Applicant v Respondent

2 The referral procedure is unusual, requiring the judge to take evidence and make findings of fact on the issues identified by the Court of Appeal. There are no depositions, transcripts, affidavits or witness statements identifying in detail the evidence to be adduced on the referral, or the particular issues that might arise in connection with that evidence. Little is said about the process, which remains in the discretion of the judge.

3 In October 2025 the reference was allocated to me for hearing and determination. At that time I saw the parties' submissions to the Court of Appeal and the applicant's proposed witness list for the referral hearing. That witness list contained the following statement:

The applicant suggests that the witnesses be asked about their interactions with or relating to any of Mr Acquaro, the applicant, and 'Mr A', particularly in 2008 and 2014. These topics are identified by way of general guide only and do not limit the matters on which the applicant may seek to adduce evidence from these witnesses.

4 However, there were two matters that could impinge on the allocation of the referral to me. Witness 37 on the proposed list of witnesses is Nicola Gobbo. It was not evident what Gobbo would say or about what circumstances she would be asked to give evidence. It did not appear from that material that she could give relevant evidence, or that her appearance at the referral hearing was likely. That said, it was necessary for the parties to be informed of my retainer when a barrister to act on behalf of Nicola Gobbo in 2010.

5 Witness 31 on the proposed list of witnesses is 'Mr A' (a pseudonym) and the applicant noted a concern related to Mr A. In view of my conclusion on ground 1, is in unnecessary to deal with any matters concerning Mr A.

6 The Court made the following disclosure to the parties:

The parties should consider whether either or both of the following circumstances will give rise to an application that Justice John Dixon refrain from hearing and determining the referral.

1. His Honour acted as counsel for Nicola Gobbo in a proceeding against the State of Victoria in 2010 that was settled. For details, see the judgment of Richards JA in Gobbo v State of Victoria [2025] VSC 334, at [448] and following.

2. His Honour managed proceedings in the Court that related to Mr A, but it is no longer necessary to provide the full terms of that disclosure.

Based on a review of the submissions to the Court of Appeal his Honour cannot see any ground for objection to him taking the referral but noting that Ms Gobbo is on the witness list, there may be grounds not revealed by the limited information he has seen to date.

7 In due course the applicant invited me to recuse myself from presiding over the reference determination hearing on two discrete grounds:

(a) First, his Honour previously acted for Ms Nicola Gobbo, who is intended to be called as a witness in the reference determination hearing.

(b) Second, his Honour's previous involvement in the proceeding in which 'Mr A' or the 'S317 respondent' in these proceedings was concerned. As I do not need to resolve it, I will say no more about this ground.

8 On the hearing of the recusal application, no party adduced evidence. The applicant filed a written submission, which was supplemented at the hearing by oral submissions. The respondent took no objection and made no submission.

9 For the reasons that follow I am persuaded that the first ground raised by the applicant requires that I recuse myself from presiding over this reference. By reason of that conclusion it is unnecessary to consider the second ground.

10 The principles applying on this application were explained by the High Court in Ebner v Official Trustee in Bankruptcy,[1] which has applied, and refined, the criterion for recusal in subsequent decisions. For present purposes, I have followed the most recent decision of the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor.[2] In its reasons, the High Court has noted its relevant decisions since Ebner. The parties did not contest these principles and I need not set them out at length.

11 I bear two foundational propositions in mind. First, impartiality is an indispensable aspect of the exercise of judicial power. Second, that bias, whether actual or apprehended, connotes the absence of impartiality. Consequently, the issue now raised by the applicant, an apprehension of bias, is inherently jurisdictional and could negate judicial power. I ought resolve the application at the earliest convenient point in the determination of the reference. In this sense the application is divorced from any notion of choice by a litigant of how the Court might be constituted.

12 Actual bias is not suggested. Apprehension of bias arises where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Importantly, this 'double might' test emphasises that the criterion is concerned with possibility (real and not remote) not probability. When faced with a recusal application the judge applies this criterion by working through three steps: first, identifying the factor which it is said might lead the judge to resolve the question other than on its legal and factual merits; secondly, articulating a logical connection between that factor and the apprehended deviation from deciding the question on its merits; and thirdly, assessing the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

13 Dealing with ground 1, the applicant contended that the matter that might cause the fair-minded lay observer concern was the fact that I previously acted for a witness in the proceeding, Nicola Gobbo. It may be accepted that, depending on the circumstances, having previously acted for a person may result in acquiring confidential information about the dispute the subject of the retainer and may, in the applicant's submission bind the advocate to an ongoing duty of loyalty to the client. The fair-minded lay observer might consider that findings that might be made could be influenced by that relationship and not confined strictly to the legal and factual merits raised on the evidence on the referral.

14 The circumstances in which I acted for Nicola Gobbo were firstly, to appear on her behalf to seek to be excused from answering a witness subpoena requiring her attendance at a committal and secondly to prepare and represent her in respect of her claim that she was entitled to substantial compensation from the State of Victoria by reason of the conduct of the police. Until 2009 Nicola Gobbo was a registered police informer and the basis of her claim was that she had suffered damage as a result of the conduct of the police, that focus including the conduct of members of the Victoria Police Source Development Unit (SDU). The SDU managed police interaction with registered police informers. The proceeding resolved in 2010 at an early mediation on confidential terms of settlement that included a payment of $3 million to Nicola Gobbo. It is reasonable for the fair-minded lay observer to apprehend that this dispute involved heightened levels of conflict between Nicola Gobbo and the relevant police and by reference to that conflict the observer might apprehend that the advocate might prefer one side to the other or have a negative view of the position taken by one side or the other, based not on the conduct of the referral but on the 2010 circumstances.

15 Although the proceeding was confidential, Nicola Gobbo commenced a second proceeding seeking damages from the State of Victoria in which certain disclosures of matters that were confidential in 2010 were made. I have not formed a view of the extent to which those disclosures may have affected my duty to preserve the confidentiality of instructions received in 2010, apart from the settlement sum, and it is not practical to do so. The proper approach is to assume that my instructions remain confidential unless that confidentiality has been waived. It will not be practical to assess whether the obligation to preserve confidentiality is active in the running of the referral.

16 As I noted, it was not apparent to me from the materials first provided when this reference was allocated to me, that Nicola Gobbo had any involvement in the applicant's trial on drug trafficking charges, the circumstances of the applicant's relationship with Mr Acquaro, or his relationship with police. Her nomination as a potential witness seemed puzzling and of no possible relevance. Nicola Gobbo has not provided any statement or affidavit. I was informed by counsel that, as I suspected, she has not been served with a subpoena to attend and give evidence and it is presently not clear whether she will in fact give evidence on the reference. Further there seemed to be some doubt that she could be served with a subpoena or would appear to answer it if served.

17 If Nicola Gobbo did not give evidence, or could not give any relevant (admissible) evidence, any apprehension of bias that the fair-minded lay observer might feel would in the circumstances be unreasonable.

18 There is, however, a real possibility that her attendance at the hearing can be secured, and I propose to proceed on that basis for three reasons. First, this application is to be resolved on the basis of real possibilities, not on the basis of probabilities. Secondly, it is in the interests of justice that an application of this sort be resolved expeditiously with minimum inconvenience to the parties. Thirdly, legitimate concerns that might trouble the fair‑minded lay observer might arise on the evidence irrespective of whether Nicola Gobbo gives evidence.

19 In the context of this unusual procedure, it is appropriate to accept the assurances of counsel as to what might happen on the hearing of the referral. Counsel for the applicant informs me of a number of points of connection between Nicola Gobbo and the circumstances of Mr Acquaro, whose role as a possible source of information provided about the applicant and his defence to Victoria Police and to the Australian Federal Police is a central issue in the reference. The respondent took no issue with the submission.

20 First, it is probable, or at least a realistic possibility, that some of the police witnesses to give evidence in their capacities as Mr Acquaro's handlers in the Victoria Police SDU were the same persons who handled Nicola Gobbo. Secondly, it is clear from the nature of the 2010 proceeding that there was conflict between Nicola Gobbo and her handlers within the police and that the fair-minded lay observer might consider that her advocate at the time accepted, and possibly remained disposed towards, her instructions concerning the conduct of those police officers. Even if the opposite be assumed, the fair-minded lay observer might be apprehensive that the court's findings may be influenced by the circumstances of the 2010 retainer.

21 Thirdly, it is possible that evidence given on the referral by those police officers may conflict with evidence given by Nicola Gobbo, or evidence otherwise admitted, such as diary notes, that indicates or expresses her attitudes. Evidentiary conflict on any relevant matter would likely require assessment of the credit of the opposed witnesses, and the fair-minded lay observer might apprehend a risk that such assessment might be influenced, at least to some extent, by the circumstances of the 2010 retainer, and not wholly resolved on the evidence before the court on the referral.

22 Fourthly, I am informed by counsel for the applicant that there are at least two known points of contact between some of the witnesses on this referral and Nicola Gobbo. The first of these is that there were a number of meetings between Gobbo, Acquaro and the applicant in 2008. Nicola Gobbo acted for the applicant on a bail application prior to his trial. There may also be evidence of dealings between Acquaro and the Victoria Police SDU at or about that time. There is a real possibility that the applicant's instructions to Acquaro and Gobbo included a detailed discussion about his defence and/or the prosecution case. In the absence of disclosure materials prior to the hearing, I cannot assess precisely what issues might arise involving Nicola Gobbo's conduct in 2008.

23 Further, there is a document that records that Gobbo told her handlers on 2 September 2008 that Acquaro had a 'man in the AFP'. The applicant submits that this document is likely to be central and contentious, irrespective of whether Nicola Gobbo gives evidence on the referral. Should she give evidence, what she knew of this communication or contact between Acquaro and members of the AFP, or of his 'man in the AFP' is clearly an issue that will be explored. Even if she does not give evidence, this diary note may be admissible and become the basis for evidentiary conflict that might need to be resolved in the determination of the reference.

24 It is not unreasonable for the fair-minded lay observer to consider the possibility, either that the 2010 circumstances might require an adverse finding against Nicola Gobbo as a witness or, alternatively, an adverse finding against police handler witnesses. Either way, if those findings appear to be in any way influenced by the earlier circumstances, the fair-minded lay observer might apprehend, by reason of a logical connection between the 2010 circumstances and the evidence to be led on the referral, a possibility the facts might not appear to be decided on the proper merits. Plainly that perception will not arise if the judge has no prior experience of Nicola Gobbo's affairs.

25 I am satisfied by these submissions that there is a real possibility of conflicting evidence relevant to findings required to be made by the terms of the reference. Once that is accepted, is there is a logical connection between a question arising in the reference and the circumstances of 2010 such that an apprehension of bias from the perspective of a fair-minded lay observer might arise. Critically, it may become necessary to make findings of credit or to interpret observations made in documents arising in the interaction between Mr Acquaro and his handlers that might be considered by the fair-minded lay observer to overlap with undisclosed possible sources of relevant information arising either consciously or subconsciously from my 2010 retainer.

26 It is in this sense the applicant has identified a factor - this overlap between the circumstances of the 2010 retainer and the interactions in 2008 - that a fair-minded lay observer might apprehend would lead a judge to resolve a question in issue other than on its legal and factual merits. That logical connection is found in the overlap between the circumstances of the applicant's involvement with both Nicola Gobbo and Mr Acquaro and the overlap between Nicola Gobbo's involvement with the Victoria Police SDU and Mr Acquaro's involvement with them.

27 It might be said that the degree of apprehension that the fair-minded lay observer might possibly feel on the facts described while constituting a real possibility is not far up the scale from a remote possibility. It is 15 years since my retainer to act for Nicola Gobbo was terminated, first, by the resolution of her proceeding, and secondly, by me surrendering my practising certificate as a barrister when appointed to this Court. There is also an issue whether confidentiality has effectively been waived through Nicola Gobbo's subsequent conduct and the revelations following on the royal commission and subsequent court cases. I do not think such matters reduce the possibilities identified from real to remote.

28 The applicant invoked the duty of loyalty as expressed in obiter by Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd ('Spincode').[3] The primary basis upon which Spincode was decided by all members of the Court was that there was a real and sensible possibility that the firm of solicitors to be restrained from acting in that case would misuse confidential information of the former client.

29 The applicant called in aid Mokbel v The King,[4] where the judge's reasoning supported his submission that a duty of loyalty to Nicola Gobbo survived the termination of the earlier retainer in those circumstances. An ongoing duty of loyalty on my part to Nicola Gobbo surviving the termination of the retainer, he submitted, brings into question the perception of the impartiality of adverse credit finding that may need to me made on the determination of the reference.

30 I do not accept that either the observations about the survival of the duty of loyalty made by Brooking JA in Spincode, or the application of those observations by Fullerton J in Mokbel assist in understanding the reasonableness of the fair-minded lay observer's apprehension in the present circumstances. There are real issues whether those observations concern factual circumstances distinct from the present and whether they are legally sound. I reject the applicant's submission that the circumstances in which a duty of loyalty has survived termination as discussed in those decisions is analogous to the present circumstances. Further I have reservations that the principle identifying when that duty survives termination of the relationship has been correctly identified. Were a detailed analysis of this question necessary, regard must be had to the observations of Beach J in Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd[5] and to Schmidt & Anor v AHRKalimpa Pty Ltd & Anor.[6] However, for the reasons already given, I do not think it is necessary to undertake this forensic exercise to determine this application.

31 The fair-minded lay observer can be taken to recognise that when a barrister is appointed a judge and leaves the Bar they become a professional judge whose training, tradition and loyalty to oath or affirmation require that matters that are irrelevant, immaterial or prejudicial be discarded because the judge's foundational objective is to ensure the proper administration of justice. This does not mean that the fair-minded observer would assume away all risks of human frailty.

32 I accept the applicant's submission that in the present circumstances the maintenance of public confidence in the administration of justice is particularly significant because the circumstances to be investigated in the reference are especially corrosive of that public confidence. The inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process falls upon me as a judge of this Court. The fair-minded lay observer would be aware, as the applicant submitted, that this is an unusual case and that Nicola Gobbo has a particular notoriety and infamy having engaged in conduct that, of itself, had a remarkable tendency to undermine the proper administration of justice. That she has by her conduct wrought damage upon the administration of justice in Victoria would be understood by the fair-minded lay observer. That observer would also understand that Nicola Gobbo's conduct was intimately intertwined with the conduct of members of the Victoria Police. The fair-minded lay observer would reasonably expect that all possible risks to the proper administration of justice be mitigated and this factor would support a conservative assessment of the reasonableness of the observer's conclusion in this instance.

33 In context of apprehension of subconscious recall of confidential material arising from a prior retainer after the passage of time, Nettle J's observations in Sent v John Fairfax Publications[7] are pertinent:

In Grimwade v Meagher, Mandie J held that the court has inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and, as part of that jurisdiction, to prevent a member of counsel appearing for a particular party in order that the jurisdiction should not only be done but be seen to be done.

The objective test to be applied, his Honour held, is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that counsel be prevented from acting; giving due weight to the public interest that litigants should not be deprived of their choice of counsel without good cause.

The decision has been followed and applied by other judges of this court, by judges of the Federal Court, and by a judge of the Western Australian District Court. If it were necessary in order to decide this application, I would, with respect, also follow the decision.

That being so, I ask then, what would a fair minded reasonably informed member of the public say of the requirements of the administration of justice in this case if told that some 14 years ago Mr Sher advised a client in conference on the Allied Fisheries matter, albeit that he has no present recollection of so doing, and now is to act for John Fairfax against the former client in a defamation proceeding concerning articles, inter alia, about the Allied Fisheries matter, published of and concerning the former client.

My conclusion is that the fair minded reasonably informed member of the public would say that should not occur. (Citations omitted.)[8]

34 It must follow that there is a real possibility that the fair-minded lay observer might consider that any findings I might make concerning the credibility, either of Nicola Gobbo or of police handlers within the Victoria Police SDU, to possibly be influenced by that earlier experience. The extent to which that might occur cannot be reasonably assessed at this point in time, as it must depend upon all the circumstances, which will include the conduct of the witnesses and the parties in taking the evidence on the referral. As noted earlier, I am not concerned to evaluate probabilities. Presently, it is reasonable to apprehend the possibility of that risk.

35 As Edelman J observed in QYFM[9] the fair-minded lay observer is not attributed with knowledge of the likely degree of success that a particular prosecutor or judge will have in achieving the necessary degree of dispassionate detachment from the facts and circumstances arising from, in this case, the 2010 retainer. It matters not that I might strive with success to bring an impartial mind to the adjudication of this reference because I am satisfied that the fair-minded lay observer might have a reasonable apprehension that I might not achieve that goal. As Edelman J further observed:

It does not matter if the possible apprehension of a fair-minded lay observer involved only the possibility of a mind affected in a small degree by bias. A perception of only a little bias will invalidate a decision. Once the line of bias is crossed, there are no degrees of permissible judicial bias.[10]

36 I will grant the application and recuse myself from further involvement in this proceeding.

37 By reason of that conclusion, it is unnecessary, as I initially noted, for me to express a view on the second ground advanced by the applicant.

[1] [2000] HCA 63; (2000) 205 CLR 337.

[2] [2023] HCA 15; (2023) 279 CLR 148.

[3] [2001] VSCA 248; (2001) 4 VR 501.

[4] [2024] VSCA 725.

[5] [2014] FCA 1065, [53].

[6] [2020] VSCA 193.

[7] [2002] VSC 429.

[9] [2023] HCA 15; (2023) 279 CLR 148, [172].