Gillies v State of New South Wales

[2024] NSWSC 1056

Supreme Court

New South Wales

Medium Neutral Citation:	Gillies v State of New South Wales [2024] NSWSC 1056
Hearing dates:	21 August 2024
Date of orders:	21 August 2024
Decision date:	21 August 2024
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Adjourn the hearing of the substantive issues to a date to be determined.
Catchwords:	COURTS AND JUDGES – Application for recusal – Application dismissed – Plaintiff failed to demonstrate actual bias or apprehended bias – Written reasons to be published in due course – Plaintiff’s application to adjourn the hearing of substantive motions until after the publication of the full reasons – Application to adjourn granted.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Not Applicable
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 Buterin (D1, D2) M Sherman (D3) Solicitors: Crown Solicitors Office (D1) Ashursts (D2)
File Number(s):	2021/321823
Publication restriction:	Not Applicable

EX TEMPORE JUDGMENT

1. The hearing of these proceedings commenced yesterday.

2. Prior to the commencement of the hearing of any substantive application, the plaintiff made an application that I recuse myself from the hearing of the substantive applications.

3. That recusal application occupied nearly all of yesterday.

4. Overnight, I considered the application and have prepared extensive reasons for judgment, which support the conclusions which I have announced this morning, namely, that the plaintiff has failed to demonstrate that I should be disqualified by reason of either:

1. actual bias; or

2. a reasonable apprehension of bias.

5. I indicated to the parties that for me to orally deliver my reasons for that conclusion would be likely to occupy a number of hours.

6. In those circumstances, I indicated that I proposed to reduce my reasons for judgment to writing and provide them to the parties as soon as was possible. I had in mind, as I indicated to the parties yesterday, that if I was to refuse the application, I would proceed forthwith to the hearing of the outstanding Notices of Motion and to deal with the substantive matters. After all, the Notices of Motion filed by the defendant were filed on 27 September 2023 and the Notices of Motion filed by the plaintiff had been filed respectively on 23 February 2022, 12 July 2023 and 6 October 2023.

7. It seemed to me that in the application of s 56 of the Civil Procedure Act 2005, it was appropriate to proceed to hear and determine the substantive applications, they all having waited for a considerable period of time.

8. Having announced my decision this morning and indicating that I proposed to deliver reasons in due course for the determination of this interlocutory application, the plaintiff submitted that I should not proceed to hear and determine the substantive matters (which were listed yesterday and adjourned until today) but, rather, that I should adjourn the proceedings until the reasons are published and he could consider what course, if any, he may wish to take with respect to the reasons.

9. Counsel for the State of New South Wales neither consented to, nor opposed, the application. Counsel for the Commonwealth of Australia took a similar approach. If the defendants are not troubled by the speed with which their applications, now almost 12 months old, are to be determined, and do not oppose the adjournment, it seems to me that although I am unpersuaded that the plaintiff would suffer any prejudice by proceeding with the determination of the matters today, there is no reason why I should reject the plaintiff's application.

10. Accordingly, I will adjourn the hearing of the substantive issues for directions on the date when I deliver my reasons.

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Decision last updated: 09 September 2024