Gillies v State of New South Wales (No.4)

[2025] NSWSC 1034

Supreme Court

New South Wales

Medium Neutral Citation:

Gillies v State of New South Wales (No.4) [2025] NSWSC 1034

Hearing dates:

03 September 2025

Date of orders:

03 September 2025

Decision date:

03 September 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Extend the time for the compliance by the defendants with Order 2 of the Court’s orders made 27.6.25 to 29.8.25.

2. Extend time for compliance by the plaintiff with Order 3 of Court’s orders made 27.6.25 to 17.9.25.

3. Confirm Order 4 of the Court’s orders made 27.6.2025 and the listing of all Notices of Motion on 27.10.25.

4. Decline to make an order with respect to manner in which the proceedings on 27.10.25 are to be transcribed.

5. Liberty to apply.

6. Adjourn these proceedings until hearing on 27.10.25.

Catchwords:

CIVIL PROCEDURE – Time – Extension of time – Where party to proceedings has failed to comply with an order of the Court that submissions be served before a specified date – Formal application for extension of time – Application opposed by other party to proceedings – Where an extension of time causes no prejudice to the opposing party in circumstances where the timeline of the proceedings is appropriately extended

CIVIL PROCEDURE – Case management – Application for order prescribing sound recording at a future listed hearing date – Dictates of justice – Section 58 of the Civil Procedure Act 2005 (NSW) – Allegation of earlier unauthorised transcript amendment – Where it is inappropriate for the Court to make an administrative order of the kind sought by the plaintiff – Application denied

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 58

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
N Coles (D1)
M McKean (D2)

Solicitors:
Crown Solicitor’s Office (D1)
Thomson Geer (D2)

File Number(s):

2021/321823

Publication restriction:

Not Applicable

Ex-Tempore JUDGMENT

1. On 27 June 2025, I made a series of case management orders, the purpose of which were to ensure that five Notices of Motion (“Motions”) in the current proceedings would be ready for hearing on 27 October 2025. The Motions, which are to be heard on that day, consist of the plaintiff’s Notice of Motion filed 2 June 2025, the plaintiff’s Notice of Motion for summary judgment filed 12 July 2023, the plaintiff’s Notice of Motion filed 6 October 2023 and the plaintiff’s Notice of Motion filed 23 February 2022. As well, a Notice of Motion filed by the defendants on 27 September 2023 is also listed for hearing.

2. On 27 June 2025, the orders I made required the plaintiff to file and serve submissions in support of the plaintiff’s Notice of Motion by 25 July 2025. The next order was in these terms:

“…by 22 August 2025, the defendants are to file and serve any evidence and submissions in response to the plaintiff’s Notice of Motion filed 2 June 2025.”

3. I granted the parties liberty to apply.

4. It appears, from the material with which I have been provided, the plaintiff filed and served his submissions in support of his Notice of Motion by 23 July 2025, which accorded with the Court’s order. On 22 August 2025, the defendants sought, from the plaintiff, his agreement to an extension of the timetable from 22 August 2025 until 29 August 2025 to file and serve their respective submissions. The plaintiff declined to agree to the defendants’ request.

5. Accordingly, the defendants exercised their liberty to apply and asked for the matter to be relisted so that they could make a formal application for an extension of time. Prior to the relisting occurring today, 3 September 2025, the defendants had, in fact, served all of their submissions on 29 August 2025, and the second defendant had served an affidavit of Ms McKean, the content of which, I am told by the plaintiff, is largely a chronological listing of the occasions when the matter has been before the Court and procedural orders which have been made.

6. When the matter was listed this morning, the defendants sought an extension retrospectively, from 22 August 2025 to 29 August 2025, for the date for filing their submissions and the affidavit just identified.

7. Mr Gillies, the plaintiff, opposed that extension. He submitted that, on the limited material that he was informed about and on the limited material available to this Court, it appears that the defendants consciously engaged in a course of conduct to intentionally fail to comply with the Court’s timetable.

8. Mr Gillies points out that the orders made by the Court on 27 June 2025, were, in fact, those contended for by the defendants and he further draws attention, in the course of his wide-ranging submissions, to the fact that there does not appear to be any explanation proffered for the failure of the defendants to file their submissions on time.

9. Mr Gillies draws attention to the fact that, having regard to the only affidavit which was filed, and in the absence of any other evidence by the defendants, that it would follow that if the defendants do not provide any further substantive evidence opposing the Motions on which he is moving, then it follows that he must succeed on those Motions.

10. As well, Mr Gillies draws attention to the fact that, if the Court were to grant an extension, it would be perceived as accommodating a request from the defendants which has not been in any way justified.

11. Mr Gillies accepts that he is in a position to file any affidavit or submissions in reply, either within the existing timetable or else within any extended period for the filing of documents.

12. As well, Mr Gillies makes an application for an order that the hearing on 27 October 2025 be sound-recorded for the purpose of obtaining a transcript, rather than being recorded by court reporters present in Court. I will return to that application.

13. The application of the defendants is in the context of the entirety of these proceedings, which commenced in 2021, for a very short extension to the existing timetable. As well, it is an application which, given the time that has passed since the events in question, seeks only to regularise the state of the record. Given that the hearing will not take place for a period of about seven weeks, I am satisfied that no harm is done to the interests of justice by the grant of a week’s extension to the defendants to file any affidavits and their submissions.

14. In coming to that conclusion, I take into account all of the matters, the subject of submissions, but in particular the following: leaving aside an affidavit by way of a chronology, which Mr Gillies tells me does not put on any evidence of facts, matters or circumstances which address the substance of the Motions (at least, that is the substance of what I understood Mr Gillies to be putting), the filing of submissions containing legal argument is a way of ensuring that all of the parties to the proceedings are on notice of the arguments to be raised and, accordingly, are in a position to deal with all arguments that may be raised, thereby avoiding any ambush by one party to another when a submission is made, for which one party, or the other, is not prepared.

15. The filing of written submissions advances the interests of justice in the proceedings because the Court is also on notice of the arguments that are to be put and can more readily follow the oral submissions which are to be put at any hearing. Even if the Court was to decline to grant the extension, a course which Mr Gillies urges on the Court, that would not prevent any party making oral submissions at the final hearing, either seeking the orders in the Motions or opposing the orders in the Motions. Having arguments in writing before that occurs, as I have said, is desirable.

16. In those circumstances, a short extension which causes no direct prejudice to Mr Gillies, and which cannot be ameliorated by an extension of time of the remaining timetable, is an appropriate order to be made. I note that all of the parties, including Mr Gillies, will have two months’ notice of the defendants’ arguments and submissions that they anticipate putting and, in my view, having regard to the nature of the Motions that the Court is to hear, that is more than adequate time for the parties to prepare their respective cases.

17. However, it is appropriate that, since the submissions and affidavit have been served one week late, there should be an appropriate extension of time for the plaintiff to respond to those submissions. The original timetable contemplated that there would be two weeks for that response.

18. As I am making an order today permitting the late service of the submissions, it is appropriate that there be an extension of time, so that the plaintiff has a period of two weeks from today, to file any submissions or other material in response, that he wishes to. I will make a formal order to that effect shortly.

19. The matter raised by Mr Gillies is that he seeks, by way of a case management order, an order of the Court that the hearing on 27 October 2025, be sound recorded. Mr Gillies points to the requirements of s 58 of the Civil Procedure Act 2005 (NSW) and, in particular, submits that the dictates of justice in these proceedings requires that the Court order that there be an audio recording of the proceedings from which a transcript can be made.

20. Mr Gillies draws attention to the fact that, after a transcript was produced of an earlier hearing of these proceedings, which was conducted before me, Mr Gillies made an application for the audio files of those proceedings because he contended that the transcript which was provided did not accurately record his submissions. The particular feature of the submissions that Mr Gillies draws attention to is, as I understand it, that there was a part of his submissions referring to a particular legal case upon which he relied, which he contends occurred shortly after the commencement of his submissions, but which in the transcript are to be found much later in the submissions.

21. Mr Gillies, as my recollection serves me, I hope correctly, made an application for the audio files of that hearing so as to support his contention that the transcript was inaccurate. When the matter came before me, again as I recall the matter unaided by any refreshing of my memory, on 27 June 2025, Mr Gillies sought to pursue his application for the audio files and I declined his application because, as I informed Mr Gillies at that time, there was no audio file of those proceedings, the proceedings on that date having been taken down and recorded by court reporters present in Court, and that the audio monitoring system had not been used for the purpose of producing the relevant transcript.

22. Mr Gillies is concerned that any transcript of the hearing on 27 October 2025 which is produced will be inaccurate and is concerned that he have access to an audio file of the proceedings taking place at that time so that he can check the correctness of the transcript. Accordingly, Mr Gillies has sought an order of the Court directing that there be an audio recording of the proceedings. In the course of argument, he submitted that, if the Court did not make such an order, he would have to record the proceedings himself.

23. All proceedings in this Court, other than in exceptional circumstances, are proceedings in which a transcript is prepared by a body described as the “Reporting Services Branch” (“the RSB”), either by their direct staff, or else through means of contracts or other arrangements which the RSB provides. Arrangements for the provision of reporting services are matters which are dealt with by the Court as a whole, dealing with the RSB and making administrative arrangements for the supply of reporting services as a whole.

24. It will be a matter for the RSB to provide reporting services in accordance with those arrangements when the matter is heard on 27 October 2025. I do not believe that it is appropriate, in the circumstances of this case, for the Court to specify a particular form of the reporting services which will be provided. That is largely because the services that are provided by the RSB to the Court, as a whole, will depend upon the particular demands of the Court on 27 October 2025, the availability of resources to the RSB, which may be something which is not capable of being determined until the day of the hearing, the obligations of the RSB to other Courts, which may put a demand upon their resources, and the fact that there is no certainty of prediction now as to what types of cases will be heard on 27 October 2025.

25. In those circumstances, I do not think that it is appropriate for this Court to make the order contended for by Mr Gillies. I do note, however, and the effect of this judgment being part of the Court file, that Mr Gillies contends that the appropriate way of recording the proceedings for the purposes of reporting on 27 October 2025 is for the proceedings to be sound recorded. His view, in that regard, has been noted.

26. I make the following formal orders:

1. Extend time for the compliance by the defendants with order 2 of the orders of the Court made on 27 June 2025 to 29 August 2025.

2. Extend time for compliance by the plaintiff with order 3 of the orders of the Court made on 27 June 2025 to 17 September 2025.

3. Confirm order 4 of the orders of the Court made on 27 June 2025, and the listing of all Notices of Motion for 27 October 2025.

4. Decline to make any order with respect to the manner in which the proceedings on 27 October 2025 are to be transcribed.

5. Grant the parties liberty to apply.

6. Adjourn these proceedings until hearing on 27 October 2025.

**********

Decision last updated: 10 September 2025