by the DPP.
In relation to the 2006 trial, Mr Gillies was sentenced by Solomon DCJ on 1 December 2006, with respect to Count 5, to a term of imprisonment of 6 years and 8 months, commencing on 17 July 2006, with a non‑parole period of 5 years, expiring on 16 July 2011.
It is fair to say that Mr Gillies has maintained his innocence of that charge, and regards his conviction as wrong. He has now, for almost 20 years, been engaged in various pieces of litigation in an attempt to vindicate his view. In the criminal jurisdiction, he has tried, and failed, to have his conviction overturned or reviewed. In the civil jurisdiction, he has commenced proceedings against a large number of different defendants, seeking to blame them, in a multitude of ways, for his conviction, and the financial losses which he claims their conduct and his conviction has caused him.
In most of his civil litigation, Mr Gillies has appeared for himself. His pleadings have often not been appropriately expressed to identify legal causes of action and have required amendment. Sometimes, the language used has been extravagant and potentially offensive. Depending on the particular proceeding, his pleadings have often contained unfocused and lengthy narratives setting out all of his complaints, not only with his original conviction, but with all that has transpired since. Conspiracies and allegations of fraud and cover-up abound.
Mr Gillies’ civil litigation has been unsuccessful, except in one or two respects. It has caused considerable legal cost and expense to those whom he has sued. His civil litigation has consumed significant judicial resources available to this Court. Over 20 judgments have been delivered. The principle of finality of litigation has not been of concern to Mr Gillies in the conduct of this litigation.
Mr Gillies sought to appeal against his conviction and sought leave to appeal against sentence. On 23 December 2008, the Court of Criminal Appeal (Basten JA, Hislop and Price JJ) dismissed his appeal: see Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339.
In considering his appeal, the Court described the Crown case against him in this way:
“22. In relation to Count (5), Exhibit M [a video tape] was played in court. In evidence at trial the appellant agreed with the following description of what was depicted: just before he inserted the wine bottle, he was touching the genitals of the complainant, she moved away from him, he picked up a dildo or vibrator and touched her genitals, she moved away from him, she uttered the word ‘Don’t’ a number of times. He was masturbating, was looking at the television screen, he lifted the doona to expose her lower body and he looked at the camera when he did that. He accepted at that point of time the doona was over the complainant’s head. At one time he was sucking on the carrot. He agreed the complainant then said ‘Don’t’ quite forcefully. The appellant agreed it could be suggested that the complainant tried to kick out with her foot when he tried to put the bottle near her. He agreed, she said ‘Don’t’ again. He inserted the bottle and she cried out very loudly ‘Ouch’. He agreed he pushed the bottle in hard. He said that in his mind, he was giving the complainant pleasure.
- The prosecution case was that the appellant videotaped sexual acts between himself and the complainant when the complainant was either heavily intoxicated or asleep or both and did not consent to those acts. The complainant had no memory of the events in question. The complainant gave evidence that at no time did she agree to use implements in the sexual relationship. It was her evidence that when it was discussed she actively declined to use the vibrator or be filmed.”
It was Mr Gillies’ case at trial that the complainant had consented to what had occurred. It was his case that the complaint made against him, and the account of the complainant, that what had occurred lacked consent, had been fabricated as a result of a dispute between Mr Gillies and the complainant regarding his decision to take an overseas holiday for two weeks without the complainant.
At trial, Mr Gillies formally admitted (s 191 of the Evidence Act 1995 (NSW)) that the videotape which showed the conduct the subject of Count 5 was authentic. No challenge was made to its provenance, nor was the chain of custody required to be proved in evidence. Having regard to the tenor of Mr Gillies’ sworn evidence, that admission and approach generally was logical and appropriate.
There were 24 grounds of appeal. The first category of grounds related to assertions of misconduct on the part of Mr Gillies’ solicitor and counsel; the second category of grounds related to the authenticity of the videotapes, including Exhibit M; the third category of grounds related to the admission of a number of items at trial, accompanied by inadequate or erroneous directions; and the fourth category included a single ground, which was that the verdict was unsafe and unsatisfactory.
The Court of Criminal Appeal noted that the prosecution case depended upon what the jury could see on the videotape, Exhibit M, given that the complainant had no recollection of the events the subject of the charges, when considered with the evidence which Mr Gillies gave at trial to which I have adverted above.
The Court of Criminal Appeal, in considering whether the conviction on Count 5 was unsafe or unsatisfactory, determined that it was not. The Court concluded:
“115. The jury may well have entertained no doubt on the question of consent in relation to count 5 because of what they saw and heard on the videotape. The jury may well have concluded that it was clear that the complainant was not consenting and that the appellant knew it. The complainant’s actions and noises indicated clearly that there was no consent.”
Mr Gillies, on 11 December 2020, filed an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), seeking an inquiry into two previous convictions – one entered in 1990, and the other, being the conviction based on Count 5, in the 2006 trial (“the Pt 7 Application”).
The application was dealt with by Beech-Jones J (as his Honour then was).
It is unnecessary here to consider the application insofar as it dealt with the 1990 conviction.
In his Pt 7 Application, Mr Gillies submitted that:
“… the ‘thrust’ of his argument as being based on ‘fresh cogent metadata evidence’ that is said to demonstrate that the trial and appeal transcripts were tampered with, [Mr Gillies] claims that the trial judge, [Solomon DCJ] and his associate conspired to tamper with the transcript in order to conceal evidence that the police had doctored the videotape evidence used to convict him. [Mr Gillies] claims that, contrary to what the transcript records, he made no concessions during the trial as to what could be seen and heard during the videos.”
One particular part of the transcript, to which Mr Gillies had referred extensively in his Pt 7 Application, was page 397, which related to 10 August 2006. There were two different versions of that transcript. The reason for this was that, as explained by the Deputy Secretary of the Department of Communities and Justice, the initial transcript, prepared daily on 10 August 2006, had omitted a part of the daily transcript. The transcript was amended and emailed to all of the parties on the following day.
The amended transcript contained the full transcript of what had transpired in the Court. The applicant supported his argument in the Pt 7 Application by reference to the report of an expert, Dr Allan Watt, who was described as an independent digital forensic expert.
I observe that the Pt 7 Application was commenced after Mr Gillies “discovered” supposedly significant metadata in the circumstances described in [40] and [56] below
Beech-Jones J said, at [42], this:
“Ultimately there is no evidence to suggest that either the transcript of the 2006 trial or the appeal to the CCA was improperly altered in the manner alleged. Nothing raised by the applicant on this suggests that there is a doubt or question as to the applicant’s guilt.”
Mr Gillies also raised, in his Part 7 Application, that the videotape (Exhibit M) recording the relevant assault, of which he had been convicted, had been doctored in some way. He asserted that the video was, in fact, created by a police officer and that the tape was not authentic.
Beech-Jones J, in dealing with these allegations, concluded, at [47], this:
“The applicant clearly made an express concession at his trial that the authenticity of the tapes was not in question during the trial. The CCA concluded that no miscarriage of justice arose from the repeated assurances given as to the tape’s authenticity. There is nothing raised in this application that would detract from this conclusion. Nothing raised by the applicant on this topic suggests that there is a doubt or question as to the applicant’s guilt.”
In the judgment, which is to be found at GILLIES, Max Perry – Application U**nder Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392, Beech‑Jones J refused Mr Gillies’ application on the basis that none of the matters relied upon raised a doubt or question as to his guilt in respect of either conviction.
In the time since Mr Gillies was released on parole on 9 November 2011, he has brought a number of civil proceedings in connection with his 2006 conviction. It is convenient to now outline them.
On the same date, Mr Gillies also commenced proceedings pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the Court of Appeal, with respect to audio recordings of the trial, the transcript and the exhibits from his trial. The proceedings were summarily dismissed in September 2014: see Gillies v District Court of NSW [2014] NSWCA 357.
The Court of Appeal concluded that the proceedings commenced by Summons were misconceived, and failed to disclose “… any relevant or reasonable cause of action”. Mr Gillies did not appear when the proceedings were heard by the Court of Appeal. At [44] of the Court’s judgment, it said:
“The prospects of the applicant establishing [his claims] was unrealistic to the point of non-existence. In these circumstances, it was appropriate for the summons to be summarily dismissed as manifestly groundless.”
On 10 November 2021, Mr Gillies commenced these proceedings in this Court against the State of NSW as the first defendant. Five other individuals were sued as defendants. The second-named defendant was the Attorney-General of NSW.
That Statement of Claim was 86 pages long. It claimed:
“An Order is one for damages in the amount of $70,000,000 to the Plaintiff for malicious prosecution and malicious procedure and misfeasance in public office which was concealed by way of tampering with the Plaintiff’s court transcripts by persons in the service of the crown which caused the wrongful conviction and unlawful imprisonment and bankruptcy of the Plaintiff, and consequently, the central allegation is that:
‘(a) “N****ew M****etadata Evidence” came to light which supports that the Transcripts of the Plaintiff’s court proceedings heard in the District Court and the Court of Criminal Appeal, have been unlawfully changed by persons in the service of the Crown so they do not record the actual evidence given in court to which not only did the jury rely upon for the finding of guilt in the plaintiff’s 2006 trial, the Court of Criminal Appeal relied upon for dismissing the plaintiff’s 2008 appeal, and the Supreme Court relied upon false evidence provided by the third and fifth defendants for dismissing the plaintiff’s Application under Part 7 of the Crimes (Appeal and Review) Act 2001.’ ”
“An Order for extension of the time limitation period pursuant to Section 55(1)(a)(b)(3)(a) of the Limitation Act 1969 (NSW), by virtue of fraud – deceit – concealment by persons in the service of the crown and the second defendant AG, on the grounds as pleaded in this statement of claim.”
At the heart of this very lengthy claim were a number of basal propositions. They were:
the sexual acts which took place on 10 July 2004 between the plaintiff and the complainant were entirely consensual;
the complaints made to the police by the complainant, and her four police statements, were false;
the videotapes presented at trial, and upon which the prosecution case relied, were not authentic, were not supported by evidence of a chain of custody, and had been doctored by a police officer;
the conduct of the trial, including pre-trial hearings, by the police, officers of the DPP, counsel, and expert witnesses, had engaged in an unlawful conspiracy involving the creation of videos which were not authentic, tampering with the trial transcript, and further tampering of the transcript during the appeal to the Court of Criminal Appeal, and generally engaging in conduct which prevented the plaintiff finding out what had occurred.
In paragraph 227, the following pleading occurs:
“Metadata evidence connected to the electronic transcripts
On 26 January 2019, the Plaintiff was made aware of ‘Metadata’ evidence. This led to an examination of the ‘Electronic Transcript Files’ of the Plaintiff’s 2006 Trial, including an examination of the ‘Electronic Transcript Files’ of the Plaintiff’s 2008 Appeal. Based on the ‘Metadata’, evidence connected to the said Transcripts, indicated that the Transcripts of the Plaintiff’s trial and appeal had been unlawfully Changed.”
Before continuing with the present chronology, it is necessary to say something brief (for the purpose of this case) about “metadata”, which features regularly in what follows. Metadata is created when an electronic or digital document is first brought into existence. Metadata is embedded automatically, either by the operating system or the software used to create the document. Metadata, particularly dealing with what can be termed “administrative” processes, is ordinarily capable of being accessed at any time after the document is created. Such metadata ordinarily includes the date and time of the document’s creation, details of the software used, file type and size, the last modification date – that is, the last date any existing component of the document was changed, added or deleted and who has permission to access the document.
This brief description of metadata encapsulates what can be regarded as common knowledge. The notion of metadata as a general concept does not need expert, or any, evidence.
It is unnecessary to further detail the contents of the Statement of Claim. I should note, however, that it was alleged that both the late Solomon DCJ, who presided over the 2006 trial in the District Court of NSW, and his Associate, had engaged in “misfeasance in public office”. The then Attorney‑General, the Honourable Mark Speakman MP SC, and the Deputy Secretary (Courts and Tribunal Services) for the Department of Justice and Attorney-General, were also sued, alleging that they too had engaged in misfeasance in public office. Named police officers and other public servants were also the subject of such a claim.
Finally, the plaintiff alleged negligence against the State of NSW. The basis of the pleading was that Mr Gillies had been wrongfully convicted and imprisoned. It was alleged that the conviction and imprisonment itself was unlawful and that the State owed to Mr Gillies:
“… fair court proceedings in accordance with legislation, which in this case gave the State a range of discretionary powers as guardian of the Plaintiff”.
On 8 February 2022, and on 14 February 2022, the defendants, respectively, filed Notices of Motion seeking summary dismissal, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or, alternatively, the striking out of the whole of the plaintiff’s Statement of Claim, pursuant to r 14.28 of the UCPR.
Those Motions were heard by Bellew J in March and April 2022. On 30 May 2022, for reasons which he published, Bellew J summarily dismissed the proceedings: see Gillies v State of NSW & Ors [2022] NSWSC 640.
On 17 August 2022, Mr Gillies filed a Summons seeking leave to appeal against the decision of Bellew J. That application for leave to appeal was heard separately and came before the Court of Appeal (Macfarlan and Brereton JJA) on 29 November 2022.
After oral argument, and a short adjournment, the Court returned and made orders together with short reasons. The Court of Appeal said:
“The Court makes these orders:
(1) Grant leave to appeal.
(2) Order that the costs of the application be costs in the appeal.
I give these short reasons on behalf of the Court. The Court is of the view that the applicant has an arguable case that summary judgment should not have been granted – for the reason that, on such an application, the Court is required, in the absence of evidence to the contrary, to assume the truth of the allegations in the relevant pleading.
Secondly, the Court considers that the applicant has an arguable case that the primary judge did not properly consider whether, if the statement of claim were struck out, the applicant should be granted leave to re-plead.
Thirdly, in relation to the Limitation Act issue, the Court considers that Mr Gillies has an arguable case that the primary judge wrongly placed the onus on the summary dismissal application on Mr Gillies – and an arguable case that even if the statute of claim were to be struck out on the basis of the limitations issue, Mr Gillies should have been given leave to re-plead.”
The Court pointed out to Mr Gillies that there was a need for him to replead his Statement of Claim.
After the grant of leave to which I have just referred, and before any hearing of the appeal took place, the parties resolved the appeal by consent. The following consent orders were made by the Registrar of the Court of Appeal, on 15 May 2023:
“1. Appeal allowed.
- Set aside the orders made by the primary judge on 30 May and 19 July 2022 and, in their place, order:
(a) the Statement of Claim filed 10 November 2021 be struck out; and
(b) the plaintiff is given leave to file and serve a new Statement of Claim by 12 July 2023;
(c) 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;
(d) the matter be listed for directions before the Common Law Registrar on 19 July 2023.
- The respondents to pay the appellant’s costs of the appeal as agreed or assessed on the ordinary basis.”
Following upon the orders to which I have just referred, on 11 July 2023, Mr Gillies filed a Statement of Claim in which he nominated, as the first defendant: his Honour Judge Ronald Solomon; as the second defendant: the State of NSW; and as the third defendant: the Commonwealth of Australia. The defendants who had previously been joined to the proceedings no longer formed part of them.
That Statement of Claim was 67 pages long. It described the type of claim as being:
“Judicial misconduct, Abuse of process, Criminal conspiracy, Malicious prosecution, False imprisonment”.
“(1) An Order for damages in the amount of $190,000,000 for the Plaintiff.
(2) General damages.
(3) Aggravated damages.
(4) Exemplary damages.
(5) Such other order or order(s) as the Court deems fit.
(6) Costs.
(7) Interest.
(8) An Order for extension of the statutory six (6) year time limitation period pursuant to Section 55(1)(a)**(b)(3)(a) of the Limitation Act 1969 (NSW).”
Whilst this Statement of Claim was different from the first Statement of Claim, it seems to me that the underlying bases of Mr Gillies’ concerns, to which I have referred above at [39], remained central to the ongoing pleading.
In this Statement of Claim, Mr Gillies pleads (at paragraph 134) that, on 26 January 2019 “… the plaintiff’s brother-in-law made the plaintiff aware of metadata evidence (‘the metadata evidence’)”. The plaintiff pleads that obtaining this knowledge led to him conducting an examination of the electronic transcripts of the 2006 trial and the 2008 appeal. He claims that such examination revealed evidence that the transcripts of the 2006 trial have been “unlawfully changed”. A similar allegation is made with respect to the 2008 appeal.
The Statement of Claim continues with a detailed recitation of the proceedings consequent upon Mr Gillies’ conviction. The recitation includes the hearing by the High Court of Australia of an application, by Mr Gillies, for leave to issue or file an application for special leave to appeal, and the dismissal of the application for special leave to appeal.
In respect of each of the proceedings, namely the plaintiff’s 2006 trial in the District Court (Solomon DCJ), the plaintiff’s 2008 appeal to Court of Criminal Appeal (Basten JA, Hislop and Price JJ), the plaintiff’s Pt 7 Application (Beech‑Jones J) and the two High Court applications, allegations are made in respect of the Judges, and those otherwise involved, by way of a Judge’s Associate, lawyers, police officers or expert witnesses, that there has been either individually, or jointly, one or more conspiracies to ensure that Mr Gillies was convicted of the criminal offence comprising Count 5 in the 2006 trial (noting that he, at all times, has denied his guilt), and that deliberate steps have been taken to ensure that, thereafter, Mr Gillies has not been able to overturn the conviction. Judicial misconduct is alleged, abuse of process is alleged, criminal conspiracy is alleged, and, further, that all of the conduct of the various people said to be involved “… constitute acts of either fraud, deceit or concealment”.
Damages, including exemplary and aggravated damages, were claimed.
On 27 September 2023, the third defendant, the Commonwealth of Australia, filed a Notice of Motion seeking an order, pursuant to r 13.4 of the UCPR, for summary dismissal and, in the alternative, that identified paragraphs of the Statement of Claim be struck out, pursuant to r 14.28 of the UCPR.
Also on 27 September 2023, the first two defendants, being Solomon DCJ and the State of NSW, filed a Notice of Motion seeking to have the proceedings summarily dismissed, pursuant to r 13.4 of the UCPR, on the basis that the proceedings were frivolous, vexatious and/or an abuse of process. Alternate relief was sought, pursuant to r 14.28(1) of the UCPR, that the whole of the Statement of Claim be struck out, as it had a tendency to cause prejudice, embarrassment and delay.
On 20 August 2024, the two Notices of Motion filed by the defendants, seeking summary dismissal or, in the alternative, a striking out of the Statement of Claim, came before me for hearing. Also listed for hearing on that day were three outstanding Notices of Motion filed by the plaintiff. The first and second Motions, filed, respectively, on 12 July 2023 and 6 October 2023, sought summary judgment for the plaintiff against the defendants, and access to an audio recording of the hearing before Bellew J. The third Motion, which had been filed on 23 February 2022, remained outstanding by reason of the consent orders entered into by the parties after the application for leave to appeal was granted by the Court of Appeal in 2022.
At the commencement of the hearing of those Motions, Mr Gillies made an oral application that I recuse myself from hearing all five of the Motions which were listed for hearing.
The argument occupied most of the first listing date of 20 August 2024. On the morning of the following day, 21 August 2024, I informed the parties that I refused the plaintiff’s application that I recuse myself from the hearing of the Motions. I indicated that I would provide written reasons for that decision promptly.
Written reasons were delivered on 23 August 2024: Gillies v State of NSW (No.3) [2024] NSWSC 1058.
One matter which had been attended to by consent on 21 August 2024, was to remove Solomon DCJ as a named defendant. His Honour had died prior to the hearing on 20 August 2024. The State of NSW indicated that, if the plaintiff established a cause of action against Solomon DCJ, then it accepted that it would be vicariously liable for any damages which may be awarded to the plaintiff as a consequence of any conduct of Solomon DCJ.
For the reasons which I delivered ex-tempore on 21 August 2024, I ordered, pursuant to r 6.29 of the UCPR, that Solomon DCJ be removed as a party because, in light of his death on 17 June 2024, he had ceased to be a proper or necessary party. I ordered that the title of the proceedings be changed so as to note the State of NSW as the first defendant, and the Commonwealth of Australia as the second defendant. I published reasons for those orders: Gillies v State of NSW (No.2) [2024] NSWSC 1057.
Mr Gillies sought leave to appeal from my refusal to recuse myself from hearing the Notices of Motion which were listed before me in August 2024.
As well, Mr Gillies sought leave to appeal from the decision I made to adjourn the hearing of the Motions pending the publication of my reasons, and the decision to remove Solomon DCJ as a defendant.
The Court of Appeal (Leeming and Stern JJA) dismissed a Notice of Motion filed by Mr Gillies on 3 April 2025 and refused leave to appeal. The Court ordered Mr Gillies to pay the respondent’s costs. The Court of Appeal published its reasons: [2025] NSWCA 98.
After the decision of the Court of Appeal, the matters were referred back to me, and the Motions were listed for hearing on 27 October 2025.
Listed before me were the Motions which had previously been listed in August 2024, and, as well, a further Motion which had been filed by the plaintiff on 2 June 2025, which sought a variety of orders, including the following:
“1. That Justice Garling be permanently disqualified from hearing this proceeding on the grounds of apprehended bias, conflict of interest, and refusal to address material evidence and transcript irregularities.
- That the matter be referred to the Chief Justice of the Supreme Court of NSW for urgent reassignment to an independent judge not previously involved in this case.
…
- That leave be granted pursuant to UCPR r 19.4(2) to file and serve the proposed Amended Statement of Claim, as exhibited to the affidavit of the Plaintiff.
- That in light of the Section 78B Notice filed on 21 May 2025, the Court take no further substantive steps until all Attorneys-General have had a reasonable opportunity to intervene or confirm non-intervention.
- That summary judgment be granted pursuant to UCPR rr 13.1 and/or 20.26, as the Defendants have failed to file a Defence and have no reasonable prospect of defending the claim.”
The parties agreed that I should commence the hearing by dealing with the first two orders in the Notice of Motion of 2 June 2025, which have been set out above.
At the conclusion of the argument, for reasons which I delivered ex-tempore, I declined to recuse myself from the hearing of the Notices of Motion listed before me on that day. My ex-tempore reasons were reduced to writing and published: Gillies v State of NSW (No.5) [2025] NSWSC 1265.
On the following day, I proceeded to hear the plaintiff’s application for leave to file an Amended Statement of Claim, with respect to a version of the Statement of Claim which had been served on the parties on 3 December 2024, which consisted of 34 paragraphs over eight pages, which was the version referred to in Order 6 of the Notice of Motion.
For the avoidance of doubt, I note that this version of the Statement of Claim was tendered and admitted as Exhibit 3 on the Motion, because the version had not been included in the Court Book.
Mr Gillies informed the Court that it was a proposed pleading which had been drafted by his then solicitors, Taylor Rose. Although, I note that the coversheet of the Statement of Claim does not suggest that those solicitors were acting for Mr Gillies at that time.
It is appropriate to proceed to consider the substance of this application without regard to the particular format of the Statement of Claim, which lacked formal parts which are required to be attached to it.
“1. An Order for damages in the amount to be assessed but no less than $190,000,000 for the Plaintiff.
- General damages.
- Aggravated damages.
- Exemplary damages.
…
- An Order for extension of the statutory six (6) year time limitation period pursuant to Section 55(1)(a)(b)(3)(a) of the Limitation Act 1969 (NSW).”
The proposed pleading claims the abovementioned relief against both the State of NSW and, separately, against the Commonwealth.
Insofar as the claim against the State is concerned, it centres upon the State’s vicarious liability for the actions of two police officers, and for the actions, or failures to act, of various “agents and employees of the Reporting Services Branch”.
Insofar as the cause of action against the Commonwealth of Australia is concerned, it claims that the Commonwealth is vicariously liable for the acts and omissions of an identified officer of the Australian Federal Police (“AFP”), who provided expert reports in advance of the 2006 trial.
The Statement of Claim sets out the fact of the 2006 trial against Mr Gillies, and notes that the proceedings were recorded and transcribed by the Reporting Services Branch (“RSB”).
It pleads that the transcripts of the 2006 trial:
“… were altered by persons unknown to Mr Gillies … but within the employ of the Reporting Services Branch, to among other things:
(a) insert words that had not been said during the trial in the transcript;
(b) altering and deleting aspects of Mr Gillies’ evidence, and evidence of witnesses testifying in respect of the Prosecution’s case and in respect of Mr Gillies’ defence;
(c) inserting evidence given in the trial with other evidence, in particular evidence given by Mr Gillies and evidence given by [a police officer]; and
(d) the transcripts failed to display any markings or headings to indicate changes had been made to the transcripts.”
“12. In initiating or continuing the 2006 District Court Proceedings against Mr Gillies, the State of NSW:
(a) tendered and relied upon videotapes of events on 10 July 2004 which had been altered by [police officers] prior to the commencement of the 2006 District Court Proceedings (the Altered Tapes);
(b) relied on Altered Transcripts of the 2006 District Court Proceedings which were recorded and transcribed by the Report Service Branch.”
“15. [AFP officer]:
(a) provided a report to the State of NSW through the Director of Public Prosecutions on or about 27 March 2006 which held exculpatory evidence favourable to Mr Gillies …;
(b) provided a further report to the State of NSW through the Director of Public Prosecutions on or about 17 July which contradicted the first … report and authenticated the Altered Tapes;
(c) knew, or ought to have reasonably known, that the Altered Tapes had been altered;
(d) despite this, gave evidence in the 2006 District Court Proceedings authenticating the Altered Tapes.”
The Statement of Claim goes on to plead the outcome of the 2006 trial, the sentence imposed on Mr Gillies, and the fact of his imprisonment for a period of a little less than 5 years and 4 months.
The proposed pleading then pleads the fact of the appeal to the Court of Criminal Appeal. In the course of said pleading, the following is included:
“20. In or about January 2007:
(a) Mr Gillies discovered that the transcripts of the 2006 District Court Proceedings had been altered so that they did not accurately reflect the evidence of events of the 2006 District Court Proceedings.
(b) Mr Gillies sought a subpoena to be issued by the District Court of NSW at Sydney to the Reporting Service Branch to produce the audio recordings of the 2006 District Court Proceedings … so he could use them in aid of his appeal of the verdicts in the 2006 District Court Proceedings for the NSW Court of Criminal Appeal.”
Mr Gillies pleads that the subpoena was not answered and that he was therefore denied the opportunity to present the altered transcripts as a substantive part of his appeal.
The proposed pleading deals with the 2009 trial during which it is said that, the altered video tapes were tendered and relied upon, as was the altered transcript.
The Statement of Claim goes on to plead that:
“30. On or about 26 January 2019, Mr Gillies was made aware from his brother in law that the metadata on the Altered Transcripts indicated the transcripts had been altered such as not to reflect what had occurred during the 2006 District Court Proceedings.
- On or about February 2019, Mr Gillies discovered during a telephone call with the Reporting Services Branch about the metadata on the Altered Transcripts that the Reporting Services Branch held at least two different versions of the transcript of the events that occurred on 10 August 2006 of the 2006 District Court Proceedings.”
“32. The 2006 District Court Proceedings and the 2009 District Court Proceedings were an abuse of process.”
In Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 (“Burton”), Bell P (as the Chief Justice then was) discussed, in detail, the elements of the tort of abuse of process. He noted that as a civil tort, the traditional (and appropriate) nomenclature was “collateral abuse of process”. I too will use that description.
At the end of that discussion, which itself bears careful reading for its scholarship, his Honour summarised the elements of the tort in the following way:
“42. In summary, the elements of the tort of collateral abuse of process, as I understand them to be, are:
- The alleged tortfeasor must have instituted a legal process for an improper purpose.
2. The legal process in question must have been misused in order to obtain some advantage or benefit ‘entirely outside’ that afforded by the legal process invoked – hence, a collateral advantage.
- The process in question must have been deployed in furtherance of the alleged tortfeasor’s improper purpose by way of an overt act or threat, distinct from pursuit of the proceeding itself according to its ordinary course – though in certain circumstances, the commencement of proceedings can be a sufficient act where there has been some prior improper conduct on the part of the alleged tortfeasor.
- In NSW at least, authority currently requires that the claimant has suffered special damage.”
“2. … The purpose of criminal proceedings is to decide whether the accused has engaged in conduct which amounts to an offence and is deserving of judgment … The bringing of criminal proceedings to vex or harass a defendant, if that can be established (and it would be a most serious allegation), is plainly outside the scope of the purpose of criminal proceedings. Such proceedings would properly be characterised as having been brought for an improper purpose but, as shall be seen, whilst the existence of such an improper purpose may be sufficient to obtain a stay of proceedings, it is not sufficient alone to establish the commission of the tort of collateral abuse of process.
“Unless properly understood and delimited, the continued existence of the tort of collateral abuse of process could lead to the proliferation of litigation based on the ‘mere occurrence of the earlier litigation with an added assertion of improper motive or absence of legitimate purpose in bringing or defending the proceedings: Butler v Simmonds Crowley and Galvin [2000] 2 Qld R 252; [1999] QCA 475 at [38] (Butler). In this context, Lord Sumption has referred to ‘a principled reluctance on the part of the courts to countenance civil liability for invoking the jurisdiction of the court: Crawford Adjuste**rs (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UK PC 17 at [157] (Crawford).”
“95. As I would understand the discussion in those passages, an important distinction is to be drawn between motive on the one hand and purpose or intention on the other. A person with a discreditable motive for bringing proceedings may yet successfully resist an accusation of improper purpose, provided that the ‘object sought to be effected by the process’ falls within its lawful scope. The inquiry is directed to the outcome sought to be achieved by use of the process, not the state of mind with which the person prosecuting the action seeks that outcome.
…
- Criminal proceedings are different at least to the extent that they do not offer any private remedy and are pursued in the public interest. Without purporting to be definitive, it may be accepted as a working premise for present purposes that the ‘lawful scope’ of criminal proceedings is to secure the proof of a criminal offence and to have the defendant dealt with accordingly.”
The tort of collateral abuse of process was also considered by the Court of Appeal, amongst other causes of action, in State of NSW v Spedding [2023] NSWCA 180.
In a judgment of the Court (Bell CJ; Ward P and Adamson JA) the Court endorsed the elements of the tort, as set out in Burton, to which I have referred above, from [97]-[100].
The Court drew attention in its judgment to a decision of the Full Court of the Federal Court in Emanuele v Hedley (1998) 179 FCR 290; [1998] FCA 709 at [41], where it said:
“Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process, it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favour, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.”
“… It seems clear that, whatever be the position of informants in malicious prosecution cases, an action for abuse of process is available only against the party who actually instituted the proceedings … This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of abuse of process must fail irrespective of the motives and conduct of people who influenced the decision to institute the proceeding. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose.” (emphasis added)
Against those statements of principle, it is necessary to analyse the claim made in the proposed pleading.
The proposed pleading does not address and set out how it is that the facts which are pleaded constitute the tort of abuse of process.
There are no facts pleaded, or allegations made, with respect to a person identified as a tortfeasor (for whom the first defendant, State of NSW, may be vicariously liable) being the person who instituted the criminal charges for an improper purpose.
In paragraph 6 of the proposed pleading, it is alleged that the 2006 District Court proceedings were instituted, or continued, by the Director of Public Prosecutions for and on behalf of the State of NSW. Evidently, in this case, the DPP would be readily identified as the relevant tortfeasor, on Mr Gillies’ version of events.
There is no pleading that, at the time the proceedings were instituted, the Director of Public Prosecutions did so for an improper purpose.
There is no identification in the pleading of what that improper purpose was.
As well, although there is an allegation that transcripts had been altered in the course of the trial, and that two police officers had, prior to the commencement of the 2006 District Court proceedings, altered some videotapes, there is no allegation that the criminal trial in 2006 was misused by the tortfeasor, the DPP, to obtain some advantage or benefit outside that afforded by the legal process.
Finally, there has been no identification of how it is that the criminal trial process was been deployed in furtherance of the improper purpose which could be said to have existed.
Insofar as the proposed pleading claims the tort of abuse of process on the part of the Commonwealth of Australia, the pleading is limited to the conduct of the AFP officer who, at the request of the Office of the Director of Public Prosecutions, provided two written reports to the Office and gave evidence in voir dire proceedings about the subject matter of the reports. These reports dealt with a question arising in the criminal trial, namely, whether or not videotapes which had been seized from the applicant’s home were genuine and authentic.
The failures noted with respect to the State apply equally, but with greater force to the Commonwealth, particularly as it is not said that the Commonwealth, or anybody for whom it is vicariously liable, instituted the proceedings, nor is it said that the particular officer who provided evidentiary reports had any improper motive in doing what he did.
This proposed pleading, although drafted by lawyers, does not adequately address the required elements of the tort of abuse of process (or collateral abuse of process). Accordingly, it is inappropriate to grant the plaintiff leave to file it in its present form.
The Notice of Motion of the plaintiff, dated 2 June 2025, as earlier indicated, included a prayer for the grant of leave to file an Amended Statement of Claim. At the time the Notice of Motion was served, the plaintiff annexed a further proposed Amended Statement of Claim to his affidavit of 29 May 2025, as Annexure J (“the Annexure J pleading”).
The plaintiff informed the Court that he had drafted this proposed pleading without legal assistance.
In light of my conclusion with respect to the proposed amended pleading of 3 December 2024, it is appropriate to consider whether leave ought be granted with respect to the Annexure J pleading of the plaintiff.
This proposed pleading nominates the State of NSW as the first defendant and the Commonwealth of Australia as the second defendant.
It claims the following relief:
“1. An Order for damages in the amount of $50,000,000.
- General damages.
- Aggravated damages.
- Exemplary damages.
…
- An Order for extension of the statutory six (6) year time limitation period pursuant to Section 55(1)(a)(b)(3)(a) of the Limitation Act 1969 (NSW).”
The proposed pleading comprises 147 paragraphs and 36 pages, and is divided into many Parts.
At the commencement, under the heading “Introduction”, the following appears:
“4. The Plaintiff claims relief against the First Defendant (the State) and the Second Defendant (the Commonwealth) for fraud on the court, arising from the fabrication of video evidence tendered during the plaintiff’s trial on 31 July 2006, and the subsequent tampering with the official trial transcript between July and December 2006, which was carried out by the trial judge, Judge Solomon, and his associate, Jenny Howard, for the purpose of concealing prosecutorial misconduct that led to the Plaintiff’s wrongful conviction and imprisonment.”
Insofar as allegations with respect to the fabrication of evidence are concerned, the plaintiff pleads that an officer of the NSW Police Force created videotape recordings which were later marked as exhibits in the plaintiff’s 2006 and 2009 criminal trials. It is alleged that, in September and October 2004, copies of the tapes were transferred to DVD format and enhanced. Those enhanced copies of the videotapes were used at the trial.
In paragraph 13, the following is pleaded:
“The plaintiff pleads that the chain of custody was irregular, lacked proper documentation or forensic review, and was constructed after the fact to give legitimacy to the fabricated evidence:
Particulars
(a) Absence of contemporaneous chain of custody documentation for exhibits A, B, E and F;
(b) Discrepancies in statutory declarations and subpoena responses by [NSWPF];
(c) Non-compliance with standard NSWPF evidence handling protocols;
(d) Expert findings showing incompatibility between the footage and the Plaintiff’s Samsung DVD-V70 system.”
“14. The plaintiff pleads that officers of the Second Defendant, acting through the Australian Federal Police (AFP), intentionally suppressed chain of custody records and concealed forensic inconsistencies relating to the State’s videotape evidence, for the purpose of concealing irregularities in its handling, authenticity and admissibility.
Particulars
(a) Internal AFP records referencing or withholding chain of custody documentation;
(b) Omission of forensic inconsistencies noted in internal reports between 2004 and 2006;
(c) Failure to disclose AFP video analysis during pre-trial disclosure;
(d) Discrepancies in correspondence between AFP and DPP regarding video source authenticity.”
Insofar as this proposed pleading refers to transcript tampering, the allegation is that, in the period between July and December 2006, the “official court transcript” of the plaintiff’s 2006 trial, was tampered with by the presiding Judge, his Associate and “O**fficers of the Reporting Services Branch of the NSW Attorney Generals Department”.
In paragraph 17, the plaintiff makes the following allegation with respect to the alteration of the transcript:
“17. The Plaintiff alleges that these edits were performed without judicial authority and were intended to:
a) Insert false reasons for rejecting a jury discharge application;
b) Conceal prejudicial judicial statements and jury interactions;
c) Delete references to a Triple Zero (000) call and other exculpatory evidence;
d) Mask misconduct by [an NSWPF officer] and [the prosecutor]; and
e) Justify the admission of fabricated video evidence.”
“73. On 26 January 2019, the Plaintiff was shown how to access metadata embedded in Microsoft Word documents and court transcript files by his brother-in-law, a chemical engineer.
- Later that day, the plaintiff applied that knowledge to official 2006 transcript files stored on case USB, and discovered that …”
“78. The Plaintiff alleges that the alteration of transcripts and concealment of reports and evidence:
(a) Constituted fraud;
(b) Was perpetrated by public officers acting in their official capacities; and
(c) Was deliberately designed to obscure the conduct of police, prosecutors, and judicial officers during and after the Plaintiff’s 2006 trial.”
It is relevant here to note that, in this proposed pleading, with respect to the hearing before the Court of Appeal on 29 November 2022, when leave to appeal was granted from the judgment of Bellew J: see [47]-[49], the pleading sets out matters which are entirely incorrect.
Paragraphs 53 to 55 of the proposed pleading are in the following terms:
“53. Their Honours expressly found that:
(a) Two versions of the same transcript for the hearing on 10 August 2006 existed and were proven by metadata;
(b) The NSWCCA had relied on the doctored version, specifically page 397 of the 11 August 2006 transcript, when it dismissed the Plaintiff’s appeal on 23 December 2008, as referenced in paragraph [91] of that judgment;
(c) That Judge Solomon and his associate, Jenny Howard, inserted into the transcript of the 2006 trial words that were not spoken during the proceedings:
(i) that a fabricated ‘curative direction’ was inserted into the transcript to justify the rejection of an application to discharge the jury;
(d) Between 2006 and 2014, Judge Solomon denied all of the Plaintiff’s applications for access to the 2006 trial audio recordings;
e) That Mark Speakman and Catherine D’Elia conspired to conceal the unlawful alteration of the 2006 trial transcripts.
- Justice Brereton stated on the record, in substance, words to the following effect:
‘If the plaintiff’s allegations of transcript tampering are proven, the entire trial miscarried.’
- Their Honours concluded that:
(a) The plaintiff’s claims of fraud on the court were arguable;
(b) There existed credible evidence of judicial tampering with official court records;
(c) The Plaintiff satisfied the threshold under s 55(1)(b) of the Limitation Act 1969 (NSW) by demonstrating that the material facts were not discoverable with reasonable diligence before the January 2019 discovery of metadata evidence.”
I earlier, at [48], set out the orders actually made by the Court of Appeal and the entirety of the short reasons orally announced by the Court when it made its orders.
During the course of oral submissions, counsel for the State accepted that on an application for summary dismissal, of the kind that was before Bellew J, the correct approach for a Court is for it “to assume the accuracy of everything that is pleaded in … the statement of claim”. That is how the Court of Appeal proceeded.
It was noted, and agreed, that there was no other evidence before Bellew J which would affect that approach. The only statement made by Brereton JA during the course of the usual interchange between the Bench and the Bar Table is set out in paragraph 54 of the proposed pleading, which I set out at [134] above, was this:
“It’s clear enough from what was put this morning that the allegation is that it may, to many of us, appeared far-fetched at first sight, but the allegation, which is to be taken at its highest for present purposes, is that the Judge and Judge’s associate have inserted into the transcript words which were not said, for the purposes of providing, retrospectively, a justification for a course of action that was taken. If that were established, it wouldn’t be hard to reason, from that, that the whole trial had miscarried because of the way the Judge had acted on that single occasion.”
This statement contained no findings or conclusions. It was a statement which formed part of an exchange between the Bench and counsel for the State of NSW to test submissions being made by counsel that there was no error in the finding of the primary Judge, Bellew J, in entering summary judgment. The quoted statement in the proposed pleading entirely misquotes what was said in the course of a discussion about how one might reason to a conclusion. A discussion does not amount to a concluded view, let alone any “express finding” of a Court.
It is clear that the only conclusions of the Court of Appeal were that, on the basis of the then existing pleading, and assuming that the facts pleaded were true, the applicant had an arguable case that summary judgment should not have been granted. Further, the Court found that the applicant had an arguable case that the primary Judge did not properly consider whether the plaintiff should be granted leave to re-plead his Statement of Claim. It was on that basis that leave was granted.
The conclusions pleaded in paragraph 55 of the proposed pleading are simply incorrect. The Court of Appeal made no such findings.
“105. The Plaintiff pleads that the prosecution and retrial of Count 1 formed part of a continuous course of conduct by the Crown. While his imprisonment was formally based on Count 5, the continued prosecution of Count 1:
(a) Exposed the Plaintiff to ongoing legal jeopardy;
(b) Caused reputational and emotional harm;
(c) Imposed financial burden and prevent the Plaintiff from pursuing redress.
- The Plaintiff pleads that the prosecution of Count 1:
(a) Was instituted and maintained without reasonable and probable cause;
(b) Was pursued with malicious intent, including to:
(i) Legitimate the use of fabricated video evidence;
(ii) Apply pressure on the Plaintiff to plead guilty;
(iii) Suppress legal scrutiny of Crown misconduct;
(c) Was aggravated by judicial refusal between 2006 and 2025 to engage with the transcript and video evidence substantiating the Plaintiff’s claims…”
“111. The Plaintiff claims damages against the First Defendant for the tort of conspiracy to pervert the course of justice at common law.”
The third cause of action contained in the Annexure J pleading is one described as “fraud on the Court”. It directly relates to the 2006 trial which resulted in a conviction of Mr Gillies on Count 5. Mr Gillies pleads that there was fabricated video evidence which was admitted in the trial without proper proof of the chain of custody. This pleading refers to the videotapes that became Exhibit A and Exhibit E. I note that Exhibit M was an enhancement of part of Exhibit A.
The second element of this cause of action is that various forensic reports were not tendered. Their contents are described as exculpatory. And, further, the Crown proceeded “… despite knowledge that the footage had been falsified”.
The third element of this cause of action is the claimed transcript tampering and substitution. The transcript tampering is identified as being the transcript taken during the 2006 trial, on 10 August 2006, of the plaintiff’s application to discharge the jury, which was refused by Solomon DCJ. The transcript was said to have been altered by “… containing fabricated judicial reasons not spoken during the hearing”.
The plaintiff pleads that the altered transcript was expressly relied on by the Court of Criminal Appeal in its judgment with respect the 2008 appeal.
The pleading then goes on in the following way:
“137. The Plaintiff pleads that the use of Exhibit A/E, the doctored transcript of 10 August 2006 …, and the suppression of forensic and exculpatory evidence … amounted to fraud on the Court, in that:
a) False and fabricated evidence was knowingly placed before the Court;
b) Court officers and judicial staff knowingly altered the trial record to support an unlawful conviction;
c) The integrity of the court process was subverted, and a conviction was obtained by fraud.
- The plaintiff pleads that this conduct:
a) Involved active deception of the Court by police and prosecutorial officers;
b) Was enabled by judicial and registry officers who altered the trial record;
c) Deprived the Plaintiff of a fair trial;
d) Resulted in a conviction that would not have occurred but for the fraud.
- As a result of the fraud on the court:
a) The Plaintiff was wrongfully convicted and imprisoned for Count 5;
b) The Plaintiff suffered loss of liberty, emotional and psychological injury, and reputational harm;
c) The Plaintiff was denied access to post-conviction remedies and exoneration for over 20 years.”
“140. The Plaintiff claims:
a) General and aggravated damages for wrongful conviction and imprisonment;
b) Exemplary damages to reflect the systemic abuse of judicial process;
c) A declaration that the proceedings in Count 5 were infected by fraud on the court and resulted in a miscarriage of justice;
d) An order that the conviction on Count 5 be declared void and of no legal effect.”
With respect to this version of the Statement of Claim, the State of NSW submitted that the pleading was deficient in a number of different ways. The first defendant submitted that leave should not be granted to file this proposed pleading because it: failed to plead (and only plead) the material facts necessary to establish the causes of action pleaded; did not contain adequate particulars, particularly in respect of serious allegations such as fraud; was embarrassing in that it was difficult to comprehend and contained inconsistent and irrelevant allegations; and, finally, that it sought to re-litigate various issues and thereby appears to constitute an abuse of process.
Ultimately, the State submitted that the proposed pleading was misconceived, as it failed to disclose any reasonable cause of action. The State further submitted that, given the plaintiff’s extensive litigation history, the Court ought infer that these proceedings, through the emanation of the Annexure J pleading, were being conducted to harass or cause unreasonable annoyance to the detriment of the State, such that it was an abuse of process.
The Commonwealth made submissions that the Annexure J pleading did not disclose any reasonable cause of action against it, and further advanced arguments similar to that of the State.
With respect to the conspiracy claim, the Commonwealth submitted that the basic elements of the tort were not pleaded, including, critically, that there was a combination or agreement to engage in conduct amounting to unlawful means, and that the purpose of the combination or agreement was to injure the plaintiff.
The Commonwealth submitted that the “fraud on the court” claim was not a cause of action recognised as such and did not entitle a plaintiff to damages.
The Commonwealth also submitted that the amendments in the Annexure J pleading were so futile that it would be struck out if it appeared in an original pleading. It otherwise generally supported the submissions of the State.
“… to engage with the substantive issues pleaded in the PASOC, an outcome the Defendants seek to avoid.”
Whilst the Annexure J pleading does identify the three separate causes of action which it seeks to advance, the pleading, clearly, does not comply with the principles of proper pleading.
It is prolix. It pleads an abundance of material which is entirely irrelevant to the causes of action which are pleaded. It includes allegations falling outside of, and significantly after, the conclusion of the 2006 and 2009 trials. It is in respect of those trials that the plaintiff alleges the tort of malicious prosecution and a conspiracy the pervert the course of justice. It is also in respect of those two trials that the plaintiff pleads a cause of action in “fraud on the court”.
By way of example, the entirety of the material under the heading “Part 4 – NSW Court of Appeal findings and their suppression (2022-2023)”, contained in paragraphs 51 to 62, cannot be at all relevant to the three causes of action pleaded. Factual allegations are made in Part 5 of the Statement of Claim, with respect to inappropriate conduct by Mr Gillies’ then solicitor. Whatever may be the facts of what there occurred, there is no basis pleaded which would permit a Court to find that the State, much less the Commonwealth, could be vicariously liable for any conduct of the plaintiff’s former solicitor.
The material under Part 7 – “Suppression of consent orders in Supreme Court proceedings (December 2024)”, is, again, entirely irrelevant. The point which is sought to be made is that the Court did not make orders, in these proceedings, which were consented to by the parties. But the simple and unarguable position is that the Court is not under any obligation to make orders simply because they are consented to by the parties.
The Court has an obligation, when making an order, to attend to the overriding purpose with respect to civil proceedings as set out in s 56 of the Civil Procedure Act 2005 (NSW), namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It is simply erroneous to submit that, if a Court did not make a consent order, such conduct could form part of “a conspiracy to interfere with the administration of justice” in circumstances where the hearing at which the conduct occurred was in December 2024, which is 15 years or more after the conclusion of the trials which are sought to be made the subject of the cause of action.
As well, it ought be noted that orders which were consented to but not made, dealt with a timetable by which defendants, if they wished, could seek particulars of the then proposed pleading, and the plaintiff would respond. At all times, the defendants were free to seek particulars of the pleading if they wished. The failure to make the “consent order” did not preclude that process occurring. This material is entirely irrelevant to the causes of action pleaded.
The Motions for summary dismissal are brought by each of the defendants, with respect to the proceedings commenced by the Statement of Claim filed on 11 July 2023.
I have earlier referred, at [53]-[63], to the Statement of Claim of 11 July 2023. This Statement of Claim was filed pursuant to the consent orders dated 18 April 2023, made by the Registrar of the Court of Appeal on 15 May 2023. Order 2(b) granted leave to Mr Gillies to file a new Statement of Claim by 12 July 2023.
In considering the applications for summary dismissal, it is appropriate to review the July 2023 Statement of Claim in some further detail.
As earlier noted, this Statement of Claim is 67 pages long, comprising 393 paragraphs. And yet, it is difficult to see, with any clarity, precisely what the plaintiff’s claims are, and how those claims are constituted relevantly into a legal cause of action, nor how that cause of action entitles the plaintiff to the relief which he seeks.
After an initial introduction and identification of the parties, the Statement of Claim proceeds to a description, between paragraphs 5 and 17, of the “proceedings before the Supreme Court and the Court of Appeal of NSW in 2021/23”.
This part of the pleading deals with the existence of the first Statement of Claim, filed 10 November 2021, to which I have referred at [36], and its fate before Bellew J and the Court of Appeal. I have referred to those matters from [46] to [51].
The Statement of Claim continues with reference to matters after the Court of Appeal granted leave, but connected with the ongoing proceedings, including between paragraphs 18 and 41, an allegation of a conspiracy to remove legal representatives who were acting for Mr Gillies.
The entirety of the material between paragraphs 5 and 41 is interspersed with extensive allegations which are in the form of evidence. That conspiracy was said to be between counsel for the State, and Mr Gillies’ counsel and solicitor.
The pleading quotes transcripts of the Court of Appeal; it makes assertions of fact and loose allegations which are really statements of inference; facts are pleaded which include material subject to client legal privilege. It includes references to the plaintiff’s lawyers ceasing to act for him and the plaintiff applying for assistance through the Legal Assistance Referral Scheme. It concludes with this paragraph:
“41. For all that has been pleaded in paragraphs 14 to 39 above, are the reasons for why the new SOC has been prepared by the plaintiff, and why he is unrepresented in this matter. This is precisely what the CSO set out to achieve, as alleged by the plaintiff.”
A plaintiff is entitled to act in litigation without the assistance of a lawyer. That fact is not, of itself, a matter which needs to be explained by a pleading or otherwise justified. Whether or not such a result was what “… the CSO set out to achieve …”, is entirely irrelevant to any cause of action.
This lengthy chronology of proceedings in the Court (including the Court of Appeal), and history leading up to the filing of the July 2023 Statement of Claim, in accordance with a consensual grant of leave, is wholly irrelevant to any pleaded cause of action. There is nothing about the contents of those paragraphs which suggests that they are part of any cause of action, nor do they contain any claim for relief based upon any cause of action, as is apparent in the terms of paragraph 41. They are entirely irrelevant to be pleaded in this Statement of Claim.
The next significant part of the Statement of Claim commences with under the heading “The Substantive matter”. This section of the pleadings commences at paragraph 42 and continues to paragraph 152. These paragraphs provide a chronological recitation of events, commencing with the 2006 trial in the District Court of NSW. It also includes, as part of that chronology, events before the Registrar of the Court of Criminal Appeal in 2008, the proceedings on the 2008 appeal, the application for a ‘no bill’ followed by the retrial of Count 1 in 2009 – which resulted in an acquittal. The Statement of Claim includes extensive references to what happened in the 2009 trial, what was said by the presiding Judge and what was said by the Crown Prosecutor.
The Statement of Claim goes on to describe an application for a grant of Legal Aid being made in December 2009 to the Legal Aid Commission of New South Wales, with respect to the application of Mr Gillies for special leave to appeal to the High Court of Australia with respect to the conviction after the 2006 trial implicitly with respect to the unsuccessful 2008 appeal to the Court of Criminal Appeal.
The chronology continues with a detailed description of the attempts made, by the plaintiff, to obtain access to a copy of the audio recordings of the 2006 trial. It describes an application made by the plaintiff to the District Court, including a hearing conducted by Sidis DCJ, which did not find in favour of the application of Mr Gillies to access the audio tapes. This particular part of the pleading includes assertions, by the plaintiff, derived from his observation of the demeanour of Sidis DCJ as to what she had done for the purpose of denying him access to those audio recordings.
The particular section dealing with attempts to access the 2006 audio recordings, to which I have just referred, includes the following statement at paragraph 126:
“126. Had the plaintiff been granted permission to access the 2006 Audio Recordings in 2012, that would have allowed the plaintiff to make a successful application to the High Court in 2012 for special leave to appeal the plaintiff’s 2006 wrongful conviction, given that the 2006 Audio Recordings would have proven to the Court that the 2006 trial miscarried because of the tampering with the transcripts from the plaintiff’s 2006 trial, and those transcripts were then presented to the NSWCCA by the State, thereby rendering the plaintiff’s 2008 appeal void leading the High Court to squash the plaintiff’s wrongful conviction.”
This paragraph, it must be said, constitutes nothing more than a statement of the plaintiff’s wishful thinking, based on nothing more than optimistic speculation.
The plaintiff then goes on to recount proceedings in the Court of Appeal, where, in December 2013, he commenced proceedings seeking relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) with respect to the earlier decisions of Solomon DCJ and Sidis DCJ to refuse him access to the 2006 audio recordings. I have earlier referred to these proceedings at [33]‑[34].
(a) a conspiracy to remove legal practitioners – between lawyers for the State and Mr Gillies’ own lawyers – paragraphs 18 to 41; (b) the Abbott and Cook conspiracy – dealing with fabricating evidence: paragraph 51(a); (c) the Director and Ringrose conspiracy – dealing with expert evidence of an AFP officer for the 2006 trial: paragraph 52; (d) the Miller Court Book conspiracy – dealing with the 2008 appeal: paragraph 76; (e) the Psactis and Drennan conspiracy – dealing with a solicitor at the Legal Aid Commission and the Registrar of the Court of Criminal Appeal: paragraph 100; (f) the Solomon and Howard conspiracy – between Judge Solomon and his associate, Ms Howard: paragraph 106; (g) the Solomon, Stenning and Sidis conspiracy – dealing with two District Court judges and a solicitor with the CSO: paragraph 113; and (h) the Solomon and Adams conspiracy – between Judge Solomon and Ms Natalie Adams, the Crown Advocate who appeared in proceedings in the Court of Appeal: paragraph 127.
At paragraph 134, and as a part of his unfolding chronology, the plaintiff pleads that his brother-in-law made him aware of the existence of metadata evidence, which led him to conduct an examination of the electronic transcript of the 2006 trial, and also the electronic transcripts of the 2008 appeal.
Mr Gillies had earlier noted at paragraph 103 that, in August 2010, he had been sent a compact disc (“CD”) containing an electronic copy of transcripts of the Court of Criminal Appeal hearing and an electronic copy of the Court Book prepared by the DPP which was used in the 2008 appeal. Those copies included copies of the transcripts in electronic form from the plaintiff’s 2006 trial.
It seems that the reference, in paragraph 134 and following, to the metadata evidence “coming to light”, refers to the fact that the plaintiff, who was in possession of electronic versions of the transcripts of the 2006 trial and the 2008 appeal, did not examine those electronic documents, which he had had in his possession since 2010, for the purpose of identifying the metadata, because he was not aware that metadata evidence existed until he was told so by his brother-in-law in January 2019.
It is appropriate to note here my earlier statement about the nature and existence of metadata: see [41]-[42]
At paragraph 140, the plaintiff describes what his examination in 2019, of the material supplied to him in 2010, disclosed to him.
At paragraph 142, the plaintiff sets out, in detail, the contents of part of the transcript from 10 August 2006, during his 2006 trial. It is said to be extracted from page 865 of the Court Book, prepared by the DPP for the 2008 appeal. Mr Gillies pleads that it is “one example of the alleged I**llicit I**nset M**aterial …”, a term used by him to describe the allegation that words not spoken in the courtroom have been added into the transcripts for 10 August 2006.
The lengthy recitation concludes with a pleading that:
“151. Based on the Metadata Evidence connected to the Illicit 2006 Transcripts indicates that the transcripts were unlawfully changed during the 2006 trial and after the 2006 trial had finished.”
He then describes, in the pleading, the 11 persons whom he says were those persons who carried out the editing of the transcripts.
Between paragraphs 153 and 160, the plaintiff pleads facts which are contained under the heading “The reasons for why the transcript from the 2006 trial were unlawfully changed”.
From this point on in the Statement of Claim, the plaintiff pleads a further conspiracy, in addition to those described above at [186]. That conspiracy is directed to changes in the 2006 trial transcripts – including for transcripts on 31 July 2006 which were of a voir dire, and the transcripts for 10 August 2006 – which recorded exchanges between the Judge and counsel, in the absence of the jury.
At paragraph 161, the plaintiff pleads this:
“161. The Plaintiff alleges that, based on the evidence, the Unlawful Changes made to the transcripts from the 2006 Trial, involved a conspiracy which included Solomon, Howard, Shead, Prince, and other persons in the service of the Crown (the 2006 T****rial T****ranscript Conspirators).”
“172. Because of this conspiracy, a person in the service of the Crown destroyed the 2006 Audio Recordings from the 2006 [trial] in 2011. That unlawful act occurred in contravention of the law which states that no Audio Recordings of a criminal trial can be disposed of under ten years.
- The abuse of process in 2011 to destroy the 2006 Audio Recordings was done by the State to protect the State’s employees involved with the transcript tampering conspiracies, including the abuse of process surrounding the prosecution of the plaintiff of Count 5 and his subsequent unsuccessful appeal to the NSWCCA in 2008 of that 2006 wrongful conviction.”
It is clear from this part of the pleading that the substance of the plaintiff’s claims remains the contention that the plaintiff was wrongfully convicted of Count 5 after the 2006 trial which, he alleges, was an abuse of process. But the motivation ascribed to others in paragraph 173 is, again, a product of speculation which is not grounded in fact.
The next part of the recitation of the chronology refers to a pleading that the transcripts from the 2008 appeal were “unlawfully changed” by the Registrar of the Court of Criminal Appeal on 4 February 2010, two years after the appeal had concluded. It is unclear what the consequence of this alleged change is said to be. It is not said to comprise any component of any cause of action.
The chronological recitation of events stemming from the 2006 trial continues between paragraphs 176 and 234, which paragraphs deal entirely with a “Part 7 Petition” (so described) which was submitted by the plaintiff on 27 October 2019, to the NSW Attorney-General, seeking a review of the 2006 conviction, pursuant to s 76 of the Crimes (Appeal and Review) Act 2001 (NSW).
The plaintiff pleads a range of facts and interactions with police officers, officers of the Crown Solicitor’s office, staff of the Department of Communities and Justice, and the Attorney-General. He describes the people named from these various government departments, and office holders, as “the C**ollective Conspirators”. There are 11 named individuals and, as well, the Crown Solicitors Office.
He pleads the conclusion of this “Collective Conspiracy” in the following terms:
“232. It is alleged by the plaintiff that administration of the Plaintiff’s Petition involved a concise conspiracy between [names and offices of individuals, and the Crown Solicitors office] of a calculated and skilfully choreographed technique deployed by these officers to exhaust 501 days by not advancing to a final determination of the Plaintiff’s Petition, …
- This conspiracy involved as technique of deliberate and repeated use of lies and excuses by the Collective Conspirators who refused to resolve the Plaintiff’s Petition …
- The plaintiff therefore alleges that the conspiracy between the Collective Conspirators was a direct violation with the express and implied rights under their relevant Acts.”
I was informed, in the course of submissions, that this petition remains outstanding.
This alleged conspiracy identifies, as its result, a delay in the finalisation of the petition, which is said to be “… a direction violation with the express and implied rights …” of the officers “… under their relevant A**cts …”. The pleading does not identify the “A**cts” to which the individual conspirators are subject. It does not identify “the rights” which are said to arise. Nor does it identify how the rights precluded the conspirators from doing what is alleged to have been done.
No specific relief is sought arising out of the alleged collective conspiracy.
I note that this Part 7 Petition to the Attorney-General is entirely separate from the Pt 7 Application to the Supreme Court of NSW, and does not involve any conduct of a judicial officer in the way in which it is processed with, or otherwise disposed of. Only after, and if, a petition of this kind has been upheld, and the matter is referred to the Court, if that is the process undertaken, does this Court become involved.
The recitation of facts continues by referring to the filing by Mr Gillies of a Pt 7 Application in this Court, seeking a review of his 2006 allegedly wrongful conviction under ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW).
The plaintiff pleads that the Pt 7 Application was grounded on the unlawful changing of the transcripts of the 2006 trial, and the fabrication of the videotape (Exhibit A) tendered at the 2006 trial.
The plaintiff pleads that the petition was dismissed by a judgment of Beech‑Jones J on 29 October 2021 and then pleads that the conduct of Beech‑Jones J was part of a conspiracy with the Attorney-General which constituted “a direct violation with the express and implied rights under the Act”.
The pleading seems to concentrate on the fact that Beech‑Jones J did not allow Mr Gillies to perform:
“a demonstration of the metadata evidence as part of [his] Part 7 Application”.
He pleads that, had he been permitted so to do, his application would have been successful.
The allegation that Beech‑Jones J was involved in a conspiracy with the Attorney-General, even on the basis pleaded, is entirely groundless. Mr Gillies pleads that the “function” of his Pt 7 Application to this Court:
“was conducted by:
● Beech-Jones J.
● Attorney General of NSW on behalf of the Second Defendant, the State of NSW and its emanations of:
1. Supreme Court of NSW: jurisdiction.”
The Attorney-General has no role to play in the determination of a Pt 7 Application for a review to this Court. The Attorney-General may make submissions, which a Judge determining the application would be entitled to take into account, but to suggest that any conspiracy existed is a palpable nonsense. It is vexatious.
As well, no cause of action can arise on the basis that even though Beech-Jones J, in determining the Pt 7 Application, is undertaking an administrative task which is a function allocated to him as a part of his role as a Judge, he is nevertheless entitled to the benefit of judicial immunity: see Queensland v Mr Stradford (a pseudonym); Commonwealth of Australia v Mr Stradford (a pseudonym); His Honour Judge Vasta v Mr Stradford (a pseudonym) (2025) 421 ALR 376; [2025] HCA 3.
It is convenient here to draw attention to what the plurality judgment (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) said about judicial immunity. The scope of the immunity was in issue in the proceedings, and their Honours said:
“2. … This is so because the purpose of the immunity is the same for judges of all courts. That purpose is to facilitate the independent performance of the judicial function free from the spectre of litigation, as well as to enhance the finality of judgments quelling legal controversies. The necessity for judicial independence, and the interests of finality of judgments, apply to the exercise of the judicial function by judges of both inferior courts and superior courts. Judicial immunity does not exist for the benefit of individual judges.
- Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer.
- As the facts and outcomes of these appeals demonstrate, the effect of this absolute immunity may be such that a victim of unjust treatment by a judicial officer will be left with no means of obtaining monetary compensation through the courts. If that is so, and the unjust treatment has caused harm to the victim, it may be that one or other of the legislative schemes for the making of an ex gratia or ‘act of grace’ payment may compensate the victim.”
The pleading continues between paragraphs 243 and 258, reciting the fact of, and details about, applications to the High Court of Australia. The first application was for leave to issue or file an application for special leave to appeal. That application was dismissed by Edelman J on 9 February 2022. Mr Gillies pleads allegations against Edelman J, as with his previous allegations, that the order made was a “direct violation with the express and implied rights under the Act”. The second application, filed on 26 November 2021, sought special leave to appeal from the decision of the Court of Criminal Appeal in 2008. The application was, on 8 September 2022, dismissed by Gordon and Steward JJ for the reasons which they published on that day.
Mr Gillies pleads substantially similar allegations against Gordon and Steward JJ, to those against Edelman J.
These paragraphs, dealing as they do with judgments of three of the Justices of the High Court of Australia, are inappropriate to be included in the pleading.
They do not form a cause of action, the allegations are not capable of amounting to any cause of action, and even if they were (which they are not), the Justices of the High Court are entitled to an absolute judicial immunity.
It follows that the Commonwealth cannot be sued as being vicariously liable for the conduct of the three High Court justices who, themselves, are immune from suit.
At paragraph 259 (and following), the pleading postulates an entitlement under the Limitation Act 1969 (NSW) for an extension of time for commencing the proceedings. In so doing, the plaintiff relies upon the provisions of s 55 of the Limitation Act 1969 (NSW).
That section does not provide a Court with the capacity to extend any limitation period by the making of an order. Rather, it is a section which relates to the calculation of time between when a limitation period commences to run and when a cause of action based on fraud, or deceit, or which has been fraudulently concealed, is either first discovered or may, with reasonable diligence, have been discovered. It provides that such period does not count in the reckoning of the limitation period for an action against a person answerable “… for the fraud, deceit or concealment*”.*
The plaintiff pleads various conduct on the part of “… Judge Solomon and other judicial officers, and Crown Solicitors …”, which he says:
“… exceeded their jurisdiction pursuant to Court Securities Act 2005 (NSW) (sic), section 9B(2)(a)”
“262. In the premises of paragraphs [259] to [261] above, there was no lawful justification for stopping the plaintiff from obtaining a copy of the 2006 Audio Recordings.
- The State is accordingly liable to the Plaintiff for an extension of time in the circumstances of this case.”
“(1) A person must not transmit or distribute a recording of sounds or images (or both) of court proceedings, including part of a recording, by any means.
…
(2) Subsection (1) does not apply unless the person knows or suspects, or ought reasonably to know or suspect, that none of the following apply:
(a) the transmission or distribution of the recording has been expressly approved by a judicial officer; …”
Section 9B creates an offence where a person, in the absence of authority from a judicial officer, transmits or distributes a recording of sounds or images of court proceedings. But that offence is only created for conduct occurring after 28 September 2020, when the offence was first created. Section 9B has no retrospective effect.
The section is incapable of giving rise to a cause of action of the kind sought to be pleaded in this Statement of Claim. The section is incapable of grounding an allegation that Solomon DCJ and other judicial officers, or officers of the Crown Solicitors Office “exceeded their jurisdiction”. Even if the section could have the effect pleaded, as it did not come into existence until 2020, it has absolutely no application to the pleaded conduct.
If, in truth, the plaintiff wishes to rely upon s 55 of the Limitation Act, it is, having regard to the way in which this pleading is drafted, inappropriate to do so in the Statement of Claim. Rather, the proper course is, if and to the extent that either of the defendants plead the expiration of a limitation period by way of defence, the plaintiff would be entitled to file a reply, if the circumstances warranted it, pointing to the substance of the provisions of s 55 of the Limitation Act, and pleading that the commencement of his pleadings was within time.
The result of this analysis is that the contents of these paragraphs ought not to be contained in this Statement of Claim.
From paragraph 264 to 354, the plaintiff pleads what he describes as the liability of various individuals.
Paragraphs 264 to 279 plead directly against Solomon DCJ – that he has acted in excess of his jurisdiction, that he is liable to the plaintiff for false imprisonment, that he initiated and maintained the prosecution against the plaintiff and acted with an improper purpose and is, accordingly, liable for collateral abuse of process.
The pleading concludes in the following way:
“279. Judge Solomon’s judicial misconduct in initiating and maintaining the prosecution against the Plaintiff in the trials in 2006 and 2009 was a necessary cause of the whole of the Plaintiff’s imprisonment from 16 July 2006 to 9 November 2011.”
Assuming that the plaintiff, Mr Gillies, can establish all of the facts relevant to what appears to be a number of different causes of action involving Solomon DCJ, the position is that Mr Gillies simply cannot succeed on any of them.
The conduct of Solomon DCJ which is attacked is conduct pleaded to be carried out in the course of his judicial duties as a Judge, and occurred either during the 2006 trial, or at a time immediately connected to it, after the trial had concluded and before the sentencing process had been concluded.
Judge Solomon is entitled to the benefit of absolute immunity from any such cause of action. Because he is immune, there is nothing upon which the vicarious liability of the State can fasten. Accordingly, any claim against the State of NSW arising from the conduct of Solomon DCJ is bound to fail.
The State is entitled to summary dismissal in respect of the claims involving Solomon DCJ.
The next alleged liability is contained in paragraphs 280 to 288 and involves an allegation that two officers of the NSW Police Force fabricated and destroyed evidence, and one of them gave perjured evidence which constituted an abuse of process.
To the extent that this pleading contemplates that the pleaded misconduct of the NSW Police Force officers constituted the tort of an abuse of process, then for reasons similar to those expressed earlier, at [106]-[113], the pleading does not set out the necessary elements of the tort of collateral abuse of process. In particular, a central element is that the alleged tortfeasor must have instituted legal process for an improper purpose. What Mr Gillies needs to confront, but does not in this pleading, is what such a purpose is said to be. This is not a mere technicality. On the basis of the pleading, it is alleged that the officers conducted themselves, in respect of criminal proceedings, in a way which constituted the abuse. But there has to be an improper purpose discernible and pleaded, which has to relate to the bringing of the proceedings. The purpose must exist at the time those proceedings are brought.
These allegations, in this part of the Statement of Claim, do not grapple with those requirements, or address them in any way. Nowhere has any improper purpose been identified. That is unsurprising.
The fundamental difficulty is that the proceedings in the 2006 trial, where there were five counts joined on one Indictment, resulted in a finding of guilt by the jury with respect to one of the counts (Count 5). The conviction entered as a consequence of that finding was upheld in the 2008 Court of Criminal Appeal. That conviction remains in existence.
The proceedings which resulted in the 2006 trial were conducted as a single proceeding. They were instituted to prosecute Mr Gillies for the crimes which were alleged. The proceeding was, in part, successful. A conviction ensued on one count. Acquittals ensued on two counts. The mere fact that a person was acquitted does not, of itself and without more, bespeak an improper purpose at the time the proceedings were instituted and maintained. It simply indicates that the jury was not persuaded beyond reasonable doubt that, on the evidence presented, they should return a verdict of guilty.
It seems to me that, accepting all that has been pleaded, an allegation of collateral abuse of process is entirely hopeless. Particularly is that so in respect of Count 5, upon which a conviction has been entered, and upon which the Court of Criminal Appeal has given judgment that such a conviction accorded with the law. Unless and until that conviction is set aside through any proper appeal or review process, any cause of action in civil proceedings of abuse of process where what is claimed is either compensation by way of monetary damages, or, alternatively, the setting aside of the conviction, is simply an untenable cause of action.
The third cause of action is the suggestion that there has been a conspiracy with respect to the obtaining, by the DPP, of two expert reports from an AFP officer, Mr Ringrose.
The expert reports were in evidence on this application. They were each prepared on the letterhead of the Australian Federal Police by Mr Ringrose, and dated 31 March 2006 and 17 July 2006, respectively.
The coversheet of the first report is entitled “Video T**ape A**uthenticity E**xamination: NSWDPP v Gillies, C**ase number 2418871”. In the introduction of the report, the author records that he had been provided with several videotapes and had been asked to examine one of them to determine the authenticity of the recordings on the tape. The tapes were accompanied by a NSW Police Exhibit tag. The report lists the examinations which were undertaken and lists the methodology by which the tapes were examined. The author of the report sets out in detail the results of his examination.
Part 5 of the report contains these conclusions:
“This examination was conducted to determine the authenticity of a recording on a VHS tape listed as Item 1 under Forensic Services Case number FN060023.
The tape content was identified and described by three distinct sections: (A, B and C). Section B was identified as being the section of interest. This examination was conducted to determine the authenticity of Section B.
…
It is my opinion that Section B on the tape (Item 1) is an authentic and continuous recording event. That is:
• There is strong evidence to clearly show that Event 02 is an authentic asynchronous record start event and is not a copied event;
• There is strong evidence to clearly show that Event 03 is an authentic record-stop event and is not a copied event; and
• Section B on the tape is a continuous recording between Events 02 and 03.
Further, there is strong evidence to clearly show that Section B is an authentic over-record event. That is:
• Event 02 is an authentic record start event; however, there is no evidence of a record-stop event from Section A. This shows that the recording of Section B was commenced at a point on the tape prior to the end of Section A.
• Event 03 is an authentic record-stop event, followed by a characteristic transmission into Section C. The characteristics of this transmission clearly show that Section B is recorded over part of Section C.
• There is insufficient evidence to determine whether Section A and Section C were separate recordings, or whether Section C was originally a continuation from Section A.
Regarding the source of Section B, it is my opinion that Section B on the tape (Item 1) is an original, first generation recording from a black and white camera source. That is:
• The video signal is consistent with a signal produced by a black and white pinhole CCTV camera;
• Examination of the head switching transients show only one generation of transients;
• Based on subjective assessment, the image quality and noise characteristics are consistent with the variable characteristics typical of an original recording; and
• There is strong circumstantial evidence to suggest that the male person depicted in the images is operating the video recording equipment at the points of Events 02 and 03.”
It is appropriate to note that, earlier in the report, a table is provided which describes Event 01 as being the start of the tape, Event 02 as being the transition between Section A and Section B of the tape, Event 03 as being the transition between Section B and Section C of the tape, and Event 04 being the last recorded event on the tape.
It is clear beyond argument, and consistent with the pleading, that the report of the AFP officer was obtained by the DPP for the purpose of establishing the authenticity of the recordings on the tape which became evidence in the proceedings. That was the only purpose of it. It is also clear from the contents of the report that the author is well-qualified to undertake the examination to determine the authenticity of it.
The second report, being that dated 17 July 2006, is from the same author on the letterhead of the AFP, and is described in this way:
“Review of a Report by Dr Jo Tibbitts:
Technical Report on the Information Source Credibility
Re Darren Michael Gillies25 June 2005’
NSWDPP v Gillies, Case number 2418871.”
It is clear that this report was obtained for the purpose of responding to the report of an expert which was dated 25 June 2005, although the conclusion was expressed in an addendum page, dated 27 June 2005.
It is unnecessary to examine this report at length, other than to highlight that it concludes that the conclusion expressed by Dr Tibbitts:
“… is incorrect and is based on methodology and the interpretation of results that is fundamentally flawed. The report has failed to identify any significant evidence that would support the argument presented.
The implementation of the methodology is confused and lacks relevance. As a consequence, key evidence that would have assisted the investigation has been missed. The methodology shows very limited experience in the field of videotape authenticity or VHS record machine identification.”
A number of features appear from these two reports. The first is that they were provided by an expert witness for the purpose of being used in the 2006 trial proceedings.
Secondly, the first report was tendered on the voir dire*,* held prior to the commencement of the jury trial, in which the issue of the authenticity of the videotapes was addressed, together with their admissibility.
Thirdly, there is nothing at all in the contents of either report of the expert which supports any conclusion other than that the videotape that the AFP officer was tasked to give an opinion about with respect to its authenticity, was anything other than completely authentic. The tests described were comprehensive. The results described were consistent with one another, and the opinion of the expert was expressed in unequivocal terms. There is no basis for an assertion of the kind which is to be found in subparagraphs 153(g), (h) and (i).
Finally, I accept the submissions of the Commonwealth of Australia that, since it is clear that the two reports were prepared for the express purpose of the 2006 trial, which involved the potential of giving evidence, the fact of which was made plain by the prosecutor during the 2006 trial, any claim against Mr Ringrose is completely answered by the principle of witness immunity.
As I have earlier pointed out, it has long been the case, at least since Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41, that:
“No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.” (at p.140)
“This review of the authorities reveals a somewhat divergent approach to the application of the immunity to out of court work done by an expert. However, once it is appreciated that the rationale for the immunity is the same as that for advocate’s immunity, there is no reason for the test for the application of the immunity to be different in either case. Thus the immunity will apply where the work in question is work done in court or work done out of court which leads to a decision affecting the conduct of the case in court or, putting it another way, is work intimately connected with the work in court: D’Orta at [86].”
See also: Hastwell v Parmegiani [2023] NSWSC 1016 at [70].
The next conspiracy pleaded is described as the “Miller Court Book conspiracy”. This is addressed between paragraphs 299 and 306, directed to the conduct of a practitioner acting for the Crown in the 2008 trial.
Although the description “conspiracy” is given to the conduct, ultimately, to the extent any cause of action can be gleaned from the pleading, it is a pleading of the tort of abuse of process. As with other similar pleadings of the tort of abuse of process, this pleading does not include the identification of the relevant elements of the tort of collateral abuse of process. More fundamentally, it is not said that the proceedings were instituted for a collateral purpose. The reason for that is plain. The 2008 appeal was instituted by Mr Gillies; the Crown was a respondent to that appeal. Even assuming the accuracy of the description of the practitioner’s conduct, a fact which is not obviously so, no cause of action is here pleaded, let alone available.
Between paragraphs 307 and 314, the claim that the 2006 trial transcript alterations gave rise to a cause of action is set out. These paragraphs allege that those previously named as conspirators knowingly made unlawful changes to the transcripts in the 2006 trial. It pleads that there was no lawful justification “for that judicial misconduct and abuse of process”. The consequence of the so-called judicial misconduct and abuse of process is set out in paragraph 309 in the following terms:
“309. … they all must have known, that the unlawful changes made to the transcripts had violated the judicial proceedings and the execution of the criminal process and the judgment of the court of the State, whereby violating the plaintiff’s right from seeking natural justice according to law.”
To the extent that one of the conspirators was Solomon DCJ, his Honour remains protected by the complete defence of judicial immunity. The acts alleged against him are acts taken by him, by reason of his role as a Judge in the course of the 2006 trial. Assuming that such absolute immunity does not affect the cause of action against the other named “conspirators”, it would appear from the pleading that the allegation against them is that they acted deliberately, in a way which constituted an abuse of process.
This pleading suffers from the same deficiency of all previous pleadings, with respect to the tort of abuse of process. As well, the nature of the conduct pleaded is not conduct which falls within the tort of collateral abuse of process.
This cause of action is doomed to fail, as I have earlier explained, because an improper purpose is incapable of being identified in the circumstances of the 2006 trial, which resulted in a conviction which has not been set aside.
The next cause of action is described as the cause of action against the “2006 Audio Conspirators”. This deals with alleged misconduct on the part of five Judges, a Registrar of the Court, and two practitioners. It is said that the combined conduct of these people, described as “judicial misconduct and abuse of process”, constituted a deliberate wilful misuse of State power “… in the pursuit of ensuring the 2006 wrongful conviction of the P**laintiff was not squashed”.
These allegations are not capable of constituting the tort of abuse of process. To the extent that the allegations involve the Registrar of the Court of Appeal, whilst undertaking the functions described in the pleadings, the Registrar is entitled to the benefit of judicial immunity.
This pleaded cause of action also suffers from the same defects of the pleading of tort of the collateral abuse of process which has been earlier referred to at [106]-[113].
This cause of action is hopeless and cannot succeed, like other “conspiracies” earlier dealt with.
The next pleading, found between paragraphs 323 and 330, is one which seeks to impugn the conduct of the Attorney-General and other public servants, and police officers who were involved in dealing with the Part 7 Petition lodged with the Attorney-General. Nothing which is described in the Statement of Claim, with respect to the administrative steps which each of these individuals is alleged to have taken, is capable of giving rise to any of action cognisable at law.
This claim is hopeless and cannot succeed.
The next cause of action deals with a claim with respect to the conduct of Beech-Jones J and the Attorney-General in the administration of the Pt 7 Application made to the Court.
Between paragraphs 376 and 388, the plaintiff pleads a cause of action for malicious prosecution with respect to Count 1.
The cause of action in this prosecution is one which is well-known to the law and is capable of giving rise to an award of damages if all elements of the tort are able to be proved.
The allegations, with respect to the tort of malicious prosecution, relate to the conduct of an identified NSW police officer, and his conduct prior to a decision made on 27 July 2004, to charge the plaintiff. That conduct could only have occurred between the time the complainant reported the conduct of Mr Gillies to the police in April 2004, and the date when proceedings charging the plaintiff were first brought.
However, the particulars seem to include, and for present purposes can be taken to include, conduct which extended up to the 2009 trial of Count 1.
The pleadings also include an allegation against the Crown Prosecutor, with respect to both the 2006 trial and 2009 trial. Finally, it also appears to include the allegations against the DPP with respect to the refusal to grant the “no bill” application dated 19 March 2009, and to allow the 2009 trial to proceed.
It is to be noted that all of the facts, matters and circumstances pleaded with respect to Count 1, and the trials in 2006 and 2009, were matters known to Mr Gillies at the time the 2009 trial concluded with a verdict in his favour.
The claim for malicious prosecution does not rely, in any way, upon the alteration of the transcripts which is alleged by Mr Gillies to have occurred during the course of the 2006 trial, nor does it plead conduct alleged elsewhere against the NSW Police Force officer of altering, or fabricating, the videotapes.
The tort of malicious prosecution can give rise to damages, both general and special. It is not uncommon for damages in such a tort to include a claim for a sum for legal costs incurred in the course of the prosecution.
General damages, being compensatory in nature, are awarded to compensate the victim of the tort for all of the upset, hurt, distress and vexation to which they have been subjected, by reason of the commencement of the proceedings and their subsequent prosecution, until their conclusion in favour of the plaintiff.
In the context of the tort of malicious prosecution, damage first occurs at the time the proceedings are commenced.
Accordingly, in this case, upon any analysis, the tort was complete at the time when Mr Gillies was acquitted by the jury at his 2009 trial. For the purpose of considering the consequence of the Limitation Act, the tort was complete at the end of the 2009 trial.
Proceedings were not commenced until 2021. The limitation period of six years had well and truly expired prior to that time. There is no provision available, and the pleading does not suggest, with respect to this tort, that there exists one, whereby the Court is entitled to extend time for the commencement of such a course of action which is out of time.
As can be seen from a detailed review of the July 2023 Statement of Claim, it pleads causes of action which are the subject of complete immunity, such as judicial immunity or witness immunity. It pleads causes of action which do not, and cannot, result in the relief claimed. It pleads a cause of action, malicious prosecution, which has a limitation period of 6 years, which has completely expired, and the Court has no capacity, or entitlement, in accordance with the Limitation Act*,* to extend the time with respect to that cause of action. Nor is it a cause of action which is based on fraud, deceit or concealment.
None of the causes of action can succeed.
The proceedings as a whole, are constituted in an attempt to attack and set aside the conviction entered against Mr Gillies, for Count 5, after the conclusion of his 2006 trial.
Even the cause of action for malicious prosecution in respect of Count 1, which ended favourably to Mr Gillies at the conclusion of the 2009 trial, is directly linked to the conviction of Mr Gillies through his claim for damages. The pleading of damages seeks, by reason of the supposed malicious prosecution, damages for being in custody, and being forced into bankruptcy whilst awaiting the 2009 trial. I note that Mr Gillies was incarcerated as a consequence of the term of imprisonment to which he was sentenced by Solomon DCJ.
So long as the 2006 verdict on Count 5 remains, the damages claimed by Mr Gillies, with respect to the malicious prosecution, leaving aside financial loss occasioned by legal fees, is inextricably linked with the 2006 trial and conviction.
The claim for any legal expenses with respect to the 2009 trial is, as noted earlier, well out of time.
The claims by Mr Gillies that the 2006 trial resulted in a miscarriage of justice, or was an abuse of process, have been examined in the 2008 appeal, and in the Pt 7 Application, by Beech-Jones J. They have been dismissed.
The fundamental difficulty confronting Mr Gillies is that his claim to innocence depends upon establishing that the video-tape admitted at trial was not genuine, and did not, together with other evidence at the 2006 trial, establish or was not capable of establishing, that the complainant did not consent to the sexual intercourse which clearly took place.
But Mr Gillies admitted at the trial that the video-tape was authentic. He admitted in sworn evidence that the nature of the conduct which the video‑tape demonstrated, occurred. It was undoubted that such conduct constituted sexual intercourse. Mr Gillies’ defence at trial was that the complainant had consented.
There was abundant material before the jury which enabled it to conclude that there was no consent.
I make the following orders:
Order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the whole of these proceedings be, and hereby are, dismissed.
Order the plaintiff to pay the defendants’ costs of the proceedings.
**********
Gillies
State of New South Wales
(2019) 100 NSWLR 734
(1940) 64 CLR 130
(1998) 179 FCR 290
(2025) 421 ALR 376
In this judgment, it is necessary to trace some, but not all, of the litigation history of Mr Gillies. Only the relevant features need to be referred to.
In what follows, it should be understood that I do not doubt that Mr Gillies believes that he has been wrongly convicted, and that he believes that his complaints about the conduct of all those mentioned are merited. But such a belief alone is not a sound basis for making allegations of the kind seen in these proceedings. Nor is such a belief alone sufficient to constitute a legal cause of action. Nor can it be assumed by Mr Gillies that any belief that he holds might be objectively regarded as correct, or even reasonable. Nor does the fact that a Judge does not agree with, or accept the submissions of Mr Gillies, mean that the Judge holds any bias against Mr Gillies.
Against this background and these remarks, it is appropriate to turn to the evidence and issues in this proceeding.
In the meantime, the plaintiff himself had filed a Notice of Motion on 12 July 2023, in which he sought summary judgment against each of the three defendants, pursuant to r 13.1 of the UCPR, and in the inherent jurisdiction of the Court.
These three Motions were fixed to be heard at the same time.
Accordingly, the plaintiff’s application for leave to file the Amended Statement of Claim, as contained in Order 6 of the Notice of Motion, must be dismissed.
A question arises which is considered late in this judgment, as to whether or not further leave to replead ought now be granted, or else the defendants’ applications made in their Notices of Motion for summary dismissal ought be granted.
As well, the relief set out in [148], includes relief by way of declarations and orders about the 2006 trial, which have the effect of, in substance, setting aside or quashing the guilty verdict entered against Mr Gillies at the 2006 trial. this relief is simply inappropriate for a court in civil proceedings to grant.
For all of these reasons, I would not grant leave to file the Annexure J pleading.
It is clear from the judgment to date that the two proposed Amended Statements of Claim, one of December 2024, as drafted by Taylor Rose, the solicitor then instructed by Mr Gillies, and the other drafted by Mr Gillies, dated 29 May 2025, and annexed to his affidavit as Annexure J, are not documents in respect of which I would be prepared to grant leave for them to be filed.
Although in some proceedings, it may be that the Court grants leave to a party to file an amended pleading without having a copy of the proposed pleading provided to it, it would not be appropriate to do so in this case. Mr Gillies does not have the benefit of legal advice. The two proposed amended pleadings, for the reasons discussed, are not proper pleadings.
It follows that insofar as the Notice of Motion filed by Mr Gillies on 2 June 2025 is concerned, the order seeking leave to file an amended pleading should be dismissed.
It is now appropriate to consider the Motions filed by each of the State and the Commonwealth, seeking summary dismissal of these proceedings.
There is the further difficulty confronting Mr Gillies with respect to this conspiracy. That is the decision of the High Court of Australia in Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41, which is authority for the principle that no action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be: Rich ACJ at p 139; Starke J at p 140; McTiernan J at p 144; Williams J at p 149.
This alleged conspiracy is directly contrary to that principle and cannot succeed.
The Attorney-General had no role to play in the determination of the application, but was entitled to, and did, make submissions. There is nothing about the fact that the Attorney-General, through his delegates, made submissions to the Court, that could give rise to any cause of action cognisable at law. As I have earlier made clear, any allegation involving misconduct by Beech-Jones J is covered by judicial immunity, which is an absolute defence. This pleading of “judicial misconduct and abuse of process” does not give rise to any cause of action which the law recognises. This cause of action cannot succeed.
Between paragraphs 339 and 354, allegations are made with respect to Justices of the High Court. As previously noted, judicial immunity is a complete answer to this claim. The claim is hopeless and has no prospects of success.
It follows that the cause of action for malicious prosecution pleaded in this Statement of Claim cannot succeed.
The jury verdict was unassailable. The Court of Criminal Appeal in 2008 so found.
Beech-Jones J found that there was not any doubt about the conviction when reviewed after the trial and appeal, and in light of further evidence.
These proceedings seek to agitate all of the matters which Mr Gillies claims demonstrate that the jury, the Court of Criminal Appeal, and Beech‑Jones J in the Pt 7 Application, fell into error.
These proceedings seek relief, including that the conviction be set aside (or, perhaps, quashed). But these proceedings are not a vehicle in which that relief can be granted. These are civil proceedings. They form no part of the exercise of the criminal jurisdiction of the Court.
The attack by Mr Gillies, through these proceedings, on the conviction on Count 5 after his 2006 trial, cannot succeed in these proceedings.
The causes of action pleaded by Mr Gillies in these proceedings are, in my assessment, all well within the description given in r 13.4 of the UCPR, as frivolous or vexatious, or being proceedings in which no reasonable cause of action is disclosed.
Considerable time and expense has been incurred in these proceedings since they were first commenced in 2021.
Mr Gillies has had the opportunity, over that period, to attempt to formulate a pleading which properly pleads his available causes of action.
Mr Gillies agreed by consent in 2023 that he needed to re-plead his then Statement of Claim. As this judgment shows, he has now had three attempts to re-plead his causes of action. None of the Statements of Claim, which are all based on a central, common chronology of fact, have pleaded a viable cause of action.
Mr Gillies cannot claim that he has not been given more than a fair opportunity by this Court at the expense of the defendants to articulate his causes of action. He has been singularly unable so to do. That is because the alleged causes of action are based solely on his own belief in his innocence. They are not proper legal causes of action. Mr Gillies’ personal beliefs are not a sound basis to underpin any causes of action of the kind brought forth in these proceedings.
In my view, the only appropriate order to be made is that sought by the defendants in their Notices of Motion, namely, that these proceedings should be summarily dismissed.