By: Richard Leder, Jacquie Goodwin, Blake Pappas and George Kift
Gobbo v State of Victoria [2024] VSC 603
At a glance
- On 23 September 2024, the State of Victoria successfully removed the jury in Nicola Gobbo’s civil trial.
- In his written reasons delivered on 26 September 2024, Keogh J confirmed that notoriety and publicity are relevant considerations in determining whether a trial should proceed without a jury.
Victoria is one of the last jurisdictions that allows for jury trials in civil proceeding as of right.
Recent jury verdicts in personal injury cases have delivered damages of $3.3m¹ and $5.9m²—almost triple the awards made by a judge alone.³
It is perhaps not surprising that plaintiffs are increasingly exercising their right to have their case heard before a jury. However, the recent decision in Gobbo v State of Victoria [2024] VSC 603—concerning Victoria’s most infamous legal scandal—highlights the circumstances where it is appropriate that a trial be heard by a judge alone.
Background
Nicola Gobbo—the underworld lawyer turned police supergrass—has issued civil proceedings against the State of Victoria claiming damages for injuries suffered as a result of her identity as a police informer becoming publicly known in December 2018.
The trial, which commenced on 30 September 2024, was set to be heard by a jury. However, shortly before its commencement, the State applied for removal of the jury on various grounds, including that the well of potential jurors had been poisoned by the years of notoriety and media saturation surrounding the ‘Lawyer X’ scandal. As Keogh J observed:
“It has been the fodder for mainstream public entertainment including a book, television miniseries, investigative journalism podcast, and a television interview with Gobbo herself. Google searches conducted in August this year produced 548,000 results in 0.23 seconds for ‘Nicola Gobbo’ and 330 million results in 0.25 seconds for ‘Lawyer X’.”
Submissions
The State emphasised that the factual matrix of Ms Gobbo’s claim has been the subject of High Court jurisprudence, a Royal Commission, and a subsequent wave of civil and criminal litigation. It drew particular attention to the ‘explosion of publicity’ occasioned by the recent introduction of the controversial State Civil Liability (Police Informants) Bill 2024 (Bill), and to comments reportedly made by Ms Gobbo’s solicitor to the effect that the Bill amounted to an admission of liability by the State.
Conversely, Ms Gobbo argued that the community’s broad general knowledge of the underlying facts does not constitute a sufficient basis for removal of a jury and, insofar as the well of public opinion has been poisoned by the Bill (which was denied), the State ‘is solely responsible for the toxin’.
Outcome + implications
Keogh J ruled in favour of the State, ordering that the proceeding be tried by a judge alone.
In doing so, Keogh J considered the following relevant factors:
Complexity of issues
The legal issues to be considered by a jury involved the “clearly novel” allegation that Victoria Police officers owed a duty of care to Ms Gobbo’s children (also plaintiffs in the proceeding), where the officers’ alleged negligence occurred well before either child was born.
The State submitted that the jury would also be required to comprehend lawyers’ duties, prosecutorial disclosure obligations, and legal professional privilege.
The questions of causation and quantification of Ms Gobbo’s loss were also complicated by the relevant acts occurring between 2003 and 2009, the injury occurring in 2018, and the alleged aggravation of pre-existing injuries caused by her relationship with Victoria Police.
Lastly, there were also arguments about whether Ms Gobbo’s claim was out of time or otherwise barred by her previous settlement with Victoria Police ($2.8m in 2010).
Although the plaintiffs submitted that legal question of duty could be determined by a judge to ease the task of the jury, Keogh J considered that, if the interrelated questions of breach and causation were left to the jury, it created “a real risk” of inconsistent findings on critical issues.
Publicity
His Honour noted the social imperative in criminal cases that a plaintiff be brought to trial before their peers, including those whose crimes were well-known and the subject of significant media attention. However, Keogh J found that there was no such social imperative present in civil cases which are capable of being heard by a judge alone.
His Honour also noted the public interests in the Lawyer X events, stating:
“It is difficult to imagine a case with a history of greater publication across the Victorian community for such a sustained period.”
Nevertheless, Keogh J concluded that there was a real risk of a jury being distracted from its task of providing a fair and impartial adjudication of the case by its publicity and notoriety.
Efficiency
Finally, Keogh J considered that the plaintiffs “significantly understated” the task that would face a jury in this matter. Although the plaintiffs argued this could be cured by providing the jury with a set of questions to be answered, Keogh J observed that it would be necessary for each question relevant to the negligence claims to be separately answered for each of the twelve police officers and senior officers identified in the proceeding, which would immediately expand the number of potential jury questions to more than 100.
Delay and disruption were also factors, with the jury having to consider evidence many weeks after the conclusion of the trial, to allow for determinations to be made by the trial judge.
In determining that the trial should be heard by a judge alone in all of the circumstances of the case, it is unclear the extent to which his Honour was swayed by the array of interrelated legal and factual issues and significant practical trial management issues presented by the case, or the weight of publicity.
The ruling is nevertheless significant in that it confirms that the notoriety of facts relevant to a case, and publicity directed to parties and individuals involved, are relevant considerations in determining whether the presumption of entitlement to a jury should be displaced.
The trial continues before Richards J.
[1] TJ v Bishop of the Roman Catholic Diocese of Wagga Wagga [2023] VSC 704.
[2] Kneale v Footscray Football Club Ltd [2023] VSC 679.
[3] The previous highest being $1,908,647 plus interest, awarded by Keogh J in June 2023 in Archbishop Peter A Comensoli v Stephen O’Connor [2022] VSC 313.