First Plaintiff v Second Plaintiff

1 The first plaintiff, Nicola Gobbo ('Gobbo') was a registered Victoria Police informer from about September 2005 until 2009. Since December 2018 when the High Court of Australia published its judgment in AB v CD; EF v CD,[1] Gobbo's role as a police informer has been a matter of public knowledge. Gobbo brings this proceeding against the defendant claiming the negligence of 12 identified members of Victoria Police was a cause of injury, loss and damage she allegedly sustained from around December 2018, when her identity as a police informer became publicly known.

2 Gobbo was a Victorian barrister practising principally in criminal law at the same time she was a police informer. She alleges that five named members of Victoria Police ('officers') induced her to become a police informer and to provide confidential information about her clients. Further, Gobbo alleges that seven identified senior members of Victoria Police ('senior officers') knew or ought to have known about her inducement. Gobbo brings a second cause of action against one of the senior officers, Simon Overland ('Overland'), alleging misfeasance in a public office.

3 The second and third plaintiffs ('P2' and 'P3' respectively) are Gobbo's infant children. P2 and P3 were born after the officers' and senior officers' impugned acts and omissions occurred. Claims are made on their behalf as secondary victims of the alleged tortious acts and omissions that the plaintiffs claim caused Gobbo's injury.

4 The defendant is sued under s 74 of the Victoria Police Act 2013 (Vic) on the basis that it is liable for police torts committed by Victoria Police members.

5 Gobbo claims aggravated damages in respect of the tort of misfeasance in a public office. The plaintiffs claim exemplary damages in relation to the causes of action against each of the officers and senior officers.

6 In the initiating writ, the plaintiffs gave notice for a jury trial in accordance with r 47.02 of the Supreme Court (General and Civil Procedure) Rules 2015 ('Rules'). By summons dated 9 August 2024, the defendant applied under r 47.02(2) of the Rules for the trial to proceed without a jury. The proceeding is listed for trial on 30 September 2024. The defendant's application has been contemplated for some time and no issue arises by virtue of it having been formally made shortly before trial.

7 The plaintiffs oppose the defendant's application.

8 I concluded that the trial of this proceeding should proceed as a cause. I notified the parties of my ruling by email on 23 September 2024 with reasons to follow. These are those reasons.

9 Gobbo alleges that each of the officers owed her 'a duty to take reasonable care to avoid [her] suffering foreseeable injury in connection with inducing [her] to provide information to each of them, and other members of Victoria Police', in circumstances where each of the officers:

(a) knew that she was vulnerable;

(b) knew that she was being induced to assist the investigations of Melbourne's gangland crime taskforce;

(c) knew that she relied on the officers to protect her from harm arising from the disclosure of confidential information relating to her clients; and

(d) knew that if this confidential information was revealed to those outside Victoria Police, it would put her at serious risk including the risk of death.

10 In response, the defendant pleads that Gobbo became a police informer and provided information voluntarily, without inducement and with a full appreciation of the risks involved. The defendant denies that the officers owed a duty to take reasonable care to avoid Gobbo suffering foreseeable injury in connection with any inducement to provide information to Victoria Police.

11 Gobbo alleges that each of the senior officers knew or ought to have known the same matters as the officers. She pleads that in those circumstances, the senior officers owed her a duty to take reasonable care to avoid her suffering foreseeable injury in connection with her inducement and provision of information to the officers and other members of Victoria Police, including confidential information relating to her clients. The defendant denies that any of the senior officers owed the alleged duty.

12 The plaintiffs plead few material facts relevant to the existence or content of a duty allegedly owed by the officers and/or senior officers to P2 and P3. The plaintiffs simply plead that P2 and P3 claim against the defendant for pure mental harm, which arises wholly or partly from mental or nervous shock in connection with Gobbo being injured by the acts and omissions of the officers and senior officers within the meaning of s 73(1) of the Wrongs Act 1958 (Vic) ('Wrongs Act'). The plaintiffs allege in the alternative, that it was reasonably foreseeable to the officers and the senior officers that there was a risk of harm to Gobbo's immediate family members from her public exposure as a Victoria Police informer. The defendant denies that the officers or the senior officers owed a duty to P2 and/or P3.

13 The defendant pleads in further answer to the plaintiff's claims in negligence, that Gobbo's conduct in providing confidential/privileged information about her clients was unlawful for the purposes of s 14G of the Wrongs Act. It pleads that Gobbo's conduct constituted breaches of equitable obligations of confidence; breaches of fiduciary duties to act in her clients' best interests; breaches of various professional duties and obligations to the Court; attempts to pervert the course of justice; and/or obtaining or attempting to obtain financial advantage by deception. It says that the plaintiffs will therefore be unable to establish a breach of any alleged duty of care they are owed. The defendant further alleges that by reason of Gobbo's unlawful conduct, responsibility for the harm alleged by the plaintiffs should not be imposed on the defendant for the purposes of s 51(4) of the Wrongs Act, and that the scope of liability of the defendant should not extend to the harm alleged by the plaintiffs for the purposes of s 51(1)(b) of the Wrongs Act.

14 The defendant denies causation on bases including that:

(i) Gobbo made the decision to become a police informer and to provide confidential information voluntarily, without inducement, and in full knowledge of her ethical and legal obligations;

(ii) in all the circumstances, including by reason of Gobbo's alleged unlawful conduct, the scope of liability of the officers and senior officers should not extend to responsibility for the harm alleged by the plaintiffs; and

(iii) the risk of Gobbo's exposure as a police informer was not something that could have been avoided by the exercise of reasonable care. [2]

15 Additionally, Gobbo alleges that Overland was exercising or purporting to exercise a public power as a police officer by permitting her use as a police informer; that permitting her retention as a police informer in circumstances that included her providing confidential and/or privileged information about current and former clients was an invalid or unlawful exercise of the power; and that it was done in bad faith.

16 The defendant denies each element of the tort of misfeasance in a public office alleged against Overland.

17 The defendant pleads the plaintiffs' claims are barred by the Limitations of Actions Act 1958 (Vic) ('LAA') and by a previous settlement entered into by Gobbo, and raises the positive defences of contributory negligence and volenti non fit injuria.

18 The story of Nicola Gobbo or 'Lawyer X' continues to capture the close attention of the citizens of Victoria, and periodically saturates media outlets across Australia, years after the underlying events occurred. The factual matrix of Gobbo's claim has been the subject of High Court jurisprudence, a Royal Commission, and a subsequent wave of civil and criminal litigation. 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'.

19 The recent introduction of the State Civil Liability (Police Informants) Bill 2024 ('Bill') resulted in a further explosion of publicity. This included extensive media reporting and position statements from industry groups and professional bodies. Competing views have also been publicly expressed about the expenditure of (further) public funds in connection with the events that are the subject of this proceeding, and about the relative 'fault' of the defendant and/or members of Victoria Police for such expenditure and the events giving rise to it. It is troubling that some of this prejudicial publicity appears to have been generated by the plaintiffs' camp. An online ABC article about the introduction of the Bill quotes 'a lawyer for Ms Gobbo' saying 'that a government tak[ing] this step at the door of the court to defeat the case clearly shows that they and the police force know they are at fault'. Whether or not the comment was accurately recorded, the well of public opinion has inevitably been poisoned by the suggestion that the Bill is an admission or acknowledgement of the defendant's fault or legal liability.

20 This case throws up an array of interrelated factual and legal issues that will present particular and perhaps unique challenges for any jury. Gobbo's claims will necessarily require the jury to comprehend evidence going to matters of fact and to lawyer's duties, prosecutorial obligations of disclosure, and legal professional privilege. Determination will include whether, the officers or senior officers owed the plaintiffs a duty of care in this factual context. In order to measure reasonableness, the jury will need to understand exactly what Gobbo's professional obligations were; what legal professional privilege and prosecutorial obligations of disclosure entail (objectively); what the parties thought these obligations entailed (subjectively at the time); on what basis the parties believed they could act consistently with their various obligations; and perhaps the extent to which they learned over time whether this was possible.

21 There is a risk of inconsistent factual findings between a judge and jury. The extent to which Gobbo relied on Victoria Police's 'inducing statements', her vulnerability to inducement and Victoria Police's knowledge of those matters, will be relevant to the existence of duty, breach and the volenti and contributory negligence defences.

22 The questions of causation and quantification of loss are significantly complex. The impugned acts and omissions occurred between 2003 and 2009. Gobbo claims to have suffered injury when her role as a police informer was made public following the High Court's decision in late 2018.[3] Causation is further complicated because Gobbo's injuries are pleaded as an aggravation of pre‑existing injuries apparently caused by her relationship with Victoria Police.

23 There is a real concern about the potential prejudice to the defendant in circumstances where the defendant is more likely to raise evidential issues or objections. Directions alone may not be enough to prevent a jury from making adverse inferences about a large number of objections and interruptions to the jury's hearing of evidence.

24 In the case of such factual and legal complexity, issues requiring determination before final addresses are inevitable. It is likely that a significant period of time will be required after completion of evidence, and before commencement of final addresses, to determine legal issues and to clarify the bases upon which the causes of action are to be presented to the jury.

25 The community's broad general knowledge of some of the underlying facts in this proceeding does not constitute a sufficient basis for displacement of the presumption of entitlement to a jury. The presumption underpinning the jury system is that members of the community who have 'heard of' even the most notorious alleged criminal offending can be trusted to bring an impartial mind to their task as jurors.

26 The defendant's reliance on the 'explosion' of publicity surrounding the Bill, and the attempt to place blame for that publicity at the feet of the plaintiffs' 'camp', is cynical. To the extent that 'the well of public opinion has been poisoned' by this publicity (which is denied), the defendant is solely responsible for the 'toxin'. The plaintiffs' presumptive entitlement to a jury should not be displaced because of the ensuing publicity.

27 There is no extraordinary factual or legal complexity at the heart of these proceedings. The plaintiffs' set of proposed jury questions show that there is nothing beyond the scope of complexity of matters that might ordinarily be put before a jury.

28 It is entirely orthodox and appropriate for juries to be asked to grapple with questions of breach of duty, the harm arising from that breach, and any alleged contributory negligence.[4] While the need to determine the existence of a duty will add a degree of complexity to the trial, the evidence to be adduced and the directions from the trial judge will ensure the jury is more than capable of grappling with the level of complexity required of it.

29 It is a matter for the defendant how it wishes to conduct itself during the trial. A jury would be entirely capable of understanding, with the guidance of the trial judge, the reasons for any interruption to the flow of evidence for argument around immunities and privileges.

30 There is little dispute about the relevant authorities and principles that apply to determination of the defendant's application.

31 Both parties referred to and relied on the summary of relevant principles set out by J Forrest J in Birti & Anor v SPI Electricity & Anor.[5] I respectfully adopt his Honour's summary.

32 The factors relevant to the mode of trial are to be weighed in combination to determine whether 'in all the circumstances' the Court should direct that a trial proceed without a jury.[6]

33 The defendant relied on the notoriety of the factual matrix underpinning the plaintiffs' claims, and the publicity surrounding Gobbo and some of the officers and senior officers, in support of its application. The notoriety of facts relevant to the case and the publicity directed to parties and individuals involved may be a relevant consideration, if there is a risk that the fairness of the trial will be adversely impacted because the minds of potential jurors have been indelibly tainted. On the other hand, there are authorities to the effect that a trial judge should have confidence in a jury obeying their directions to put publicly available information out of their minds for the purposes of deciding the case.[7] In Dupas v The Queen ('Dupas')[8] the High Court said, in the context of an application by the accused for a permanent stay of a trial of the criminal charges he was facing:

1. Nettle JA based his decision upon the footing that to grant an indefinite stay "would be to recognise that the media has the capacity to render an accused unable to be tried" and this would deny the "social imperative" that an accused be brought to trial.
2. There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza:

"Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."

In his reasons for dismissing the stay application, which are extracted in part and described above, Cummins J used similar terms with respect to the conduct of jury trials in Victoria.[9]

34 In Svajcer v Woolworths Ltd,[10] the defendant indicated that it wished to lead evidence about the plaintiff's prior conviction of sexual offences against a child, for which he was sentenced to a lengthy period of imprisonment. Rush J ruled that the trial should be heard by a judge alone in those circumstances because:

No doubt a Judge could direct the jury as to the manner in which they must use the evidence of the plaintiff's prior convictions and what would be impermissible use. I accept that juries in most cases are capable of coping with directions of law and complex issues of fact and I do not underestimate the capacity of a jury to decide a case in accordance with law and directions. However, even after the strongest direction I think there remains the high risk of a jury being distracted by the nature of these prior convictions such that 'an instinct to punish, or ... other mainsprings of human action, may cause the fact-finder to base his decision on something other than the established propositions in the case.' As I stated earlier in these reasons, this is an archetypal case of unfairly prejudicial evidence. I think there is a real risk the evidence may be used by a jury in an unfair way. This risk is accentuated by the apparent failure of the plaintiff to accept the jury verdict that convicted him of child sex abuse in his criminal trial. [11]

35 The defendant in this case also pointed to the legal and factual complexity of the matters to be determined at trial in support of its application. In Kyriackou & Ors v Edwards (ruling on trial by jury),[12] the plaintiffs, Kyriackou and two associated companies, claimed damages for breaches of retainer, duty of care and fiduciary duties that the defendant allegedly owed to them as their former solicitor. The plaintiffs alleged, among other things, that the defendant disclosed confidential legal advice he had given the plaintiffs to the Australian Securities and Investments Commission ('ASIC'), which then brought separate proceedings against them. The plaintiffs gave notice for a trial by jury. The defendant applied for the trial to be heard by judge alone. Macaulay J identified the following matters in issue:[13]

• whether it was true to say that Kyriackou was the controlling or directing mind of the various companies or joint venture;
• what information was given by Edwards to ASIC about that situation;
• whether doing so breached a contractual duty, a tortious duty, or a fiduciary duty arising from the concepts of legal professional privilege and/or a solicitor's duty of loyalty to a client;
• the intersection between those duties and the obligations of a solicitor to answer accurately questions asked of him under a compulsory examination conducted pursuant to s 19 of the ASIC Act; and
• what bearing that information, if in fact given, had on ASIC's decision to commence proceedings when other information was, allegedly, also given by other complainants concerning the plaintiffs' conduct of the joint venture.

Ruling in favour of the defendant Macaulay J observed:

The complexity of the legal issues relating not only to liability but also the cause and assessment of damage. By that I refer to the need to direct the jury on the full range of the legal matters I identified earlier and to relate those to the factual issues that have to be decided. I enquired of the parties if either had considered what a list of questions to the jury at the end of the trial would look like. Neither had apparently considered that issue. In my view it would be a complex, extensive and inherently difficult list of questions for a jury to grapple with, covering the numerous factual issues to decide on the multifarious legal bases upon which the plaintiffs put their claim. [14]

36 Third, the defendant in this case pointed to the relative efficiency of a trial by judge alone, and the trial management difficulties likely to be encountered if the trial is heard by a jury. In relation to that issue, the defendant relied on the following comment of Macaulay J in Baehnisch v G4S Australia Pty Ltd & Anor (Ruling No 1):[15]

Additionally, s 9 of the Civil Procedure Act 2010 (Vic) requires that in making a decision under r 47.02 a court should further the overarching purpose that is set out in s 7 of the Act (viz, 'to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute').

However, 'nothing in s 7 of the [Civil Procedure Act 2010 (Vic)] detracts from a party's prima facie entitlement to a trial by jury'.[16]

37 A reduction in the duration of the hearing does not invariably mean that trial by judge alone is more efficient and cost effective.[17] The countervailing advantages of jury trials include that they may be more likely to encourage settlement, that jury verdicts tend to promote finality, and that there may be time savings associated with the imperatives of running a jury trial.[18]

38 The plaintiffs provided a list of proposed jury questions in support of their submission that the defendant exaggerated the complexity of the proceeding, and that the matters to be determined were within the scope of what would ordinarily be put before a jury. The plaintiffs proposed nine questions that have in combination 17 sub-parts.

39 It is worth noting that on any view, the plaintiffs have significantly understated the task that would face a jury in the proceeding. Even if the plaintiffs' questions were adopted, it would be necessary for each question relevant to the negligence claims to be separately answered for each of the officers and senior officers. This would immediately expand the number of potential jury questions to 100 or more. While there may be common features to the causes of action alleged against some of the officers, subtle differences in the factual circumstances underpinning each individual claim against different officers, and the need to clearly identify which circumstances are relevant to each of those claims, would add to the complexity of the task facing a jury.

40 To maintain a jury trial in this proceeding, it would have been necessary to clarify the questions to be determined and the division of roles between the trial judge and jury, preferably before the trial commenced. To this end, I made the following orders on 27 March 2024 ('27 March orders'):

1. By 13 September 2024 the parties confer with a view to agreeing a list of trial questions:

(a) to be determined by the trial judge; and

(b) to be determined by the jury ('list of questions').

1. By 18 September 2024 the parties provide either:

(a) an agreed list of questions to the court; or

(b) in default of agreement, a proposed list of questions with a brief statement of each party's position on each question in dispute.

41 On 12 September 2024, the defendant provided to the plaintiffs a series of tables setting out contentious issues of fact and law for determination at trial ('defendant's lists'). The defendant identified 18 contentious issues common to all the negligence claims, a further 16-17 issues relevant to those against each of the officers, and a further 14-23 issues relevant to those against each of the senior officers. A further nine issues were identified going to the misfeasance in a public office claim against Overland. The defendant's lists do not fully delineate matters for determination between the trial judge and a jury.

42 The process of conferral required by the 27 March orders is not complete, and the parties have not yet provided an agreed list of questions to the Court.

43 The defendant's lists emphasise the complexity of this proceeding and the potential difficulties of a jury trial. I have no doubt that the issues identified by the defendant would have resulted in a significant increase in the number of questions for a jury to answer at the conclusion of the trial, far beyond those proposed by the plaintiffs.

44 The defendant denies the existence of the alleged duties, which it says are novel. The trial judge would usually determine whether the pleaded duty exists, and direct the jury accordingly. However, as the defendant submitted, a number of matters relevant to whether a duty exists are likely to also be relevant to breach and causation. These include whether Gobbo was induced to become a police informer and to provide confidential client information; her degree of reliance on what the different officers said to her; her vulnerability; and whether she voluntarily became a police informer and provided confidential information in full knowledge of any attendant risks to her health.

45 There is a real risk of inconsistent findings on critical issues if duty is determined by the trial judge, and breach and causation by the jury. The most stark example is whether, in what circumstances, to what extent, and by whom Gobbo was induced to become a police informer and provide confidential information about her clients.

46 The plaintiffs submitted that the risk of inconsistent findings could be avoided by the trial judge determining whether, if inducement is established, a duty existed, and leaving the jury to answer whether Gobbo was induced as she alleges. I reject that submission. The circumstances of inducement must be relevant to the assessment and weighing of salient features. Consideration of the salient features is not a box-ticking exercise. Determination of the inducement issue cannot be divorced from consideration of the salient features and whether a duty exists. Further, the risk of inconsistent findings is not limited to the issue of inducement but extends to issues such as vulnerability and reliance.

47 Both P2 and P3 were born well after the impugned acts and omissions of the officers and senior officers. Any duty allegedly owed to them is clearly novel. In circumstances where the material facts relevant to that duty have not been fully pleaded out, it is not possible to identify all of the complications that might arise during the trial in relation to determination of the existence of a duty and the resulting jury directions.

48 The jury's task in this case must take into account the acts and omissions of the officers, senior officers and Gobbo in the context of their legal obligations. In an affidavit dated 9 August 2024, Daniel Marquet, solicitor for the defendant, relevantly said:

1. The evidence is likely to refer regularly to, and require an understanding of, legal concepts and principles applicable to the practice of law as a barrister, and in particular the practice of criminal law. These include concepts such as:

(a) conflicts of interest that may arise for a criminal barrister asked to act for persons involved in the same criminal enterprise (such as where one client exerts pressure on a barrister to advise another criminal associate not to cooperate with police in order to prevent disclosure to police of the first client's involvement in a crime);

(b) legal professional privilege, and the possible distinction between information passing between a client and a barrister that is privileged and that which is not because of the circumstances in which it is provided (such as a social occasion) or the nature of it (such as not being imparted for legal advice or court proceedings purposes);

(c) fiduciary duties such as that to act in a client's best interest;

(d) confidentiality; and

(e) prosecution duties of disclosure to the accused.

It would be necessary for the jury to understand and apply the above concepts to the acts and omissions of Gobbo and each of the 12 officers and senior officers. A jury would need to consider each witness' subjective understanding of the concepts and their application to the circumstances they faced, and to make an objective assessment of what was reasonable in the circumstances.

49 I accept the defendant's evidence and submissions as to the notoriety of the factual matrix underpinning this case, and of the publicity surrounding Gobbo and some of the other witnesses. It is difficult to imagine a case with a history of greater publication across the Victorian community for such a sustained period. Whether the impact of that publicity is neutral or favours one party or another would vary between potential jurors. I accept that there is a risk of a jury being distracted from the fair and impartial adjudication of this case by its publicity and notoriety. The 'social imperative' identified in Dupas in the context of an application to indefinitely stay a criminal trial on the basis of prior publicity,[19] does not apply in the context of a civil trial which can proceed by judge alone. I accept that in the circumstances of this case, the nature and degree of publicity surrounding the parties and the notoriety of the facts is a matter that weighs in favour of the trial proceeding before a judge alone.

50 Finally, I conclude that there is the potential for significant practical trial management issues to arise should the trial proceed by jury. It is estimated that the evidence will take at least five and a half weeks to be heard, and potentially significantly longer. A jury would then need to be sent away to allow sufficient time for the trial judge to hear and determine the duty questions, whether the causes of action were barred by the LAA and/or the prior settlement, and other legal issues that might be identified following analysis of the defendant's lists. It is likely that the range and complexity of the issues to be determined would require a lengthy break in the trial. Such a disruption would add to the complexity of the jury's task, who would be required to determine facts on evidence they heard many weeks before retiring to consider their verdict after having a lengthy break from the trial

51 The plaintiffs have a strong desire for a jury trial. The factual matrix on which the plaintiffs' causes of action are based is of significant public interest. I accept that, subject to the relevant considerations, a community determination of the case represented by a jury verdict would be appropriate. However, I conclude that in the circumstances to which I have referred, the most significant of which is the complexity of appropriately directing a jury and from the jury's point of view, answering the questions addressed to it, the proceeding should be tried by a judge alone.

[1] [2018] HCA 58; (2018) 362 ALR 1.

[2] Wrongs Act 1958 (Vic) s 55.

[3] AB v CD; EF v CD [2018] HCA 58; (2018) 362 ALR 1.

[4] Pasqualotto v Pasqualotto (No 2) [2013] VSC 608, [8].

[5] [2011] VSC 566 [15] ('Birti').

[6] Baehnisch v G4S Australia Pty Ltd (Ruling No 1) [2020] VSC 64 [10] ('Baehnisch').

[7] Messade v Baires Contracting Pty Ltd (Rulings No 2, 3, and 4) [2011] VSC 75 [28].

[8] [2010] HCA 20; (2010) 241 CLR 237 ('Dupas').

[9] Ibid [25]-[26] (citations omitted).

[10] [2015] VSC 543.

[11] Ibid [28]; See also Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204 [50]-[51] (Kyrou AJA, Warren CJ and Harper JA agreeing).

[12] [2014] VSC 201.

[15] Baehnisch (n 6) [7] (citations omitted).

[16] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249 [43] (Warren CJ, Nettle and Ashley JJA).