Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Gillies v District Court of New South Wales [2014] NSWCA 357
• Hearing dates: 26 September 2014
• Decision date: 26 September 2014
• Before: Meagher JA, Barrett JA, Tobias AJA

Decision

1. The summons filed by the applicant on 18 December 2013, as amended, be dismissed.

2. The applicant pay the second, third and fourth respondents' costs of the summons and of the notice of motion filed on 31 March 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal and/or strike out of applicant's summons - summons failed to disclose any reasonable cause of action - summons was manifestly groundless
• Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5; Criminal Procedure Act 1986 (NSW) s 166; District Court Act 1973 (NSW) s 127; Evidence Act 1995 (NSW) ss 137, 191; Government Information (Public Access) Act 2009 (NSW) ss 80, 82, 83, 101, Sch 2; Supreme Court Act 1970 (NSW) ss 69, 101; Uniform Civil Procedure Rules 2005 rr 12.7, 13.4, 14.28, 36.16, 42.20, 59.4
• Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339; Kyriakou v Long [2014] NSWCA 308; Roskott v Commonwealth Bank of Australia [2014] NSWCA 341
• Category: Principal judgment
• Parties: Darrin Michael Gillies (Applicant); District Court of New South Wales (First Respondent); Director of Public Prosecutions (NSW) (Second Respondent); Judicial Commission of New South Wales (Third Respondent); Attorney General (NSW) (Fourth Respondent)
• Representation: Counsel: In Person (Applicant); N Adams SC / B Baker (2nd, 3rd, 4th Respondents); Solicitors: Crown Solicitor's Office (2nd, 3rd, 4th Respondents)
• File Number(s): 2013/379961

Judgment

1 THE COURT: When this matter was called on for hearing at 10:15 am on Friday, 26 September 2014, the applicant, Darrin Michael Gillies, did not appear. Senior counsel for the second, third and fourth respondents then sought leave to file in Court an affidavit of Azam Bulbulia, solicitor, affirmed on 26 September 2014 bringing up to date the procedural history of the proceedings. That leave was granted.

2 Relevantly, the affidavit established that the applicant had been informed that the proceedings were listed for hearing in this Court on 26 September 2014 by letters from the Crown Solicitor's Office (CSO) dated 18 June 2014 and 17 September 2014. The CSO was sent a Notice of Listing by the Court on 20 June 2014, and presumably the applicant would have been sent a notice on or about that date as well. He was also sent a Notice of Listing by the CSO on 25 June 2014.

3 The Court was then informed by the Registry that at 9:50 am on 26 September 2014 the applicant had telephoned to advise that he was not able to attend the hearing that day as "he was up all night with diarrhoea". He stated that he would be going to the doctor later that day and would obtain a medical certificate. An email to the Registrar recording that telephone message was admitted as Exhibit A.

4 In view of the authority of the decision of this Court in Kyriakou v Long [2014] NSWCA 308 at [2], [3], [23] and [24] per Meagher JA with whom Basten JA agreed and in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14] per Basten JA, with whom Meagher JA agreed, the Court declined what it took to be an implicit application by the applicant for the adjournment of the hearing and proceeded to make the following orders:

1. The summons filed by the applicant on 18 December 2013, as amended, be dismissed.

2. The applicant pay the second, third and fourth respondents' costs of the summons and of the notice of motion filed on 31 March 2014.

5 The basis for so proceeding in the absence of the applicant as articulated in Kyriakou and Roskott, was that the documentary material filed by the applicant, as well as that filed on behalf of the respondents, demonstrated that the proceedings instituted by the applicant had no reasonable or realistic prospects of success and as a consequence thereof there was no utility in granting the applicant an adjournment or otherwise delaying the inevitable.

6 If the applicant wishes to have the Court exercise its power to set aside the orders it made in his absence, he may do so pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) noting, however, the significant constraints on the exercise of that power.

7 At the time of pronouncing the orders referred to at [4] above, the Court reserved its reasons for doing so. Those reasons now follow.

The Proceedings

8 Before the Court was a summons filed by the applicant on 18 December 2013 (the summons) seeking relief against the District Court of New South Wales (District Court), the Director of Public Prosecutions (DPP) and the Judicial Commission of New South Wales (Judicial Commission). The summons was later amended to name the Attorney General as fourth respondent who was joined on 3 March 2014 for the purpose of intervening on behalf of the District Court which had entered a submitting appearance. Also before the Court was a notice of motion dated 31 March 2014 seeking the summary dismissal of the summons. That motion was brought on behalf of the DPP, the Judicial Commission and the Attorney General (together, the respondents).

9 The respondents' notice of motion seeks the dismissal or striking out of the summons pursuant to r 12.7 of the UCPR upon the ground of want of prosecution; alternatively, pursuant to r 13.4(1)(b) upon the ground that the summons does not disclose a reasonable cause of action; alternatively, pursuant to r 14.28(1)(a) and/or (b) also upon the basis that no reasonable cause of action is disclosed by the summons and/or that it has a tendency to cause prejudice, embarrassment or delay. If successful, the respondents seek an order for costs pursuant to r 42.20.

10 To appreciate the nature of the relief claimed by the applicant in the summons it is necessary to relate the factual background which seems to have prompted the proceedings. We have, in this respect, adopted the factual background set out in the written submissions of the respondents which was sourced in the applicant's affidavit affirmed on 5 December 2013 (the applicant's affidavit) together with such additional matters referred to in that affidavit. We have also had regard to some of the factual findings of the Court of Criminal Appeal to which reference is made at [18] below.

The Background Facts

11 On 31 July 2006 the applicant was arraigned in the District Court at Sydney on an indictment which alleged the following charges:

(1) Between 17 March and 11 July 2004 at Warners Bay the applicant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(2) On 10 July 2004 at Warners Bay the applicant did assault the complainant and at the time of such assault did commit an act of indecency on the complainant.

(3) On 10 July 2004 at Warners Bay the applicant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(4) On 10 July 2004 at Warners Bay the applicant did attempt to have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(5) On 10 July 2004 at Warners Bay the applicant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

Apparently the applicant was originally arraigned on six counts but according to the applicant, after the trial judge viewed the video footage in respect of counts 1 and 2, they were merged into one count and accordingly the trial proceeded on an indictment containing five counts. However, only three of those counts alleged sexual intercourse without consent.

12 In addition, a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) contained two charges of filming for indecent purposes, relating to counts (1) and (5) above.

13 His Honour Judge Solomon presided over the trial which was heard before a jury. The District Court Case File Number for the proceedings was 04/31/0472. The applicant pleaded not guilty to all charges and was represented by counsel and solicitor. All incidents were captured on his home security videotape system. The prosecution case was dependent upon this video evidence as the sole complainant (who was the applicant's then partner) had no recollection of the events the subject of the charges. Exhibits A, B, E and M tendered in the trial were videos taken from the applicant's home security videotape system depicting the alleged sexual acts between the applicant and the complainant the subject of the charges in the indictment. Exhibit A was enhanced in Exhibits E and M.

14 Prior to the empanelment of the jury a voir dire was conducted on 31 July 2006 to determine whether, by reason of certain aspects of the videotapes, a permanent stay of the proceedings should be granted or the videotapes excluded pursuant to s 137 of the Evidence Act 1995 (NSW). According to the applicant as alleged in his affidavit, he suspected that the police had doctored the tapes. He further alleged that that suspicion was ultimately supported by two independent and appropriately qualified experts. Judge Solomon refused the applications and the trial proceeded. However, the expert evidence said to support the doctoring of the tapes was not led on behalf of the defence in the trial. This may have been due to the fact that during the course of the trial, a question arose as to whether the applicant accepted the authenticity of the videotapes and that they had not been tampered with. Counsel for the applicant gave that concession and a document confirming this concession was tendered pursuant to s 191 of the Evidence Act. However, the making of that concession by the applicant's counsel later became an issue in the Court of Criminal Appeal: see [18] below.

15 On 24 August 2006, the jury returned its verdict. It was unable to reach a verdict in respect of counts 1 and 4. It returned "not guilty" verdicts with respect to counts 2 and 3 and a verdict of "guilty" with respect to count 5. The applicant was therefore convicted with respect to count 5 and the related offence of indecent filming for count 5 contained in the s 166 certificate referred to above.

16 On 1 December 2006, the applicant was sentenced to imprisonment for a non-parole period of five years commencing on 17 July 2006 and expiring on 16 July 2011 with a further term of one year and eight months, which expired on 16 March 2013. In relation to the related charge of indecent filming, the applicant was sentenced to six months imprisonment to date from 16 July 2006 and to expire on 16 January 2007.

17 On 1 December 2006, the DPP directed that there be no further proceedings in relation to count 4 but determined to proceed to prosecute the applicant with respect to count 1.

18 The applicant appealed to the Court of Criminal Appeal against his conviction and sought leave to appeal against his sentence with respect to count 5. He was self-represented on the appeal which was heard over three days in 2008. The grounds of appeal were numerous but in the main were directed at the conduct of his defence by his counsel and solicitor including an allegation that his counsel was "flagrantly incompetent". In particular, complaints were raised in relation to his counsel's failure to challenge the authenticity of the videotapes and as to counsel's concession that the videotapes had not been tampered with or altered. On 23 December 2008, the Court of Criminal Appeal dismissed both the conviction appeal and the appeal against sentence: Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339. The Court dealt with those last matters in some detail at [44]-[48] and [48]-[61] of their reasons, respectively.

19 On 30 September 2009, Judge Solomon recused himself from presiding over the prosecution of the applicant with respect to count 1. The trial in relation to that count commenced the following day (1 October) before Judge Finnane QC. However, there were one or more interlocutory applications as a result of which the trial proper did not commence until 16 October 2009. It would appear that on or shortly after 16 October 2009 the jury returned a verdict of "not guilty" with respect to that count. There is some confusion as to dates. In the respondents' submissions it is asserted that that verdict occurred on 14 August 2009 whilst the applicant asserted in a letter to the DPP that it was on 16 August 2009, though his affidavit indicates 14 August 2009. We say the dates are confusing because on 19 August 2009 the applicant wrote to the solicitor in the office of the DPP having carriage of the matter noting that he had been found not guilty with respect to count 1 on 16 August 2009 and advising of his intention to appeal the "obvious corrupt and complicit behaviour of the Crown" in seeking a guilty verdict with respect to count 5. However, as noted above he had already appealed his conviction on that count which was dismissed.

20 In his letter of 19 August 2009 the applicant "directed" the DPP to return to him all evidentiary materials in its possession in relation to count 1 (on which he had been found "not guilty"). He further requested that the necessary steps be taken in order to keep and store all the Crown's evidence in relation to count 5 for the purpose of his future appeal. He then asserted in the last paragraph of the letter that the solicitor and the Crown prosecutor together with Judge Solomon had conspired to run his retrial (presumably on count 1) to "conceal collectively yours corruption". It appears that this allegation was intended as an allegation that the Crown prosecutor and the solicitor who both appeared on behalf of the Crown in the applicant's 2006 trial, conspired with Judge Solomon in order for him to preside over the applicant's retrial on count 1. An application was made by his defence counsel for Judge Solomon to disqualify himself which "reluctantly, after a lengthy legal battle" his Honour acceded to.

21 On 9 November 2011, the applicant was released on parole. On 21 November 2011 he filed an application with the Sydney District Court Registrar seeking transcripts and duplicate sound recordings in respect of his 2006 and so much of his re-trial on count 1 that took place on 30 September 2009 (when Judge Solomon recused himself).

22 On 13 December 2011 at 11:15 am, District Court Transcripts sent an email to the applicant in which reference was made to his requests for transcripts and duplicate recordings for 23, 24 and 25 August 2006 and 30 September 2009. That email advised the applicant that the Registrar would provide the applicant with the transcripts of 23 and 24 August 2006 and that of 30 September 2009 free of charge. These transcripts would be posted to the applicant. He was informed that there was no summing up on 25 August 2006. The email further advised that the presiding judge's permission was required for the duplicate sound recording to be provided and that Judge Solomon had been contacted in respect of that request and that the applicant would be advised of the Judge's response as soon as that was received from his Associate.

23 On 13 December 2011 at 12:28 pm, District Court Transcripts sent a further email to the applicant which advised that Judge Solomon had given permission to the applicant to obtain the compact discs (CDs) of the duplicate sound recording. The email stated that the applicant would need to undertake to pay for the CDs before they were provided at a cost of $44 each. Later the same day the applicant emailed District Court Transcripts indicating that he only required the duplicate recording CD for the hearing date of the summing up of 23 August 2006 and seeking a further fee waiver due to his parlous financial position. Shortly thereafter he forwarded a further email indicating that he also required the duplicate recording of the legal argument on 30 September 2009.

24 On 14 December 2011, District Court Transcripts sent an email to the applicant, advising that Judge Solomon had reconsidered the applicant's request and his Honour now denied the applicant permission to obtain the duplicate sound recordings requested. Later that same day the applicant sent an email to District Court Transcripts in which he requested a copy of Judge Solomon's Associate's email whereby the Judge had denied him permission to obtain duplicate recording CDs in relation to the hearing days 23 August 2006 and 30 September 2009. The email further asserted that the applicant required the Associate to swear an affidavit and to file a notice of motion so the Court could consider Judge Solomon's decision which, the applicant alleged, denied him natural justice and was a further attempt by the Judge to conceal the complicit behaviours of all "persecution authorities" to pervert the course of justice in the way in which his trial (presumably in 2006) had been conducted.

25 According to the applicant, on 30 January 2012 he appeared in the Newcastle District Court with the intention of seeking an order overruling Judge Solomon's decision to deny him permission to obtain duplicate CDs recording his trials in 2006 and 2009 in respect of which he had, apparently, already received copies of the transcript. The applicant alleges that the Newcastle District Court judge ruled in favour of Judge Solomon's decision as a consequence of which he continued to be denied copies of the duplicate sound recording CDs.

26 On 30 January 2013, the applicant wrote to the Judicial Commission requesting that it investigate a complaint with respect to Judge Solomon. The applicant alleged, among other things, "corruption and misconduct and vile manner" of his Honour; that his Honour and the prosecution had conspired to conceal corruption which occurred in his 2006 trial; that his Honour and the prosecution conspired to ensure that issues surrounding the continuity and authenticity of the videotape evidence would not be explored by the jury; that his Honour attended the jury room whilst the jury was deliberating its verdict; and that his Honour conspired with the prosecution in an attempt to "trial judge fixing" in respect of the 2009 trial. In a letter dated 29 May 2013, the Judicial Commission sought evidence from the applicant in support of the nine allegations which the applicant had made and which the Commission identified in its letter.

27 In a letter dated 10 September 2013, the Judicial Commission wrote to the applicant advising him that it had dismissed his complaint. In that letter, it observed that the applicant had not provided any evidence supporting his allegations in response to its letter of 29 May 2013. The Judicial Commission also referred to the judgment of the Court of Criminal Appeal in which the Court had indicated that his Honour's handling of the evidentiary issues did not indicate bias or prejudgment; that there was no evidence that his Honour was involved in a "conspiracy" to produce a concession from the applicant's counsel concerning the authenticity of the videotape evidence. Contrary to the applicant's allegation of "trial judge fixing" concerning the 2009 trial, the applicant's counsel had successfully argued that Judge Solomon should recuse himself.

28 The allegation made by the applicant to the Judicial Commission that Judge Solomon had conspired to have the applicant sign an agreed fact document and to not contest the authenticity of the videotape which was in evidence at the trial was dealt with by the Commission as follows. After referring to the allegation, the Commission stated:

"In that regard the Commission has noted from the transcript the following:

'CROWN PROSECUTOR: Your Honour, the Crown at this time seeks a concession from the accused that the video tapes in evidence have not been tampered with or altered in any way and that the videotapes are original and authentic recordings.

BREWER: That concession is given, your Honour'.

There was no material provided by you to suggest that his Honour was involved in any way with a 'conspiracy' to produce that concession. In those circumstances the Commission has found that this complaint is not substantiated."

This issue was also dealt with by the Court of Criminal Appeal at [58]-[61].

29 On or about 12 July 2013, the applicant made an application under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). This application sought all documents held by the DPP in relation to Case File Number 04/31/0472 as well as all correspondence in relation to the matter and all materials from the DPP offices from 27 July 2004 to 16 October 2009. The DPP wrote to the applicant on 17 July 2013 advising him that his application was invalid as it sought access to "excluded information" of the agency: s 43(1) and clause 1 of Schedule 2 of the GIPA Act.

30 The DPP's letter informed the applicant that if he did not agree that his application was invalid he could seek a review of that decision. A leaflet was enclosed summarising his review rights and noting that he had four weeks from the date of the letter to apply for an internal review or eight weeks to apply for an external review: see GIPA Act ss 80(a), 82(1), 83(1) and 101(1). The applicant did not avail himself of these remedies.

31 On 29 October 2013 the applicant received an email from District Court Transcripts Sales advising him that the transcript requested in respect of the 2009 trial had been typed and, in effect, he would be provided with them in due course. However, he was also informed that the sound recordings of the 2006 trial would have been destroyed so that duplicate sound recording CDs would not be able to be prepared. He was informed that recordings are only kept for five years in criminal matters but that the 2009 sound recordings should still exist. However, the permission of the trial judge to supply him with the duplicate sound recordings would be required. There is nothing in the material provided by the applicant that indicates that he requested Judge Finnane provide that permission.

32 On 11 November 2013, the applicant sent an email to the email address "district _court _ newcastle_ [e-mail]" seeking a transcript "in relation to my matter" heard in Newcastle District Court on 30 January 2012. On 15 November 2013, the Senior Registrar advised the applicant that the Senior Registrar had been unable to identify the matter referred to in the email. The applicant was requested to supply a Court File Number and to advise whether the matter was a criminal or civil matter. Later that day, the applicant advised the District Court Newcastle that the matter was heard in the Civil Division of the District Court with respect to a criminal matter with Case File Number 2004/31/0472 seeking orders that Judge Solomon's decision to deny him copies of the duplicate sound recordings of the 2006 and 2009 trials be overruled. The applicant then acknowledged in his affidavit that Newcastle had no record of the hearing to which he referred. As the 2006 trial before Judge Solomon was heard in Sydney it is unsurprising that the Case File Number provided by the applicant to the Newcastle District Court was one with respect to which they had no record.

The relief sought in the applicant's summons

33 By his summons the applicant sought 12 orders against the respondents. The respondents' counsel summarised these in a manner which we gratefully adopt with some slight amendments:

(i) Orders to reverse the decision of Judge Solomon DCJ to deny the applicant access to duplicate sound recordings in respect of the 2006 trial, and an order directing the District Court to produce duplicate sound recordings in relation to various dates concerning the 2006 trial (orders 1 and 2);

(ii) An order stopping authorities from destroying evidence in respect of the 2006 trial (order 3);

(iii) An order that the court file and exhibits be forwarded to the Newcastle District Court for viewing by the University of Newcastle Legal Centre (order 4);

(iv) An order that the DPP return "all materials" to the applicant in respect of his 2009 trial (order 5);

(v) An order that the DPP provide a copy of the indictment of the applicant in respect of the 25 May 2005 Eastlake and 31 July 2006 Oszko trials (order 6);

(vi) An order that the DPP provide to the applicant the "no bill" application in respect of count 4 on the indictment (order 7);

(vii) An order that the DPP investigate the non-compliance with the District Court's non-publication order (order 8);

(viii) An order to direct the Sydney District Court to provide specific written notification detailing any evidence that may have been destroyed, and, if so, the person(s) that gave such instructions to destroy the evidence in respect of the 2006 trial, or, in the alternative an order to direct the Sydney District Court to provide an explanation as to why it may have destroyed evidence (orders 9 and 10);

(ix) An order directing the Newcastle District Court to provide a copy of the court transcript to the applicant in respect of the applicant's application heard on 30 January 2012 (order 11);

(x) An order that the Judicial Commission provide the applicant with copies of all trial transcripts, duplicate sound recordings, documentation, letters, evidence, materials and exhibits in respect of its investigation of the applicant's complaint made on 30 January 2013 (order 12).

The history of the respondents' notice of motion

34 The respondents' notice of motion was filed on 31 March 2014 and supported by an affidavit affirmed the same day by Azam Bulbulia, a solicitor in the employ of the Crown Solicitor. In that affidavit Mr Bulbulia sets out aspects of the history of the matter including the directions hearings before the Registrar of this Court which had occurred up until the date of his affidavit. In this respect he noted that the first directions hearing was held before the Registrar on 3 February 2014 at which the applicant appeared in person. The proceedings were adjourned to 3 March 2014 on which date the applicant did not appear. Nevertheless the Registrar made an order that the applicant file written submissions in support of his summons on or before 23 March 2014 and adjourned the proceedings to 31 March 2014 for further mention. On 4 March 2014 the Crown Solicitor's Office advised the applicant of the directions made by the Registrar. The applicant was also advised that his summons was misconceived and was doomed to fail. He was requested to withdraw or discontinue it. Nevertheless, and without prejudice, the Crown Solicitor's Office provided the applicant with four documents being the indictments in respect of the 2006 and 2009 trials, a letter from, apparently, the applicant's then solicitors to the office of the DPP dated 6 July 2005 making a no bill application which was successful in relation to count 4 and a copy of an application for "Nolle Prosequi" by Mr Picken of counsel dated 18 March 2009.

35 As at the date of the third directions hearing, 31 March 2014, no submissions had been filed on behalf of the applicant. On that date, the respondents' notice of motion to strike out and/or dismiss the summons was filed.

36 Mr Bulbulia affirmed a further affidavit on 14 May 2014 in which he deposed that after the directions hearing of 3 February 2014 he requested the Sydney District Court (Downing Centre) not to destroy or delete any transcripts or sound recordings relating to District Court Case File Number 04/31/0472, a request that was reiterated by letter dated 10 February 2014. On 24 February 2014 the District Court confirmed that the file was available to be collected from the Downing Centre Registry for copying. The file which comprised a number of folders and included electronic documents, was copied. Mr Bulbulia deposed that there were two CDs in the file and Mr Bulbulia incorrectly assumed that they comprised the sound recordings of the applicant's 2006 trial. When he watched and listened to those CDs in April 2014 it was revealed that they comprised in-camera evidence of a witness with regard to the 2006 proceedings and were not sound recordings of the trial. When he inquired as to whether the sound recordings of the 2006 trial were still in existence he was informed that they had been destroyed in accordance with the practice of the Court Reporting Services Branch. However some of the sound recordings in relation to the applicant's 2009 trial were in existence and would be made available upon request.

37 On 31 April 2014 the applicant advised the Court that he did not propose to prepare written submissions in support of the summons but that he relied upon his affidavit as his written submissions. That affidavit set out the factual history which we have recorded. It concluded with the following paragraph:

"34. Clearly, it is now demonstrated to be a gross miscarriage of justice and now the importance of this Court intersession stopping the Authorities from destroying exhibits and evidence in relation to this matter and that this Court respectfully to uphold all the orders that the [applicant] now seeks so that the [applicant] may prepare the necessary grounds of appeal to submit an application for an appeal with the view to overturning the [applicant's] wrongful conviction."

38 If this is in truth what the applicant seeks to achieve then it is too late. The only matter upon which the applicant was convicted was count 5 and his appeal against that conviction was dismissed by the Court of Criminal Appeal in 2008. He has no further right of appeal unless he has in mind making an application out of time to the High Court of Australia for special leave to appeal. However any such application and subsequent appeal would be determined upon the material that was before the Court of Criminal Appeal. That Court would have had the full transcript of the oral evidence given and exhibits tendered as well as addresses of counsel and the summing up of the trial judge so far as relevant to count 5.

Does the applicant have a case?

39 In their written submissions the respondents have set out the relevant principles applicable to the summary dismissal or striking out of a pleading such as the summons relying, in particular, upon the well known principle stated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. The respondents acknowledged that a court should not order summary dismissal unless the applicant's claim can properly be described as "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "so manifestly faulty that it does not admit of argument".

40 It was submitted that it was plain beyond argument that the summons disclosed no reasonable cause of action against any of the respondents. Relevantly, in relation to any of the claims or requests made by the applicant and to the extent to which they have been denied to him, no right of appeal to this Court was available. In other words, the applicant did not identify any right of appeal he might have from any decision pursuant to s 101 of the Supreme Court Act 1970 (NSW), s 127 of the District Court Act 1973 (NSW) or s 5 of the Criminal Appeal Act 1912 (NSW). Nor does the summons or his affidavit disclose or identify any decisions that could be the subject of a statutory right of appeal, with or without the requirement for leave, to this Court.

41 Further, as the respondents submitted, the summons did not purport to seek judicial review of any administrative decision which would be amenable to an application under s 69 of the Supreme Court Act. If in fact the applicant was seeking judicial review he was required by r 59.4 of the UCPR to articulate the identity of the decision maker, the terms of the decision to be reviewed and, with specificity, the grounds on which the relief is sought which, generally speaking, must be an error of law or some jurisdictional error said to infect the relevant decision.

42 The respondents' written submissions as to the position of each of them insofar as the relief sought in the summons is concerned, were as follows:

"Orders sought relating to the DPP

29. Prayers 5, 6, 7 and 8 and possibly prayer 3 are directed to the second [respondent] ('the DPP'). Prayer 3 seeks an order to stop 'the Authorities' from destroying evidence. It is unclear whether prayer 3 is directed to the DPP but in any event no evidence has been filed by the [applicant] supporting any suggestion that the DPP has destroyed any evidence. Prayer 3 should be struck out to the extent it pertains to the DPP.

30. As to prayer 5, which seeks a return of 'all materials' in relation to which he was found not guilty, there is no evidence that such a request has been made and refused. Moreover, the [applicant] has not established that he has a legal right to these materials. Prayer 5 should be struck out.

31. Annexed to the [applicant's] affidavit in support of his summons is a letter from the Office of the Solicitor for Public Prosecutions dated 17 July 2013 under the hand of the Acting Assistant Solicitor for Public Prosecutions, Ms Amy Watts, informing the [applicant] that his request of the 'all documents' held in relation to his trial is 'invalid' as it seeks access to material excluded under clause 1 of Schedule 2 of the GIPA Act. The letter informs the [applicant] of how to seek review of that decision and notes that an enclosed leaflet sets out the procedure.

32. Prayers 6 and 7 seek an order that the DPP provide the [applicant] with copies of the indictment and his application that there be no further proceedings in respect of count 4. The DPP has already informally provided these documents to the [applicant] on 28 February 2014 in any event. Prayers 5 and 6 should be struck out.

33. As to prayer 8, there is no power for this court or any external agency to order the DPP to investigate a matter. Nor is there any evidence that any request has been made to do so. Prayer 8 should be struck out.

34. In summary, there is no evidence of any decision that the [applicant] seeks judicial review of as against the DPP and even if there was this court has no power to review any such decision.

Relief sought against the Judicial Commission

35. Prayer 12 seeks an order that the third [respondent] produce certain material to the [applicant]. No evidence has been filed by the [applicant] identifying a decision made by the Judicial Commission refusing this request. In any event, s. 37 of the Judicial Officers Act 1986 prohibits a member or officer of the Commission from disclosing any information obtained by the member or officer in the course of his or her office in relation to a complaint, unless the disclosure is made, inter alia, with other lawful excuse.

36. Prayer 12 should be struck out.

Relief sought against the District Court

37. Prayers 1, 2, 3 (arguably), 4, 9, 10 and 11 are all directed at the first [respondent], the District Court. A submitting appearance has been filed for the first [respondent] but the Attorney General makes submissions as contradictor in relation to this aspect of the matter.

38. Prayers 3, 9 and 10 refer to allegations that the Court has or will destroy evidence relevant to the [applicant's] files. There is no evidence this has occurred nor has any decision been identified such as would give this court jurisdiction in its judicial review jurisdiction. Prayers 3, 9 and 10 should be struck out.

39. Prayer 11 is a request for transcript [of the applicant's application to the Newcastle District Court on 30 January 2012]. There is no evidence that the applicant has been refused a copy of the transcript for this day, merely that the Senior Registrar has been unable to identify the matter referred to in his email. There is no evidence to suggest that were the applicant to identify with more detail which transcript he seeks he will not be provided with it. The applicant has been provided with all other transcript[s] he has requested with specificity thus far. Again, no decision [has] been identified such as would give this Court jurisdiction in its judicial review jurisdiction. Prayer 11 should be struck out.

40. Prayer 4 requests that the file be forwarded to the Newcastle Registry Office so that persons at the University of Newcastle Legal Centre may access it. There is no evidence that any request for this to occur has taken place and hence no decision in relation to which judicial review could be sought exists. In any event, the [applicant] has already been provided with a copy of his appeal book to the CCA in which he appeared for himself. That appeal book would include the trial transcript and copies of all documentary exhibits at trial. Furthermore, there is [no] evidence that the Newcastle Legal Centre is assisting the [applicant at the present time]. Prayer 4 should be struck out.

41. Finally, prayers 1, 2 are directed to the [applicant's] request for a copy of the sound recordings of his 2006 trial. The [applicant] has already received the transcripts but seeks the sound recordings as well. This is the only aspect of the [applicant's] summons where an actual decision has been identified that might potentially be the subject of judicial review. If the [applicant] is in effect seeking judicial review of that decision, he has not articulated any error of law or jurisdictional error said to infect any such decision (see rule 59.4 of the UCPR). In the absence of any basis for relief or cause of action this prayer should also be struck out."

43 The applicant's written submissions, so far as they were contained in his affidavit, neither disputed nor joined issue with the respondents' written submissions which we have set out above. As he failed to appear the Court did not have the benefit of any oral submissions by him. However, as already noted, it would appear from paragraph 34 of the applicant's affidavit (reproduced at [37] above) that his concern was to ensure the retention of the transcript of evidence and the exhibits relevant to his conviction on count 1 in 2006. As the respondents submitted, that material was supplied to the applicant in the appeal papers that were before the Court of Criminal Appeal when it heard and dismissed his appeal against that conviction in 2008. As we have indicated, the only further avenue of appeal against that conviction is by way of an application for special leave to the High Court, albeit out of time. For that purpose he already had in his possession all the material that would be relevant to any such application.

44 It was our view that there was no reason why the respondents' written submissions should not be accepted. They demonstrated that the summons was misconceived in that it failed to disclose any relevant or reasonable cause of action. The prospects of the applicant establishing otherwise was unrealistic to the point of non-existence. In these circumstances, it was appropriate for the summons to be summarily dismissed as manifestly groundless. Accordingly, the Court made the orders referred to at [4] above.

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Decision last updated: 22 October 2014