Gillies v State of New South Wales & Ors

Before the Court are three notices of motion for determination.

The first notice of motion, filed by the plaintiff on 23 February 2022, seeks orders in the following terms:

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:

The third notice of motion, filed by the fourth defendant on 14 February 2022, seeks orders in the following terms:

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.

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 issues sought to be raised by the plaintiff in bringing these proceedings have a long history. I have drawn the following summary from:

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.

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]

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.

The plaintiff subsequently brought the following proceedings:

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]

The relief sought also includes the following: [13]

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:

The pleadings appear to allege (inter alia) the following:

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]

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]

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](ii) to (xii) fall outside the case that the plaintiff seeks to bring.

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:

Aside from these matters, the statement of claim asserts:

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 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:

The principles governing such an application are well settled. [45]

The plaintiff also relies on r 14.28 of the rules which is in the following terms:

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]

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:

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]

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:

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.

For the foregoing reasons I make the following orders: