Orman v State of Victoria

[2024] VSC 627

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01616

FARUK ORMAN	Plaintiff
v
STATE OF VICTORIA	First Defendant
and
NICOLA MAREE GOBBO	Second Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2024
DATE OF RULING:	11 October 2024
CASE MAY BE CITED AS:	Orman v State of Victoria
MEDIUM NEUTRAL CITATION:	[2024] VSC 627

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PRACTICE AND PROCEDURE — Application for further and better particulars of material facts related to knowledge of certain Victoria Police officers — Knowledge centrally important to plaintiff’s causes of action — Further particulars will clarify and confine issues for determination at trial — Webster (Trustee) v Murray Goulburn Co-Operative Co. Ltd (No 2) [2017] FCA 1260 — Young Investments Group Pty Ltd v Mann [2012] FCAFC 107 — Supreme Court (General Civil Procedure) Rules 2015, r 13.10 — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Murphy	Robinson Gill
For the First Defendant	C Caleo KC with S Frauenfelder	Corrs Chambers Westgarth
For the Second Defendant	G De Biase	Angela Sdrinis Legal

HIS HONOUR:

1. In 2009, following a trial in this Court, the plaintiff Faruk Orman (‘Orman’) was found guilty of the murder of Victor Peirce and sentenced to 20 years’ imprisonment, with a non-parole period of 14 years.  In 2019, the Court of Appeal determined that there had been a substantial miscarriage of justice in Orman’s criminal trial, and ordered that his conviction be set aside and a judgment of acquittal be entered in its place.  By that time, Orman had spent almost 12 years in prison.

1. Orman brings this proceeding against the first defendant, the State of Victoria (‘State’), alleging that police torts were committed by 12 members of Victoria Police (‘officers’) resulting in his prosecution and imprisonment, and causing him injury, loss and damage.

1. At a case management conference on 7 October 2024, the State applied for an order that Orman provide particulars of certain allegations of material facts in the third further amended statement of claim (‘3FASOC’). 

Pleadings

1. Orman’s pleaded claim is complex.  The 3FASOC is 53 pages long and the appendices run to a further 40 pages.  Most of the pleading and appendices are relevant to the claims against the State.

1. Orman makes claims of malicious prosecution against five officers; misfeasance in public office against 12 officers; lawful means conspiracy and unlawful means conspiracy against 11 officers; and false imprisonment against 12 officers.

1. The pleaded causes of action relate to the use by Victoria Police of the second defendant, Nicola Gobbo, as a police informant while she was a barrister representing Orman, and the principal witness against him, known as ‘Thomas’.

1. The foundation of Orman’s claims is that the officers improperly obtained information or knowledge from Gobbo and Thomas, and then improperly used it in Orman’s prosecution.  Orman alleges that the officers improperly failed to disclose those matters to him, the Director of Public Prosecutions (‘DPP’) and the Court in the criminal proceedings.  Orman alleges that the officers’ improper acts and omissions led to him being charged, prosecuted, convicted and imprisoned.

1. What each officer knew is central to each cause of action.

1. The pleading of malicious prosecution is an example.  In support of an allegation that the prosecutions against him were brought without reasonable and probable cause, Orman pleads:

Buick, Bateson, Ryan, O’Brien and Hupfeld knew of and deliberately did not tell and so concealed from the Director of Public Prosecutions, the Court and the Plaintiff, at all times and until April 2013:

(a)critical matters impugning the credibility of the evidence of “Thomas” in the Peirce and Kallipolitis proceedings.

(b) Gobbo’s conflict of interest in acting for the Plaintiff in defending the Peirce proceedings.

Particulars

Inter alia, the Plaintiff relies on the knowledge of Buick, Bateson, Ryan, O’Brien and Hupfeld set out in paragraphs 24AD (in relation to Hupfeld), 25A-25D, 25IA, 25J.

1. Particulars of knowledge are given in paragraph 40 by cross-reference to other paragraphs of the pleading.  An example is paragraph 25A, which relates to officer Buick:

Buick knew:

(a)from at least 11 October 2006 that Gobbo acted for the Plaintiff as his legal representative.

(b)from at least 22 June 2007 that Gobbo acted for the Plaintiff as his legal representative in relation to the Peirce proceeding.

(c)from at least 31 August 2004 that Gobbo acted for “Thomas” as his legal representative.

(d)from at least July 2006 that “Thomas” had provided statements implicating the Plaintiff in the Peirce and Kallipolitis murders.

(e)from at least July 2006 that Gobbo was involved in reviewing and or amending the statements.

(f)from at least April 2006 that Gobbo was an informer and or human source to the police managed by the SDU.

(g)that Gobbo, in her capacity as an informer or human source to the police was providing information regarding[:]

(i)the Kallipolitis murder from at least July 2006,

(ii)“Thomas” from at least November 2007;

(iii)the Plaintiff from at least 22 June 2007.

(h)from at least July 2006, that evidence from “Thomas” including as set out in the statements referred to at paragraph 15:

(i)would be relevant to the decision of the Director of Public Prosecutions to prosecute the Plaintiff for the Peirce and the Kallipolitis murders

(ii)would likely be used as evidence in any committal and or trial of the Plaintiff for the Peirce and or the Kallipolitis murders.

There are similar pleadings in respect of each officer.

1. The particulars of knowledge in paragraph 40 also rely on paragraph 25J, which reads:

At all relevant times, Buick, Bateson, O’Brien, Ryan, “White”, “Fox”, “Wolf”, “Smith”, Hatt, Hupfeld, “Hotham” and Overland knew that the use of Gobbo as a human source providing information about the Plaintiff, and her involvement with “Thomas” against the interests of the Plaintiff, while acting for the Plaintiff, should be, but had not been, disclosed to:

(a)the Court;

(b)the Director of Public Prosecutions;

(c)the Plaintiff;

prior to the Plaintiff being charged and his committal and trial for the murder of Peirce and Kallipolitis.

and further, was conduct:

(i)in breach of Gobbo’s duties as a legal practitioner acting for the Plaintiff, including her fiduciary duties;

(ii)in breach of Gobbos’ duties as a legal practitioner to the Court acting in the Peirce and Kallipolitis murder proceedings;

(iii)that, should the evidence obtained by way of the “Thomas” statements be relied upon in the laying of charges or commencement and maintenance of a prosecution of the Plaintiff in relation to the Peirce and Kallipolitis murder proceedings, would deny the Plaintiff a fair trial and result in the perversion of justice.

1. The second further amended statement of claim (‘2FASOC’) contained most of the allegations of knowledge.  The State filed and served a defence to the 2FASOC in which it makes some partial admissions and otherwise denies the allegations of knowledge.  The defence pleaded to the above paragraphs of the statement of claim is as follows:

25A.In response to the alleged knowledge of Buick in paragraph 25A, it:

(a)admits Buick knew Gobbo was then acting for the Plaintiff from late-2006 until November 2007 but otherwise does not admit subparagraph 25A(a);

(b)admits Buick knew Gobbo was then acting for the Plaintiff from 22 June 2007 until November 2007 but otherwise does not admit subparagraph 25A(b);

(c)admits Buick knew Gobbo was then acting for ‘Thomas’ in around August 2004 and July 2006 but otherwise does not admit subparagraph 25A(c);

(d)admits subparagraph 25A(d);

(e)as to subparagraph 25A(e):

(i)refers to and repeats subparagraph 20(i) above;

(ii)otherwise denies subparagraph 25A(e);

(f)as to subparagraph 25A(f):

(i)refers to and repeats subparagraph 11(c)(iii) above;

(ii)otherwise denies subparagraph 25A(f);

(g)as to subparagraph 25A(g), it:

(i)denies subparagraph 25A(g);

(ii)says further that Buick was not aware Gobbo was a human source during the periods alleged;

(h)as to subparagraph 25A(h), it:

(i)refers to and repeats subparagraph 20(j) above;

(ii)otherwise does not admit subparagraph 25A(h).

…

25JIn respect of paragraph 25J, it:

(a)denies any officer was obliged to disclose the matters identified in 25J prior to the Plaintiff being charged, as no such obligation as alleged exists;

(b)except as expressly admitted or denied herein, it does not admit the officers knew the matters identified in paragraph 25J;

Particulars

The First Defendant refers to and repeats the matters pleaded at subparagraphs 25A-25I above.

(c)denies that any of the named officers knew that the matters in paragraph 25J had to be disclosed during the course of the Plaintiff’s committal proceedings or trial for the murder of Peirce or Kallipolitis;

(d)says further that the named officers did not know those matters or believe those matters ought to be disclosed because they:

(i)were not themselves aware of those matters;

(ii)did not consider themselves responsible for disclosure in the Peirce or Kallipolitis prosecutions and so had no reason to consider whether the matters ought to be disclosed;

(iii)did not consider whether those matters ought to be disclosed; and/or

(iv)believed those matters did not need to be disclosed;

(e)it admits that the named officers did not disclose matters to the effect of those referred to in paragraph 25J.

…

40.In response to paragraph 40, it:

(a)refers to and repeats the pleas to paragraphs 25A to 25D above;

(b)insofar as the allegations concern failures to disclose information, alleged breaches of the prosecution’s obligation to disclose information are not enforceable at the instance of the Plaintiff by way of a claim in malicious prosecution;

Particulars

Cannon v Tahche (2002) 5 VR 317 at 341 [59].

(c)says further that the named officers did not know those matters or believe those matters ought to be disclosed because they:

(i)were not themselves aware of those matters;

(ii)did not consider themselves responsible for disclosure in the Peirce or Kallipolitis prosecutions and so had no reason to consider whether the matters ought to be disclosed;

(iii)did not consider whether those matters ought to be disclosed; and/or

(iv)believed those matters did not need to be disclosed. 

(d)says further that the named officers’ conduct (as pleaded in paragraphs 2024 and which is the subject of various admissions, denials and non-admissions as pleaded herein) had no dishonest or improper motive. 

(e)otherwise denies subparagraph 40.

Request for particulars

1. The request for particulars is lengthy.  It contains 48 paragraphs, most of which have some sub-paragraphs.  A number of those paragraphs relate to multiple officers and therefore require separate individual responses for each officer.

1. The State has sought further particulars of knowledge alleged in paragraphs 25A and 25J of Orman’s pleadings set out above.  In relation to paragraph 25A of the 3FASOC, the State seeks the following:

Buick’s alleged knowledge

12.The usual details of the allegation that Buick knew from at least 11 October 2006 that Gobbo acted for the Plaintiff as his legal representative, as is alleged in paragraph 25A(a) but only insofar as that allegation is not admitted in the Defence.

13.The usual details of the allegation that Buick knew from at least 31 August 2004 that Gobbo acted for Thomas as his legal representative, as is alleged in paragraph 25A(c) but only insofar as that allegation is not admitted in the Defence.

14.The usual details of the allegation that Buick knew that Gobbo, in her capacity as a human source to police, was providing information regarding:

(a)the Kallipolitis murder from at least July 2006;

(b)Thomas from at least November 2007;

(c)the Plaintiff from at least 22 June 2007

as is alleged in paragraph 25A(g).

1. The following request is made for particulars of knowledge alleged in paragraph 25J of the 3FASOC:

Officers’ alleged knowledge

48.The usual details of the allegation that each of Buick, Bateson, O'Brien, Ryan, White, Fox, Wolf, Smith, Hatt, Hupfeld, Hotham and Overland knew that:

(a)the use of Gobbo as a human source providing information about the Plaintiff; and

(b)Gobbo's involvement with Thomas against the interests of the Plaintiff, while acting for the Plaintiff

was conduct that:

(c)should be disclosed to the Court, the OPP and the Plaintiff;

(d)was in breach of Gobbo's duties as a legal practitioner acting for the Plaintiff;

(e)was in breach of Gobbo's duties to the Court;

(f)should the evidence obtained by way of Thomas' statements be relied upon in the laying of charges or commencement and maintenance a prosecution of the Plaintiff in relation to the Peirce and Kallipolitis murder proceedings, would deny the Plaintiff a fair trial and result in the perversion of justice.

as is alleged in paragraph 25J.

Submissions

The State

1. To defend Orman’s claims, the State must address extensive allegations that the 12 police officers each knew, at certain differing points in time, certain matters about:

(a)   Orman and his criminal prosecution;

(b)  the principle witness against him, Thomas;

(c)   Gobbo acting for Thomas;

(d)  Gobbo acting for Orman;

(e)   information that Gobbo provided about them; and

(f)    the need to disclose such information to the DPP, the Court or to Orman.

1. There is scope for Orman to identify in particulars the basis for his extensive pleas of knowledge, for example by reference to an admission, a communication by or to an officer, or an inference drawn from other documents.

1. Particulars are necessary to narrow the complex pleadings and so define the issues for the efficient conduct of the trial.  Without some explication of the matters to be relied on, efficient preparation for and conduct of the trial is likely to be delayed.

1. Although the request for particulars is detailed, it has been targeted to instances where knowledge is in issue.  The length of the request is a function of the complexity of Orman’s pleading.

Orman

1. The State’s response to the 2FASOC shows that it is sufficiently on notice of the pleaded allegations of knowledge.  For example, paragraph 25A of the pleadings demonstrates specific pleadings of Buick’s knowledge, the State’s clear understanding of the case against it, and its clear joinder of issues making a partial admission and otherwise denying knowledge.  This analysis applies equally to paragraphs 12 to 38 of the State’s request for particulars.

1. Many of the State’s requests go to anodyne pleadings of knowledge that are already expressed with specificity.

1. Most of the requests for particulars relate to knowledge of basic historical facts, such as whether Gobbo was representing Orman or Thomas at a particular time.  Knowledge of those matters is not an essential element of any of Orman’s causes of action.  Rather, they are building blocks to the ultimate mental state (which is essential).  It is this mental state that requires a foundation in pleaded facts, and this foundation has been provided.

1. The State’s complaint that efficient preparation for trial is hampered is, essentially, a complaint that it does not know the evidence on which Orman will rely.  That is not the purpose of particulars.  The issues are clearly joined and the proof of disputed facts remains for trial.

Applicable rules and principles

1. Rule 13.10 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) deals with particulars of pleadings. The State relies on the following parts of the rule:

(1)Every pleading shall contain the necessary particulars of any fact or matter pleaded.

(2)Without limiting paragraph (1), particulars shall be given if they are necessary—

…

(b)to define the questions for trial; or

(c)to avoid surprise at trial.

(3)Without limiting paragraph (1), every pleading shall contain particulars of any—

…

(b)disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice, which is alleged.

1. An order for particulars may be made at any stage of a proceeding.[1]

   [1]Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) r 13.11.

1. The function of particulars is to inform a party of the nature of the case they must meet at trial, and to limit the generality of the pleadings.  A party cannot object to giving necessary particulars on the grounds that it will involve disclosing evidence.

1. In Webster (Trustee) v Murray Goulburn Co-Operative Co. Ltd (No 2),[2] in the context of an attempt by the plaintiff to replead its case, Beach J said that:

… if it is necessary to plead that a party ought to have known some matter, then particulars of the facts and circumstances from which it is said that party ought to have known that matter must be given.  Of course, particularising the knowledge of another person has its difficulties.  One does not know what is in the mind of that other person.  But there may be an admission or communication that establishes or manifests such a state of mind.  Further, such knowledge may also be able to be inferred from other facts and circumstances.  In that scenario, particulars identifying the inferences and the facts and circumstances from which such inferences arise may be sufficient, providing that the inferences are reasonably arguable.  Now such particulars may shade into evidence that is not usually required to be pleaded or particularised.  But the fact that particulars of that type may have that duality is no excuse for not providing them where knowledge is sought to be established inferentially.[3]

[2][2017] FCA 1260.

[3]Ibid [6].

1. In Young Investments Group Pty Ltd v Mann,[4] the Full Court of the Federal Court considered whether the plaintiff’s allegation that a defendant was knowingly involved in breaches of fiduciary duties required particularisation.  The Court explained that there are ‘sound reasons for requiring knowledge to be particularised’, at least where allegations of knowledge are essential to the causes of action.[5]  The Court said that while there is obvious difficulty in ‘knowing what is inside another’s mind’, particulars of knowledge can still meaningfully be given in instances:

… where the evidence to be relied upon to establish knowledge could be identified by particulars.  That evidence might be an admission or a communication, written or oral, that could only give rise to the relevant state of mind.  In appropriate cases, the provision of particulars has been ordered when sought.[6]

[4](2012) 293 ALR 537; See also Montclare v MetLife Insurance Ltd (2009) 29 VR 20, [9] (Harper J); Palram Australia Pty Ltd v Rees [2013] FCA 649.

[5]Young Investments Group Pty Ltd v Mann (2012) 293 ALR 537 [11].

[6]Ibid [10].

Analysis

1. The pleadings set out above demonstrate that the allegations of knowledge made against the 12 officers are centrally important to the causes of action pleaded by Orman.  I reject Orman’s characterisation that the pleaded allegations of knowledge are simply factual ‘building blocks’ for the claims he makes. 

1. Orman’s pleading is complex.  Four causes of action are pleaded, in each case against multiple officers.  In total, this amounts to 39 separate causes of action.  The trial of the proceeding will be complex, lengthy, and involve consideration of interwoven allegations against the 12 officers going to the different causes of action.  There are good case management reasons for imposing on Orman the requirement to particularise allegations of knowledge, to the extent they have not been admitted by the State.  The particulars of knowledge should assist to confine the issues, allowing the trial to proceed in a more orderly fashion.

1. Particulars of knowledge will help put the State on notice of the cases against each officer that it is required to meet at trial.  While responding to the lengthy request for particulars will place a significant burden on Orman, the complexity of that task supports the need for particulars to define the questions for trial and avoid prejudice to the State.

1. It may be that, in many instances, Orman’s case is that knowledge should be inferred from other facts and circumstances that are established.  The degree to which particulars of this nature will assist in clarifying and confining the issues for determination at trial is uncertain.  However, this is no reason not to make the orders sought by the State.

1. For the above reasons, I conclude that Orman should be ordered to provide further particulars responding to the State’s request.