Gillies v State of New South Wales (No.5) - [2025] NSWSC 1265

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gillies v State of New South Wales (No.5) [2025] NSWSC 1265
Hearing dates: 27 October 2025
Date of orders: 27 October 2025
Decision date: 27 October 2025
Jurisdiction: Common Law
Before: Garling J
Decision:
Dismiss Orders 1 and 2 of the Notice of Motion of the plaintiff filed 2 June 2025

Catchwords:
COURTS AND JUDGES – Bias – Application for recusal – On the grounds of actual bias and/or apprehended bias – Applicable principles – Principles in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 – Whether a Judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented – The ‘double might’ test – Whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial and unbiased mind to the resolution of the question for determination – Principles in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
COURTS AND JUDGES – Allegations of bias – Where the applicant alleges several acts of judicial conduct which demonstrate an apprehension of bias on the part of a Judge – Where the Judge has previously refused a recusal application by the same applicant – Where a deceased defendant was removed from the proceedings as a matter of procedure – Where no substantive harm to the plaintiff as a result of the State of NSW accepting vicarious liability – Where the applicant alleges clandestine communication between a Judge and legal representatives – Where such communication was purely the routine and procedural collection of information for upcoming hearing – Where the applicant alleges that a transcript of a hearing has been altered – Where no motive for and evidence of such alteration exists – Whether the Court has an obligation to make orders purely on the basis that the parties consent to them – Where the Court was deemed not to – Where the applicant has failed to satisfy the legal tests for actual bias or apprehended bias – Where no factual basis for the allegations of the applicant as to actual bias or apprehended bias – Motion dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 58
Limitation Act 1969 (NSW)

Cases Cited:
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Gillies v Eastlake [2014] NSWSC 611
Gillies v Moir [2014] NSWSC 1481
Gillies v the State of New South Wales (No. 3) [2024] NSWSC 1058
Gillies v State of New South Wales [2025] NSWCA 98
Johnson v Johnson [2000] HCA 48; [2000] 201 CLR 488
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Polsen v Harrison [2021] NSWCA 23
Reid v The Commercial Club (Albury) Limited [2014] NSWCA 98
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16

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 P O’Connor (D1)
S Gaussen (D2)
Solicitors:
Self-represented (P)
Crown Solicitors Office (D1)
Thomson Geer (D2)

File Number(s): 2021/321823
Publication restriction: Not Applicable

Ex-Tempore JUDGMENT

Presently listed before the Court for hearing today are six Notices of Motion.
Four are Notices of Motion brought by the plaintiff dated respectively 23 February 2022, 12 July 2023, 6 October 2023 and 2 June 2025.
The first defendant (State of NSW) has brought a Motion dated 27 September 2023 as has the second defendant (The Commonwealth of Australia). Those six Motions represent the outstanding interlocutory matters which remain to be dealt with in these proceedings.
The parties at the outset did not agree on the sequence in which all of these Motions should be heard, including whether some should be heard together with others, but they were agreed that the plaintiff's Notice of Motion of 2 June 2025, insofar as it sought an order that I be permanently disqualified from hearing this proceeding, should be the subject of the initial argument and disposition.
That Motion also includes other relief. Paragraphs 3 and 4 deal with the seeking of orders that identified individual practitioners, who have acted for or appeared for the first and second defendants, be disqualified or removed as legal representatives of their clients and that new legal representatives be appointed. The fifth paragraph asks for an order that this Court take judicial notice of a series of matters which are specified. Order 6 seeks an order that leave be granted to the plaintiff to file and serve the proposed amended statement of claim as exhibited to the affidavit of the plaintiff. Order 8 seeks that summary judgment be granted to the plaintiff on the combined basis that the defendants had failed to file a defence and have no reasonable prospect of defending the claim. Paragraph 9 seeks an order with respect to costs, namely that they be reserved, and there are a number of other consequential orders sought.
The plaintiff in his submissions submitted that I should recuse myself on either or both of the following bases: namely:

that I am actually biassed against him; or

that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unbiased mind to the resolution of the question or questions that as a judge, I am required to decide.

I will refer to that basis as “apprehended bias".

It is appropriate to set out briefly the relevant legal principles. With respect to actual bias, the authorities require that an allegation of actual bias must be distinctly made and clearly proved, that such a finding should not be made lightly and that cogent evidence is required: see Reid v The Commercial Club (Albury) Limited [2014] NSWCA 98; South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities referred to in those cases.
The High Court of Australia has said that where the issue with respect to actual bias is based upon a contention of pre-judgment, the party asserting such bias has to establish that the primary judge was "… so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented …": see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [72] and the judgment of Gleeson CJ and Gummow J.
As their Honours had said at [71]:

"… the question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion …".

I note that the test of actual bias in the form of pre-judgment requires an assessment of the state of mind of the judge in question: see Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48 at [33].
The test for determining whether a judge disqualify himself or herself by reason of apprehended bias is the objective “double might” test. In Johnson v Johnson [2000] HCA 48; [2000] 201 CLR 488, the Court described the test in this way:

“Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question, the judge is required to decide when enumerating the relevant test.”

The Court of Appeal has said a finding of apprehended bias is not to be reached lightly: see Polsen v Harrison [2021] NSWCA 23.
In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, it was said at [8] that the application of the test for apprehended bias requires two steps: The first step being that it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and secondly it was said that there must be articulated a logical connection between that matter and the feared departure by the judge from deciding the case on its merits.
In considering the test for apprehended bias, it is necessary to keep in mind that the general characteristics of the fair-minded lay observer will include that such an observer is not unduly sensitive or suspicious, nor is such an observer complacent. And further, that the fair-minded lay observer is taken to have knowledge of the legal, statutory, and factual context in which the decision is to be made.
I note that the issues to be determined in the remaining orders in the motion of 2 June 2025 and in the other notices of motion relate to features of the present litigation. The plaintiff, as I have earlier indicated, seeks summary judgment in his favour. He also seeks leave to amend his current pleading. The defendants each seek summary disposal of the proceedings in their favour. As well, various other relief of an interlocutory kind relating to the conduct of the proceedings are contained in the various notices of motion.
The underlying nature of the proceedings can be established conveniently from the proposed Amended Statement of Claim which is in Exhibit 3 on this Motion, that version being a proposed Amended Statement of Claim prepared by solicitors then acting for the plaintiff and served on or about 3 December 2024. It is that statement of claim which the plaintiff has indicated in the course of argument that he proposes to seek leave to file and rely upon. He indicates that if leave is not granted with respect to that version of the proposed Amended Statement of Claim, he would seek to rely upon a further proposed amended statement of claim which is Annexure J to his affidavit of 29 May 2025.
The proposed Amended Statement of Claim dated 3 December 2024 seeks an order for damages by way of general damages, aggravated damages, and exemplary damages, orders for costs and interest and an order for the extension of the statutory six year time limitation period pursuant to s 55(1)(a) and (b), and (3)(a) of the Limitation Act 1969 (NSW).
That proposed Amended Statement of Claim pleads that the State is responsible for various police officers in its employ and is vicariously liable for the acts of those police officers and also various acts and omissions of the agents and employees of the Reporting Service Branch. As against the Commonwealth, it pleads that the Commonwealth is vicariously liable for the acts and omissions of an identified officer of the Australian Federal Police.
It then pleads a range of facts and allegations concerning criminal proceedings that were conducted in about July 2006 in the District Court of NSW which were instituted by the Director of Public Prosecutions for NSW (“the 2006 criminal trial”).
It then pleads a range of facts concerning the conduct in 2007 and 2008 of the proceedings before the Court of Criminal Appeal which heard an appeal against Mr Gillies' convictions entered in the 2006 criminal trial.
The pleading then follows that reference to the 2008 Appeal, by referring to a second District Court criminal trial in 2009 in which there was a further trial of one count which was outstanding from the 2006 criminal trial.
This proposed Amended Statement of Claim, besides recording various allegations of fact with respect to each of the 2006 criminal trial, the 2008 Appeal and the 2009 criminal trial proceedings, ultimately pleads that the 2006 criminal trial proceedings and the 2009 criminal trial proceedings were an abuse of process. The plaintiff pleads that, as a consequence of the matters which he has pleaded, he has suffered loss and damage. That loss and damage is particularised. As well, as I have earlier indicated, he claims aggravated and exemplary damages and particularises the basis for those claims.
In dealing with the application for an order that I recuse myself, the plaintiff, in his written submissions, submitted that there are "multiple acts of judicial conduct which cumulatively demonstrate an apprehension of bias on the part of Garling J”.
The submissions then particularise various matters to which I will come. In addition, those written submissions were augmented by oral submissions today.
I will attempt to deal shortly with each of the allegations. It is necessary, however, to first sketch a little background.
In August 2024 when I was listed to hear a number of motions in these proceedings, being the notices of motions which I have earlier referred to, except for the notice of motion filed by the plaintiff on 2 June 2025, the plaintiff made an application that I recuse myself from hearing those motions on the basis of either actual or apprehended bias. For the reasons which I gave in Gillies v the State of New South Wales (No. 3) [2024] NSWSC 1058, I declined to so disqualify myself.
The plaintiff sought leave to appeal from the orders which I made and also sought further relief from the Court of Appeal. In support of his application for leave to appeal, the plaintiff contended that, because of two earlier decisions of mine, namely, Gillies v Moir [2014] NSWSC 1481 and Gillies v Eastlake [2014] NSWSC 611, in which I had held adversely to the plaintiff, that such decisions showed that I was actually biased against Mr Gillies and had prejudged matters of relevance. He also alleged in the Court of Appeal that I had altered the transcript of the hearing of his application on 20 August 2024, that I had failed to take evidence relied upon by him into consideration or to give it proper, genuine and realistic consideration and so had conducted myself in a manner such that the Court of Appeal would find actual bias. Mr Gillies also relied upon those matters in support of an alternative contention relying upon apprehended bias.
For the reasons which the Court of Appeal enunciated in Gillies v State of New South Wales [2025] NSWCA 98, the Court of Appeal dismissed a Notice of Motion filed by Mr Gillies on 3 April 2025 and refused leave to appeal against the judgment which I had delivered on 23 August 2024.
I earlier referred to the basis for the application now being made as constituted, on the plaintiff's submissions, by “multiple acts of judicial conduct” considered cumulatively. The plaintiff submits that on 21 August 2024, which was the date when I indicated to the parties the result of the application made on 20 August 2024, and indicated that reasons would be published, that on that day I continued to preside over the plaintiff's application which was still "live", by removing Judge Solomon from the proceedings despite lacking the authority to do so and continued to preside in circumstances where I refused to acknowledge, or correct, false statements which I had made in the earlier judgments in the Eastlake proceedings and the Moir proceedings. It is convenient to deal with these matters as I proceed.
Judge Solomon was initially nominated as a party to the proceedings when they were commenced. It was not in issue that after the commencement of the proceedings, Judge Solomon died. A question was raised, after I indicated I would adjourn the proceedings pending the delivery of written reasons, as to whether Judge Solomon could, in the circumstances, be properly named as a party to the proceedings.
I was informed by the State that it accepted that if, at any subsequent hearing of the substantive proceedings, the plaintiff established the cause of action pleaded arising from the conduct of Judge Solomon in the course of his duties as a District Court judge, that it was vicariously liable for any damages which may be awarded to him. The State did not require the plaintiff to join either the estate of the late Judge Solomon or else a party nominated in accordance with the rules as representing the estate of the late Judge Solomon.
After an exchange about that matter, the plaintiff indicated that he did not oppose the removal of the name of Judge Solomon as the first named defendant from the proceedings. In those circumstances I ordered, as a procedural matter and for the regularisation of the court record, that Judge Solomon be removed as a party in light of his death and ordered that the title of the proceedings be changed.
That order was not opposed by Mr Gillies. It was one which was entirely procedural and brought about no prejudice to the plaintiff because of the acceptance by the State that, if the cause of action involving Judge Solomon was established, it was vicariously liable for any award of damages which might ensue. The order did not stop the plaintiff bringing a claim on a cause of action relating to the conduct of Judge Solomon, but it merely regularised the proceedings.
There is nothing in that respect to cause an observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the outstanding proceedings.
The second submission made with respect to 21 August 2024, is that, having indicated what orders would be made, I did not acknowledge or correct deliberately or manifestly false statements made in my judgments in the Eastlake and Moir matter. Given that there was no appeal by the plaintiff in respect of my judgments in the Eastlake and Moir matters, and given that I had then indicated my conclusions with respect to the orders which would be made on the recusal application, accompanied by my indication to the parties that reasons in writing would be delivered as soon as was possible, there was no reason for me to acknowledge or correct any deliberately and manifestly false statements made in earlier judgments as the plaintiff contends. The exchange which occurred on 21 August 2024 was in part relied upon by the plaintiff in the course of the Court of Appeal hearing, although it is unnecessary for me to rely upon what occurred in the hearing in the Court of Appeal. Simply put, in the circumstances at the time, there was no basis for such exchange as did occur about the statements made in the Eastlakes and Moir matters to be regarded as a basis for any actual or apprehended bias being established in accordance with the tests to which I have earlier referred.
The third matter to which the plaintiff refers arises from the case management hearing on 12 September 2024. At that hearing, the plaintiff appeared in person. The plaintiff raised a question with respect to the inaccuracy of the transcript of the proceedings of 20 August 2024. That question of whether the transcript of 20 August 2024 was accurate was later raised before the Court of Appeal. It dealt with the matter between [16] and [23], and also at [41] of the judgment of the Court of Appeal which I have earlier referred to. The Court held that what occurred on 20 August 2024 with respect to the question of the accuracy or inaccuracy of the transcript and anything that I did or did not do with respect to it did not provide a basis for any conclusion that I had acted with actual bias or on the basis of apprehended bias. The same conclusion applies equally to the proceedings about the same issue which took place on 12 September 2024.
In addition, in his submissions the plaintiff submits that I had engaged in "clandestine communications with the legal representatives of both of the defendants' and the plaintiff's then solicitors". He draws attention to a series of emails. What is apparent is that I did not personally send any email to any party. As well, the fact that emails were sent to my Chambers, informing my Chambers of matters such as, who was to appear in the proceedings and what issues would be before the court, were emails of a routine kind directed to my staff, which addressed procedural questions for the hearing on 12 September 2024. Such communications as did occur with my chambers were communications initiated by parties and, in which, copies were provided to all of the various parties. There is no basis, having regard to those emails which are before the Court, for it to be said that I have prejudged any issue, and therefore actually biassed, or that a reasonable lay observer would apprehend bias on my part.
The third matter that was dealt with on 12 September was a contention that I ought to have, but did not, require the representatives of the parties to provide me with specific information in this circumstance. The court initially considered the question of whether the outstanding interlocutory matters should be fixed for hearing, and if so on what date. The plaintiff opposed the fixing of the matter for subsequent hearing, and then the plaintiff raised the question of whether the transcript of the proceedings on 20 August 2024 accurately recorded his submissions.

I indicated, when that was raised and Mr Gillies asked what my recollection of what happened was, that I needed to look at the transcript to be certain about what happened. Mr Gillies then said:

"I would ask to hear from the defendants also if that was their recollection of how things transpired".

There was then further exchange between Mr Gillies and me. Mr Gillies repeated his request that the representatives of the defendants give their account, or their best recollection of what was said on 20 August and whether the transcript accurately recorded what occurred. What Mr Gillies said was:

"Well, I would like to hear from the defendants".

I declined to make an order compelling the representatives of the defendant to give their recollection, holding that it was not relevant.
As I have earlier recounted, the Court of Appeal did not find any basis in the evidence before it, including all of the material drawn to its attention, for orders with respect to the transcript which Mr Gillies submitted was inaccurate to be made. At paragraph 22, 23 and 24 the Court of Appeal said this in reference to the submission that the transcript had been altered, and corruptly so:

“22.    There is absolutely no evidentiary basis for the submission. It is as well to say that it is impossible to think of any plausible motive to alter the transcript in the manner which Mr Gillies contends, because the passages to which Mr Gillies refers are innocuous.
23.    Nothing in the subsequent hearings in the proceedings on 12 September 2024 or 6 February 2025 alters the position. The fact that Mr Gillies has complained of an alteration of the transcript is not evidence of the fact.
24.   For those reasons, no basis has been made out for any of the orders sought in the notice of motion, which will be dismissed."

In my view, the reasonable lay observer would not form any opinion that I might not bring an impartial or unprejudiced mind to the resolution of the questions I now have to decide based upon that decision which I have made, nor that that decision demonstrated any actual bias.
Finally, Mr Gillies in his written submissions drew attention to the fact that I continued to make interlocutory orders in the proceedings notwithstanding what he describes as previous irregularities, so, from that time onwards, it ought to be inferred that I had issued directions to the Supreme Court registry interfering with the plaintiff's “filing rights” in relation to the 2 June 2025 Motion. I will come to that shortly.
Mr Gillies drew attention to the fact that on 18 October 2024, I made orders which he submitted effectively transferred the Court’s discretion to the defendants regarding whether the plaintiff could file a proposed amended statement of claim. On 18 October 2024, I made orders that would properly be described as typical case management orders, to give effect to contentions by the parties regarding the plaintiff’s wish to proceed on a further amended statement of claim. The orders I made, provided a time limit for the circulation of any proposed amended statement of claim, and for the defendants to indicate their attitude as to whether they opposed, or did not oppose, the grant of leave to file that document. These are typical case management orders made in very many files in the Court. The orders do not involve any judgment on the part of the court as to whether leave should or should not be granted, nor can it be said that the making of such orders transfers to any party the Court's discretion regarding whether the plaintiff could file a proposed amended statement of claim. There is nothing arising from the orders made on 18 October 2024 which would demonstrate any actual bias on my part or any conduct which would fail the apprehended bias test.
The plaintiff also submitted that at an interlocutory hearing on 6 February 2025, my conduct of that hearing involved a failure to correct orders made “ultra vires” and which were procured by deception, at an earlier case management hearing on 12 December 2024. The nub of that complaint is that on 12 December 2024, I had made some but not all of the orders for which the plaintiff contended, and in respect of which the plaintiff submitted there had been consent by all parties.
The position as it seems to me, on the material before me at that time, and on this Motion, is that prior to the case management hearing on 12 December 2024, the plaintiff's lawyers and the Commonwealth had agreed on five orders. The first order was that by a specified date the defendants were to advise the plaintiff by letter whether they consented to the filing of the draft amended statement of claim. The second order was that at the time those letters were sent a copy should be sent to my Chambers. The third order was that by a specified date, "The defendants are to make any request for further and better particulars of the draft amended statement of claim in writing," and the fourth order was that, by a certain date, "The plaintiff is to respond to any request for further and better particulars made by the defendants". The fifth order stood the matter over for directions to a specified date.
On 12 December 2024, I made Orders 1, 2 and 5, subject to a minor change in the date for Order 5, dealing with when the matter was to be relisted. I declined to make Orders 3 and 4. At the time I indicated that I did not propose to make orders for particulars. I said that "I do not make such orders". That was a shorthand reference to the fact that, in case management terms, in my view, each party and their lawyers have an obligation when they correspond with each other, to send correspondence in a timely way, and when responding to such correspondence, to do so in a timely way. After all, that is what the obligation of parties and their lawyers are, as set out in s 56, and the following sections, in the Civil Procedure Act 2005 (NSW). A court is not obliged to make consent orders simply because the parties request them. For example, parties from time to time by consent will ask the court to make an order adjourning proceedings. The court in the exercise of its obligations under the Civil Procedure Act is entitled to refuse such an adjournment. There is simply no obligation on a court to make every order which is consented to by the parties.
It seems to me that the contentions by Mr Gillies with respect to the conduct of what happened on 12 December 2024, and then the suggestion that on 6 February 2025, I failed to correct the record, are entirely misplaced. As I have said, there is simply no obligation on a court to make orders simply because parties consent to them being made.
It follows that because I was excising the Court’s powers in a way which was appropriate, there is no basis for contending that I was actually biassed against the plaintiff nor that the test for apprehended bias has been made out.
I should add, that the terms of the orders, which I was asked to make, did not mandate the defendants to make any request for further and better particulars of the proposed amended statement of claim. What those orders required was that any request for particulars had to be made by a particular time and in writing. It was open to the defendants to make requests for particulars, if they wished to seek them. From what I understand, from the submissions made to me, they did not make such requests. The requests were not mandated by the order which was agreed to, and there is no basis for any contention, as I have said, about the conduct of the court on 6 February 2025.
Finally, the plaintiff contends that on 27 June 2025 it ought be inferred from correspondence about the filing of the plaintiff's 2 June 2025 Motion and his contention that it should be listed before a duty judge, that the fact that it was then listed before me is in some way indicative of conduct on my part which indicates that I have demonstrated actual bias against the plaintiff or that my conduct can be regarded as demonstrating a basis for an apprehension of bias.
The correspondence is to be found annexed to the plaintiff's affidavit of 13 September 2025, in Annexure MPG-4. It is unnecessary for me to read aloud all of that correspondence. It is clear that the correspondence occurred between the plaintiff and the Chief Clerk of the Court. There is no material at all which could give rise to any belief or apprehension that the correspondence had been provided to me, or to my Chambers, or that I or my Chambers had given any direction at all to officers in the Registry with respect to what was to happen to the listing of the motion filed on 2 June 2025.
There is simply no factual basis identified in those documents, or in any other material, relied upon by the plaintiff to suggest that in any way there was any basis for a conclusion that either I, or my Chambers were in any way involved in the correspondence.
Mr Gillies points particularly to the context of the contents of an email sent by the Chief Clerk on 5 June 2025, which says:

“Good morning.
Attached are further:
1. Filed notice of motion - listed on 2 July 2025 before the Registrar. You may need to contact chambers to have the listing brought forward:”

It is unnecessary to reproduce the balance.

A mere suggestion by the Chief Clerk that if the listing is to be brought forward, Mr Gillies needed to "contact chambers", indicates nothing more than a usual transaction between an officer of the Registry and Mr Gillies. There is no basis for concluding that there was any involvement of me or my chambers in such a routine transaction.
A further matter relied upon by Mr Gillies in evidence tendered and then subject to oral submissions are the contents of a document which became Exhibit 2. There are two document pages in that which relate to the hearing of these proceedings today.
Mr Gillies made a request to the Registry that the proceedings today be audio recorded. I had earlier declined to make such an order, indicating to Mr Gillies that it was a matter for Reporting Services Branch to provide reporting services to the court.
On 4 September 2025, the Common Law registrar sent an email to Mr Gillies, which said this:

“Dear party,
Court reporting services are provided for all Supreme Court hearings by Reporting Services Branch, and this will be the case for the hearing that you refer to in October.
Any issue about Audio Recordings will be a matter for the hearing judge, so a registrar is unable to assist further at this stage."

Exhibit 2 also contained a document which was a single page of the RSB Transcription Manual, being p 127 of that manual. The page provides instructions to those recording proceedings, either court reporters or sound reporters. In the case of court reporters the manual records:

“RECORDING SUSPENDED - COURT REPORTERS
If the presiding officer requests that the court reporter suspend their recording it is to be noted as follows:
‘REPORTING SUSPENDED AT CHAIRMAN’S/HIS HONOUR’S/COMMISSIONER’S DIRECTION’”
With respect to sound reporting, a similar notation is made. The manual records this:
“RECORDING SUSPENDED - SOUND REPORTERS
If the presiding officer requests the recording equipment to be turned off it is to be noted as follows:
RECORDING EQUIPMENT SWITCHED OFF AT CHAIRMAN'S/HIS HONOUR'S/COMMISSIONER'S DIRECTION’”

These proceedings, which are fixed for today and tomorrow, have been taken down by a court reporter. That process of recording of transcript is one of two possible processes used by the Court to record the proceedings before it. There is nothing untoward about the proceedings being recorded by either of those possible processes. Both are used; both are conventional.
In so far as the email from the Registrar is concerned, the substance of it simply reflects that fact.
In so far as the Transcription Manual is concerned, the point to be noted is that what the Manual is requiring of court and sound reporters is that if the taking of the transcript is to be suspended at the request of the presiding officer, that fact is recorded in the transcript. And that the same procedure applies whether it is court reporters taking the proceedings down or whether it is a sound recording which is later transcribed.
With respect to these requests, there is simply nothing about a routine decision made ultimately by Reporting Services Branch as to what type of recording is to be used to prepare a transcript of proceedings, either an audio recording or the transcript being taken by a court reporter.
There is no basis to infer that the fact the proceedings today are being taken down by a court reporter, and that process does not accord with Mr Gillies' request that an audio recording be made, could possibly give rise to any allegation of actual bias or apprehended bias.
Mr Gillies also made submissions orally, in which he sought to demonstrate that the judgments which I gave in the Eastlake proceedings and in the Moir proceedings in 2014 were flawed because those judgments were either erroneous in fact or failed to have regard to the evidence which was placed before the court and upon which judgments were based.
In my view, at this time, having regard to the substance of the previous application for recusal made in August 2024, for reasons which I gave on 23 August 2024 and the judgment of the New South Wales Court of Appeal on 8 May 2025, there is no reason to think that the submissions made today with respect to the two judgments delivered in 2014 have added anything new to what was considered by me at an earlier time and what was considered by the Court of Appeal. I do not accept that those submissions made today demonstrate any basis for a finding of actual bias or of conduct which would fail the test for apprehended bias.
Accordingly, I dismiss Orders 1 and 2 of the Notice of Motion of the plaintiff filed 2 June 2025.

**********

I Certify that this and the preceding 18 pages are a true copy of the reasons for judgment herein of the Honourable Justice Peter Garling

Date: 27 October 2025

Associate:

Amendments

28 October 2025 - Coversheet - appearances

Paragraph 2 - correction of Motion date.

28 October 2025 - [31] - typographical error.

Decision last updated: 28 October 2025

Medium Neutral Citation:	Gillies v State of New South Wales (No.5) [2025] NSWSC 1265
Hearing dates:	27 October 2025
Date of orders:	27 October 2025
Decision date:	27 October 2025
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Dismiss Orders 1 and 2 of the Notice of Motion of the plaintiff filed 2 June 2025
Catchwords:	COURTS AND JUDGES – Bias – Application for recusal – On the grounds of actual bias and/or apprehended bias – Applicable principles – Principles in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 – Whether a Judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented – The ‘double might’ test – Whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial and unbiased mind to the resolution of the question for determination – Principles in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 COURTS AND JUDGES – Allegations of bias – Where the applicant alleges several acts of judicial conduct which demonstrate an apprehension of bias on the part of a Judge – Where the Judge has previously refused a recusal application by the same applicant – Where a deceased defendant was removed from the proceedings as a matter of procedure – Where no substantive harm to the plaintiff as a result of the State of NSW accepting vicarious liability – Where the applicant alleges clandestine communication between a Judge and legal representatives – Where such communication was purely the routine and procedural collection of information for upcoming hearing – Where the applicant alleges that a transcript of a hearing has been altered – Where no motive for and evidence of such alteration exists – Whether the Court has an obligation to make orders purely on the basis that the parties consent to them – Where the Court was deemed not to – Where the applicant has failed to satisfy the legal tests for actual bias or apprehended bias – Where no factual basis for the allegations of the applicant as to actual bias or apprehended bias – Motion dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 58 Limitation Act 1969 (NSW)
Cases Cited:	Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 Gillies v Eastlake [2014] NSWSC 611 Gillies v Moir [2014] NSWSC 1481 Gillies v the State of New South Wales (No. 3) [2024] NSWSC 1058 Gillies v State of New South Wales [2025] NSWCA 98 Johnson v Johnson [2000] HCA 48; [2000] 201 CLR 488 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 Polsen v Harrison [2021] NSWCA 23 Reid v The Commercial Club (Albury) Limited [2014] NSWCA 98 South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
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 P O’Connor (D1) S Gaussen (D2) Solicitors: Self-represented (P) Crown Solicitors Office (D1) Thomson Geer (D2)
File Number(s):	2021/321823
Publication restriction:	Not Applicable