Gobbo v State of Victoria (redacted)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2021 03269

NICOLA MAREE GOBBO, P2 & P3	Plaintiffs
v
STATE OF VICTORIA	Defendant

---

JUDGE:	Richards JA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September, 1–4, 7–10, 14–18, 21–23 October, 20–21 November 2024
DATE OF JUDGMENT:	13 June 2025
CASE MAY BE CITED AS:	Gobbo v State of Victoria (redacted)
MEDIUM NEUTRAL CITATION:	[2025] VSC 334

---

TORTS — Negligence — Personal Injury — First plaintiff a criminal defence barrister who became a registered police informer — First plaintiff publicly identified as an informer and security measures adopted to protect her and her children, the second and third plaintiffs — Whether certain police officers owed duty of care to avoid foreseeable risks of harm to first plaintiff in connection with being recruited as police informer — Duty of care owed by some police officers to avoid foreseeable risks of harm to first plaintiff in connection with being recruited as a police informer — Whether police officers were negligent in permitting first plaintiff’s ongoing use as police informer — Whether police officers breached their duty of care to first plaintiff — Whether first plaintiff’s own illegal activity put her at risk of harm — No breach of duty of care to first plaintiff —Victoria Police Act 2013 (Vic) s 73 — Wrongs Act 1958 (Vic) s 14G — AB & EF v CD [2017] VSC 350 — AB v CD & EF [2017] VSCA 338 — AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59 — Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649.

CONTRACT — Release — Construction — Whether first plaintiff’s claims barred by release in respect of earlier proceeding — Whether first plaintiff’s causes of action in this proceeding relate to subject matter of earlier proceeding — Whether causes of action in this proceeding had accrued at time of release — Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 — Burnessv Hill [2019] VSCA 94.

TORTS — Negligence — Personal Injury — Voluntary assumption of risk — Whether risk of loss and damage was an obvious risk — Whether first plaintiff fully appreciated, and freely and voluntarily accepted the risks of harm to herself and family members should she be publicly identified as an informer — Wrongs Act 1958 (Vic) ss 53, 54.

TORTS — Negligence — Personal Injury — Materialisation of inherent risk — Whether risk of public exposure as an informer an inherent risk — Whether loss and damage claimed in proceeding a materialisation of that risk — Wrongs Act 1958 (Vic) s 55.

TORTS — Negligence — Personal Injury — Whether certain police officers owed a duty of care to first plaintiff’s immediate family, including future children — Whether risk of harm to immediate family members, including future children, was reasonably foreseeable — Some police officers owed duty of care to first plaintiff’s immediate family, including future children — Whether police officers breached their duty of care to second and third plaintiffs — No breach of duty of care to second and third plaintiffs.

LIMITATION OF ACTIONS — Whether just and reasonable to extend time in which plaintiffs can commence proceeding — Proceedings commenced more than 12 years after date of last act or omission alleged to have resulted in injury — Not just and reasonable to extend limitation period for first plaintiff’s claims — Just and reasonable to extend time for second and third plaintiffs’ claims — Limitation of Actions Act 1958 (Vic) ss 27K, 27L.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr TP Tobin SC, with Mr PG Hamilton and Ms JE Taylor	Angela Sdrinis Legal
For the Defendant	Mr BF Quinn KC, with Mr TP Warner and Ms J Ryan	Corrs Chambers Westgarth

TABLE OF CONTENTS

GLOSSARY........................................................................................................................................ ii

INTRODUCTION.............................................................................................................................. 1

Summary of conclusions.............................................................................................................. 7
Royal Commission and other proceedings............................................................................. 25
Liability for police torts.............................................................................................................. 27
Evidentiary matters.................................................................................................................... 28
Use of informers by Victoria Police.......................................................................................... 31

MS GOBBO’S CLAIMS.................................................................................................................. 47

Negligent inducement claim..................................................................................................... 47
Duty of care........................................................................................................................ 68
Duty of care — principles................................................................................................. 84
Breach.................................................................................................................................. 93

Initial negligent permitting claim............................................................................................. 99
Duty of care...................................................................................................................... 110
Breach................................................................................................................................ 121

Ongoing negligent permitting claim...................................................................................... 126
Duty of care...................................................................................................................... 135
Breach................................................................................................................................ 137
Causation.......................................................................................................................... 144

Extension of time claim............................................................................................................ 152

DEFENCES...................................................................................................................................... 167

Release defence.......................................................................................................................... 167
Voluntary assumption of risk defence................................................................................... 186
Inherent risk defence to ongoing negligent permitting claim............................................ 189

DAMAGES...................................................................................................................................... 190

Contributory negligence.......................................................................................................... 191

CHILDREN’S CLAIMS................................................................................................................ 191

Nervous shock claim................................................................................................................ 191
Causation.................................................................................................................................... 193
Extension of time claim............................................................................................................ 196
Inherent risk defence to ongoing negligent permitting claim............................................ 197
Damages..................................................................................................................................... 197

DISPOSITION................................................................................................................................ 198

GLOSSARY

Term	Definition
AB	Pseudonym for the Chief Commissioner in the AB & EF v CD proceedings.
AB & EF v CD proceedings	Proceedings brought by the Chief Commissioner seeking to restrain the Director from disclosing Ms Gobbo’s role as a police informer: AB & EF v CD [2017] VSC 350 (Ginnane J), AB v CD & EF [2017] VSCA 338 (Court of Appeal), and AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59 (High Court).
AB v CD (HC)	AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59.
Best Practice Review	Review & Develop Best Practice Human Source Management Policy.
CCI 03/05	Victoria Police policy titled ‘Chief Commissioner’s Instruction 03/05’.
CCI 07/03	Victoria Police policy titled ‘Chief Commissioner’s Instruction 07/03 — Informer Management Policy’.
CD	Pseudonym for the Victorian Director of Public Prosecutions in the AB & EF v CD proceedings.
Chief Commissioner	Chief Commissioner of Victoria Police.
Child Protection	Department of Health and Human Services.
Children’s Court	Children’s Court of Victoria.
Comrie Review	Case Review report by Neil Comrie AO APM titled ‘Victoria Police Human Source 3838’.
CYF Act	Children, Youth and Families Act 2005 (Vic).
Defence	Defendant’s defence to the FASOC.
Director	Victorian Director of Public Prosecutions.
DSU	Victoria Police Dedicated Source Unit.
EF	Pseudonym for Ms Gobbo in the AB & EF v CD proceedings.
FASOC	Plaintiffs’ fourth amended statement of claim.
HSMU	Human Source Management Unit.
Human Source Management Act	Human Source Management Act 2023 (Vic).
IBAC	Independent Broad-based Anti-corruption Commission.
IBAC Review	Report of the Honourable Murray Kellam AO QC titled ‘Report concerning Victoria Police handling of Human Source code name 3838’ commissioned by the Independent Broad-based Anti-corruption Commission.
IMU	Informer Management Unit within the Victoria Police State Intelligence Division, Intelligence and Covert Support.
Limitation of Actions Act	Limitation of Actions Act 1958 (Vic).
LIR	Local Informer Registrar.
MDID	Major Drug Investigation Division of the Crime Department of Victoria Police.
OIC	A police member who is the immediate supervisor of the Controller of a human source.
Operation Briars	Victoria Police investigations of homicide in which serving or former police officers were suspects.
Operation Petra
Operation Posse	Victoria Police investigation of the Mokbel group.
OPI	Office of Police Integrity.
Police Regulation Act	Police Regulation Act 1958 (Vic).
Purana	Purana Taskforce established within the Crime Department of Victoria Police to investigate the Melbourne gangland wars.
RIP Act	Regulation of Investigatory Powers Act 2000 (England & Wales).
Royal Commission	Royal Commission into the Management of Police Informants.
SDU	Victoria Police Source Development Unit.
State	State of Victoria.
Victoria Police Act	Victoria Police Act 2013 (Vic).
VPM 111-3	Victoria Police manual titled ‘VPM Instruction 111-3 Human Sources’.
Witness Protection Act	Witness Protection Act 1991 (Vic).
Wrongs Act	Wrongs Act 1958 (Vic).
11792958 or 2958	The human source number later assigned to Ms Gobbo.
2010 proceeding	Proceeding commenced in April 2010 by Ms Gobbo in the Supreme Court of Victoria, resolved in August 2010.
2010 release	Release given by Ms Gobbo at the resolution of the 2010 proceeding.
21803838 or 3838	The human source number initially assigned to Ms Gobbo.

HER HONOUR:

INTRODUCTION

In 2005, Nicola Gobbo was a barrister with a flourishing practice in criminal law. She signed the Victorian Bar roll in 1998, a year after she was admitted to practice. By the early 2000s, she had established herself as a hard-working and capable criminal defence barrister, who was regularly briefed to appear for people charged with serious drug offences. Some of her clients were protagonists in Melbourne’s gangland wars, including Antonios (Tony) Mokbel and other members of the Mokbel family, and George Williams and his son Carl. She had chambers in Crockett Chambers, alongside many senior and well-regarded members of the Victorian criminal bar.

In September 2005, Ms Gobbo became a registered police informer. For more than three years, she was in frequent contact with her handlers in the Victoria Police Source Development Unit (SDU), to whom she provided a large amount of information that was used to investigate and prosecute crimes. Some of that information was about people who were or had been her clients, and some of it was privileged or otherwise confidential. During this time, Ms Gobbo continued to practise as a criminal defence barrister and, on occasion, she acted for people about whom she had given information to police. Some of those people, including Tony Mokbel, were convicted and sentenced to terms of imprisonment.

In January 2009, Victoria Police deregistered Ms Gobbo as an informer, after she agreed to make a statement to be used in the prosecution of Paul Dale for the murders of Terence and Christine Hodson. Ms Gobbo and Victoria Police were unable to agree about measures to protect her personal safety, and in April 2010 Ms Gobbo brought a proceeding in this Court (2010 proceeding). The proceeding resolved in August 2010, on terms of settlement that included the State of Victoria paying $3,000,000 to Ms Gobbo, and Ms Gobbo giving a release in favour of the State and current and former members of Victoria Police (2010 release).

The fact that Ms Gobbo had been a police informer remained secret for many years. She ceased working as a barrister in March 2009, and the settlement in August 2010 brought an end to her dealings with Victoria Police. In 2011, Ms Gobbo met her partner, with whom she had two children [redacted]. However, in mid-2014 he was imprisoned for offences committed before they met. Ms Gobbo left paid work to care for her children, who are known in this proceeding as P2 and P3. For several years from 2015, Ms Gobbo was an active volunteer at the children’s kindergarten and childcare centre.

Following a review by the Independent Broad-based Anti-corruption Commission in 2015 (IBAC Review), the Director of Public Prosecutions concluded that he had a duty to disclose Ms Gobbo’s role as an informer to Tony Mokbel and six other convicted persons. The Chief Commissioner of Police brought proceedings in this Court, seeking to restrain the Director from making that disclosure on the ground of public interest immunity. The Chief Commissioner failed to persuade Ginnane J or the Court of Appeal that Ms Gobbo’s identity should remain confidential, notwithstanding the grave risks to her safety if her role was disclosed.[1] The Chief Commissioner sought and was granted special leave to appeal to the High Court.
[1]AB & EF v CD [2017] VSC 350; AB v CD & EF [2017] VSCA 338.

In November 2018, the High Court revoked the grant of special leave, having received evidence that the safety of Ms Gobbo and her children could be adequately protected if Ms Gobbo agreed to enter into the witness protection program.[2] The Court used strong language to explain why the public interest required disclosure of Ms Gobbo’s identity:[3]

As Ginnane J and the Court of Appeal held, there is a clear public interest in maintaining the anonymity of a police informer, and so, where a question of disclosure of a police informer’s identity arises before the trial of an accused, and the Crown is not prepared to disclose the identity of the informer, as is sometimes the case, the Crown may choose not to proceed with the prosecution or the trial may be stayed.
Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.
To say so is not to overlook that, on the evidence before the courts below and now before this Court, EF and her children will be at grave risk of harm unless EF agrees to enter into the witness protection program. Nor is it to ignore that, thus far, EF has declined to do so, taking the view that Victoria Police cannot be trusted to maintain confidentiality and apparently that she would prefer to wear the risk than subject herself and her children to the limitations and burdens that witness protection would surely entail. It is further not without significance that Victoria Police may bear a large measure of responsibility for putting EF in the position in which she now finds herself by encouraging her to inform against her clients as she did. But large though those considerations may be, they do not detract from the conclusion that it is essential in the public interest for the information to be disclosed.
Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to EF are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity. But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. If EF chooses to expose herself to consequent risk by declining to enter into the witness protection program, she will be bound by the consequences. If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm.

[2]AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59, [7] (AB v CD (HC)).

[3]AB v CD (HC), [9]–[12]. Ms Gobbo is referred to by the pseudonym ‘EF’.

Following the High Court’s decision, Ms Gobbo was publicly identified as ‘Lawyer X’ and the nature and extent of her informing became widely known. As a result of the disclosure, and consequent risks to her safety, Ms Gobbo had to leave her former life behind. She and the children lived overseas for more than a year, initially with the assistance of Victoria Police. However, Ms Gobbo was not satisfied with the arrangements proposed by Victoria Police for witness protection, and did not agree to enter the witness protection program. Instead, she made her own arrangements for visas, accommodation, healthcare, and the children’s education. In December 2019, when their visas expired, they returned to Australia.

In the meantime, Ms Gobbo’s partner had been granted parole. He was able to rejoin the family in early 2020.

As soon as Ms Gobbo and the children returned to Victoria, the Department of Health and Human Services (Child Protection) obtained an interim accommodation order from the Children’s Court of Victoria, placing the children in Ms Gobbo’s care.[4] The conditions of the order required Ms Gobbo to live as directed by Victoria Police, and follow the lawful directions of Victoria Police in relation to the safety and protection of the children. For the next two years, Ms Gobbo and the children lived constrained and isolated lives at several different locations in Victoria. They changed their identities. There was a great deal of tension between Ms Gobbo and police about the family’s living arrangements. This tension peaked when it became clear that Victoria Police were unable to resettle the family in another country, and had no other options for them in the long term.
[4]Under the Children, Youth and Families Act 2005 (Vic) (CYF Act), Pt 4.8, Div 5.

In September 2021, the Children’s Court found that the children were in need of protection, because they were at risk of seeing their mother be killed, or being killed themselves.[5] The Children’s Court also found that the security measures being taken for the protection of the children were causing them psychological and emotional harm.[6] However, Child Protection could propose no long-term case plan to protect the children from the risk of death or witnessing their mother being killed. In those circumstances, the Children’s Court required Ms Gobbo and her partner to give undertakings to depart for overseas to a properly planned destination, taking the utmost care to put in place all measures available to ensure the protection of their identity and future location.[7] Those undertakings were given in October 2021, and soon afterwards the family left Australia. They have since returned, and are living a more settled life outside Victoria.
[5]CYF Act, s 162(1)(c).
[6]CYF Act, s 162(1)(e).
[7]CYF Act, ss 275(1)(a), 278(1).

In this proceeding, commenced in September 2021, Ms Gobbo and the children seek damages for injuries they claim to have suffered as a result of the negligence of a number of individual police officers.[8] Ms Gobbo’s case is essentially that the risks of disclosure and consequent harm to her were so great that she should never have been recruited as a police informer. She says that the more senior police officers who were aware she was being recruited should have stopped it, and that Assistant Commissioner Simon Overland should not have permitted her ongoing use as an informer. She says that since being publicly identified as an informer in about December 2018, she has suffered psychological injury, loss of income, and loss of earning capacity.
[8]A claim for damages for misfeasance in public office was abandoned in closing submissions: Transcript of Proceedings, Gobbo v State of Victoria (Supreme Court of Victoria, S ECI 2021 03269, Richards J, 30 September, 1–4, 7–10, 14–18, 21–23 October, 20–21 November 2024) (Transcript) 1932:24–7.

The children’s claims are dependent upon Ms Gobbo’s claims, on the basis that it was reasonably foreseeable that her close family members would also be exposed to risks of harm to their safety if she were exposed as a police informer.

The plaintiffs allege negligence on the part of 10 individual police officers.

First, they allege negligence in inducing Ms Gobbo to become a police informer. This allegation is made against four ‘frontline officers’:

(a) Paul Rowe, who in August and September 2005 was a detective senior constable in the Major Drug Investigation Division (MDID) of the Crime Department of Victoria Police;

(b) Steven Mansell, who in August and September 2005 was a detective sergeant in MDID;

(c) Officer Sandy White (a pseudonym), who in September 2005 was an officer in the SDU within the State Intelligence Division, in the Intelligence and Covert Support Department of Victoria Police; and

(d) Officer Peter Smith (a pseudonym), who in September 2005 was also an officer in the SDU.

Second, the plaintiffs allege negligence against six more senior officers who are said to have permitted Ms Gobbo to become a police informer:

(a) James (Jim) O’Brien, who in September 2005 was a detective senior sergeant and officer in charge of the Purana Taskforce within the Crime Department of Victoria Police;

(b) Robert Hill, who in September 2005 was a detective inspector and acting superintendent of the MDID and in charge of Mr Rowe and Mr Mansell;

(c) Ian Thomas, who in September 2005 was the detective superintendent of State Intelligence in the Intelligence and Covert Support Department, acting commander of the Intelligence and Covert Support Department, and the Central Informer Registrar for the Informer Management Unit;[9]
[9]See [49] below.

(d) Terry Purton, who in September 2005 was the commander in the Crime Department, with oversight of both MDID and Purana;

(e) John Whitmore, who in September 2005 was a superintendent in the Crime Department with oversight of Purana; and

(f) Simon Overland, who in September 2005 was Assistant Commissioner Crime, with direct line responsibility for the operation of the Crime Department, including MDID and Purana.

Third, the plaintiffs allege that Mr Overland was negligent in permitting Ms Gobbo’s ongoing use as a police informer until January 2009. Mr Overland was Assistant Commissioner Crime until June 2006, when he was appointed Deputy Commissioner of Victoria Police. He held that position until March 2009, when he was appointed Chief Commissioner.

The proceeding is defended by the State, which is liable under s 74 of the Victoria Police Act 2013 (Vic) for a police tort committed by a police officer. The State denies that the individual officers owed Ms Gobbo a duty of care, that they breached any duty of care, and that any breach caused her any injury, loss, or damage. It says that Ms Gobbo provided information to Victoria Police voluntarily, without inducement, and with full appreciation of the risks of harm to her should her informing become known to those on whom she was informing. It relies on the 2010 release as a complete answer to all of Ms Gobbo’s claims, says her claims are statute barred, and raises several other defences. It denies any liability to P2 and P3.

Summary of conclusions

The questions for determination in the proceeding, and a summary of my conclusions in relation to each issue, are as follows:

MS GOBBO’S CLAIMS
Negligent inducement claim
Duty of care

(1) On or about 16 September 2005, did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith give assurances to Ms Gobbo that, if she became an informer:

(a) her identity would be protected;

(b) the information she provided would remain confidential to Victoria Police; and

(c) she would remain safe?

Mr Rowe and Mr Mansell

During their two conversations with Ms Gobbo on 31 August 2005, Mr Rowe and Mr Mansell told her that, if she cooperated with police, she would be managed by officers who were specialists in dealing with human sources. They then introduced Ms Gobbo to Mr White and Mr Smith, two specialist officers in the SDU. They did not give the alleged assurances to Ms Gobbo.

Mr White and Mr Smith

During their first two meetings with Ms Gobbo on 16 and 21 September 2005, Mr White and Mr Smith gave Ms Gobbo some limited and heavily qualified assurances. They assured her that recordings of their meetings would remain confidential and be kept securely. They explained that she would not be dealing directly with investigators, and that any information she provided would be sanitised before being passed on to investigators. They outlined some measures that would be taken to protect her safety, but gave no assurance that she would remain safe.

(2) In or about September 2005, did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith know that Ms Gobbo:

(a) was vulnerable, being concerned about her health, scared for her welfare, and under pressure as a result of her gangland connections;

(b) was being induced by them to assist MDID and Purana investigations;

(c) relied on them to protect her from harm as a result of disclosing confidential information about her clients; and

(d) was at serious risk, including risk of death, if confidential information disclosed by Ms Gobbo to Victoria Police was revealed outside Victoria Police?

Mr Rowe and Mr Mansell

Mr Rowe and Mr Mansell were aware on 31 August 2005 that Ms Gobbo was under pressure as a result of her gangland connections and held general concerns for her health and welfare.

They did not induce Ms Gobbo to become an informer. At most, they encouraged her to consider becoming an informer and facilitated her in taking the next step.

Mr Rowe and Mr Mansell did not know, or have reason to believe, that Ms Gobbo relied on them to protect her from harm as a result of disclosing confidential information about her clients. Their response to her requests for assurances about her safety was to refer her to the specialist officers at the SDU, after which they had no further contact with her.

They knew, or ought to have known, that Ms Gobbo was at serious risk, including risk of death, if it was revealed outside Victoria Police that Ms Gobbo had disclosed confidential information about her clients to Victoria Police.

Mr White and Mr Smith

By the end of the second interview on 21 September 2005, Mr White and Mr Smith were aware that Ms Gobbo was concerned for her health and welfare, and that she was under pressure due to her gangland connections, in particular her association with Mr Mokbel.

They did not induce Ms Gobbo to become an informer. Ms Gobbo chose to attend the meetings on 16 and 21 September 2005 to discuss assisting police by providing information, and was offered a choice whether to proceed. She chose to talk, providing a great deal of information in those first two meetings, with minimal prompting.

Both Mr White and Mr Smith knew, or ought to have known, that Ms Gobbo relied on them to protect her from harm as a result of informing on her clients. They gave limited and qualified assurances in response to her clearly expressed concerns for her safety.

Mr White and Mr Smith were well aware that Ms Gobbo was at serious risk, including risk of death, if information about her clients disclosed by her to Victoria Police was revealed outside Victoria Police. The risk was obvious.

(3) In or about September 2005, did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith know, or ought they have known, that:

(a) they could not protect Ms Gobbo from being exposed as an informer; and

(b) in that event, there was a risk of her suffering harm?

Mr Rowe and Mr Mansell

Both Mr Rowe and Mr Mansell understood that, if Ms Gobbo became an informer, she might later be exposed and would then be at risk of harm. However, neither of them assumed responsibility to protect her from that risk, beyond referring her to the specialist SDU.

Mr White and Mr Smith

Mr White and Mr Smith knew that, as individual police officers, they could not protect Ms Gobbo from being exposed as a result of events beyond their control. The risk of information leaking from within Victoria Police was ever-present, as was the potential for identifying information to be obtained through compulsory disclosure. The serious, possibly fatal consequences of exposure were self-evident.

(4) In light of the answers to questions 1 to 3, did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith owe Ms Gobbo a duty to take reasonable care to avoid her suffering injury in connection with being induced to provide information to Victoria Police?

Ms Gobbo was not induced to provide information to Victoria Police, and so the premise of the alleged duty of care did not exist. Allowing for some awkwardness in the pleading, I considered whether any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith had a duty to take reasonable care to avoid Ms Gobbo suffering injury in connection with being recruited as a police informer.

Mr Rowe and Mr Mansell

Neither Mr Rowe nor Mr Mansell owed a duty to take reasonable care to avoid foreseeable risks of harm to Ms Gobbo in connection with being recruited as a police informer. She was already under pressure when she spoke with them on 31 August 2005, hence her interest in assisting police. Mr Rowe and Mr Mansell gave Ms Gobbo no assurances and assumed no responsibility for her safety after introducing her to Mr White and Mr Smith. Beyond that point, they had no influence over whether Ms Gobbo would become an informer and no knowledge of the information she would go on to provide.

Mr White and Mr Smith

Mr White and Mr Smith had a duty to take reasonable care to avoid Ms Gobbo suffering injury in connection with being recruited as a police informer. In particular, they had a duty to take reasonable care in making their initial assessment and deciding whether to proceed with her registration as an informer.

Breach

(5) Would a reasonable person in the position of Mr Rowe, Mr Mansell, Mr White, or Mr Smith not have induced Ms Gobbo to become an informer?

Ms Gobbo was not induced to become an informer. Consistent with my approach to duty of care, I considered whether a reasonable person in the position of Mr Rowe, Mr Mansell, Mr White, or Mr Smith would not have recruited Ms Gobbo as a police informer.

Mr Rowe and Mr Mansell

While Mr Rowe and Mr Mansell did not owe a duty of care to Ms Gobbo, they were instrumental in her recruitment as an informer. They acted reasonably by introducing her to specialist officers in the SDU.

Mr White and Mr Smith

Reasonable care for Ms Gobbo’s safety did not require Mr White and Mr Smith to reject her as a potential informer. She was a willing recruit who was seeking police assistance to relieve the pressure she was experiencing from Mr Mokbel and her broader client group, and was able to provide a great deal of useful information about them.

It was the policy of Victoria Police to utilise informers to investigate crime, in accordance with the established procedures set out in the relevant policy. Mr White and Mr Smith were part of the newly formed SDU, with responsibility for managing high risk informers. Reasonable police officers in their position would have followed the existing policy, which involved making an initial assessment and completing the required registration application form. At that time, the policy did not advert to the particular risks of receiving information from a lawyer. While this was a serious organisational failure, it was reasonable for individual officers to follow the existing policy.

(6) Did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith induce Ms Gobbo to become an informer?

None of Mr Rowe, Mr Mansell, Mr White, or Mr Smith induced Ms Gobbo to become an informer.

Mr Rowe and Mr Mansell encouraged her to ‘get on board’, and facilitated her interest in assisting police by introducing her to the SDU.

Mr White and Mr Smith conducted an initial assessment of Ms Gobbo’s suitability as a human source. They assessed her to be viable, high risk, and high value, and recommended registration and management by the SDU.

(7) In light of the answers to questions 4 to 6, did any of Mr Rowe, Mr Mansell, Mr White, or Mr Smith breach their duty of care to Ms Gobbo?

Mr Rowe and Mr Mansell did not owe Ms Gobbo a duty of care, and they did not induce her to become an informer.

Mr White and Mr Smith did not breach their duty of care to Ms Gobbo. Their actions were in accordance with Victoria Police policy and were reasonable in the circumstances.

Initial negligent permitting claim

Duty of care

(8) In or about September 2005, did any of Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore know, or ought they have known, that Ms Gobbo:

(a) was vulnerable, being concerned about her health, scared for her welfare, and under pressure as a result of her gangland connections;

(b) was being induced by Mr Rowe, Mr Mansell, Mr White, and Mr Smith to assist MDID and Purana investigations;

(c) relied on them and Mr Rowe, Mr Mansell, Mr White, and Mr Smith to protect her from harm as a result of disclosing confidential information about her clients;

(d) was at serious risk, including risk of death, if confidential information disclosed by Ms Gobbo to Victoria Police was revealed outside Victoria Police?

(9) In or about September 2005, did any of Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore know, or ought they have known, that:

(a) they could not protect Ms Gobbo from being exposed as an informer; and

(b) in that event, there was a risk of her suffering harm?

(10) In light of the answers to questions 8 and 9, did any of Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore owe Ms Gobbo a duty to take reasonable care to avoid her suffering injury in connection with being induced to and providing information to Victoria Police, including confidential information relating to her clients?

Mr O’Brien

Mr O’Brien knew on 7 September 2005 that the SDU had been asked to assess Ms Gobbo’s suitability to become an informer. He knew from 19 September 2005 that Ms Gobbo had been registered as an informer and could provide information about Mr Mokbel and his associates. He understood that there was a danger that Ms Gobbo might be exposed as an informer and, if that occurred, would be at risk of serious harm, including risk of death.

Mr O’Brien did not owe the alleged duty of care to Ms Gobbo. Nor did the salient features of their relationship give rise to a duty for Mr O’Brien to take reasonable care to avoid foreseeable risks of harm to Ms Gobbo in connection with being recruited as a police informer.

Mr Hill

Mr Hill had the same knowledge and understanding of the circumstances of Ms Gobbo’s recruitment as Mr O’Brien. He did not owe Ms Gobbo the alleged duty of care, or a duty to take reasonable care to avoid foreseeable risks of harm to her in connection with being recruited as a police informer.

Mr Thomas

Mr Thomas was the nominated Local Informer Registrar (LIR) on the form completed on 16 September 2005 applying to register Ms Gobbo as an informer. He was therefore the person with responsibility for deciding whether to approve the application. By late November 2005, he knew, or ought to have known, all the information about Ms Gobbo set out in the detailed risk assessment prepared by the SDU.

Ms Gobbo was not induced to become an informer, and so Mr Thomas did not owe her a duty to take reasonable care to avoid harm in connection with being induced. However, in light of Mr Thomas’s responsibilities as the nominated LIR for Ms Gobbo, and the information provided in the risk assessment, he had a duty to take reasonable care to avoid foreseeable risks of harm to Ms Gobbo in connection with being recruited as a police informer.

Mr Purton

There was limited evidence in relation to Mr Purton. At the very most, Mr Purton might have had the same knowledge as Mr Hill. He did not owe the alleged duty of care to Ms Gobbo, or a duty to take reasonable care to avoid foreseeable risks of harm to her in connection with being recruited as a police informer.

Mr Whitmore

Mr Whitmore had even less involvement than Mr Hill and Mr Purton, and so cannot have known more than either of them about the circumstances of Ms Gobbo’s recruitment as an informer. That limited knowledge is not sufficient to give rise to the alleged duty of care, or a duty in the alternative terms considered.

Mr Overland

Mr Overland knew from 26 September 2005 that Ms Gobbo had been registered as an informer and was being handled by the SDU. He may have been aware two weeks earlier of the plan for her to speak with the SDU.

Mr Overland knew that Ms Gobbo was under pressure due to her gangland connections, in particular her association with Mr Mokbel and his associates. He understood that she had come to police as a way out of a situation where she felt she was trapped and her life was at risk. He was not aware of Ms Gobbo’s health concerns.

Mr Overland understood the risks to Ms Gobbo of becoming an informer against serious organised crime. He knew that she might be killed if she was exposed as an informer. He also understood that there was a danger that she might be exposed as an informer, despite the steps he was taking to see that information she provided was treated with the utmost care. He appreciated the potential for her to provide privileged or confidential information about her clients, exacerbating the risk of exposure.

Mr Overland’s seniority within Victoria Police sets him apart from the other investigators alleged to have owed Ms Gobbo a duty of care. He was the only person within Victoria Police command who was aware of Ms Gobbo’s recruitment and could have intervened to stop it. He therefore had a duty to take reasonable care to avoid foreseeable risks of harm to Ms Gobbo in connection with being recruited as a police informer.

Breach

(11) In respect of any of Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore who owed a duty of care to Ms Gobbo, would a reasonable person in each of their positions:

(a) not have had members of Victoria Police induce Ms Gobbo to be an informer; or

(b) stopped any communications between members of Victoria Police and Ms Gobbo that provided confidential information about her clients?

(12) If so, did any of them fail to take that precaution?

(13) In light of the answers to questions 8 to 12, did any of Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore breach their duty of care to Ms Gobbo?

Mr O’Brien, Mr Hill, Mr Purton, and Mr Whitmore

None of Mr O’Brien, Mr Hill, Mr Purton, or Mr Whitmore owed a duty of care to Ms Gobbo in relation to her recruitment as an informer. Reasonable police officers in their position would have left the management of this particular high risk informer to the specialist SDU, which is what occurred.

Mr Thomas

A reasonable person in Mr Thomas’s position would have considered the risks and benefits of registering Ms Gobbo as an informer — or confirming her registration — in accordance with the then-policy of Victoria Police. There is no evidence that Mr Thomas did not do this, and no proof that Mr Thomas breached the duty of care he owed to Ms Gobbo.

Mr Overland

In September 2005, the risks to Ms Gobbo were not so overwhelming that the only reasonable course for Mr Overland was to try to stop Victoria Police from using her as a source. He understood that Ms Gobbo became an informer because she was already in danger from her gangland associations, and felt her life was at risk. It was reasonable for Mr Overland to rely on the policies and procedures that Victoria Police had in place for the management of high risk informers. Mr Overland did not breach his duty of care to Ms Gobbo.

Ongoing negligent permitting claim
Duty of care

(14) At any time between January 2006 and January 2009, did Mr Overland know, or ought he have known, that Ms Gobbo:

(a) was vulnerable, being concerned about her health, scared for her welfare, and under pressure as a result of her gangland connections;

(b) had been induced by Mr Rowe, Mr Mansell, Mr White, and Mr Smith to assist gangland investigations;

(c) relied on members of Victoria Police to protect her from harm as a result of disclosing confidential information about her clients;

(d) was at serious risk, including risk of death, if confidential information disclosed by Ms Gobbo to Victoria Police was revealed outside Victoria Police?

(15) At any time between January 2006 and January 2009, did Mr Overland know, or ought he have known, that:

(a) he and other members of Victoria Police could not protect Ms Gobbo from being exposed as an informer; and

(b) in that event, there was a risk of her suffering harm?

(16) In light of the answers to questions 14 and 15, did Mr Overland owe Ms Gobbo a duty to take reasonable care to avoid her suffering injury in connection with providing information to Victoria Police, including confidential information relating to her clients?

As time went on, Mr Overland grew increasingly concerned for Ms Gobbo’s safety. He understood that the longer that Ms Gobbo continued providing information to police, the greater the risk that she would be compromised. However, he did not know that she was disclosing confidential information about her clients. At some point before December 2008, he formed the view that she was placing herself at risk by her own conduct.

As the senior member of Victoria Police best placed to take responsibility for its use of Ms Gobbo as an informer, Mr Overland owed her a duty to take reasonable care to avoid her suffering injury in connection with providing information to Victoria Police.

Breach

(17) If ‘yes’ to question 16, would a reasonable person in Mr Overland’s position have ended the use of Ms Gobbo as an informer before January 2009?

(18) If so, did Mr Overland fail to take that precaution?

In the context of Mr Overland’s duty of care to Ms Gobbo, a reasonable person in his position would not have ended her use as an informer before January 2009. A reasonable person would have asked about an exit strategy, as Mr Overland did at intervals between May 2006 and December 2008. A reasonable person would also have accepted the advice from Ms Gobbo’s handlers that it was not safe to end the relationship and she should continue to be managed by the SDU.

(19) Did Ms Gobbo provide information to Victoria Police that was confidential to her clients or the subject of her clients’ legal professional privilege?

(20) If so, in providing that information did Ms Gobbo engage in illegal activity for the purposes of s 14G of the Wrongs Act 1958 (Vic)?

(21) If so, how should that illegal activity be taken into account in determining whether Mr Overland breached his duty of care to Ms Gobbo?

Ms Gobbo provided information to Victoria Police that was confidential to her clients and the subject of their legal professional privilege. Informing on her clients was in breach of the Victorian Bar rules of conduct, and breached her fiduciary duties and her obligations of confidence to her clients.

Ms Gobbo engaged in several specific instances of perverting the course of justice, which amounted to illegal activity for the purposes of s 14G of the Wrongs Act. However, there was no clear relationship between that illegal activity and the alleged breach of Mr Overland’s duty of care.

Ms Gobbo also engaged in illegal activity during her entire time as an informer, by obtaining a financial advantage by deception. She accepted briefs and payment for her work, pretending that she was a barrister who would act in her clients’ best interests and keep their confidences, when she was not. By engaging in this illegal activity over more than three years from September 2005, Ms Gobbo put herself at serious risk of harm from any client who discovered she was an informer. I took that into account in determining whether Mr Overland breached his duty of care by failing to stop her from informing at an earlier time.

(22) In light of the answers to questions 16 to 21, did Mr Overland breach his duty of care to Ms Gobbo?

While Mr Overland owed Ms Gobbo a duty to take reasonable care to avoid Ms Gobbo suffering injury in relation to being an informer, he did not breach that duty. A reasonable person in Mr Overland’s position did not have to end Ms Gobbo’s use as an informer before January 2009. Mr Overland reasonably inquired about an exit strategy for her in May 2006, December 2006, and July–August 2007, and on each occasion accepted advice from the SDU that it was not safe to end the relationship. Although it makes little difference, I am reinforced in that conclusion by my finding that Ms Gobbo’s own illegal conduct put her at risk of harm.

Causation

(23) Did any breach of duty cause or materially contribute to Ms Gobbo suffering:

(a) major depressive disorder;

(b) post-traumatic stress disorder;

(c) any other physical or psychiatric condition?

This question does not arise, since no breach of duty has been established.

The events that followed Ms Gobbo’s 2018 exposure as a police informer caused a relapse of her pre-existing major depressive disorder. Her major depressive disorder has been present since at least 2009, with episodes of remission and relapse over the years.

Ms Gobbo also developed a trauma and stressor-related disorder as a result of her dealings with police following her return to Australia in late 2019. While there were indications that Ms Gobbo had traumatic symptoms before 2018, there was no diagnosis of a trauma and stressor-related disorder until after 2018.

The evidence did not support a finding that Ms Gobbo’s 2018 exposure as an informer caused or exacerbated any of the physical conditions from which she suffers.

There was considerable force to the State’s submission that the true cause of the harm pleaded by Ms Gobbo was the action taken by Child Protection to protect the safety of her children in late 2019, in circumstances where Ms Gobbo had refused to enter the witness protection program. The measures were taken in accordance with an order of the Children’s Court, and any consequent injury to Ms Gobbo is not compensable.

Extension of time claim

(24) Is it just and reasonable to extend the time within which Ms Gobbo can commence the proceeding, having regard to the matters set out in s 27L of the Limitation of Actions Act 1958 (Vic) and the plaintiffs’ further and better particulars filed 9 October 2024?

I am not persuaded that it would be just and reasonable to extend the limitation period for Ms Gobbo’s claims. The public interest in reasonable finality looms large in this case, and the plaintiffs have not shown good reason to permit Ms Gobbo to litigate statute barred claims. She knew she had a claim in 2014, but for reasons that were not adequately explained she did not commence this proceeding until September 2021. I have given particular weight to the absence of any reason for the delay between 2014 and late 2018, when Ms Gobbo was otherwise well placed to litigate.

DEFENCES
Release defence to all claims

(25) Is Ms Gobbo bound by the 2010 release?

The plaintiffs did not press their claim that Ms Gobbo should be relieved from the State’s reliance on the 2010 release, because of an alleged material breach by Victoria Police.

(26) Do any of Ms Gobbo’s causes of action in this proceeding relate to the subject matter of the 2010 proceeding?

Ms Gobbo’s causes of action in this proceeding relate to the subject matter of the 2010 proceeding. The two proceedings arose from the same facts and circumstances, and overlapped in several ways.

(27) Had any of Ms Gobbo’s causes of action in this proceeding accrued as at 12 August 2010?

If Ms Gobbo had been entitled to damages for negligence arising from her recruitment and use as a police informer, her causes of action would have accrued before she was deactivated, and certainly before 12 August 2010. Her stressful experiences as an informer contributed to the development of her major depressive disorder before the unsuccessful transition to witness protection.

(28) In light of the answers to questions 25, 26, and 27, are Ms Gobbo’s claims barred by the 2010 release?

Ms Gobbo’s claims are barred by the 2010 release. The causes of action she alleged in this proceeding related to the subject matter of the 2010 proceeding, and — if they accrued at all — they accrued before 12 August 2010.

Voluntary assumption of risk defence to negligence claims

(29) Was the risk of the loss and damage claimed in this proceeding an ‘obvious risk’ for the purposes of ss 53 and 54 of the Wrongs Act, so that Ms Gobbo is presumed to have been aware of the risk?

(30) If ‘yes’ to question 29, was Ms Gobbo unaware of the risk?

(31) If ‘no’ to question 29, did Ms Gobbo fully appreciate, and freely and voluntarily accept, the risks of harm to herself and her family members should it become known to those upon whom she was informing that she was assisting and providing information to Victoria Police, including the risk of the loss and damage claimed in this proceeding?

(32) In light of the answers to questions 29 to 31, has the State made out a defence of voluntary assumption of risk to Ms Gobbo’s claims in negligence?

The risk of being exposed as an informer, and suffering harm as a result, would have been obvious to a reasonable person in Ms Gobbo’s position. She was not unaware of the risk. Rather, she actually perceived and fully appreciated the risk of being exposed as an informer, and what might happen to her in that event.

Ms Gobbo had a choice whether to start providing information to police, and whether to continue doing so. As I have found, she was not induced or prevailed upon to become an informer. Ms Gobbo had a range of other ways she could have relieved the pressure she was experiencing from Mr Mokbel and her other gangland connections. There was nothing to stop her from deciding that the risk of exposure was not worth taking, and walking away. Instead, she chose to accept the risk.

The State would have made out a defence of voluntary assumption of risk, had it been found liable for any of Ms Gobbo’s claims.

Inherent risk defence to ongoing negligent permitting claim

(33) Was the risk of public exposure of Ms Gobbo as an informer an inherent risk within the meaning of s 55(2) of the Wrongs Act?

(34) If so, is the loss and damage claimed in this proceeding the result of the materialisation of that risk, for which the State is not liable in negligence by operation of s 55(1) of the Wrongs Act?

The risk of exposure was an inherent risk for the purposes of s 55(1) of the Wrongs Act. The State could not be held liable in negligence for harm suffered by Ms Gobbo due to the materialisation of that risk, if the ongoing negligent permitting claim had been established.

DAMAGES

(35) In respect of any injury identified in answer to question 23, what is a fair and reasonable sum to compensate Ms Gobbo for:

(a) her past and future pain and suffering, including loss of enjoyment of life;

(b) her past loss of earnings and her loss of earning capacity; and

(c) past and future medical and like expenses?

(36) Should Ms Gobbo be awarded exemplary damages?

Ms Gobbo did not suffer injury as a result of any breach of the duty of care owed to her by Mr White, Mr Smith, Mr Thomas, or Mr Overland. It was therefore unnecessary to assess damages of any kind.

Contributory negligence

(37) Did Ms Gobbo fail to take reasonable care to avoid suffering the loss and damage claimed in this proceeding?

(38) If so, to what extent is it just and equitable to reduce any damages recoverable by Ms Gobbo?

It was unnecessary to answer these questions.

CHILDREN’S CLAIMS
Nervous shock claim

(39) During the period 2003 to 2009, was it reasonably foreseeable to any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore that:

(a) there was a risk of harm to immediate family members of Ms Gobbo if she was publicly exposed as an informer;

(b) Ms Gobbo may bear children; and

(c) in that event, those children would be at risk of harm if Ms Gobbo was publicly exposed as an informer?

(40) If so, did any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore owe a duty of care to P2 and P3?

(41) If so, did any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore breach that duty?

It was reasonably foreseeable to Mr White, Mr Smith, Mr Thomas, and Mr Overland that there was a risk of harm to Ms Gobbo’s immediate family members if she was exposed as an informer. They also ought reasonably to have foreseen that she might later have children and that, if she did so, her children would be at risk of harm if she was exposed as an informer.

I was prepared to accept that Mr White, Mr Smith, Mr Thomas, and Mr Overland owed a duty of care to Ms Gobbo’s immediate family, including any future children.

Consistent with my conclusions in relation to Ms Gobbo, none of Mr Rowe, Mr Mansell, Mr O’Brien, Mr Hill, Mr Purton, or Mr Whitmore owed a duty of care to P2 or P3.

The claims for damages for P2 and P3 were based on Ms Gobbo’s claims in negligence, and their claims could succeed only if hers did. For the reasons I have given in relation to Ms Gobbo’s claims, none of Mr White, Mr Smith, Mr Thomas, or Mr Overland breached their duty of care to P2 and P3.

Causation

(42) Did any breach of duty cause or materially contribute to P2 suffering any psychiatric condition?

(43) Did any breach of duty cause or materially contribute to P3 suffering any psychiatric condition?

These questions did not arise, because no breach of duty to P2 or P3 was established.

Both P2 and P3 suffered psychological injury following the 2018 exposure of Ms Gobbo as an informer, which necessitated huge and traumatic disruption to their lives over more than three years.

Extension of time claim

(44) Is it just and reasonable to extend the time within which P2 and P3 can commence the proceeding, having regard to the matters set out in s 27L of the Wrongs Act and the plaintiffs’ further and better particulars filed 9 October 2024?

It is just and reasonable to extend the time for P2 and P3 to bring their claims.

Inherent risk defence to negligence claims

(45) Was the risk of public exposure of Ms Gobbo as an informer an inherent risk within the meaning of s 55(2) of the Wrongs Act?

(46) If so, is the loss and damage claimed in this proceeding the result of the materialisation of that risk, for which the State is not liable in negligence by operation of s 55(1) of the Wrongs Act?

The risk of Ms Gobbo’s public exposure as an informer was an inherent risk. The effect of s 55(1) is that the State could not be held liable in negligence for harm suffered by P2 or P3 due to the materialisation of that risk, if the ongoing negligent permitting claim had been established.

Damages

(47) In respect of any injury identified in answer to question 42, what is a fair and reasonable sum to compensate P2 for:

(a) past and future pain and suffering, including loss of enjoyment of life;

(b) loss of earning capacity; and

(c) past and future medical and like expenses?

(48) In respect of any injury identified in answer to question 43, what is a fair and reasonable sum to compensate P3 for:

(a) past and future pain and suffering, including loss of enjoyment of life;

(b) loss of earning capacity; and

(c) past and future medical and like expenses?

(49) Should P2 and P3 be awarded exemplary damages?

The plaintiffs have not established that the injuries suffered by P2 and P3 were the result of any breach of the duty of care owed to them by Mr White, Mr Smith, Mr Thomas, or Mr Overland. They are not entitled to damages of any kind.

The proceeding must be dismissed, for the reasons that follow.

Royal Commission and other proceedings

This proceeding is but one of many examinations of Victoria Police’s recruitment and use of Ms Gobbo as a police informer that have taken place since the High Court’s decision in November 2018.

In December 2018, the Victorian Government established a royal commission to examine Victoria Police’s recruitment and management of police informers — referred to by police as ‘human sources’ — subject to legal obligations of confidentiality or privilege. The Royal Commission into the Management of Police Informants conducted its inquiry during 2019 and 2020, and reported on 30 November 2020.

The Royal Commission’s final report was more than 1,000 pages across four volumes, with 111 recommendations.[10] The size of the report reflected the Royal Commission’s terms of reference, which were much broader than the issues for determination in this proceeding. Only a fraction of the evidence received by the Royal Commission was tendered in this proceeding, while I received evidence about matters that were outside the scope of its inquiry. The findings set out in this judgment are made on the basis of the evidence in this proceeding, in relation to the issues defined by the pleadings. They may therefore differ in some respects from the findings of the Royal Commission. Indeed, the Royal Commission’s report was not part of the evidence in this proceeding, and I have not considered its findings in deciding this case.
[10]Royal Commission into the Management of Police Informants (Final Report, November 2020).

In October 2020, the Victorian Legal Services Board applied to this Court to remove Ms Gobbo from the roll of practitioners kept by the Court. The application was determined by consent, on the basis of a statement of agreed facts. Justice Forbes made the order sought by the Board, observing:[11]

The agreed facts before me provide a stark illustration of the duplicitous nature of the conduct. The descriptions of the conduct in the agreed facts are fundamental and appalling breaches of her obligations to those clients. They depart from all three of the principles underpinning fitness for office. The conduct demonstrated partiality and so lacked honesty. It lacked a knowledge of what ought to be done and in executing her duties she did so without the ability to maintain loyalty and confidentiality that the fiduciary relationship demanded above all other interests.

[11]Victorian Legal Services Board v Gobbo [2020] VSC 692, [48].

In addition, there have been numerous applications for leave to appeal against conviction, under s 326A of the Criminal Procedure Act 2009 (Vic), by former clients of Ms Gobbo. To date, three of those applicants have succeeded in having convictions overturned,[12] while others have failed.[13] In November 2024, detailed findings of fact were made in relation to an application for leave to appeal by Tony Mokbel, in answer to questions referred to the Trial Division by the Court of Appeal.[14]
[12]Orman v The Queen (2019) 59 VR 511; Cvetanovski v The Queen [2020] VSCA 272; Mokbel v DPP (Cth) [2020] VSCA 325.
[13]Gavanas v The King (2022) 304 A Crim R 503; Karam v The King [2023] VSCA 318; Arnautovic v The King [2024] VSCA 286. See also Visser v DPP (Cth) [2020] VSCA 327.
[14]Mokbel v The King [2024] VSC 725.

While these other proceedings all relate in some way to Victoria Police’s recruitment and use of Ms Gobbo as an informer, the issues for decision were different from those in this proceeding, and the evidence was not the same. The findings in this judgment are focused on deciding the issues defined by the pleadings in this proceeding, and are based on the evidence received at the trial.

Liability for police torts

When Ms Gobbo was recruited to be a police informer, the police force of Victoria was constituted under the Police Regulation Act 1958 (Vic).[15] Section 4 provided for the appointment of a Chief Commissioner of Police, and so many Deputy Commissioners and Assistant Commissioners as the Governor in Council thought fit. Under s 5(1), the Chief Commissioner had the superintendence and control of ‘the force’, which was defined to mean ‘officers and other members of the police force of Victoria whether employed upon land or upon water’.[16] Section 8(1) empowered the Chief Commissioner to appoint, promote, and transfer:

(a) so many commanders, chief superintendents, superintendents, chief inspectors and inspectors; and
(b) so many senior sergeants, sergeants, senior constables and constables—

as the Governor in Council thinks necessary.

[15]Now called the Police Regulation (Pensions) Act 1958 (Vic). This judgment refers to Version 102 of the Police Regulation Act 1958 (Vic), incorporating amendments as at 1 June 2005, as in force in September 2005.

[16]Police Regulation Act, s 3(1) (definition of ‘the force’).

All officers of police had the superintendence and control of that portion of the force placed under their charge, subject to the authority of the Chief Commissioner.[17] Under s 6(1), the powers of the Chief Commissioner could be exercised by a Deputy Commissioner.
[17]Police Regulation Act, s 5(1).

Since 1 July 2014, Victoria Police has been constituted as the police force of Victoria by s 6 of the Victoria Police Act. It consists of the Chief Commissioner, Deputy Commissioners, Assistant Commissioners, other police officers, protective services officers, police recruits, police reservists, and Victoria Police employees.[18]
[18]Victoria Police Act 2013 (Vic), s 7.

At no time has the police force of Victoria been constituted as a body corporate. Rather, it consists of the individual police officers of all ranks and other people who are designated as members of ‘the force’ or, since 1 July 2014, Victoria Police. For that reason, a claim for damages cannot be brought against Victoria Police as a corporate entity.

At common law, the Crown was not liable for torts committed by individual police officers who were themselves responsible for exercising the powers of the office of constable and personally liable for any misuse of those powers.[19] Now, under s 74(1) of the Victoria Police Act, the State is liable for a police tort — that is, a tort committed by a police officer in the performance or purported performance of the officer’s duties.[20] A police officer who commits a police tort for which the State is liable is not liable to any person for the police tort.[21]
[19]Enever v The King (1906) 3 CLR 969; Victoria v Horvath (2002) 6 VR 326, [42].
[20]Victoria Police Act, s 72(1). However, the State is not liable for a police tort if the State establishes on a police tort claim that the conduct giving rise to the police tort was serious and wilful misconduct by the police officer who committed the police tort: s 74(2).
[21]Victoria Police Act, s 74(3).

While the State now bears liability for police torts, they can only be committed by individual police officers. In a case such as this, a plaintiff must establish that an individual police officer committed each element of the alleged police tort. A plaintiff who alleges negligence bears the burden of proving that the individual police officer owed a duty of care and breached that duty. This may involve demonstrating that the officer knew, or ought to have known, of the matters said to give rise to a reasonably foreseeable risk of harm to the plaintiff. The knowledge of one officer cannot necessarily be attributed to others, without proof that they also knew, or ought to have known, of the relevant risk.

Evidentiary matters

Of the 10 police officers alleged to have been negligent, only Mr Overland gave evidence at the trial. The State did not call any other police officer to give evidence; its only other witness was a psychiatrist who had prepared a medico-legal report in relation to Ms Gobbo.

In those circumstances, the plaintiffs submitted that I should apply the rules in Jones v Dunkel[22] and Blatch v Archer[23] in making my findings of fact.
[22] (1959) 101 CLR 298.
[23](1774) 1 Cowp 63.

The rule in Jones v Dunkel is that an unexplained failure by a party to call a witness in its camp may justify an inference that the witness’s evidence would not have assisted the party’s case.[24] If this inference is drawn, it may be taken into account in two ways. First, the trier of fact may more readily accept the evidence that has been given, which relates to a matter about which the absent witness could have given evidence. Second, it may give greater confidence to draw inferences that are open on the available evidence, where the absent witness could have given evidence to displace the inference.[25] It does not permit speculation about the evidence that the absent witness might have given, in order to fill gaps in the evidence.
[24]Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 320–1 (Windeyer J).
[25]See, eg, O’Donnell v Reichard [1975] VR 916, 929 (Newton and Norris JJ); Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, [63] (Heydon, Crennan and Bell JJ).

The rule in Blatch v Archer is that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’.[26] According to Cross on Evidence, the rule in Jones v Dunkel is a particular application of that maxim:[27]

The maxim goes to the problem that in deciding issues of fact on the civil standard of proof, the court is concerned not just with the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”. Lord Mansfield CJ's maxim is wider than the rule in Jones v Dunkel because the rule is available against a party not bearing the onus of proof. But the maxim is also available against a party bearing that onus — in permitting a conclusion that uncalled evidence would not have helped the case of a party not calling it, or permitting inferences available against the party to be more strongly drawn, or assisting in deciding whether the party bearing the onus has discharged it.

[26]Blatch v Archer (1774) 1 Cowp 63, 65 (Lord Mansfield CJ).

[27]JD Heydon, Cross on Evidence (LexisNexis, 14^th ed, 2023) [1215] (citations omitted).

The plaintiffs submitted that each of Mr Rowe, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Thomas, Mr Purton, and Mr Whitmore were witnesses that the State could reasonably have been expected to call.[28] They said that, in circumstances where serious wrongdoing was directly pleaded against those officers, the Court would reasonably expect to hear from them as witnesses. In many instances, the alleged tortfeasors were the only people able to give evidence on issues in dispute, in particular in relation to their actual knowledge and state of mind at relevant times. They were unquestionably in the State’s camp, and the failure to call them was unexplained.
[28]The tenth alleged tortfeasor, Mr Mansell, died in 2019.

The State disputed that these eight police officers were logically in its camp. It pointed out that it had issued subpoenas requiring each of them to attend to give evidence, and that they had all been through a significant amount of litigation including the Royal Commission. More significantly, it said that the evidence adduced by the plaintiffs had not made out a case to answer in respect of those officers. In those circumstances, it made the forensic decision not to call them.

I accept the plaintiffs’ submission that Mr Rowe, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Thomas, Mr Purton, and Mr Whitmore were witnesses in the State’s camp, and that there was a reasonable expectation that it would call them. They were all either current or former police officers, and were the alleged tortfeasors for whom the State was said to be vicariously liable under s 74(1) of the Victoria Police Act.

There was no explanation for the State’s failure to call these people as witnesses. Indeed, the State was in a position to call them, having served each of them with a subpoena to attend to give evidence. However, after the plaintiffs had closed their case, the State sought an order setting aside the subpoenas addressed to every person other than Mr Overland, on the basis that it no longer required the addressees to give evidence.

In those circumstances, I accept as a general proposition that the evidence of Mr Rowe, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Thomas, Mr Purton, and Mr Whitmore would not have assisted the State’s case. As a result, I can be more confident in accepting the evidence of the plaintiffs’ witnesses on matters about which the absent witnesses could have given evidence. I can also be bolder in drawing inferences adverse to them from the evidence that is available. However, I may not speculate about what their evidence might have been.

Use of informers by Victoria Police

Whether individual police officers ought reasonably to have foreseen the risks to Ms Gobbo, and the reasonableness of their response to those risks, depends in part on Victoria Police’s policies and procedures for the use and handling of informers at relevant times. These have evolved significantly over the last three decades. Some of the changes predated Ms Gobbo’s recruitment, while others were implemented in response to criticisms of her use as an informer.

In this section of the judgment, I outline the policies and procedures that were in place from the late 1990s onwards. The survey is necessarily limited to the evidence received in this case.

Detective Training School guidelines on Informers (1 October 1997)

The survey begins in October 1997, with a set of guidelines apparently prepared for training Victoria Police detectives in the use and management of informers. A redacted version of these guidelines was tendered by consent.

The guidelines commenced with a statement that informers are a valuable investigative tool. Members were encouraged to cultivate informers for that purpose, while being mindful of the perils involved in handling informers and the ethical and legal considerations that may arise.[29] The guidelines distinguished between criminal and non-criminal informers, the latter category comprising public spirited citizens and eccentric or nuisance-type individuals. Public-spirited citizens who communicated information to police could come from ‘every strata of society’ and ‘generally represent no problem since the informer is not activated by improper motives, and communicates genuine information in good faith’.[30]
[29]Exhibit P58: Detective Training School Informers dated 1 October 1997, 2.
[30]Exhibit P58, 3.

While there was a paragraph about how to deal with information offered by clairvoyants,[31] the guidelines did not address any legal or ethical issues associated with receiving information from lawyers.
[31]Exhibit P58, 5.

The guidelines provided that members were to maintain the ‘utmost confidentiality’ in relation to the identity of an informer, while also contemplating disclosure of an informer’s name to a superior when necessary or when directed.[32] It informed members of a system of registration, under which all informers were to be registered with a District Register of Informers, with each informer allocated a registration number to be quoted in subsequent references to the informer.[33] The registration process set out in Appendix A of the guidelines did not appear to involve any risk assessment, and nor did the Informer Registration Application forms (Parts A to D) referred to in Appendix B.[34] An example of an Informer Registration Application (Parts A to C) from 1999 did not include any risk assessment.[35] Part D was not in evidence.
[32]Exhibit P58, 8.
[33]Exhibit P58, 9.
[34]Exhibit P58, Appendix A, Appendix B.
[35]Exhibit P46: Informer Registration Application Part A dated 13 May 1999.

The guidelines contemplated a direct relationship between a detective and an informer, and did not provide for any separation between an investigation and those responsible for handling an informer.

Chief Commissioner’s Instruction 07/03 — Informer Management Policy

The Chief Commissioner’s Instruction 07/03 — Informer Management Policy (CCI 07/03) was issued under s 17 of the Police Regulation Act in September 2003. It replaced the previous instruction ‘VPM 111-3’,[36] and implemented key recommendations of a review of Victoria Police informer management procedures and the Drug Squad Review.[37] The new policy aimed to ensure greater transparency and security at all stages, and emphasised duty of care for both police members and informers.[38]
[36]Exhibit P61: Chief Commissioner’s Instruction regarding Informer Management Policy dated 22 September 2003, [6]. Instruction VPM 111-3 was not in evidence.
[37]Exhibit P61, [2]. These reviews and their recommendations were not in evidence.
[38]Exhibit P61, [3].

CCI 07/03 provided that it ‘is Victoria Police policy to utilise informers for the purposes of crime investigations in a manner in which the integrity of informers, police members and Victoria Police is protected’.[39] It covered several distinct phases of informer management, including recruitment, registration, interaction, payment, and deactivation. A significant change was the introduction of a Central Informer Register, to be managed by the newly formed Informer Management Unit (IMU) within the State Intelligence Division, Intelligence and Covert Support.[40]
[39]Exhibit P61, [5].
[40]Exhibit P61, [4].

In the section headed ‘Recruitment’, the policy stated:[41]

Informers represent a valuable resource for attaining information on criminal activity. However, the recruitment of informers also represents a risk, which must be identified and monitored with a view to effective management. A professional and transparent approach to the recruitment of informers can assist members in the penetration of criminal networks and at the same time safeguard members’ integrity. The initial risk assessment contained in this section is designed to be built upon during the operational ‘life’ of the Informer and is used as a gauge in the ongoing assessment of the Informer.

[41]Exhibit P61, [20].

Regarding the initial process of recruiting an informer, CCI 07/03 required a police member to conduct an initial risk assessment, as follows:[42]
[42]Exhibit P61, [23].

23.      Where a member has identified a person they believe meets the requirements of registration as an Informer, the member must:
…
•Conduct an initial assessment (see Part C, Informer Registration/Reactivation Application) maintaining the confidentiality of the source and the timeliness of information. Include information relevant to the following —
-     Risk to Informer — including history, criminal or otherwise, which may lead to risk of compromise.
-     Risk to Information — including content, intended use, subsequent dissemination, relevance.
-     Risk to Handler(s)/Controller — experience and ability of member to fulfil role, adequate training, personal knowledge relating to informer.
-     Risk to Victoria Police — embarrassment to Victoria Police, loss of credibility, exposure of methodology, cost effectiveness.
-     Risk to Public — impact on community, harm to public, confidence issues.
•Complete the Informer Registration/Reactivation Application;
•Submit the Informer Registration/Reactivation Application to the OIC, accompanied by:
-     Adequate document security classification;
-     The initial risk assessment;
-     Any other supporting documents such as photographs; and
-     Confirm Informer’s identity and provide available identity documents.

Under the section ‘Registration’, the policy provided that an ‘OIC’ (a police member who is the immediate supervisor of the Controller)[43] must also complete a risk assessment, as follows:[44]
[43]Exhibit P61, [7].
[44]Exhibit P61, [27].

27. On receipt of the Informer Registration/Reactivation Application:
•Assess the suitability of the Informer;
•Evaluate any identified risks;
•Consider potential risks;
•Consider risk management strategies;
•Ensure that the member has complied with relevant policy and procedures;

(c) The harm alleged by Ms Gobbo included harm to her professional reputation due to being labelled as a police informer.

Of course, Ms Gobbo had been a police informer. An informed reader of the statement of claim — including the parties to the 2010 release — would have appreciated the acute sensitivity of openly referring to her in that way, and the danger of her previous role as informer being disclosed in the course of the prosecution of Mr Dale.

Ms Gobbo clearly identified this danger in letters she wrote to Mr Overland about the terms on which she was to be provided with witness protection. For example, in a letter dated 21 January 2010, Ms Gobbo wrote:[492]
[492]Exhibit P101: Letter from Witness F to Chief Commissioner Simon Overland dated 21 January 2010, [6]–‍[7]. See also Exhibit D13: Letter from Witness F to Chief Commissioner dated 7 September 2009, [34], [47]–[48].

…
In particular, in relation to witness protection, I have at all times maintained that:
(a) it is significant to me that the matters in which I have previously provided Victoria Police with assistance as well as my current assistance with respect to an ongoing Purana investigation and another Homicide investigation, not be disclosed (directly, indirectly or by inference) in the course of pre-trial proceedings; and
(b) the safest manner in which to ensure the protection of such information is for me to be subject to the provisions of the Witness Protection Act.

As a former Deputy Commissioner for Crime, I am sure that I need not remind you of the difficulties that Victoria Police will encounter if some or any of my past assistance is disclosed in the course of the prosecution of Dale. As matters currently stand, such disclosure would appear to be inevitable. Leaving aside the impact such disclosure will have on me personally (including but not limited to my future safety), the difficulties Victoria Police will encounter will extend well beyond the obvious embarrassment and damage that will be done to the Dale prosecution.
…

Similarly, there are aspects of the 2010 release that come into sharper focus when read with full knowledge of the relationship between Ms Gobbo and Victoria Police. In particular:

(a) Recital C recorded the view of Victoria Police that, in order to reduce the risk of harm or injury to Ms Gobbo, it was necessary for her to engage the provisions of the Witness Protection Act, change her identity, and relocate to a place outside Victoria. As was clear from Mr Overland’s evidence at trial, this view was informed not only by Ms Gobbo’s agreement to be a witness against Mr Dale, but by the three years before that during which she had been a prolific human source.[493] From the correspondence just referred to above, Ms Gobbo seems to have shared this view.

(b) Recital G(b) committed Mr Overland to removing the prohibition on the head of the SDU or his delegate communicating with Ms Gobbo. This commitment only makes sense by reference to Ms Gobbo’s prior relationship with the SDU.

(c) Clause 8 recorded the parties’ agreement and acknowledgment that Ms Gobbo was ‘released from any agreement arrangement or understanding that she provide any support or assistance for Victoria Police in relation to any matter’. On its face, the clause refers to something more than the specific agreement to give evidence in the Dale prosecution. Its significance is clear in light of the support and assistance that had been provided by Ms Gobbo in relation to many matters during her time as an informer.

[493]Transcript (21 October 2024) 1674:14–1675:16 (Overland XXN).

As to purpose, the stated purpose of the 2010 release was ‘to avoid the cost and inconvenience of litigation’. In the context just discussed, this purpose informs the interpretation of the release in cl 4(a), and indicates that it was intended to have a wide operation.

However, the special principles articulated by the High Court in Grant also apply to the interpretation of the release.[494] In summary, the general words of the release are limited to the matters that were specifically in the contemplation of the parties at the time the release was given. Those matters can be determined by reference to the context and recitals of the agreement, and the dispute between the parties at the time of the agreement. Further, equity will intervene to prevent unconscientious reliance on general words of a release, by restricting their meaning according to the knowledge and intent of the parties.[495]
[494]Burnessv Hill [2019] VSCA 94, [70].
[495]Grant (1954) 91 CLR 112, 123–5 (Dixon CJ, Fullagar, Kitto and Taylor JJ). See also Burnessv Hill [2019] VSCA 94, [71]–[74]; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13, [4497]; RW & ME Smith Pty Ltd v Boral Resources (Vic) Pty Ltd [2023] VSCA 182, [96]–[100].

The plaintiffs’ argument that the meaning of cl 4(a) was limited by the recitals did not take account of the way in which recitals C and G(b) related to Ms Gobbo’s previous role of informer. As discussed, the context of the parties’ relationship involved a great deal more than Ms Gobbo’s role in the Dale prosecution.

Similarly, the plaintiffs’ submission that cl 4(a) should be constrained by the description of the dispute in recital E did not engage with the detailed pleading in the statement of claim for the 2010 proceeding. It also ignored the background of Ms Gobbo’s role of informing, and the fact that the subject matter of the litigation was the failed strategy for her to leave that role.

Neither Ms Gobbo nor Mr Overland gave evidence of their subjective intentions at the time of entering into the 2010 release. Ms Gobbo merely gave a general description of the matters in dispute in the 2010 proceeding, without being taken to the 2010 release or cl 4 specifically.[496] There is therefore no basis for equity to restrict the meaning of cl 4(a) by reference to their intent. However, it is clear that all parties to the 2010 release knew the full history of Ms Gobbo’s relationship with Victoria Police and the deep roots of the dispute about the witness protection to be provided for Ms Gobbo. Their knowledge of the broader context does not support restricting the meaning of the release.
[496]Transcript (4 October 2024) 454:24–455:3 (plaintiff XN). See also Transcript (10 October 2024) 958:20–‍960:19 (Plaintiff XXN), (14 October 2024) 1037:5–1038:31 (Plaintiff RXN).

For those reasons, I conclude that Ms Gobbo’s causes of action in this proceeding relate to the subject matter of the 2010 proceeding. The two proceedings arose from the same facts and circumstances, and overlap in the ways identified by the State at [468] above.

Had any of Ms Gobbo’s causes of action in this proceeding accrued as at 12 August 2010?

Plaintiffs’ submissions

The plaintiffs relied principally on their submissions concerning the application of the Grant principles to cl 4 of the 2010 release.

In addition, they submitted that Ms Gobbo’s causes of action in this proceeding did not accrue until she suffered loss from being exposed as an informer. Whether Ms Gobbo was first exposed in 2014 or in late 2018, the exposure occurred well after 12 August 2010. They pointed out that negligence and harm are inextricably linked, there being no actionable negligence unless — and until — duty, breach, and consequential damage coincide.

State’s submissions

The State accepted that damage is the gist of a cause of action in negligence, and that Ms Gobbo’s causes of action in this proceeding did not accrue until a breach of duty resulted in loss and damage, being some difference to Ms Gobbo that was detrimental.[497]
[497]Referring to AlcanGove Pty Ltd v Zabic (2015) 257 CLR 1, [8].

The evidence at trial was that the primary psychological injuries that Ms Gobbo claims resulted from the pleaded breaches of duty in this proceeding were the development or aggravation of major depressive disorder and an unspecified stress or stressor-related disorder.

The State relied on evidence that Ms Gobbo had been treated for depression since at least 2007, and that major depressive disorder is a single underlying condition with episodes that may be triggered by events or circumstances from time to time.[498] It pointed out that Ms Gobbo had pleaded exacerbation of her major depressive disorder as an injury for which she sought damages in the 2010 proceeding. In those circumstances, the State submitted that Ms Gobbo’s causes of action in relation to major depressive disorder had accrued by 12 August 2010.
[498]See [391] above.

The State accepted that the evidence was less clear in relation to Ms Gobbo’s stressor-related disorder, because the condition was not pleaded in the 2010 proceeding, and the medical evidence contains no such diagnosis before 12 August 2010. It relied on strong indications of symptomatology consistent with the condition existing before then, as described by both Dr Brann and Dr Rauchberger. However, it said that the pre-existing diagnosis of major depressive disorder was sufficient to make out its argument that Ms Gobbo’s causes of action in this proceeding had accrued by the time of the 2010 release.

Consideration

All of the acts and omissions that were alleged to involve a breach of a duty of care owed by a police officer to Ms Gobbo took place before January 2009. If — contrary to the conclusions I have reached — any of those acts or omissions amounted to a breach of duty, Ms Gobbo’s causes of action first arose when she suffered some injury as a result of the breach.

There is clear evidence that Ms Gobbo had already suffered major depressive disorder before she agreed to give evidence in the Dale prosecution. On 10 June 2010, Dr Rosemary Schwarz, a psychiatrist who treated Ms Gobbo in 2010, wrote:[499]

Without a doubt the events of the past two to three years have had a massive impact on her life, her sense of herself, her connection with the significant others in her life and her health. She is extremely subjectively distressed and angry and, as you know, her pain has exacerbated. She has had to cope with anxiety about her future, fear for her life, boredom, isolation, loss of income and, in particular, loss of a sense of future. It is no wonder that she has become depressed …

[499]Exhibit P13, 1.

In the same report, Dr Schwarz noted that Ms Gobbo had complained ‘of having been episodically suicidal over the previous two years and of having been severely depressed and anxious’. Dr Schwarz prescribed quetiapine for treatment of Ms Gobbo’s anxiety and depression, noting that it was also useful in treating post-‍traumatic stress disorder.[500]
[500]Exhibit P13, 1–2.

The symptoms described in Dr Schwarz’s report go back to 2007 or 2008. The ‘events of the past two to three years’ must have included Ms Gobbo’s time as an informer, during which she was constantly vigilant about the risk of exposure. It appears from Dr Schwarz’s report that Ms Gobbo’s stressful experiences as an informer contributed to the development of her major depressive disorder, before the unsuccessful transition to witness protection.

If Ms Gobbo had been entitled to damages for negligence arising from her recruitment and use as a police informer, her causes of action would have accrued before she was deactivated, and certainly before 12 August 2010.

In light of the answers to questions 25, 26 and 27, are Ms Gobbo’s claims barred by the 2010 release?

Ms Gobbo’s claims are barred by the 2010 release. The causes of action she alleged in this proceeding related to the subject matter of the 2010 proceeding, and — if they accrued at all — they accrued before 12 August 2010.

Voluntary assumption of risk defence

Was the risk of the loss and damage claimed in this proceeding an ‘obvious risk’ for the purposes of ss 53 and 54 of the Wrongs Act, so that Ms Gobbo is presumed to have been aware of the risk?
If ‘yes’ to question 29, was Ms Gobbo unaware of the risk?
If ‘no’ to question 29, did Ms Gobbo fully appreciate, and freely and voluntarily accept, the risks of harm to herself and her family members should it become known to those upon whom she was informing that she was assisting and providing information to Victoria Police, including the risk of the loss and damage claimed in this proceeding?
In light of the answers to questions 29 to 31, has the State made out a defence of voluntary assumption of risk to Ms Gobbo’s claims in negligence?

Given the conclusions I have already reached, I can deal more briefly with these and the remaining questions concerning Ms Gobbo’s claims.

The State contended in its defence that Ms Gobbo fully appreciated, and freely and voluntarily accepted, the risks of harm to herself and her family members should it become known to those upon whom she was informing that she was assisting and providing information to Victoria Police, including the risk of loss and damage claimed in this proceeding. On that basis, it relied on volenti non fit injuria, or voluntary assumption of risk, as a complete defence to Ms Gobbo’s claims.

The defence of voluntary assumption of risk is made out if it is proved that the plaintiff freely and voluntarily, and with full knowledge of the nature and extent of the risk, impliedly agreed to accept it. The plaintiff must have actually perceived and fully appreciated the risk, and their acceptance of it must be truly voluntary.[501]
[501]Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81–874, [70]–[85] (McClellan CJ at CL); Biggs v O’Connor (2021) 66 VR 441, [35].

The common law of voluntary assumption of risk is now supplemented by s 54(1) of the Wrongs Act, which provides:

If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk.

Section 53 of the Wrongs Act provides:

Meaning of obvious risk
(1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
…

The risk to which s 54 refers must be the same risk as characterised for the purposes of breach of duty of care and causation; in other words, the risk that has actually materialised. The characterisation of the risk must include the general causal mechanism of the harm for which damages are sought, but not necessarily the precise manner in which the injuries were sustained. The focus should be on the same essential circumstances that established the need for the defendant to take reasonable care to avoid harm or injury to the plaintiff.[502]
[502]Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454, [112]–[116] (Gordon, Edelman and Gleeson JJ).

The relevant risk in this case is the risk of being exposed as an informer. The general causal mechanism of the harm for which Ms Gobbo claimed damages was her exposure as an informer. It does not matter that the particular harm arose from the measures taken by Victoria Police and Child Protection to protect Ms Gobbo and her children from harm, rather than being injured or killed by someone against whom she had informed.

I have no difficulty concluding that the risk of being exposed as an informer, and suffering harm as a result, would have been obvious to a reasonable person in Ms Gobbo’s position. A capable criminal defence barrister in September 2005 would reasonably have understood that the identity of an informer might become known in a number of ways. They would have known that someone within Victoria Police might leak the information. They would have been alert to the prospect of an accused person working out the source of information that had led to their arrest. They would have understood that a claim of public interest immunity to protect an informer’s identity might be defeated, and that disclosure might be ordered by a court. In addition, violent retribution had been a frequent occurrence in Melbourne’s gangland wars. The murder of the Hodsons was still a recent event.

Ms Gobbo did not establish that she was unaware of this risk. Rather, the evidence was that Ms Gobbo actually perceived and fully appreciated the risk of being exposed as an informer, and what might happen to her in that event. By September 2005, she had a sound knowledge of the existence of police informers and how they operated. She knew that there was a risk that an informer’s identity could be revealed and that, if that occurred, the informer could end up dead. She knew that the Hodsons had been murdered because Mr Hodson was an informer.[503]
[503]Transcript (8 October 2024) 685:18–686:18, 934:15–22 (Plaintiff XXN).

Ms Gobbo agreed that she understood that there were a number of ways in which an informer’s identity might be discovered. These included a leak from within the police, some inadvertent identifying information in a prosecution brief, or a claim of public interest immunity to resist the disclosure of subpoenaed material. She knew by September 2005 that there was no guarantee that public interest immunity would always protect the identity of an informer. Indeed, she had been briefed by Mr Mokbel to press for the production of information seeking to overcome a claim of public interest immunity in respect of the identity of an informer.[504]
[504]Transcript (8 October 2024) 686:24–689:29 (Plaintiff XXN).

Ms Gobbo’s evidence at trial was consistent with what she said to Mr White and Mr Smith early in their first meeting: ‘I’m dealing with someone who scares me enough that no matter what you people do, if anyone found out about it, I’m just — nothing you can do will protect me’. The risk that someone would find out about it was frankly conceded by Mr White.[505]
[505]See in particular [108] above.

I am also satisfied that Ms Gobbo had a choice whether to start providing information to police, and whether to continue doing so. As I have found, she was not induced or prevailed upon to become an informer. Ms Gobbo had a range of other ways she could have relieved the pressure she was experiencing from Mr Mokbel and her other gangland connections. There was nothing to stop her from deciding that the risk of exposure was not worth taking, and walking away. Instead, she chose to accept the risk.[506]
[506]See [180]–[186] above.

In light of those conclusions, the State would have made out a defence of voluntary assumption of risk, had it been found liable for any of Ms Gobbo’s claims.

Inherent risk defence to ongoing negligent permitting claim

Was the risk of public exposure of Ms Gobbo as an informer an inherent risk within the meaning of s 55(2) of the Wrongs Act?
If so, is the loss and damage claimed in this proceeding the result of the materialisation of that risk, for which the State is not liable in negligence by operation of s 55(1) of the Wrongs Act?

The State also relied on the defence of materialisation of inherent risk, under s 55 of the Wrongs Act. Initially, this defence was pleaded in relation to all of Ms Gobbo’s claims. In closing, the State pressed it only in relation to the ongoing negligent permitting claim against Mr Overland.

Section 55 of the Wrongs Act provides:

No liability for materialisation of inherent risk

(1)A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care.
…

Again, the relevant risk is the risk of being exposed as an informer.

Once Ms Gobbo became an informer, the risk of exposure was ever present. As Ms Gobbo accepted, there were many ways in which an informer might be exposed.[507] The exercise of reasonable care by the officers who owed Ms Gobbo a duty of care — notably, Mr Overland — could not have avoided that risk. Despite reasonable precautions, the conduct of other police, the Director, IBAC, the media, and the courts was beyond their control. In particular, the exercise of reasonable care could not have prevented a court from ordering disclosure of Ms Gobbo’s identity, notwithstanding a vigilant assertion of public interest immunity by the Chief Commissioner. In the end, the public interest in the integrity of the criminal justice system prevailed.[508]
[507]See [507] above.
[508]AB v CD (HC) (2018) 93 ALJR 59, [10]–[12], set out at [6] above.

For those reasons, I consider that the risk of exposure was an inherent risk for the purposes of s 55(1). The State could not be held liable in negligence for harm suffered by Ms Gobbo due to the materialisation of that risk, if the ongoing negligent permitting claim had been established.

DAMAGES

In respect of any injury identified in answer to question 23, what is a fair and reasonable sum to compensate Ms Gobbo for:
(a)her past and future pain and suffering, including loss of enjoyment of life;
(b)her past loss of earnings and her loss of earning capacity; and
(c)past and future medical and like expenses?
Should Ms Gobbo be awarded exemplary damages?

The plaintiffs have not established that Ms Gobbo suffered injury as a result of any breach of the duty of care owed to her by Mr White, Mr Smith, Mr Thomas, or Mr Overland. It is therefore unnecessary to assess damages of any kind.

Contributory negligence

Did Ms Gobbo fail to take reasonable care to avoid suffering the loss and damage claimed in this proceeding?
If so, to what extent is it just and equitable to reduce any damages recoverable by Ms Gobbo?

It is unnecessary to answer these questions.

CHILDREN’S CLAIMS

Nervous shock claim

During the period 2003 to 2009, was it reasonably foreseeable to any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore that:
(a)there was a risk of harm to immediate family members of Ms Gobbo if she was publicly exposed as an informer;
(b)Ms Gobbo may bear children; and
(c)in that event, those children would be at risk of harm if Ms Gobbo was publicly exposed as an informer?
If so, did any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore owe a duty of care to P2 and P3?
If so, did any of Mr Rowe, Mr Mansell, Mr White, Mr Smith, Mr O’Brien, Mr Hill, Mr Overland, Mr Thomas, Mr Purton, or Mr Whitmore breach that duty?

I found that Mr White, Mr Smith, and Mr Overland owed Ms Gobbo a duty to take reasonable care to avoid Ms Gobbo suffering injury in connection with being recruited as a police informer.[509] I also found that Mr Overland owed Ms Gobbo a duty to take reasonable care to avoid her suffering injury in connection with providing information to Victoria Police.[510]
[509]See [212]–[214] (Mr White and Mr Smith), [277]–[282] (Mr Thomas), [286]–[299] (Mr Overland) above.
[510]See [347]–[352] above.

I accept the plaintiffs’ submissions that it was reasonably foreseeable to those police officers that there was a risk of harm to Ms Gobbo’s immediate family members if she was publicly exposed as an informer. Mr Overland accepted that was the case, with the qualification that there was an unwritten rule amongst criminals that normally families are not touched. He acknowledged that Christine Hodson had been murdered, although it was her husband who was the informer.[511]
[511]Transcript (18 October 2024) 1561:2–1562:9 (Overland XXN).

I also accept that the police officers who owed Ms Gobbo a duty of care ought reasonably to have foreseen that she might later have children. In September 2005, Ms Gobbo was a woman in her early 30s, and it was entirely possible that she might have children at some time in the next decade. Indeed, she spoke of that possibility in her first interview with Mr White and Mr Smith, in the context of discussing what her life might be like if she stopped working in the law.[512]
[512]See [120] above.

It follows that it was reasonably foreseeable that, in the event that Ms Gobbo had children, they also would be at risk of harm if she was exposed as an informer.

I am prepared to accept that Mr White, Mr Smith, Mr Thomas, and Mr Overland owed a duty of care to Ms Gobbo’s immediate family, including any future children. As the plaintiffs submitted, it is uncontroversial that a tortfeasor who causes injury to a primary victim may also breach a duty of care owed to an immediate family member of the primary victim.[513] It does not matter that P2 and P3 were not born at the time the duty arose.[514] There was a lifelong risk of exposure for Ms Gobbo, and the risk extended to members of her immediate family from time to time.
[513]Healy v Bird [2022] VSC 823, [74].
[514]Healy [2022] VSC 823, [80]; X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26, 30 (Mahoney JA), 37, 40 (Clarke JA).

Consistent with my conclusions in relation to Ms Gobbo, none of Mr Rowe, Mr Mansell, Mr O’Brien, Mr Hill, Mr Purton, or Mr Whitmore owed a duty of care to P2 or P3.

The claims for damages for P2 and P3 were squarely based on Ms Gobbo’s claims in negligence, and their claims could succeed only if hers did. For the reasons I have given in relation to Ms Gobbo’s claims, none of Mr White, Mr Smith, Mr Thomas, or Mr Overland breached their duty of care to P2 and P3.[515]

Causation

[515]See [234]–[235], 238], [240] (Mr White and Mr Smith), [303]–[306] (Mr Thomas), [312]–[319], [353]–[362] (Mr Overland) above.

Did any breach of duty cause or materially contribute to P2 suffering any psychiatric condition?
Did any breach of duty cause or materially contribute to P3 suffering any psychiatric condition?

This question does not arise, because no breach of duty to P2 or P3 has been established.

However, there is no doubt that their worlds were turned upside down in late 2018, when Ms Gobbo abruptly left the country and took P2 and P3 with her. From that time, they were cut off from their friends and extended family in Melbourne. Over the next three years, they lived in many different places, under several different names, under a range of security arrangements. Since 2022, their living arrangements have settled down, although it could hardly be said their life has returned to normal. While Ms Gobbo has been a caring and protective mother throughout this time, the deterioration of her own mental health has affected her children. The threat of being separated from their mother between 2019 and 2021 was traumatic for both children.

The State conceded that the evidence was that both children had been psychiatrically affected by this disruption to their lives.

The plaintiffs tendered two medico-legal reports of Dr Robert Adler, child and adolescent psychiatrist, both dated 7 January 2024, in relation to P2 and P3 respectively.[516] They also tendered two medico-legal reports of Dr Joel Singer, another child psychiatrist, dated 12 August 2024, one in relation to each child.[517] In the following discussion of this evidence I use the pronouns ‘they’ and ‘them’ to refer to P2 and P3, so as to avoid disclosing either child’s gender.
[516]Exhibit P39: Psychiatric Report of Dr R Adler dated 7 January 2024; Exhibit P42: Psychiatric Report of Dr R Adler dated 7 January 2024.
[517]Exhibit P40: Psychiatric Report of Dr J Singer dated 12 August 2024; Exhibit P41: Psychiatric Report of Dr J Singer dated 12 August 2024.

In relation to P2, Dr Adler reported:[518]

P2’s response to these stresses included some behavioural regression followed by symptoms of depression and anxiety. P2 also experienced some learning difficulties leading to lowered self-esteem. While P2 may previously have met the DSM-5 diagnostic criteria for PTSD, as diagnosed by [redacted], I believe that currently the most appropriate diagnosis, according to DSM-5 criteria, is an Adjustment Disorder with mixed anxiety and depressed mood. I must point out that this diagnosis does not do justice to the complex situation that P2 and [their] family have experienced over the last five years.

[518]Exhibit P39, 14.

While there had been some improvement since the family’s living arrangements stabilised in 2022, P2 continued to display symptoms of depression and anxiety. The long-term impacts on P2 were difficult to predict, with much depending on the continuation of a stable home and schooling. It seemed likely that P2 would begin to question their family’s unusual history as they grew older, which might have implications for their education, career, and work choices.

In Dr Singer’s opinion, P2 was suffering from post-traumatic stress disorder and a generalised anxiety disorder, caused by the multiple disruptions of their family life between 2018 and 2022.[519] P2’s exposure to potential removal from their mother and their belief that she was under threat of serious harm caused P2 to experience significant fear and trauma, with ongoing symptoms. These conditions had persisted even after the family found comparatively stable accommodation two years previously. The likely prognosis was highly speculative, particularly as P2 progresses into adolescence. Dr Singer also commented that P2’s symptoms may be exacerbated as they come to realise how extremely unusual their early childhood was, and the reasons for that.
[519]Exhibit P49, 12–14.

Dr Adler diagnosed P3’s current psychological condition to be adjustment order with mixed anxiety and depressed mood, again noting that the diagnosis did do justice to the family’s complex situation over the previous five years.[520] P3’s initial response to stresses of disruption over that time included some behavioural changes, followed by symptoms of stress and anxiety. P3’s condition had improved with increased stability since 2022, and the most important factors in their future mental health were the continuation of stable home and schooling in the care of both parents. However, it was difficult to make accurate predictions, and any change of circumstances is likely to have a significant impact. As with P2, P3 may begin questioning the reasons for the family’s unusual history with age, with possible implications for their education, career, and work choices.
[520]Exhibit P42, 14–15.

Dr Singer assessed P3’s psychological condition in August 2024 as follows:[521]

I note that P3 was [redacted] in 2018 when … exposed to multiple stressors as a result of the events that are the subject of these proceedings, including believing that serious harm would come to [their] mother and repeated disruptions to [their] education, accommodation, peer, and family relationships. In my opinion, P3 meets diagnostic criteria for post-traumatic stress disorder in an individual [redacted]. P3’s trauma symptoms initially appear to have manifested with symptoms including regression with bed wetting, separation anxiety from [their] mother, and emotional dysregulation with anger. While many of these symptoms have resolved, P3 continues to experience physiological distress in response to cues that remind [them] of the events, and [they] noted that [they] avoided discussing the events. P3 additionally described anxiety that [their] mother may be harmed and hypervigilance towards police.

[521]Exhibit P41, 10.

In Dr Singer’s opinion, the cause of this condition was the events the subject of this proceeding.[522] The condition was relatively stable, but would likely evolve as P3 moves into adolescence. While P3 had several positive prognostic factors, including a superior intellect and engagement in school, their overall prognosis was speculative. Increased awareness of the threat to their safety and that of their family may exacerbate their symptoms later in life.
[522]Exhibit P41, 11.

Given my conclusions on liability, I do not need to make findings about which of these diagnoses is preferable. Based on the opinions of Dr Adler and Dr Singer, I find that both P2 and P3 suffered psychological injury following the 2018 exposure of Ms Gobbo as an informer, which necessitated huge and traumatic disruption to their lives over more than three years.

Extension of time claim

Is it just and reasonable to extend the time within which P2 and P3 can commence the proceeding, having regard to the matters set out in s 27L of the Wrongs Act and the plaintiffs’ further and better particulars filed 9 October 2024?

By the time the plaintiffs filed their writ on 7 September 2021, more than 12 years had elapsed since the alleged acts and omissions on which P2 and P3’s claims were based. Their claims were therefore statute barred by the long stop limitation period in s 27E(1)(b) of the Limitation of Actions Act. They also seek an extension of time under s 27K of that Act.

I have set out at [403] to [406] above the relevant law, and the matters relied on by all three plaintiffs in support of their contention that it would be just and reasonable to extend time. The considerations in relation to P2 and P3 are different from those for Ms Gobbo.

Significantly, their causes of action did not accrue, and hence were not discoverable, until they suffered injury at some point after November 2018. The proceeding was commenced within three years of that date. But for the long stop limitation period, the children’s claims would have been commenced within the six year limitation period prescribed by s 27E(2)(a) of the Limitation of Actions Act.

An additional consideration in relation to P2 and P3 is that both of them are children, and were dependent on an adult to bring a proceeding on their behalf. I partly accepted the reasons for Ms Gobbo’s delay between 2018 and 2021, and accept that those reasons apply equally to P2 and P3, and to their litigation guardian.[523] There was no unexplained delay between 2014 and 2018 in relation to the children’s claims.
[523]See [438] above.

Further, the State identified no specific prejudice due to the delay, and any general prejudice is minimal. I am satisfied that the State has, in fact, had a fair trial.

For those reasons, I consider it just and reasonable to extend the time for P2 and P3 to bring their claims.

Inherent risk defence to ongoing negligent permitting claim

Was the risk of public exposure of Ms Gobbo as an informer an inherent risk within the meaning of s 55(2) of the Wrongs Act?
If so, is the loss and damage claimed in this proceeding the result of the materialisation of that risk, for which the State is not liable in negligence by operation of s 55(1) of the Wrongs Act?

For the reasons given at [511] to [515] above in relation to Ms Gobbo’s claim, the risk of her public exposure as an informer was an inherent risk. The effect of s 55(1) is that the State could not be held liable in negligence for harm suffered by P2 or P3 due to the materialisation of that risk, if the ongoing negligent permitting claim had been established.

Damages

In respect of any injury identified in answer to question 42, what is a fair and reasonable sum to compensate P2 for:
(a)past and future pain and suffering, including loss of enjoyment of life;
(b)loss of earning capacity; and
(c)past and future medical and like expenses?
In respect of any injury identified in answer to question 43, what is a fair and reasonable sum to compensate P3 for:
(a)past and future pain and suffering, including loss of enjoyment of life;
(b)loss of earning capacity; and
(c)past and future medical and like expenses?
Should P2 and P3 be awarded exemplary damages?

The plaintiffs have not established that the injuries suffered by P2 and P3 were the result of any breach of the duty of care owed to them by Mr White, Mr Smith, Mr Thomas, or Mr Overland. They are not entitled to damages of any kind.

Given their youth and uncertain prognoses, any assessment of damages for P2 and P3 would have been highly speculative. In those circumstances, I prefer not to attempt an unnecessary assessment.

DISPOSITION

I will make an order under s 27K(2) of the Limitation of Actions Act, extending the period of limitation applicable to P2 and P3’s causes of action to 7 September 2021.

Otherwise, the proceeding must be dismissed.

I will hear the parties on the question of costs.

[2025] VSC 334

13 June 2025