Gillies v State of New South Wales

What happened

In Gillies v State of New South Wales [2026] NSWCA 125, Free JA considered an amended notice of motion seeking leave under r 7.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to issue a subpoena to the Reporting Services Branch of the NSW Department of Communities and Justice. The applicant, Max Perry Gillies, was self-represented. The proposed subpoena sought documents concerning an asserted review mentioned in correspondence dated 3 November 2020, including the alleged correction or amendment, issue-history and redistribution of a transcript dated 10 August 2006 from his District Court criminal trial [1]–[3].

Gillies sought the documents in connection with an application for leave to appeal from Garling J’s decision in Gillies v NSW (No 6) [2025] NSWSC 1534. That earlier proceeding was a civil damages claim against the State and the Commonwealth arising from criminal proceedings in 2006 and afterwards [8]. The civil claim had included broad allegations, among them that the transcript of the criminal proceedings had been tampered with, including to create a record of concessions Gillies said he had not made [9]–[10].

The parties disputed whether the subpoena had a legitimate forensic purpose. The respondents opposed leave. The State also argued that the subpoena was oppressive because of its breadth and because the Reporting Services Branch might have to make difficult evaluative decisions about which documents fell within the categories. The State did not rely on evidence supporting that objection [5]. It also argued that evidence not before the primary judge would present an additional issue for the proposed appeal. Free JA did not decide that point because it was unnecessary to do so [6].

Free JA’s conclusion turned on what the primary judge had, and had not, decided. The primary judge had refused leave for proposed amended pleadings and had considered whether the 11 July 2023 statement of claim should be struck out or summarily dismissed [11]–[12]. In deciding summary dismissal, the primary judge proceeded on the conventional basis that the pleaded allegations were to be taken at their highest [12]–[13]. Free JA read the primary judge’s discussion of transcript tampering as background rather than a factual determination. The claim had been dismissed for other reasons, including immunity, the legal sufficiency of the pleaded causes of action and limitation [14]–[16].

The Court dismissed the amended notice of motion. The orders also required Gillies to pay the costs of the first and second respondents [19]–[20]. This was a decision about leave to issue the subpoena. It did not decide the application for leave to appeal, the appeal itself, or whether transcript tampering had in fact occurred.

Why the court decided this way

The governing procedural question was whether Gillies had established a good reason for leave under UCPR r 7.3. Free JA relied on the approach described by Bellew J in Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183. As quoted in the judgment, leave should not be granted unless there is a good reason, and the applicant bears the onus of showing a legitimate forensic purpose. That purpose must be assessed by reference to the issues in the proceedings [4]. The passage also identifies possible objections to subpoenas, including oppression, irrelevance, abuse of process and fishing expedition concerns [4].

The essential question was therefore not whether records about the transcript might exist, or whether transcript history could be important in some broader sense. It was whether obtaining those records would assist with the particular issues before the Court in the proposed appeal. Free JA concluded it would not.

Gillies argued that parts of Garling J’s reasons, particularly [24] and [25], suggested that the primary judge had addressed whether the transcript had actually been tampered with. If the primary judge had decided that factual issue, Gillies’ argument ran, the evidence sought might be relevant to the Court of Appeal’s consideration of it [14]. Free JA rejected that reading. The discussion in those parts of the primary judgment was better understood as reciting the background and views previously expressed about the allegations. The dispositive reasoning did not make a factual finding on whether transcript tampering had occurred [15].

That distinction mattered because the primary judge had decided the summary dismissal application on the assumption that the pleaded allegations were true. Free JA noted that the primary judge had referred to the principle that allegations are assumed to be accurate on such an application [13]. The claim was instead dismissed for legal and pleading-related reasons. Those included complete immunities affecting some causes of action, causes of action that could not produce the relief claimed, and a malicious prosecution claim for which the limitation period had expired and could not be extended on the basis identified by the primary judge [16]. Whether the primary judge erred in those findings was for the proposed leave application and, if leave were granted, the appeal. It was not a question that the subpoenaed transcript-history documents would resolve.

Free JA then addressed the broader concern Gillies expressed about a fundamental miscarriage of justice. The Court did not treat that concern as irrelevant in every context. Rather, it held that a subpoena in this application had to be directed to the issues the Court of Appeal would determine. A freestanding investigation into whether the judicial process had miscarried, if that matter would not be determined in the appeal, was not a sufficient justification [18]–[19].

The judgment thus links the forensic-purpose test to the procedural task at hand. Even where a party alleges serious underlying misconduct, a subpoena must have a demonstrated connection to the issues being litigated at that stage. A possible connection to the historical background of a dispute is not necessarily enough.

Before and after state of the law

The judgment does not announce a new test for leave to issue subpoenas. It applies the approach described in Hamzy, namely that leave requires a good reason and that the applicant must demonstrate a legitimate forensic purpose in light of the issues in the proceedings [4]. It also recites established categories of possible subpoena objections, including irrelevance, oppression, abuse of process and fishing expedition concerns, through the passage quoted from Hamzy [4].

The contribution of Gillies is its application of that approach to a proposed subpoena connected with an appeal. The decision illustrates that relevance must be assessed against the actual grounds or issues to be determined, not solely against the wider history or seriousness of the dispute. Here, the primary judge had not decided whether the transcript was altered. The primary judge had assumed the pleaded allegations were true and dismissed the claim for other reasons. On that procedural footing, evidence aimed at proving the transcript allegation did not offer a forensic advantage for the proposed appeal [12]–[17].

The judgment also draws a boundary between an appeal-related evidentiary purpose and a broader investigative purpose. It says that a general wish to investigate whether judicial process miscarried cannot, without a connection to the issues the appellate court will determine, justify issuing the subpoena [18]–[19]. That is an application of the legitimate forensic purpose requirement, not a separate test replacing it.

Some matters were expressly left unresolved. Free JA did not decide the State’s submission about whether Gillies could rely on evidence that had not been before the primary judge [6]. Nor did the judgment decide how s 75A of the Supreme Court Act 1970 (NSW) would apply to any particular evidence. Free JA said that issue was difficult to anticipate without knowing the particular form of evidence, while observing that an earlier attempt to obtain the same subpoena could be relevant to whether the documents could have been obtained earlier [7]. The judgment also did not determine the State’s oppression objection, because the lack of a legitimate forensic purpose was sufficient to dispose of the motion [5], [17]–[19].

Accordingly, the “after” position shown by this judgment is an example of applying the existing test, not a change to the governing rule. Any broader statement about how later cases have developed the law would require material beyond this judgment.

Key passages with plain-English translation

At [4], Free JA set out the approach from Hamzy: leave should not be granted without a good reason, and the applicant must establish a legitimate forensic purpose by reference to the issues in the proceedings. In plain English, the person seeking a subpoena must explain how the requested material could assist with deciding the case that is actually before the court. A document’s possible interest or connection to the background does not by itself establish that purpose.

At [12]–[13], the judgment explains that the primary judge dealt with the summary dismissal application on the basis that the allegations in the statement of claim were to be taken at their highest. In plain English, the dismissal was not a trial of whether the alleged transcript tampering had happened. The primary judge considered whether the claim could proceed even if the pleaded allegations were assumed to be true.

At [15]–[16], Free JA read the primary judge’s discussion of transcript tampering as background, not as a factual finding. The primary judge’s operative reasons concerned other matters, including immunity and limitation. In plain English, the proposed appeal was directed to the reasons actually given for dismissing the claim, rather than a factual conclusion that the transcript had or had not been changed.

At [17], Free JA said there was “no forensic advantage” in using the subpoena to interrogate the transcript-tampering allegation for the proposed appeal. This is the central application of the test. If the primary judge did not decide that allegation, material proving or disproving it would not assist with resolving the grounds identified for appeal, on the analysis in this judgment.

At [18]–[19], Free JA said the subpoena needed to be directed to the issues the Court of Appeal would determine and that a freestanding investigation into a possible miscarriage of justice was not an appropriate justification if it would not be determined by that Court. In plain English, a subpoena cannot be used simply to investigate a serious concern in the abstract. Its purpose must be connected to the court proceeding for which it is sought.

What fact patterns trigger this precedent

The decision is relevant to applications for leave to issue subpoenas where the applicant must establish a legitimate forensic purpose, particularly where the subpoena is sought in connection with an appeal. It may be pertinent when requested documents relate to an allegation that is part of the dispute’s background but was not determined by the primary judge, and the proposed appeal concerns other grounds.

The case also speaks to situations where a party frames a subpoena as necessary to investigate alleged wrongdoing or a possible miscarriage of justice. The judgment indicates that the seriousness of such an allegation does not remove the need to show a connection between the requested documents and the issues the appellate court will decide [18]–[19].

The procedural setting is important. The primary judge had summarily dismissed the claim while assuming the pleaded allegations were true. The documents sought were intended to investigate one such allegation, but the dismissal rested on other grounds [12]–[17]. The decision should therefore not be detached from that context. It does not say that evidence about transcript alteration can never be relevant to an appeal, or that such subpoenas must always be refused. Its reasoning is tied to the relationship between the proposed material and the issues in the appeal before the Court.

The case may also be relevant where a proposed subpoena is broad or requires the recipient to make evaluative decisions. However, the Court did not decide the oppression objection in this matter. The State’s argument was recorded at [5], but the application was disposed of because no legitimate forensic purpose had been established [17]–[19]. It would therefore be inaccurate to treat Gillies as determining the limits of permissible subpoena breadth on these facts.

How later courts have treated it

The supplied judgment contains no discussion of later cases applying, following, distinguishing or otherwise treating Gillies v State of New South Wales [2026] NSWCA 125. Its decision date is 2 July 2026, and the material provided does not include subsequent judgments. No account of later judicial treatment can therefore be given from this source.

Within this judgment, the relevant authority for the leave test is Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183, whose approach Free JA set out at [4]. The judgment also reproduces authorities cited within the Hamzy passage concerning subpoena objections and legitimate forensic purpose: Samootin v Shea [2004] NSWCA 115, Markisic v Commonwealth [2009] NSWSC 284, Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38, and Wong v Sklavos [2014] FCAFC 120. The current judgment does not separately analyse the facts or outcomes of those cases.

The primary decision, Gillies v NSW (No 6) [2025] NSWSC 1534, is discussed to identify what Garling J decided. Free JA’s analysis is that the primary judge assumed the pleaded allegations to be true and dismissed the claim for other reasons [12]–[16]. The Court of Appeal’s subpoena ruling should not be read as deciding the merits of the civil claim or the factual truth of the allegations made in it.

Still-open questions

Several matters remain open on the face of the judgment. First, the Court did not decide whether Gillies could satisfy the Court of Appeal’s requirements for relying on evidence that was not before the primary judge. The State raised that issue, but Free JA said it was unnecessary to resolve it [6].

Second, the judgment did not determine how s 75A of the Supreme Court Act 1970 (NSW) would apply to any particular evidence. Free JA observed that this was difficult to assess without knowing the form of the evidence. The earlier attempt to issue the same subpoena was identified as a potentially relevant consideration concerning whether the documents could have been obtained earlier [7].

Third, the Court did not decide the State’s objection that the subpoena was oppressive because of its breadth and the evaluative work it might require of the Reporting Services Branch [5]. That objection was unnecessary to determine once the Court concluded there was no legitimate forensic purpose [17]–[19].

Finally, the Court did not decide whether transcript tampering occurred. It decided only that investigating that allegation through the proposed subpoena would not assist with the issues identified for the proposed appeal, because the primary judge had not determined the allegation and had dismissed the claim on other grounds [15]–[17]. Nor did the Court decide the application for leave to appeal or the appeal itself [8], [16].

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.