Background
Max Perry Gillies brought civil proceedings against the State of New South Wales and the Commonwealth of Australia arising from criminal proceedings in which he was convicted of sexual assault in 2006. His claims alleged misconduct by police, prosecutors, an expert witness and the trial judge, including fabrication of evidence and alteration of trial transcripts, and invoked causes of action including conspiracy, malicious prosecution and collateral abuse of process.
After an earlier pleading was struck out by consent, Mr Gillies filed a statement of claim in July 2023 and later prepared two proposed amended pleadings. Garling J summarily dismissed the proceedings in December 2025, holding both that no reasonable cause of action was disclosed and that the pleadings contained fundamental defects. The primary judge also refused further leave to re-plead because Mr Gillies had received sufficient opportunities to formulate a proper claim. Mr Gillies sought leave to appeal and applied to adduce material obtained under the Government Information (Public Access) Act 2009 (NSW).
The Court’s Holding
The Court of Appeal refused leave to appeal. Mr Gillies accepted in substance that the existing and proposed pleadings could not remain on the court file, but he did not identify a House v The King error in the primary judge’s discretionary refusal to allow another pleading. The proposed appeal raised no issue of principle or question of public importance and disclosed no reasonably clear injustice going beyond what was merely arguable.
The Court added that, even if discretionary error had been established, it would itself refuse leave to re-plead. Mr Gillies had repeatedly failed over several years to produce a proper pleading, while the respondents continued to incur costs; the statutory objectives of just, quick and cheap resolution, timely disposal and proportionality weighed against another opportunity. The Court also rejected the proposed fresh and further evidence because it could not affect either the assessment of the pleaded causes of action or the discretion concerning re-pleading.
Key Takeaways
- An applicant seeking leave to appeal a discretionary refusal to permit re-pleading must identify reviewable error under House v The King, not merely argue that the underlying factual allegations are contestable.
- Where independent grounds support summary dismissal, an applicant generally must demonstrate material error in each ground capable of sustaining the result.
- Fresh or further evidence will not be admitted on appeal when it has no real prospect of changing the outcome, including where the decisive issue concerns repeated pleading failures rather than evidentiary support.
Why It Matters
The decision underscores the Court of Appeal’s caution in granting leave from interlocutory procedural decisions and confirms that serious allegations do not excuse noncompliance with basic pleading requirements. A litigant may be denied another opportunity to amend where repeated unsuccessful attempts, delay, costs and demands on judicial resources make further re-pleading inconsistent with the overriding purpose of civil procedure.