Gillies v State of New South Wales (No.2)

[2024] NSWSC 1057

Supreme Court

New South Wales

Medium Neutral Citation:

Gillies v State of New South Wales (No.2) [2024] NSWSC 1057

Hearing dates:

21 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005, I order that his Honour Judge Ronald Solomon be removed as a party because, in light of his death on 17 June 2024, he has ceased to be a proper or necessary party.

(2)   I order that the title of the proceedings be recorded as Max Perry Gillies as plaintiff v State of New South Wales as first defendant and the Commonwealth of Australia as second defendant.

Catchwords:

CIVIL PROCEDURE – Pleadings – Removal of the first named defendant by reason of the first named defendant’s death.

Legislation Cited:

Not Applicable

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 first defendant named on the Statement of Claim filed on 11 July 2023, is his Honour Judge Ronald Solomon. He is sued for his conduct as a Judge of the District Court of New South Wales in 2006. Judge Solomon died on 17 June 2024.

2. The State of New South Wales (“the State”), which is presently the second defendant in the proceedings, accepts that if the plaintiff at any subsequent hearing of the merits of the substantive claims made in the Statement of Claim filed 11 July 2023 establishes the cause of action pleaded arising from the conduct of Judge Solomon in the course of his duties as a District Court Judge presiding over a criminal trial which took place in 2006, then the State accepts that it is vicariously liable for any damages which may be awarded to the plaintiff as a consequence of the conduct of Judge Solomon.

3. In those circumstances, the State does not require the plaintiff to join either the Estate of the late Judge Solomon or else for a party to be nominated as representing the Estate of the late Judge Solomon.

4. In light of the State's attitude, Mr Gillies does not oppose the removal of his Honour Judge Solomon as the named first defendant from the proceeding.

5. Counsel for the State accepts that the removal of the first defendant by reason of his death does not of itself require any further amendment to the Statement of Claim.

6. Of course, these matters were raised in the context of the Notices of Motion that were listed before me; namely, on the part of the plaintiff, for summary judgment for his claim; and, on the part of the State, that the Statement of Claim filed on 11 July 2023, ought be summarily dismissed or else the subject of an order for re‑pleading.

7. The order I am about to make expresses no view about, and bears no relationship to, the determination of those respective Notices of Motion on their merits.

1. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005, I order that his Honour Judge Ronald Solomon be removed as a party because, in light of his death on 17 June 2024, he has ceased to be a proper or necessary party.

2. I order that the title of the proceedings be recorded as Max Perry Gillies as plaintiff v State of New South Wales as first defendant and the Commonwealth of Australia as second defendant.

3. I note that I do not require these changes to be the subject of a further amended pleading on the part of the plaintiff, at least prior to the determination of the issues listed before me for determination.

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Decision last updated: 09 September 2024