Gillies v State of New South Wales & Ors

The second notice of motion

1. The second notice of motion, filed by the first, second, third, fifth, sixth and seventh defendants on 8 February 2022, seeks orders in the following terms: 1. Pursuant to r 13.4 the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the inherent jurisdiction of the Court, the proceedings as against the first, second, third, fifth, sixth and seventh defendants be dismissed. 2. In the alternative, pursuant to UCPR r 14.28 the whole of the plaintiff's Statement of Claim as against the first, second, third, fifth, sixth and seventh defendants be struck out. 3. The plaintiff pay the first, second, third, fifth, sixth and seventh defendants' costs of this motion. 4. The plaintiff pay the first, second, third, fifth, sixth and seventh defendants' costs of the proceedings. 5. Such further or other order as the Court deems fit.

The third notice of motion

1. The third notice of motion, filed by the fourth defendant on 14 February 2022, seeks orders in the following terms: 1. Pursuant to r 13.4 the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the inherent jurisdiction of the Court, the proceedings as against the fourth defendant be dismissed. 2. In the alternative, pursuant to UCPR r 14.28 the whole of the plaintiff's Statement of Claim as against the fourth defendant be struck out. 3. The plaintiff pay the fourth defendant's costs of this motion. 4. The plaintiff pay the fourth defendant's costs of the proceedings. 5. Such further or other order as the Court deems fit.

THE EVIDENCE

1. The evidentiary material relevant to the determination of all three motions was contained in a Court Book which was admitted into evidence at the hearing.

THE DETERMINATION OF THE PRESENT MOTIONS

1. It is appropriate to deal with the motion filed by the first, second, third, fifth, sixth and seventh defendants, and the motion filed by the fourth defendant (collectively, "the defendants"), together. The relief sought in each of those notices is expressed in identical terms. In the event that I reach the conclusion that the proceedings should be dismissed, the plaintiff's motion will be rendered otiose.

THE RELEVANT FACTUAL BACKGROUND

1. The issues sought to be raised by the plaintiff in bringing these proceedings have a long history. I have drawn the following summary from: 1. the outline of submissions provided by counsel for the defendants; 2. the judgment of the Court of Appeal in Gillies v The District Court of New South Wales [1] ; and 3. the judgment of Beech-Jones CJ at CL in Gillies, Max Perry - Application under Part 7 Crimes (Appeal and Review) Act 2001. [2]
2. On 24 August 2006, following a trial in the District Court of NSW before Solomon DCJ and a jury, the plaintiff was found guilty of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). On 1 December 2006 he was sentenced for that offence to a non-parole period of 5 years imprisonment, with an additional term of 1 year and 8 months imprisonment. At the plaintiff's trial, there was an issue concerning the authenticity of a video recording [3] which, on the Crown case, depicted the events giving rise to the offence of which plaintiff was convicted.
3. The plaintiff subsequently sought leave to appeal against his conviction and sentence. Leave was granted by the Court of Criminal Appeal, and the appeal was dismissed. [4] In terms of the issues arising from the video recording which had been relied upon by the Crown, the Court said the following: [5] [46] Counsel for the appellant gave evidence on appeal that the appellant had initially wished to contest the authenticity of the tapes on the basis that there had been a conspiracy involving numerous people against him and this was part of the conspiracy. Counsel, after considering the matter and the expert reports of Dr Tibbitts and Mr Ringrose, strongly advised the appellant that he was wasting his time pursuing that issue and should deal with the real issue in the case, namely consent. The appellant was initially reluctant to accept that advice but eventually agreed and instructed counsel accordingly. [47] The appellant's solicitor confirmed that she had the appellant's instructions when she so stated in court. She said that the appellant's expert, Dr Tibbitts, under no circumstances was prepared to come to court to give evidence on behalf of the appellant and that Ms Storey-Whyte, the other expert qualified by the appellant, informed the appellant's solicitor she could not give evidence which would assist the appellant. The appellant's solicitor said the appellant was aware of these matters. Even if those facts were not established, the appellant did not show that his lawyers did not hold reasonable and bona fide beliefs in those facts, then providing a basis capable of supporting the decisions taken in relation to the conduct of the trial. Whether erroneous or not, it was open for counsel in these circumstances not to challenge the authenticity of the videotape and to concentrate on the critical issue of consent and the appellant's belief that his actions were within the consent of the complainant. It follows that no miscarriage of justice is shown to have occurred. [48] Once the appellant accepted that Section B of the videotape correctly recorded the relevant activities, it was strategically appropriate to abandon that issue and to concentrate on the issue of consent. This was the advice which the appellant received: the Court finds that he accepted that advice at the time, although he had doubts on occasions thereafter as to whether this was the appropriate course. (The finding is, on the Court's view as to the correct test, unnecessary.)
4. In 2009, the plaintiff was tried for a further offence contrary to s 61I, the circumstances of which were different to those which were the subject of the previous conviction. In support of its case on that count, the Crown relied on separate video footage, the authenticity which was not challenged. The plaintiff was found not guilty of that offence.
5. The plaintiff subsequently brought the following proceedings: 1. proceedings against the complainant in his trial for (inter alia) malicious prosecution, and against a police officer for assault, wrongful imprisonment and malicious prosecution. Those proceedings were dismissed, with costs [6] ; 2. proceedings against his counsel and solicitor at his first trial. Those proceedings were dismissed, with costs [7] ; 3. proceedings against the District Court of New South Wales, the NSW Director of Public Prosecutions, the Judicial Commission of NSW, and the Attorney-General for NSW, seeking orders reversing a decision of Solomon DCJ denying the plaintiff access to sound recordings of the first trial. Those proceedings were dismissed, with costs; [8] 4. proceedings against the State of New South Wales alleging unlawful arrest, assault and battery, unlawful imprisonment and malicious prosecution on the part of arresting police officers. Those proceedings were dismissed, with costs; [9] 5. proceedings against the Legal Aid Commission of New South Wales arising out of the Commission's determination to refuse a grant of legal aid in respect of an application brought by the plaintiff pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). Those proceedings were dismissed, with costs; [10] and 6. an application pursuant to s 78 of the CAR Act. That application was refused. [11]

THE PRESENT PROCEEDINGS

1. The plaintiff filed a statement of claim, of 85 pages and 402 paragraphs, against the defendants on 10 November 2021. The general tenor of the pleadings is reflected in the relief claimed, which is expressed in the following terms: [12] 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. "New Metadata 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 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.
2. The relief sought also includes the following: [13] An Order for extension of the time limitation period pursuant to section 55(1)(a) (b) 3(a) of the Limitation Act 1969 (NSW) (the "Act"), 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 the statement of claim (SOC).
3. The discursive manner in which the statement of claim is pleaded renders it difficult to determine what the plaintiff's causes of action actually are. Moreover, the pleadings breach a number of provisions of the Uniform Civil Procedure Rules 2005 (NSW), including: 1. r 14.7, which requires that pleadings contain facts and not evidence; and 2. r 14.8, which requires that pleadings be as brief as the nature of the case allows.
4. The pleadings appear to allege (inter alia) the following: 1. a conspiracy between Solomon DCJ, the Crown Prosecutor at the plaintiff's first trial, and the Attorney-General (amongst others) to "unlawfully tamper" with the trial transcript; [14] 2. misfeasance in public office on the part of the Associate to Solomon DCJ who is said to have tampered with the trial transcript, being conduct for which the first defendant is said to be vicariously liable; [15] 3. misfeasance in public office on the part of a police officer (in respect of aspects of the conduct of the investigation) and Solomon DCJ (in respect of the conduct of the plaintiff's trial), being conduct for which the first defendant is said to be vicariously liable; [16] 4. misfeasance in public office on the part of Ms Gabrielle Drennan, the then Registrar of the Court of Criminal Appeal who, the plaintiff alleges, tampered with evidence, being conduct for which the first defendant is said to be vicariously liable; [17] 5. malicious prosecution and wrongful imprisonment on the part of police and the Crown Prosecutor at the plaintiff's trial, being conduct for which the first defendant is said to be vicariously liable [18] ; 6. misfeasance in public office on the part of Her Honour Judge Sidis in refusing the plaintiff access to audio recordings of his trial, being conduct for which the first defendant is said to be vicariously liable; [19] 7. misfeasance in public office on the part of the sixth defendant arising from her appearance, on behalf of the first defendant, before her Honour Judge Sidis; [20] 8. misfeasance in public office on the part of the seventh defendant arising from her appearance as senior counsel in the proceedings before the Court of Appeal; [21] 9. misfeasance in public office on the part of the fourth defendant for allegedly failing to investigate the plaintiff's allegations that the transcript of his trial had been tampered with; [22] 10. misfeasance in public office on the part of the first and fifth defendants arising out of the plaintiff's application under the CAR Act; [23] 11. a breach of a fiduciary duty arising from an allegation that the second defendant failed to provide the plaintiff with access to the audio recording of his trial, and concealed the fact that the trial transcript had been tampered with; [24] and 12. negligence on the part of the first defendant based in failing to "ensure fair court proceedings in accordance with legislation. [25]
5. However, when given the opportunity to make submissions before me in the course of the hearing of the motions, the plaintiff articulated his case on a far narrower basis: [26] Your Honour, I submit that based on the evidence there that the defendants have not provided any evidence to the Court in contrary - that they accept or either don't accept the transcripts were doctored. I can state that I've got evidence there to prove that there was a conspiracy between the trial judge, the Crown Prosecutor, the instructing DPP solicitor and the second defendant named in the statement of claim, the Attorney General, who doctored the transcripts in relation to the 2006 trial. I can clearly prove that case. There was clear evidence and history of Solomon J in denying me access to the audio recording CDs throughout the whole history of this matter, for the reasons, what I say, if I was granted permission to those audio recordings under the subpoena on 2007, this matter would not have proceeded to a Court of Criminal Appeal, the conviction would have been overturned and this matter wouldn't be going on here today. There is clear evidence that I raised this during the appeal between Basten, Hislop and Price and Mr Miller for the Crown that the transcripts in the 2006 trial were doctored. That was swept ..(not transcribable).. or the judges didn't want to deal with that matter, subsequently in the second day of the appeal on 31 September, it was raised again and Basten J asked me if, referring to an application, that I wanted audio recording CDs. In that argument I also raised that there was an issue with the first day of the hearing appeal transcript was not transcribed accurately. That matter was denied and the transcripts in those matters have been altered, and I believe that was done by Gabrielle Dranin (sic), based on the metadata evidence, and that all three transcripts were altered on 4 February 2010, two years after my appeal had concluded in 2008 and, subsequently, just prior to me making the application to go to the High Court to have the conviction overturned (emphasis added in each case).
6. When I subsequently asked the plaintiff to confirm that his case was based upon the allegation of conspiracy that he had set out in the passage above, he did so. [27]
7. Accordingly, it would appear that the case that the plaintiff in fact seeks to bring is based upon an allegation of conspiracy between Solomon DCJ, the Crown Prosecutor at his trial, the Crown Prosecutor's instructing solicitor from the Office of the Director of Public Prosecutions, and the Attorney-General for the State of New South Wales. It appears that the alleged object of that conspiracy was (adopting the plaintiff's terminology) to "doctor" the transcripts of his trial. If that is the position, it follows that those matters in 15 to (xii) fall outside the case that the plaintiff seeks to bring.
8. As far as any cause of action in conspiracy is concerned, the statement of claim pleads [28] a conspiracy to unlawfully tamper with the trial transcript, which is said to have been the subject of a further "cover up". Under the heading "Particulars of trial transcript tampering", the statement of claim pleads [29] a number of matters which appear largely, if not entirely, extraneous to the conspiracy which is alleged. Those matters include (but are not limited to) allegations concerning: 1. the conduct of the Crown Prosecutor on an application to stay the proceedings [30] ; 2. the conduct of the Crown Prosecutor on an application to exclude evidence [31] ; 3. the conduct of the Crown Prosecutor in failing to call relevant evidence [32] ; 4. the role of the trial judge in what the plaintiff appears to allege was a separate conspiracy to convict him [33] ; 5. the conduct of a police officer in giving false evidence regarding a triple 0 call [34] ; and 6. the conduct of the trial judge in improperly directing the jury to convict the plaintiff [35] .
9. Aside from these matters, the statement of claim asserts: 1. "a well-planned conspiracy to deliberately introduce inadmissible evidence" [36] ; 2. that the verdict of the jury was obtained by "the wilful misuse of state power" by a number of persons including Solomon DCJ, such that verdict was "invalid according to law"; [37] 3. what is described as "reporting service branch subpoena misfeasance", [38] apparently based upon an assertion that nothing was produced in response to the service of a subpoena on the Reporting Services Branch of the Attorney-General's Department; 4. "Court of Criminal Appeal [sic] 2008 misfeasance", [39] the particulars of which assert "appeal transcript tampering" [40] ; and from which it would appear that the plaintiff makes an assertion that the transcript of the proceedings before the Court of Criminal Appeal (as opposed to the transcript of his trial) was "tampered with" by the members of the Bench, leading to a judgment which was a "cause of wilful misuse of state power by various persons". [41] 5. malicious prosecution arising out of the plaintiff's second trial [42] , wherein the plaintiff asserts a conspiracy "to have Judge Solomon preside over the re-trial"; and 6. a further conspiracy [43] to destroy documents.
10. Leaving aside the manner in which they have been pleaded, these matters would appear to go well beyond the case that the plaintiff outlined before me. Even in relation to that case, the statement of claim is entirely devoid of any proper articulation of the terms of the alleged conspiracy. The necessity to properly plead allegations of that nature is well established. [44]

THE RELIEF SOUGHT

1. The principal relief sought by the defendants is an order that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). That rule in the following terms: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. The principles governing such an application are well settled. [45]
3. The plaintiff also relies on r 14.28 of the rules which is in the following terms: 14.28 Circumstances in which court may strike out pleadings (1) The Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).

CONSIDERATION

1. The matters set out above demonstrate some, although not all, of the shortcomings of the statement of claim. Fundamentally, the statement of claim makes a number of assertions which are entirely extraneous to what the plaintiff says is, in fact, his case. To the extent that the conspiracy apparently relied upon by the plaintiff is referred to in the pleadings, it is largely if not entirely bereft of any detail. Moreover, some of the purported "particulars" of that conspiracy appear to allege further conspiracies, and/or conduct of the part of a number of persons which falls outside the conspiracy which the plaintiff says is the basis of his case. Leaving aside all of these matters, the assertion by the plaintiff that the trial transcript was "doctored" has been previously rejected. [46]
2. To the extent the plaintiff relies on the conspiracy to which he referred in the hearing, the statement of claim discloses no such cause of action. As the submissions of counsel for the defendants point out, the statement of claim is entirely lacking in: 1. a specific explanation as to the manner in which the trial transcript is said to have been "doctored"; 2. an articulation of the basis of the alleged conspiracy to carry out that "doctoring", or how that "doctoring" affected the outcome of the trial; and 3. how the "metadata" establishes that the transcript has been "doctored", and how that is said to implicate the alleged conspirators.
3. Moreover, the pleadings are generally unintelligible and are, in that sense, embarrassing. [47] They are liable to be struck out on that basis alone, in which case leave to amend should not be granted. [48]
4. Further, and in any event, the purported cause of action upon which the plaintiff relies is said to have arisen in 2006 [49] . The statement of claim was filed on 10 November 2021, some 15 years later. The claim is therefore prima facie statute barred having regard to the provisions of s 14(1)(b) of the Limitation Act 1999 (NSW). In this regard, the plaintiff has sought an order for extension of time pursuant to "s 55(1)(b)(3)(a)" of that Act. [50] Section 55 is in the following terms: Fraud and deceit (1) Subject to subsection (3) where-- (a) there is a cause of action based on fraud or deceit, or (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment. (2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection. (3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if-- (a) the person is a party to the fraud deceit or concealment, or (b) the person is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs. (4) Where property is, after the first occurrence of fraud deceit or concealment, purchased for valuable consideration by a person who is not a party to the fraud deceit or concealment and does not, at the time of the purchase, know or have reason to believe that the fraud deceit or concealment has occurred, subsection (1) does not, in relation to that fraud deceit or concealment, apply to a limitation period for a cause of action against the purchaser or a person claiming through the purchaser.
5. Assuming that s 55 in fact applies in light of the plaintiff's cause of action, and further assuming that the so-called "metadata" was what caused the plaintiff to discover any fraud, deceit or concealment, there is no evidence before me as to the circumstances in which such "metadata" was discovered. I am mindful of the authorities which make it clear that a cautious approach must be adopted when considering limitation issues in interlocutory proceedings. [51] However, that does not, of itself, prevent interlocutory relief being granted if the position in respect of the limitation issue is clear. [52] In the present case, and leaving aside the fact that the proceedings should be dismissed for other reasons, there is nothing before the Court which brings the plaintiff's proposed cause of action within s 55 so as to overcome the expiration of the limitation period.

ORDERS

1. For the foregoing reasons I make the following orders: 1. The proceedings are dismissed. 2. The notice of motion filed by the plaintiff on 23 February 2022 is dismissed. 3. Absent agreement as to costs, the parties are to provide written submissions, not exceeding 1 page in length, within 7 days.

Endnotes

1. [2014] NSWCA 357 at [11] - [32].
2. [2021] NSWSC 1392 at [3] - [6]; [14] - [23].
3. Exhibit A in the trial.
4. Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339.
5. At [46] - [48].
6. Gillies v Eastlake [2014] NSWSC 611.
7. Gillies v Brewer [2014] NSWSC 1198.
8. Gillies v District Court of New South Wales [2014] NSWCA 357.
9. Gillies v State of New South Wales (No 2) [2014] NSWSC 1598.
10. Gillies v Legal Aid Commission of New South Wales [2020] NSWSC 836.
11. Gillies, Max Perry - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392.
12. Statement of Claim at [1].
13. Statement of Claim at [8].
14. Statement of claim at [90].
15. Statement of claim at [234] - [245].
16. Statement of claim at [269] - [298].
17. Statement of claim at [246] - [257].
18. Statement of claim at [143] - [163].
19. Statement of claim at [174] - [189].
20. Statement of claim at [191] - [203].
21. Statement of claim at [208] - [225].
22. Statement of claim at [299] - [334].
23. Statement of claim at [355] - [371].
24. Statement of claim at [381].
25. Statement of claim at [390] - [394].
26. T4.27 - T5.3.
27. T5.5 - T5.9.
28. At [90].
29. At [91]-[104].
30. At [93].
31. At [93].
32. At [93].
33. At [94].
34. At [99].
35. At [104].
36. At [97].
37. At [106] - [107].
38. At [113] and following.
39. Commencing at [118].
40. Commencing at [120] and especially at [124].
41. At [127].
42. Commencing at [130].
43. Commencing at [136].
44. See for example Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563; [1995] HCA 68 at 573.
45. General Steel Industries Inc, v Commissioner of Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
46. Gillies, Max Perry - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [35] - [38] per Beech-Jones CJ at CL.
47. McGuirk v University of New South Wales [2009] NSWSC 1424 at [31].
48. Nguyen v QTC Mechanical Services Pty Limited [2019] NSWSC 1629 at [39].
49. Statement of claim at [90].
50. Statement of claim at [8].
51. Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 533.
52. Hillebrand v Penrith Council [2000] NSWSC 1058 at [27]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2022